Seber v. Nelson

5 Ky. Op. 101, 1872 Ky. LEXIS 220

• Court: Court of Appeals of Kentucky
• Decided: January 16, 1872
• Status: Published

Opinion

Opinion by

Judge Pryor :

The action of trespass instituted by the present appellant against John Á. Nelson, the constable, in which he seeks not only to recover damages for the alleged trespass but also the value of the horse and two mules sold 'by him under the execution against Jacob Steiger, was properly pleaded as a bar to the present action of the appellant against the appellee for the recovery for the same property. The verdict of the jury for the appellant in the suit against the constable was for sixty dollars, the value of the brown mule, and the title to the horse and the other mule being- put directly in issue in that suit, and the appellant failing to recover was in effect determining that this horse and mule was subject to the execution against Steiger. The constable had sold this property under the execution and the appellant elected to sue in trespass for the value of the property.' He obtained the judgment against the constable and cannot now maintain this action for the recovery for the specific property as against the appellee, who obtained possession of it by his purchase under the execution. The judgment is affirmed.