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>r two justices of the peace, may be made before the
rcuit or other judge of similar jurisdiction who is com-
an injunction in the case under § 273 of the Civil Code,
this act, at any time after reasonable notice, in writing,
or applicant for the injunction or restraining order of
ice of the motion and of the judge before whom it is to
>n the hearing of such motion, either party may read
he court or judge shall, within ten days from the hear-
►verrule the motion to dissolve or modify the injunction,
le or modify the restraining order, or grant an injunc-
:he same, as the case may require, and shall try either
s as if it were an application for an injunction de notfo.
e judge overruling the motion to dissolve or modify an
lissolving or modifying an injunction, or setting aside
restraining order, or granting an injunction, with the
returned to the office of the clerk of the court, and the
\ if made by the court. (Act 1894, p. 202.)]

Motion to dissolve, &c. y on the whole case. — After answer
irty enjoined, he may give notice to the plaintiff of a
lade to the court, in not less than ten days thereafter,

case, to dissolve or modify the injunction. Upon such



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40 PROVISIONAL REMEDIES. [TITLE V

lotion, each party may read depositions and other competent evider
i wKting. The court shall not be bound to take the answer as true.

Sec Simrall v. Gran/, 79 Ay., 435.

§ 292 [322]. Postponement of motion. — The motion, upon the whc
ase, to dissolve or modify the injunction, may be postponed, on t
pplication of either party, to a subsequent day, or to the next term,
he court be satisfied that, under the circumstances of the case, t
lelay is proper. If delay be asked in order to obtain the testimony
witness, it must appear by affidavit what facts the witness is expect

prove, that the affiant believes his testimony will be true, and thai
ould not have been obtained by due diligence.

§ 2 93 [3 2 3]- How motion to be disposed of . — After hearing the motic
he court or judge shall overrule it, or dissolve or modify the injunctic
ccording to the right of the case.

1. An order dissolving an injunction before final hearing is not final and can not
ppealed from (Rodman v. Forline^s adm % r, &*c., 2 Met., 325) ; nor does such order autr
:e the bringing of an action for malicious procurement of the injunction. Wood v. I
xk, 3 Met., 192.

2. But dissolution of an injunction on final hearing is a final order which may be
ealed from ;. and, if it be superseded, the injunction continues in full force, and the
»ndant is guilty of contempt if he disregard it. Smith, &c, v. Western Union Tel. Co. t
Cy„ 269.

3. An order overruling a motion, upon the whole case, to dissolve an injunction is
nal, and it is erroneous to render a final judgment on such motion. Simrall v. Gn
rY., 79 Ky., 435.

4. The record showed that the case was submitted on a motion to dissolve on the wh
ase "and for judgment:" held, that the words "and for judgment" meant judgment
lie motion to dissolve the injunction, and not final judgment in the case. Simrall v. Gn
rV., 79 Ky. % 438.

§ 294 [324]. Only one motion, on tJie whole case, allowed. — Only c
notion to dissolve or modify an injunction upon the whole case is
owed.

This section "shows clearly that the case, after the motion has been heard, may
nally disposed of on its merits, although it may involve a re-investigation of the identi
uestion disposed of on the motion " 79 Ky., 438.

§ 2 95 [3 2 5]- Assessment of damages on dissolutions: — Upon the d
olution, in whole or in part, of an injunction to stay proceedings up

1 judgment (a), the damages shall be assessed by the court; which m
lear the evidence and decide in a summary way, or may, at its c
xetion, cause a jury to be empanneled to find the damages (b). If t
ollection, payment, or use of money be enjoined, the damages m
>e any rate per cent, on the sum released by the dissolution, which,
he discretion of the court, may be proper, not exceeding ten percent. (



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ACTION — DISSOLUTION A^

ilivery of property have
le use, hire, or rent ther
•ed against the party wh
sed ; and the assessmenl
party (d).

and replevy-bonds are judgm
on, 5 Lift. , 136 ; Yantis v. Lytn
'. &* B., 811), which spoke only
ery (Head, <5rV., v. Perry, <SrV., 1
ever, the word "judgment,"
368.

ias no authority to assess dama
joined ; and, in such cases, th<
mages be assessed by the coui
tes, <&V., 13 /</., 428; Logsden
1 injunction was granted by a c
ff was entitled to equitable re
1st him, and the Court of App
it may be made. Mallory v. L
bove named act of 1799 (Af. &
proceedings on a judgment] is
er cent., exclusive of legal int<
costs;" it was held that wh<
ved because the ground theref

damages and was entitled to
Chiles, 5 Afon. f 260-6 1 ; Payne \
390.

ant who seeks an injunction, c
purchased, must pay damages 1
t do not appear that he ever 1

>f an injunction without damag
a the injunction-bond from Ha

ingan injunction, damages are
time of granting the injunctic

' being entitled to an injunctic

the amount of interest and si

, 1 Dana y 105.

[ant's right to damages where
ijunctioi
: Davis

decree s
nake th<
them w
avis, \J
<i., 582;
HcketU <5r
16



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PROVISIONAL REMEDIES. [TITL

s erroneous to assess damages against the plaintiff on dissolving an inju

al hearing, and again on final hearing. Noland\. Richards ; iJ*J* M

v. Dearis ex., 3 Id., 380.

Thomas' trustee v. Brashear, 4 Mon., 67, it was held that, under the act of

:an not be assessed against a stranger, but only against a defendant in a judj

ins an injunction against proceedings thereon ; but it seems clear that in

oodworth, 9 Bush, 745, and Mallory v. Dauber's ex'r, 83 Ky., 239, the com

as to injunctions under the Code.

; to costs (in cases wherein costs were recoverable from the plaintiff) under I

ee Combs v. Boswell, 6rV., I Dana, 476 ; and as to such cost now, see Chraj

h, &c, 9 Bush, 748.

Crawford v. Woodworth, firV., 9 Bush, 745, in which the sale of personal
r a judgment was enjoined, upon the application of a stranger who claim
the court said, with reference to the assessment of damages on dissolul
ion : "The amount of money or value of the property enjoined is not est
ining the question of damage on the dissolution, as that liability is alread
iginal judgment. The court is called upon to sustain only the special <3
by reason of the injunction.

re the collection of a judgment for money has been enjoined, the da
»n the dissolution can not exceed ten per cent, on the amount ; and, if the
iperty has been delayed, the inquiry is confined to the value of its use,

rning that opinion, I suggest —
to enjoining the collection of money :

er to award ten per cent, or any other per cent, as damages, the court must
F money which was improperly enjoined. That sum is determined by the
, if the entire amount of it be enjoined and the injunction be wholly diss
:h injunction be partially dissolved, or if the original judgment be only pi
the sum upon which the per cent, shall be awarded must, necessarily, be
the court which makes the order of dissolution.
to enjoining delivery of property to a plaintiff 'who has recovered judgment

the Code, judgment for the plaintiff, in an action for specific personal pn
:s value (§388; Commonwealth v. Roberts, I Duv., 300) ; and the court whi
injunction against delivery of the property must be governed by such judj
due.

ere is no such provision as to judgments for land ; and the court which di
ion against delivery of it must, necessarily, ascertain its value, in order tc
e of its use."

5 [326.] Reinstatement of injunction. — [(1). If the plaintiff c
r for a reinstatement of an injunction dissolved or modifie
the court or judge shall make the order of dissolution tc
a reasonable time thereafter, not exceeding twenty days
press in the order that the plaintiff has leave to apply i
le for a reinstatement of the injunction. (2). Where an ir
\ been granted or continued by any interlocutory order c
e party enjoined may, within twenty days from the ent
der or decree, apply to a judge of the Court of Appeals
ion or modification of the injunction. (Act 1894, p. 203.)



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I//



CHAP. V. RECEIVER. 241b

§ 2 97 [3 2 7]- Reinstatement of injunction. — [A judge of the Court of
Appeals, if the plaintiff have secured the right to apply for a rein-
statement of an injunction, or if the party enjoined move to have the
injunction dissolved or modified, may, upon a presentation of a copy
of the record, including the evidence read or offered to be read upon
the motion to dissolve or modify the injunction, reinstate the same in
whole or in part, or may dissolve or modify the injunction. The plain-
tiff in the application shall give reasonable notice in writing of the
time and place of the application for reinstatement of the injunction,
or of the motion to dissolve or modify, and of the judge to whom ft
is to be made, to the party affected thereby. If the order of rein-
statement be filed in the clerk's office in the time limited, as pro-
vided in §296, subsection I, the injunction, as reinstated, shall be
obeyed ; otherwise, the order of dissolution or modification shall take
effect. And if the order dissolving or modifying the injunction be filed
in the clerk's office in the time limited, as provided in § 296, subsection
2, the order of dissolution or modification shall take effect ; otherwise,
the injunction shall remain in force. (Act 1894, p. 203.)]

CHAPTER V.

RECEIVER.

\ 298, 299. Receiver, on whose motion, may be appointed.

\ 298. appeal from order concerning appointment of.

\ 300. who shall not be appointed.

} 301. oath and bond of.

2 302. powers of.

§ 298 [328]. Appointment of receiver and appeal from order concerning.

•On the motion of any party to an action who shows (a) that he has,
or probably has, a right to, a lien upon (b) % or an interest in, any prop-
erty or fund, the right to which is involved in the action (c) t and that
the property or fund is in danger of being lost, removed, or mate-
rially injured, the court, or the judge thereof during vacation, may (d)



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242 PROVISIONAL REMEDIES. [TITLE VIE

■ ■ >

appoint a receiver to take charge of the property or fund during th<
pendency of the action, and may order and coerce the delivery of i
to him. The order of a court, or of the judge thereof, appointing o
refusing to appoint a receiver, shall be deemed a final order for th
purpose of an appeal to the Court of Appeals (e) : Provided, That sucl
order shall not be superseded.

§ 299 [329]. In an action by a mortgagee for the sale of the mort
gaged property, a receiver may be appointed, if it appear that the prop
erty is in danger of being lost, removed, or materially injured, or tha
the condition of the mortgage has not been performed, and that th
property is probably insufficient to discharge the mortgage debt (/).

(a) A creditor, seeking to subject property under the act of 1856 (Gen. St., ch. 44, an
2, \ I), has no right, under the Code, to the appointment of a receiver, until it be show
that the debtor "has, or probably has," conveyed property in contemplation of insoi
vency, &c. Griffith v. Cox, &c, 79 Ky., 562. See that case as to appointing a receivei
&c, under said article of the General Statutes.

(b) I. Section 328 of the Code of 1854 contained no provision as to vendors having lien
on land for purchase-money ; and it was held that, according to the common law, " th
vendor who conveys and puts the purchaser in possession, reserving a lien for purchase
money, reserves that lien upon the land and not upon the rents and profits. . . . Th
vendor occupies a no more favorable attitude, so far as concerns the property and property
rights of the vendee, than any other creditor, except to the extent of the land sold b
him." Collins v. Richart, 14 Bush, 621.

2. The provisions of \ 299 of the present Code are substantially the same as those o
\ 329 of the Code of 1854. The reader will observe a distinction between the provision
of % 298 as to lien-holders and those of \ 299 as to mortgagees.

(c) In Caldwell, &c, v. McWhirter, &c, 84 Ky., 134, it was held to be "at least ques
tionable " whether a receiver can be appointed in an action by several heirs against other
for the sale of land for the purpose of a division.

(d) The appointment of a receiver is a matter of sound legal discretion; and it may b
made upon equitable conditions, or be modified or extended for the purpose of imposinj
such conditions. Douglas, &c, v. Kline, &c, 12 Bush, 622 to 632.

(e) Under the Code of 1854, no appeal could be taken from such order. 15 B. Af.,*fi
(/) 1. According to the common law, a mortgagee, after maturity and non-payment

the debt, had three remedies — viz., I, an action in equity for sale of the property; 2, ai
action at law for the debt ; and, 3, an action at law for possession of the property, whereb;
he could secure the rents and profits for payment of the debt. The two former rights ma
now be asserted in one action (Code, \ 376) ; and in Brookhover v. Hurst, 1 Met., 665, am
Brown v. Phillips, 3 Bush, 656, it was held that the mortgagee could maintain an actio!
for the possession ; but it is now settled that he can not do so, and that his only reined)
as to accruing rents and profits, is through the appointment of a receiver. See note
to §376: and see 12 Bush, 622 to 632, as to conditions which may be imposed by the com
in appointing a receiver.

2. Rents, &c, in the hands of a receiver appointed at the instance of a mortgagee, ca
not be disposed of by the mortgagor, nor attached by his creditors, to the prejudice of th
mortgagee. 12 Bush, 707 to 709.

3. But, where another than the mortgagee has acquired a legal or equitable right t
rents before the appointment of a receiver, the mortgagee's claim thereto will be posl
poned to that of the intervening claimant. 14 Bush, 791.



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244 PROVISIONAL REMEDIES. [TITLE VW



CHAPTER VI.

DEPOSIT IN COURT.

? 303. When it may be required.

J 304. How enforced.

i 3°5» 3°6* Sheriff, duty of, concerning.

§ 306. official liability of, concerning.

i 307. Deposit in bank.

{ 308. loan of, by court.

§ 3°3 [333]- When deposit may be required. — If a party admit by his
pleading; or upon examination, that he has in his possession, or undei
his control, any money, or other thing capable of delivery, which, being
the subject of the litigation, is held by him as trustee for another party,
or which belongs or is due to another party, the court may order the
same to be deposited in court, or to be delivered to the party who is
thus admitted to be entitled thereto, with or without security, subjeel
to the further order of the court.

Clerks of courts have no right, ex-officio^ to receive money upon a judgment, replevy-
bond, or execution ; nor even to receive money paid into court ; and their sureties are nol
liable for money so received by them. Durant v. Gabby^ 2 Met., 91 ; Chinn v. Mitc1ull s
fd. t 92 ; Hardin v. Carrico, 3 Met., 289.

§304 [334]. Enforcement of deposit. — If, in the exercise of its au
thority, a court order the deposit or delivery of money or other thing,
and the order be disobeyed, the court, besides punishing the dis-
obedience, may make an order requiring the sheriff to take the money
or thing, and deposit or deliver it in conformity with its direction.

§ 3°5 [335]- Sheriff may be directed to keep property or money. — The
court may direct the sheriff to keep safely any property delivered tc
him pursuant to the provisions of this chapter ; and may allow him the
necessary expenses attending the same, to be paid by such party as the
court shall direct, and taxed in the costs of the action.

§ 306 [336]. It may confide to the sheriff money deposited or paid
into court — which shall be kept by him under the same requirements
and responsibilities of himself and his sureties as are provided by this
Code in respect to money deposited in lieu of bail.

§ 3°7 [337]- Deposits in bank. — A court sitting in a county in which,
or in any county adjoining which, there is a bank, or a branch of a
bank, created by the laws of this State, or of the United States, trans
acting regular banking business, may order money paid into court to be
deposited in such bank or branch, to the credit of the court in the
action or proceeding in which the money was paid. Money so de
posited shall be paid only upon the check of the clerk of the court,



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ISSUE. 24$

; certified order for the payment, and in favor of the per-
the order directs the payment to be made.
]. Loans by court. — Money deposited or paid into court,
►hall not be loaned by the court, unless with the consent
les having an interest therein or making claim thereto ; or
ty moving to have it loaned execute a bond to the Corn-
Kentucky, with good surety, to be approved by the
benefit of the parties interested, conditioned that the bor-
noney will pay it according to the contract of loan.



TITLE IX.

TRIAL AND JUDGMENT.

Chap. i. Issue.
11 2. Trial
" 3* Judgment.
" 4. Revivor of judgments.

CHAPTER I.

ISSUE.

.re of law or fact,
sue of fact arises.

]. Issues arise on the pleadings when a fact, or conclusion
tained by one party and controverted by the other. They

law.
Fact.

|. An issue of fact arises —

l traverse in an answer or other pleading of a material
petition or other pleading (a).
an allegation of a pleading which is controverted by



t constitutes a traverse, see \ 113, subs. 7.
dings which are controverted by law, see \ 126.



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TRIAL AND JUDGMENT. [TIT]



CHAPTER II.



Art. i . Trial in general.

" 2. Trial by jury.

" 3. Trial by the court.

" 4. Exceptions.

" 5. New trial.

4 * 6. General provisions.

" 7. Time of Trial.

ARTICLE I.

• TRIAL IN GENERAL.

311. Trial defined.

312, 313. How issues to be tried.

314. Order in which actions shall be tried.

315. Postponement of trial.

§ 31 1 [341]. A trial is a judicial examination of the issues of h

Fact in an action or proceeding.

§ 3 1 2 [342]. How issues shall be tried. — 1 . Issues of law must be

the court.

2. Issues of fact in ordinary actions, except for injuries to pers<

racter(a), shall be tried by the court, unless a jury trial b

nded by a party (b).

§ 313 [343]. All other issues of fact shall be tried by the court,

t to its power to order any issue to be tried by a jury (c).

a) See §331, and notes.

b) Section 342 of the Code of 1854 used the words " unless a jury-trial is waive

c) I. Trials by jury of equitable issues in ordinary actions.

f legal as well as equitable issues be submitted, in an ordinary action, the legal

ild be tried by a jury; and the court may submit matters of fact, arising up<

table issues, to the jury, if such issues have *not been transferred to the eqi

:et ; and the finding of the jury upon them should be special, to enable the cc

de the case. Petty v. Matter, 15 B. M. y 604.

I. Trials by jury of equitable issues in actions in equity.

. As to ordering a trial by jury.

I ) In purely equitable actions.

n Lee v. Beatty, 8 Dana, 207, it was said that, if the chancellor feel strong dot

ny issue, it is peculiarly proper to summon a jury to try the facts ; and in Wa

ker, 5 Dana, 582, and Moore v. Martin, I B. M., 99, the court suggested the pn

ibmitting to a jury issues as to value or damage ; and in Smiley v. Smiley, I Da

ems to have been held that an issue as to value must be submitted to a jury. B

ed that, • « whatever may be the proper mode'of ascertaining uncertain and unliqi

ands, in cases where a court of chancery may be compelled to decide legal rij



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TRIAL IN GENERAL. 247

ount of a defect of the remedy at law" (3 Afar., 120) ; or "in cases
tire has transferred to the chancellor jurisdiction of controversies strictly
) ; the chancellor, in purely equitable actions, may decide all issues,
s to value or damage, without the intervention of a jury (Hardin, 7 ;
*»., 98; 3 &**** 333'* 8 &•* *>7; 1 B. M., 99; 1 Bush, 499; 11 Id.,
rate, that the Court of Appeals will not control his action, as to re-
d a jury, unless there has been a palpable abuse of his discretion. 13

hancellor } s jurisdiction is conferred by the legislature or arises from a defect
».

anccllor 's Jurisdiction is conferred by the legislature.

the legislature can not, by conferring jurisdiction of an action on the
t a party of the right to a trial by jury of any issue which was so triable
n of the constitution, and that either the plaintiff or defendant is en-
5 case transferred to the ordinary docket for the trial of such issue.
. McCall, 80 Ay., 371.

ellor may decide all questions arising, unless jury-trial be demanded.
Bush, 489.

anccllor 9 s jurisdiction arises from a defect of the remedy at law.
r stand why the court, in Head v. Head's adm'r, 3 Afar., 120, intimated a
fht of the chancellor to decide questions as to value or damage, without
" in cases where a court of chancery may be compelled to decide legal
, on account of a defect of the remedy at law ; " because the chancellor's
>t so far as it is statutory, is founded on such defects ; and as has been
*^> page 246), the chancellor, in purely equitable (*. e., non-statutory)
e all questions that arise, without the aid of a jury.
Hill v. Phillip's adm'r, &*c, 87 Ay., 169, which was an action by an
r a fee and to enforce his lien, as attorney, on the estate involved in the
is services were rendered, the defendants denied their liability for the
Id that, under J 12 of the Code, they were entitled to a transfer of the
ry docket.

clearly right in holding that the answer presented a "legal issue;" but
ie a party to a transfer of every " legal issue," but only to a transfer of
ling which he is entitled to a jury trial." And the court cited, in sup-
1, the case of Meek v. McCall, 80 Ay., 371, which was an action in equity
Is — viz., notes and an account, in which the plaintiff procured an attach-
h the defendant pleaded legal defences — viz., payment and a set-off;
that "the attachment did not invest the court with the right to deter-
tion purely legal against the objection of the defendant ; " and that, in
s "an action ordinary, with an attachment — the legal issues to be tried
issues made by the attachment by the court : " clearly, as was held by
ndant was entitled to a transfer of the action under § 10 of the Code.
hillips' adm'r, <5rY., though the lien was given by statute (G. S., ch. 5,
ion to enforce it was purely equitable ; the action was an "equitable
tmmenced as such;" and it seems impossible to reconcile the decision,
s were entitled to a transfer to the ordinary docket, with the cases re-
l), ante, page 246.-

SUE.

irecting a jury to be impannelcd to inquire of damages should deter-
of damages, and give that criterion in charge to the jury, when sworn.

/. LarJh'n, 9 Bush, 164, it was held that, in order to ha\e an equitable



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248 TRIAL AND JUDGMENT. [TITLE IX



issue tried by a jury, it is not necessary that the issue should be formed by the pleadings
The issue may be granted on exceptions to a master's report.

But in Horner v. Harris* ex*r, 10 Bush, 360, the court said : " The chancellor may am
frequently does submit questions of fact to a jury, but the issues are always made up froi
the pleadings in the action. We are aware of no state of case in which the chancellor ca
compel a petitioner to establish his cause of action, or any fact essential thereto, to th
satisfaction of a jury, until he has first required the defendant to answer, and has thereb
ascertained whether or not the existence of the fact is denied."

(3) In an action, in which the only issue was as to the defendant's indebtedness to th
plaintiff, an order that "the issue raised by the pleadings" was to be tried by a jury, wa
held to be sufficiently explicit. Savings Bank of Cincinnati v. Benton, 2 Met., 243.

3. Character of evidence.

( 1) Under the old practice.

According to Reading v. Ford* s heirs, I Bibb, 340, Griffith v. Depew t 3 Mar., 183, am
Moore N.Simpson, 5 Litt., 49, (overruling Owens v. Owens, Hardin, 154), parol testimon



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 36 of 142)