Sackett v. Creech

135 S.W. 273, 142 Ky. 790, 1911 Ky. LEXIS 284

• Court: Court of Appeals of Kentucky
• Decided: March 16, 1911
• Status: Published

Opinion

Opinion of the Court by

Judge Nunn

Dismissing.

W. C. Creech cut some poplar timber on a tract of land in Harlan county, Kentucky, and Daniel R. Creech sued him for trespass and recovered a judgment for $179.20. Execution was issued on the judgment and "W. O. Creech replevied it with E. T. Creech as his surety, on December 22, 1909. Just before the replevying bond came due, this action was brought by P. M. Sackett, appellant, against Daniel B. Creech, W. C. Creech, E. T. Creech, J. S. Kelly, sheriff, and M. W. Howard, circuit court clerk. Sackett alleged that the land from which W. C. Creech cut the timber belonged to him; tbat both of the Creeches were insolvent, and asked to be allowed to recover the $179.20 in this action. He enjoined the circuit court clerk from issuing an execution on the replevying bond, enjoined the sheriff from collecting it, enjoined W. E. Creech and E. T. Creech from paying it and enjoined Daniel B. Creech from taking any steps to collect it. The circuit court clerk issued the restraining order but on motion before the circuit court it refused to extend the restraining order or issue an injunction and sustained a general demurrer to the petition, and Sackett appeals.

The first question- presented is: Has this court jurisdiction of the appeal? Appellant asks to be allowed to recover the $179; the title to the land is not involved; the injunction asked for and the restraining order issued were only in aid of, or ancillary to the action to recover the $179.20. Section 950 of the statutes provides that no appeal shall be taken to the Court of Appeals from a judgment for a recovery of money -or personal property, if the value in controversy be less than $200, exclusive of interest and cost. The matter sought to be recovered in this action is money, the 'amount of which is less than $200. In cases where the only purpose sought is an injunction, this court has jurisdiction. In the case of Ex Parte Herrick, 78 Ky., 24, this court said:

“No judgment for money or personal property being sought, and there being no provision of the statute forbidding the appeal, it follows that it should be entertained. ’ ’

The main purpose of obtaining the injunction in the case lat bar, however, was to enable appellant to obtain the $179.20. Therefore section 950, above referred to, applies. See also the cases of Bourne, et al. v. Beck, et al., 22 Ky. Law Rep., 792, and Shackelford, Clerk v. Phillips, 24 Ky. Law Rep., 154; 112 Ky., 563.

For these reasons the appeal is dismissed.