Daniel v. Smelzer

Court of Appeals of Kentucky

Daniel v. Smelzer

29 Ky. 482, 6 J.J. Marsh. 482, 1831 Ky. LEXIS 220

DecidedOctober 8, 1831

StatusPublished

This text of 29 Ky. 482 (Daniel v. Smelzer) 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

Daniel v. Smelzer, 29 Ky. 482, 6 J.J. Marsh. 482, 1831 Ky. LEXIS 220 (Ky. Ct. App. 1831).

Pincite

Opinion

Judge Buckner,

delivered the opinion of the court.

Upon a motion, in the circuit court, by Smelzer against E. Daniel, late sheriff of Pendleton county, and his sureties, for failing to return an execution in favor of Smelzer, against W. R. Hand and J. Henson, for one month after the return day thereof; judgment was entered against them, for ,§‘245, being the amount of the principal, interest and costs expressed in said execution; and for §70, being the 30 per centum damages thereon. Upon the motion and affidavit of Daniel, the judgment was set aside, and anew trial granted, to which Smelzer excepted.

At a subsequent term, the cause was again tried, and asimilar judgment entered, from which Daniel, &c. appealed; having spread the whole of the evidence on record. Each judgment was fully warranted by the proof; but had it eveu been deficient on the second trial, the appellants could not have succeeded in their appeal, as we are of opinion that the first judgment was improperly set aside. Had they succeeded in defeating the appellee, on the second trial, upon a writ of error, by Smelzer, it would have been reversed.

The judgment must he affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Judge Buckner,

delivered the opinion of the court.

Upon a motion, in the circuit court, by Smelzer against E. Daniel, late sheriff of Pendleton county, and his sureties, for failing to return an execution in favor of Smelzer, against W. R. Hand and J. Henson, for one month after the return day thereof; judgment was entered against them, for ,§‘245, being the amount of the principal, interest and costs expressed in said execution; and for §70, being the 30 per centum damages thereon. Upon the motion and affidavit of Daniel, the judgment was set aside, and anew trial granted, to which Smelzer excepted.

At a subsequent term, the cause was again tried, and asimilar judgment entered, from which Daniel, &c. appealed; having spread the whole of the evidence on record. Each judgment was fully warranted by the proof; but had it eveu been deficient on the second trial, the appellants could not have succeeded in their appeal, as we are of opinion that the first judgment was improperly set aside. Had they succeeded in defeating the appellee, on the second trial, upon a writ of error, by Smelzer, it would have been reversed.

The judgment must he affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

29 Ky. 482, 6 J.J. Marsh. 482, 1831 Ky. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-v-smelzer-kyctapp-1831.