Dent v. Simmons

30 Ky. 42, 7 J.J. Marsh. 42, 1831 Ky. LEXIS 304

• Court: Court of Appeals of Kentucky
• Decided: November 9, 1831
• Status: Published

Opinion

Chief Justice Robertson,

delivered the opinion of the Court.

Simmons having obtained a judgment in ejectment against Dent, caused a habere facias to issued, and was put into the possession of the *anc* hy ^ie sheriff. After Dent and his family and goods had been expelled, and Simmons had closed the house, Dent’s family were permitted temporary shelter in the kitchen, and the writ was returned executed. Dent having shortly afterwards re-entered, in the absence of Simmons, or refused to surrender, the circuit court, which had rendered the judgment, made an order, on the application of Simmons, directing an alias writ to be issued.

Crittenden for appellant.

This writ of error is prosecuted to reverse that order.

As the judgment had been, according to the official return on the- writ, fully carried into effect- by evicting Dent, and giving the actual possession to Simmons, the circuit court had no longer any control over the case, and no more authority to direct a habere facias to issue, than it would have had if no judgment had ever been rendered. If Dent dis-seized Simmons, the proper remedy for restitution, was a warrant for forcible entry. All that the judgment in ejectment authorised, had been effected by the actual eviction under the habere facias. Wherefore the order for an alias writ is erroneous and must be reversed.