Aull v. Bowling Green Opera House Co.

122 Ky. 621 | Ky. Ct. App. | 1906

OPINION op the Court by

Judge Barker

Reversing.

In an action styled “J. E. Potter, Executor, etc., v. Mrs Mamie Browder and Others,” pending in the Warren Circuit Court for a settlement of the partnership of Potter Bros, property situated in the city of Bowling Green, known as the “Potter Opera House,” was sold at judicial sale, and purchased by H. D. Pitch, T. Lindsey Pitch, Mrs. Henrietta Miller, S. W. Coombs, and James Hi Barclay, jointly, for the sum of $29,325. This purchase was confirmed by the court, and afterwards the purchasers, having organized themselves into a corporation under the style of “Bowling Green Opera-House Company,” for the purpose of holding and managing the opera-house, assigned the benefit of their bid at the judicial sale to the corporation, and a commissioner’s deed for the property was made to it. Afterwards, on motion, the court awarded w'hat is called a “general writ of possession” against the tenants occupying the opera-house in favor, of the Bowling Green Opera-House Company. When this was done, the appellant, T. H. Anil, tendered' his petition to he made a party to the action, in .which he'set forth, substantially, that he was then occupying a room in the opera-house as a drug store; that he acquired possession thereof from the original owners, Potter Bros., and had been occupying the premises continuously for five or six years prior to the judicial sale; that his lease from Potter Bros, expired on the 1st day of January, 1906; that after the order of confirmation to the individual purchasers, but prior to the assignment to the corporation, the petitioner had obtained a lease of the property from the individual purchasers for one year for the sum of $1,262; that this lease was subsequently reduced to^ writing and extended for á period of three years; that the memorandum Was in the possession of the lessors, and could not be produced by the petitioner; that afterwards the purchasers had organized themselves into a corporation, and, in violation of his rights, assigned the whole benefit of their purchase fa> it. The court, on objection of the Bowling Green Opera-House Company, refused to permit this petition to be filed, but allowed it to be noted of record, and from the order sustaining the objection to its being filed, and also the order awarding a general writ of possession against the petitioner, an appeal was granted and a supersedeas executed in due form before the clerk. Afterwards the clerk, deeming that the supersedeas was void, issued the wlrit of possession, and thereupon the petitioner prayed an appeal in this court from the order issuing the writ of possession.

We think the judgment refusing to permit the filing of the petition and the issuance of the writ of possession constituted a final order, within the meaning of section 368 of the Code. Helm v. Short, 7 Bush, 623; Maysville & Lexington R. R. Co. v. Punnett, etc., 15 B. Mon., 48; Turner v. Browder, 18 B. Mon., 826. And the position of appellees, that appellant is a stranger to the record, and cannot be heard in this case to set up his rights under the lease from the purchasers at the judicial sale against the issuance of the writ of possession is untenable. The purchasers were themselves strangers to the record until they bought the property at the judicial sale, and the Bowling Green Opera-House Company was a stranger to the record until the assignment by the purchasers was made to it and it was allowed to come into court, prove up its rights under the assignment, and have a deed made to it in conformity thereto. If the Bowling Green Opera-House Company could be heard on its rights under the assignment, why may not the appellant be heard on his rights under the lease? Both are claiming from the same parties — the purchasers at the judicial sale. One claims the whole by assignment; the other claims a part by the lease. The same reasoning, which admits the corporation to come into the case to protect its rights under the assignment, admits the appellant to come for the purpose of protecting his rights under the lease. If what he states he true, then the corporation took the property under the assignment subject to the provisions of the lease. It is difficult to see how the appellant can he called a stranger to the record in a case where Ms substantial rights are being adjudicated against him, in the sense that he will not he permitted to protect those rights from adverse, adjudication by bringing them to the notice of the court. Suppose, after making the assignment to the corporation, and receiving the purchase money therefor, the purchasers, had in .violation of their assignment, again assigned it to another party, and attempted to have a deed made to the second assignee; is it possible that the corporation would not he heard to set up its claim under the first assignment, and contravene the rights of the second assignee1? If this question is answered in the negative, then it must be equally sound that the appellant here must be heard on his claim to the property under the lease.

We are of opinion that the trial court erred ini refusing to' permit the appellant to' file his. petition to be made a party. Equity abhors a circuity of actions, and there is no reason for turning the petitioner out of court and requiring him to' bring a new action for relief, when an efficient remedy can be afforded him in the case now pending. We know of no rule of judicial procedure which authorizes the turning out of a party in possession by the exercise of the summary writ issued in this case without affording him, if desired, an opportunity to show why he should not be thus, summarily dispossessed. We, of course, express no opinion on the merits of the issue tendered by the petition. We have assumed the truth of its allegations only for the purpose of testing appellant’s right to file it.

The judgment is reversed for proceedings consistent with this opinion.