Commonwealth ex rel. Bagby v. Little

Court of Appeals of Kentucky

Commonwealth ex rel. Bagby v. Little

6 Ky. Op. 440, 1873 Ky. LEXIS 204

DecidedFebruary 8, 1873

StatusPublished

This text of 6 Ky. Op. 440 (Commonwealth ex rel. Bagby v. Little) 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

Commonwealth ex rel. Bagby v. Little, 6 Ky. Op. 440, 1873 Ky. LEXIS 204 (Ky. Ct. App. 1873).

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Opinion

Opinion by

Judge Pryor:

In the absence of any order of the county court permitting the appellant to prosecute this proceeding as relator, he must disclose some interest in himself by showing that his rights have been affected in some way on account of the failure of the appellees to conduct and keep their ferry as required by law, and even then for the mere injury to the appellant the remedy should be on the bond, and not by way of revoking the franchise.

Conceding, however, that he had the right to institute the proceeding, or that his information gave to the county court the power and right to adjudicate on the question, still there is no such statement of facts in the notice of the intended motion as constitutes any cause of complaint. The notice fails to specify in what manner the appellees have failed to comply with the law. They may have all the boats required by the county court and still not a sufficient number to accommodate the public.

The name of the person is not given 'who has been delayed on account of the negligence of the appellees as ferrymen, nor is there any allegation, showing in what particular the wharf is insufficient. The substance of all the charges is, that the appellees have failed to comply with the law. Such a statement is too general and indefinite to base such a proceeding on, and the circuit court acted properly in reversing the judgment of the county court. That court, however, should have been directed by the judgment of the circuit' court to set aside the order revoking the grant and dismissing the proceeding without prejudice.

The judgment of the court below is therefore affirmed on the original appeal and reversed on the cross-appeal and remanded for further proceedings consistent herewith.

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Opinion by

Judge Pryor:

In the absence of any order of the county court permitting the appellant to prosecute this proceeding as relator, he must disclose some interest in himself by showing that his rights have been affected in some way on account of the failure of the appellees to conduct and keep their ferry as required by law, and even then for the mere injury to the appellant the remedy should be on the bond, and not by way of revoking the franchise.

Conceding, however, that he had the right to institute the proceeding, or that his information gave to the county court the power and right to adjudicate on the question, still there is no such statement of facts in the notice of the intended motion as constitutes any cause of complaint. The notice fails to specify in what manner the appellees have failed to comply with the law. They may have all the boats required by the county court and still not a sufficient number to accommodate the public.

The name of the person is not given 'who has been delayed on account of the negligence of the appellees as ferrymen, nor is there any allegation, showing in what particular the wharf is insufficient. The substance of all the charges is, that the appellees have failed to comply with the law. Such a statement is too general and indefinite to base such a proceeding on, and the circuit court acted properly in reversing the judgment of the county court. That court, however, should have been directed by the judgment of the circuit' court to set aside the order revoking the grant and dismissing the proceeding without prejudice.

The judgment of the court below is therefore affirmed on the original appeal and reversed on the cross-appeal and remanded for further proceedings consistent herewith.

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Bluebook (online)

6 Ky. Op. 440, 1873 Ky. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-bagby-v-little-kyctapp-1873.