129 Ky. 583 | Ky. Ct. App. | 1908
Opinion op the Court by
Affirming.
Appellant, T.. C. Jones, .seeks in this action a mandamus against B. J. Drake, county judge of McLean county, to compel him to re-enter upon the record of his court a judgment that had been destroyed. It appears from appellant’s petition that one W. G. Gibson instituted in the quarterly court of McLean county an action against him on a note for $115. The appellant, who was defendant in that action, pleaded
Appellant contends that this action is authorized by section 3991 of the Kentucky Statutes of 1903. That section is as follows: “When any judgment or final order of any court of record of this State remains unexecuted, and the record thereof has been lost, mutilated, defaced or destroyed, it shall he lawful for any person interested therein, upon ten days ’ notice, in writing, to the adverse party, to move the court in which such judgment was rendered or final order was made to re-enter the same of record; and, upon satisfactory proof that such judgment or final order had been theretofore entered of record, that the same had been mutilated, defaced or destroyed, and the purport thereof, it shall be the duty of the court to re-enter the same of record; which judgment or final order so entered shall have the same effect
So, too, it has been held that where an inferior tribunal is invested with both judicial and ministerial functions or only the former, but refuses to act or entertain a question as to which it has discretion, it may be compelled by mandamus to act; but, if it acts, although it may be mistaken in its judgment, it cannot be compelled by mandamus to act differently. Commonwealth, for, etc. v. Boone County Court, 82 Ky. 632, 6 Ky. Law Rep. 755. In this case it does not appear that appellee refused to act. On the contrary, the petition alleges that appellee refused to re-enter the judgment. If he had refused to act at all, he might have been compelled to do So, but the manner of his acting would not have been subject to control by mandamus. Appellant’s remedy is by appeal from the order of the county court refusing to reenter the judgment. In this manner the propriety of appellee’s action may be called. in question.
Judgment affirmed.