Fish v. Glass

3 Ky. Op. 177, 1869 Ky. LEXIS 334

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Robertson:

A joint judgment against True and Fish on a note in which Fish was True’s surety, was replevied by them as principals and by Jackson as their surety. True, without making Fish a party, enjoined the enforcement of the replevin bond, and the appellee, Glass, was the only surety in the injunction bond.

On the dissolution of the injunction, a judgment obtained against Glass on the injunction bond was replevied and finally paid off by Glass. Thereupon Glass filed a petition against True and one Gaines, as True’s debtor, summonsed as garnishee. True being insolvent, and Gaines admitting an indebtedness of only $18, Glass filed an amended petition against Fish, claiming a judgment against him on the foregoing facts only. And Fish failing to answer, judgment was rendered against him for the amount paid by Glass.

The facts, as charged and tacitly admitted, showed that Fish had been exonerated by Glass’ injunction and replevin bonds; and there is no allegation that would imply a liability to Glass on any other ground.

Scott, for appellant. Lillard, for appellee.

The law would not imply such liability from the facts as charged and admitted. The injunction may have been prejudicial to Fish and against his' will.

Wherefore, the judgment is reversed, and the cause remanded for a dismission of the petition against Fish unless it shall be so amended as to show a cause of action against him.