Southerland v. Crawford

25 Ky. 369, 2 J.J. Marsh. 369, 1829 Ky. LEXIS 104

• Court: Court of Appeals of Kentucky
• Decided: October 17, 1829
• Status: Published

Opinion

Judge Robertson

delivered the opinion of the Court.

a bill in chancery, filed by Southerland vs. Crawford, to injoin an execution on a judgme.nt, in favor of Crawford against him. The' bill alleged that the whole amount of the judgment had been paid. The answer denied that' the whole judgment had ever been discharged, or that more than $>100 had been paid, which was credited on the execution.

The court dissolved the injunction,'and decreed damages on the amount of the judgment, and costs in favor of, not only Crawford, but two other defendants, sureties for the complainant, in his replevin bond, and who had not answered the bill.

The court Was right in dissolving the injunction. The evidence is insufficient to justify a perpetuation.

5Tis error to give costs to def’ts. who Decree, dissolving injunction must wbici) damages are to be calculated, «or ’tis error. Hanson, for plaintiff; Allan and Simpson, for defendants.

But there was error in decreeing damages on ttie wh°le amount of the judgment, when $100 of it, not only had been paid, but credited on the execution. The defendant was entitled to damages on only so much of his judgment as remained due, and on the collection of which, he had been delayed by the injunction. This was whatever remained due after deducting the credit for $100.

There was error, also, in decreeing costs to the defendants, who did not answer.

Elgin, who was a party to the judgment, and the note on which it was rendered, ought to have been a party. But this will not, hereafter, be mateiial, as .Southerland must fail in his bill.

There is enough in the record to show on what sum the damages were to be assessed. But the decree does not specify it. Therefore, as heretofore decided, we wouj¿ reverse the decree for omitting a specifiedtion. Even when sufficient data are given by tnc record, for computing the amount of the ten percent, WOuld be more safe and regular for the court to ascertain and state the precise amount on its decree, than to leave it to the clerk to examine the record anc¡ majje the estimate.

For the errors which have been mentioned, the decree of the circuit court is reversed, without costs, and the cause remanded, with instructions to modify the decree, conformably to this opinion.