Offut's ex'x v. Bradford

Court of Appeals of Kentucky

Offut's ex'x v. Bradford

67 Ky. 413, 4 Bush 413, 1868 Ky. LEXIS 152

DecidedJanuary 13, 1868

StatusPublished

This text of 67 Ky. 413 (Offut's ex'x v. Bradford) 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

Offut's ex'x v. Bradford, 67 Ky. 413, 4 Bush 413, 1868 Ky. LEXIS 152 (Ky. Ct. App. 1868).

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Opinion

JUDGE ROBERTSON

delivered the opinion op the court:

Although an interlocutory order merely dissolving an injunction is not a final decree, revisable by this court, yet a judgment for damages on the dissolution is final, [414]*414and may be enforced by execution pendente lite; consequently, as there is a' judgment for such damages in this case to the amount of one hundred dollars, this court has jurisdiction alone to correct it; and the motion to dismiss the appeal for want of jurisdiction is overruled. But we cannot reverse the judgment.

The personal judgment against the executrix, instead of being against the assets, is not apparently erroneous, because the injunction was in the appellant’s personal character, and for her own benefit as devisee; and, consequently, the judgment for damages cannot be reversed merely because it also is personal, nor can it be reversed on the ground that the appellant’s petition would, if filed in time, entitle her to the injunction, for it was not filed within three years after probate of the will and the qualification of the executrix, as required by statute.

Wherefore, we are constrained to affirm the judgment now appealed from.

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JUDGE ROBERTSON

delivered the opinion op the court:

Although an interlocutory order merely dissolving an injunction is not a final decree, revisable by this court, yet a judgment for damages on the dissolution is final, [414]*414and may be enforced by execution pendente lite; consequently, as there is a' judgment for such damages in this case to the amount of one hundred dollars, this court has jurisdiction alone to correct it; and the motion to dismiss the appeal for want of jurisdiction is overruled. But we cannot reverse the judgment.

The personal judgment against the executrix, instead of being against the assets, is not apparently erroneous, because the injunction was in the appellant’s personal character, and for her own benefit as devisee; and, consequently, the judgment for damages cannot be reversed merely because it also is personal, nor can it be reversed on the ground that the appellant’s petition would, if filed in time, entitle her to the injunction, for it was not filed within three years after probate of the will and the qualification of the executrix, as required by statute.

Wherefore, we are constrained to affirm the judgment now appealed from.

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Bluebook (online)

67 Ky. 413, 4 Bush 413, 1868 Ky. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/offuts-exx-v-bradford-kyctapp-1868.