Boone v. Hardwicke's Adm'r

Court of Appeals of Kentucky

Boone v. Hardwicke's Adm'r

8 Ky. Op. 456, 1875 Ky. LEXIS 169

DecidedMarch 20, 1875

StatusPublished

This text of 8 Ky. Op. 456 (Boone v. Hardwicke's Adm'r) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boone v. Hardwicke's Adm'r, 8 Ky. Op. 456, 1875 Ky. LEXIS 169 (Ky. Ct. App. 1875).

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Opinion

Opinion by

Judge Lindsay:

The petition upon which Barzella Grooms obtained the order of injunction, restraining appellees from proceeding to sell the tract of land adjudged to be sold in satisfaction of their claims against Madison Grooms, shows that she did not ask that they, or either of them, should be restrained from proceeding to enforce their judgments as against their debtor.

The prayer of the petition is that they shall be restrained “from selling said land.” The order of injunction is not copied in the record, but we must presume that it was such an order as was asked for, and that, notwithstanding its existence, the appellees were free to pursue their personal remedies against their debtor, being restrained only from selling the tract of land. The bonds required by the clerk were not such as he ought to have taken. There was no necessity for the appellant and her sureties to stipulate that they would satisfy the judgments in favor of appellees against the third party, Madison Grooms, nor that they would satisfy any modified judgment that might be rendered. As these judgments were not enjoined, these stipulations were mere surplusage. Covenants resting on.no consideration are not authorized or required by law. The only enforceable stipulation in the bond is the agreement to pay all costs and damages that might be awarded in case the injunction should be dissolved. Sec. 307, Civil Code of Practice.

Appellees, therefore, have no right to recover on these bonds more [457]*457than they were damaged by being delayed in selling the land, and not that amount, unless it was assessed as required by Sec. 325 of the Civil Code of Practice, at the time the injunction was dissolved, and by the court rendering the judgment dissolving it.

Apperson & Reid, for appellants. H. C. Lilly, for appellees.

The judgments are reversed and the causes remanded for further proceedings not inconsistent with this opinion.

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Opinion by

Judge Lindsay:

The petition upon which Barzella Grooms obtained the order of injunction, restraining appellees from proceeding to sell the tract of land adjudged to be sold in satisfaction of their claims against Madison Grooms, shows that she did not ask that they, or either of them, should be restrained from proceeding to enforce their judgments as against their debtor.

The prayer of the petition is that they shall be restrained “from selling said land.” The order of injunction is not copied in the record, but we must presume that it was such an order as was asked for, and that, notwithstanding its existence, the appellees were free to pursue their personal remedies against their debtor, being restrained only from selling the tract of land. The bonds required by the clerk were not such as he ought to have taken. There was no necessity for the appellant and her sureties to stipulate that they would satisfy the judgments in favor of appellees against the third party, Madison Grooms, nor that they would satisfy any modified judgment that might be rendered. As these judgments were not enjoined, these stipulations were mere surplusage. Covenants resting on.no consideration are not authorized or required by law. The only enforceable stipulation in the bond is the agreement to pay all costs and damages that might be awarded in case the injunction should be dissolved. Sec. 307, Civil Code of Practice.

Appellees, therefore, have no right to recover on these bonds more [457]*457than they were damaged by being delayed in selling the land, and not that amount, unless it was assessed as required by Sec. 325 of the Civil Code of Practice, at the time the injunction was dissolved, and by the court rendering the judgment dissolving it.

Apperson & Reid, for appellants. H. C. Lilly, for appellees.

The judgments are reversed and the causes remanded for further proceedings not inconsistent with this opinion.

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Bluebook (online)

8 Ky. Op. 456, 1875 Ky. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boone-v-hardwickes-admr-kyctapp-1875.