Thomas v. Sizemore

4 Ky. Op. 367, 1870 Ky. LEXIS 373

• Court: Court of Appeals of Kentucky
• Decided: October 26, 1870
• Status: Published

Opinion

■ Opinion oe the Court by

Judge Peters :

When the injunction was dissolved, the petition was dismissed, which made it a final judgment, and a judge of this court has no authority to reinstate an injunction when the case was finally disposed of. ...

It is clearly established by the evidence that appellant was only the surety in tbe note upon which the original action was brought, and more than seven years having elapsed without suing out an execution on the judgment, was exonerated from the payment of the debt under the statute, 2 B. 8., 400.

Vance, fot' appellant. Sizemore, for appellee.

Nor can the fact that the judgment had been assigned to appellee who may not have known that appellant was not a principal in the note, prevent his exoneration, as was ruled by this court in Day vs. Billingsley, 3 Bush, 157.

Wherefore the judgment must be reversed, and the cause remanded with directions to render judgment perpetuating appellant’s injunction, and-for further proceedings consistent herewith.