October 1, 2012

Cundiff v. Trimble, Pulaski, 1899

CUNDIFF v. TRIMBLE.

COURT OF APPEALS OF KENTUCKY

52 S.W. 940; 1899 Ky. LEXIS 339; 21 Ky. L. Rptr. 657

October 3, 1899, Decided

PRIOR HISTORY:  [**1] Appeal from circuit court, Pulaski county.

DISPOSITION: Affirmed.

COUNSEL: Curd & Smith and G. W. Shadoan, for appellant.

O. H. Waddle, for appellee.

JUDGES: GUFFY, J.

OPINION BY: GUFFY

OPINION

 [*940]  GUFFY, J. The appellant sought in this action to obtain a judgment against appellee for more than $200. The petition showed that appellant had theretofore recovered a judgment against appellee and others for $300, besides interest and costs, subject to certain credits. It was also alleged that appellee had made other payments on the judgment, and had often promised to pay the residue of the same. A demurrer was sustain to the petition, and the appellant thereupon filed an amended petition. It appeared from the amended petition that appellant had caused an execution to be issued upon the judgment aforesaid, which execution had been ordered to be quashed by the circuit court. Other averments were made in the petition tending to show that appellee was still indebted to the appellant for the sum claimed, and that he was entitled to same. The demurrer was sustained to the petition as amended, and appellant failing to plead further, his petition  [**2] was dismissed, and he has appealed, and asks a reversal.

The only question presented for decision is whether appellant was entitled to judgment for any sum. His petition showed that he already had a judgment, and it seems to us that there is no law authorizing him to obtain a judgment for a debt for which he had already obtained a judgment some years before. It seems to us that the opinion in Davidson v. Simmons, 11 Bush, 330, decides that no action upon a judgment in this state can be maintained, except one to enforce the collection thereof, as provided by the Civil Code of Practice. The only relief sought in the case at bar was the obtention of a judgment for money against the appellant. No other relief was asked; hence the court properly sustained the demurrer to the petition as amended. Judgment affirmed.

No comments:

Related Posts Plugin for WordPress, Blogger...