Catrun v. Hawn

Court of Appeals of Kentucky

Catrun v. Hawn

7 Ky. Op. 5, 1873 Ky. LEXIS 387

DecidedJune 17, 1873

StatusPublished

This text of 7 Ky. Op. 5 (Catrun v. Hawn) 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

Catrun v. Hawn, 7 Ky. Op. 5, 1873 Ky. LEXIS 387 (Ky. Ct. App. 1873).

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Opinion

Opinion by

Judge Lindsay:

After Amis had abandoned SO' much of his petition as sought relief upon the ground that he had not signed, or authorized any one to sign for him the replevin bond upon which the execution issued, and in effect conceded the fact that he had once been legally bound on said bond, the contract was narrowed down to the single issue as to whether or not Hawn had failed to issue execution for more than one year and Catrun, the sheriff, was no longer a necessary or proper party to the proceeding. The injunction was evidently perpetuated because of appellee’s failure to issue execution as charged, and we are unable to discover upon what grounds the [6]*6circuit judge based his conclusion that Catrun had failed to take a proper replevin bond. If Amis signed or authorized any one to sign for him, the bond was a proper one.

James, for appellant. -, for appellee.

The presumption is that the return of the sheriff is true, and in the absence of all proof on the subject, that presumption should have prevailed.

Besides this appellee utterly fails to prove (even if wé concede he alleged) that damages resulted to him from’ the action of Ca-trun, admitting that the bond was not a proper one, and that his return was false.

The judgment against Catrun is reversed and the cause remanded with instruction to dismiss the original and cross-petition against him.

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Opinion by

Judge Lindsay:

After Amis had abandoned SO' much of his petition as sought relief upon the ground that he had not signed, or authorized any one to sign for him the replevin bond upon which the execution issued, and in effect conceded the fact that he had once been legally bound on said bond, the contract was narrowed down to the single issue as to whether or not Hawn had failed to issue execution for more than one year and Catrun, the sheriff, was no longer a necessary or proper party to the proceeding. The injunction was evidently perpetuated because of appellee’s failure to issue execution as charged, and we are unable to discover upon what grounds the [6]*6circuit judge based his conclusion that Catrun had failed to take a proper replevin bond. If Amis signed or authorized any one to sign for him, the bond was a proper one.

James, for appellant. -, for appellee.

The presumption is that the return of the sheriff is true, and in the absence of all proof on the subject, that presumption should have prevailed.

Besides this appellee utterly fails to prove (even if wé concede he alleged) that damages resulted to him from’ the action of Ca-trun, admitting that the bond was not a proper one, and that his return was false.

The judgment against Catrun is reversed and the cause remanded with instruction to dismiss the original and cross-petition against him.

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Bluebook (online)

7 Ky. Op. 5, 1873 Ky. LEXIS 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/catrun-v-hawn-kyctapp-1873.