Welborn v. Edwards

102 S.W. 235, 125 Ky. 680, 1907 Ky. LEXIS 325

• Court: Court of Appeals of Kentucky
• Decided: May 15, 1907
• Status: Published

Opinion

Opinion op the Court by

Judge Hobson

Affirming.

At the September term, 1899, James White recovered a judgment against Morton H. Rogers in the Logan quarterly court for $5 and cost, $3.05. On March 8, 1906, an execution was issued on the judgment, which went into the hands of the constable, T. L, Welborn, and was by him levied on a roan mare, the property of Rogers, which he advertised for sale. Rogers then filed his petition in the Logan quarterly court against Welborn and White, in which he alleged that he was summoned to appear in the quarterly court at the September term, 1899, to answer the claim of White; that he appeared and the case was dismissed for want of prosecution, White not appearing; that after this and at a subsequent term the judgment was rendered against him, the judge of the quarterly court having set aside the order dismissing the case without notice to him. He also alleged that the mare was exempt from execution. On these facts the quarterly court granted an injunction restraining the defendants from proceeding further under the execution or selling the mare levied on until the further order of the court. The defendant .demurred to the jurisdiction of the court, and filed an answer denying the allegations of the petition. The court overruled the demurrer, and overruled the defendants’ motion to dissolve the injunction. Thereupon the defendants brought this suit in the Logau circuit court, seeking a writ prohibiting .the judge of the Logan quarterly court from proceeding further with the injunction, on the ground that the quarterly court was without jurisdiction to grant an injunction in the case under section- 284 of the Code of Practice: “No injunction shall be granted to stay proceedings upon a judgment of a justice of the peace, or of a county court, if the value of the matter in dispute do not exceed twenty-five dollars.” The court sustained a demurrer to the petition, and dismissed it. The plaintiffs appeal.

"While the amount of the judgment in controversy is less than $25, “the value of the matter in dispute” is more than $25. The mare is worth $100. If the injunction is not granted, the constable will sell the mare under the execution. The value of the matter in dispute is not to be determined from the amount of the judgment. The thing in dispute is the right of the officer to seize the plaintiff’s mare and sell her. If the amount of the judgment was $100, and the property levied on worth $10 and claimed as exempt, the value of the matter in dispute would not be the amount of the judgment. The only thing in dispute would be the right to sell property worth $10 for the debt. Here there cannot be a sale of so much of th« property as may be necessary to pay the debt, and therefore the amount of the debt is not material. The thing in dispute is the sale of the mare, and the value of the matter in dispute must be determined by the value of the mare. If the allegations of the petition are true, the mare is not subject to the execution, and her seizure was wrongful; and, if the facts stated in the petition are true, the judgment rendered in the quarterly court should be opened, and the original case should be heard on its merits. The quarterly court was proceeding within its jurisdiction, as that court alone had jurisdiction to vacate or modify the judgment which had been rendered, and it might grant an injunction where the value in dispute between the parties at the time of the application was not less than $25.

Judgment affirmed.