Griffith v. McDaniel

Court of Appeals of Kentucky

Griffith v. McDaniel

6 Ky. Op. 203, 1872 Ky. LEXIS 506

DecidedDecember 12, 1872

StatusPublished

This text of 6 Ky. Op. 203 (Griffith v. McDaniel) 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

Griffith v. McDaniel, 6 Ky. Op. 203, 1872 Ky. LEXIS 506 (Ky. Ct. App. 1872).

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Opinion

Opinion by

Judge Hardin :

Admitting the principle that an'action will lie to recover back “money obtained by extortion under color of legal proceedings in contradiction to the general rule that an action can not be maintained to recover money.paid under a judgment,” we are of the opinion that the petition in this case is fatally defective and the court erred in overruling the demurrer to it. Although it is alleged that Weir’s execution came to Harrison’s hands, and that the money was paid to Harrison, there is no disagreement of the time of the' payment, nor that Harrison received the money as sheriff upon the execution when it was alive and in force. It is true a paper purporting to be the receipt of Harrison as sheriff is exhibited; but the petition admits that it bears date before the execution, and yet fails to state when the payment was made.

■ Notwithstanding all the allegations of the petition may be true, the payment may have been made to Harrison without any authority, and thus not have operated to satisfy the debt of Weir.

As the petition may be amended, and the case again tried, we will' express no opinion as to the evidence.

Wherefore the judgment is reversed and the cause remanded with directions to sustain the demurrer to the petition for the reasons indicated, and for further proceedings not inconsistent with this opinion.

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Opinion by

Judge Hardin :

Admitting the principle that an'action will lie to recover back “money obtained by extortion under color of legal proceedings in contradiction to the general rule that an action can not be maintained to recover money.paid under a judgment,” we are of the opinion that the petition in this case is fatally defective and the court erred in overruling the demurrer to it. Although it is alleged that Weir’s execution came to Harrison’s hands, and that the money was paid to Harrison, there is no disagreement of the time of the' payment, nor that Harrison received the money as sheriff upon the execution when it was alive and in force. It is true a paper purporting to be the receipt of Harrison as sheriff is exhibited; but the petition admits that it bears date before the execution, and yet fails to state when the payment was made.

■ Notwithstanding all the allegations of the petition may be true, the payment may have been made to Harrison without any authority, and thus not have operated to satisfy the debt of Weir.

As the petition may be amended, and the case again tried, we will' express no opinion as to the evidence.

Wherefore the judgment is reversed and the cause remanded with directions to sustain the demurrer to the petition for the reasons indicated, and for further proceedings not inconsistent with this opinion.

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Bluebook (online)

6 Ky. Op. 203, 1872 Ky. LEXIS 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffith-v-mcdaniel-kyctapp-1872.