Clayton v. Hamilton

Court of Appeals of Kentucky

Clayton v. Hamilton

4 Ky. Op. 510, 1870 Ky. LEXIS 416

DecidedAugust 18, 1870

StatusPublished

This text of 4 Ky. Op. 510 (Clayton v. Hamilton) 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

Clayton v. Hamilton, 4 Ky. Op. 510, 1870 Ky. LEXIS 416 (Ky. Ct. App. 1870).

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Opinion

Opinion oe the Court by

Judge Robertson:

The sale of the pig iron under an execution issued, after the appellant’s attachment was levied on it was illegal; and consequently, the attachment having been afterwards sustained, the appellee, as mover of the execution and purchaser under it became liable to the appellant for the wrongful conversion of the iron to his own use. And the court sustaining the attachment might have enforced it. But that liability might be also enforced by either an action on the appellant’s bond to the sheriff or by a special action on the case for consequential damages. The appellant’s original petition may be construed as combining both forms of action and, according to section 113 Code of Practice, .the answer waived the misjoinder of contract and tort. An amended petition claims judgment on the bond alone; and on a" rule requiring the appellant to elect whether he'would proceed either for tort or a breach of contract, he elected to prosecute the action for the tort alone. And thereupon the circuit court, adjudging that the action for the tort was barred by. limitation, dismissed it.

As the original petition sued for the tort as well as for a breach of contract, the filing of the amended petition long after-wards was not as erroneously adjudged, the commencement of the action for the tort, and the original petition having been filed within the statutory time, the action, as prosecuted was not bound. [511]*511Nor is it material whether the appellant’s title or possession would have sustained the technical action of trover and conversion.

Stone, Lacy, for appellant. Apperson & Nesbitt, Young, for appellee.

The facts alleged are sufficient to maintain a special action for a tortious act.

Wherefore the judgment is reversed and the cause remanded for a new trial, with leave to the • appellant to amend and thereby re-elect to proceed on the bond or for the tort alone.

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Opinion oe the Court by

Judge Robertson:

The sale of the pig iron under an execution issued, after the appellant’s attachment was levied on it was illegal; and consequently, the attachment having been afterwards sustained, the appellee, as mover of the execution and purchaser under it became liable to the appellant for the wrongful conversion of the iron to his own use. And the court sustaining the attachment might have enforced it. But that liability might be also enforced by either an action on the appellant’s bond to the sheriff or by a special action on the case for consequential damages. The appellant’s original petition may be construed as combining both forms of action and, according to section 113 Code of Practice, .the answer waived the misjoinder of contract and tort. An amended petition claims judgment on the bond alone; and on a" rule requiring the appellant to elect whether he'would proceed either for tort or a breach of contract, he elected to prosecute the action for the tort alone. And thereupon the circuit court, adjudging that the action for the tort was barred by. limitation, dismissed it.

As the original petition sued for the tort as well as for a breach of contract, the filing of the amended petition long after-wards was not as erroneously adjudged, the commencement of the action for the tort, and the original petition having been filed within the statutory time, the action, as prosecuted was not bound. [511]*511Nor is it material whether the appellant’s title or possession would have sustained the technical action of trover and conversion.

Stone, Lacy, for appellant. Apperson & Nesbitt, Young, for appellee.

The facts alleged are sufficient to maintain a special action for a tortious act.

Wherefore the judgment is reversed and the cause remanded for a new trial, with leave to the • appellant to amend and thereby re-elect to proceed on the bond or for the tort alone.

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Bluebook (online)

4 Ky. Op. 510, 1870 Ky. LEXIS 416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clayton-v-hamilton-kyctapp-1870.