Scott v. Richardson

41 Ky. 507, 2 B. Mon. 507, 1842 Ky. LEXIS 79

Opinions

Judge Marshall

delivered the Opinion of the Court.

It seems to this Court that when the sheriff had turned all the previous occupants out of the house, and put Scott into it, and given him possession, by words as well as acts, and when he had, besides, removed the goods of the previous occupants out of the dwelling house, he had, in substance and in truth, executed - the mandate of the writ of habere facias, although he had not removed all the property from the kitchen, as he had intended doing, and would have done but for the service of an injunction at that stage of the proceedings, staying the execution of the writ, And we are of opinion that although he was arrested by the injunction, before he had done all that he had intended to do, yet as he had done all that was essential, and had, in fact, put out the previous occupants and put in the party entitled, his return of á full execution of í thf’writ was proper. Wherefore, the judgment quashing -.the sheriff’s return on the writ of habere facias possessi- ' onem, and directing him to return the same as having been stayed by injunction, is reversed, and the case is remanded with directions to overrule the motion to quash.

May 5. Harlan Craddock for plaintiff; Hewitt and Spillman for'defendants.