130 Ky. 139 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
Mrs. Joyce Morrison brought this suit against Henry Price and Oliver Blair to recover damages for their forcibly seizing her and putting her and her property out of a house which she occupied as the tenant of Price. The defendants filed answer, in which they traversed the allegations of the petition. It was alleged in the petition that Blair did the acts complained of, but was procured and induced to do them by Price. On the trial of the case before a jury, the plaintiff testified that she had rented the house from Price for a year from August 1, 1906,‘and paid him the rent until November, 1906, regularly; that in
The ruling of-the circuit court seems to have been based upon the idea that there was no competent evidence introduced as to the proceedings had in the first case, in which the decision was in favor of Mrs. Morrison; but, if we leave out of view entirely the proceedings in that case, the plaintiff showed a right of action. By section 2128, Ky. St. 1903, a married woman may make contracts and sue and be sued as a single woman. She may therefore rent property, and, when she so rents it, she stands just as any other tenant. In order to dispossess her, she must be a defendant to the proceedings. She is not bound by a judgment rendered in an action against her husband to which she is not a party, and a judgment
There is another reason why the judgment is improper. The defendants simply traversed the petition. There was no plea of authority. The rule is that, where an entry is justified under a writ, the writ must be pleaded: It is thus stated in Stephen on Pleading (Tyler’s Ed.) pp. 302, 303: “In general, when a party has occasion to justify under a writ, warrant, or precept, or any other authority whatever, he must set it forth particularly in his pleading. And he ought also to show that he has substantially pursued such authority. * * * So, in all cases where the defendant justifies under judicial process, be must set it forth particularly in his plea; and it is-not sufficient to allege generally that he committed the act in question by virtue of a certain writ or warrant directed to him. But on this subject there are some important distinctions as to the degree of particularity which the rules of pleading in different cases require: (1) It is not necessary that any person justifying under judicial process should set forth the cause of action in the original suit in which that process issued. (2) If the justification be by the officer executing the writ, he is required to plead such writ only, and not the judgment on which it was founded; for his duty obliged him to execute the former, without inquiring about the validity or. existence of the latter. But if the justification be by a party to the suit, or by a stranger, except an officer, the judgment, as well as the writ, must be set. forth.
The plaintiff offered in evidence a deposition taken by a commissioner in a proceeding to supply the lost record; the papers of- the proceeding in which judgment was. rendered in her favor being lost. The court properly sustained exceptions to this- deposition. When the papers of a case are lost, and a proceeding is instituted to supply the lost record, the proof taken by the commissioner may not be read as a substituted record. In Mayo v. Emery-, 103 Ky. 640, 45 S. W. 1048, 20 Ky. Law Bep. 638, the court said: “The statute provides that the evidence which the commissioner takes shall be in writing, and shall* be legal evidence, and shall be returned to the clerk of the court and safely kept by bim. The statute does not provide that the evidence which the commissioner is required to take shall be used in place of the parts of the record which are lost. The testimony which he takes is simply the evidence upon which the court must act in making a substitution for the lost record.
Where the record is lost, and has not been supplied, the contents of the lost record may be shown by parol evidence, just as the contents of any other lost paper may be shown; Bullock v. Commonwealth, 96 Ky. 537, 29 S. W. 341, 16 Ky. Law Rep. 621. It is common practice to prove by parol evidence the contents of a lost deed, where the record has been destroyed; and there is no reason why the contents of a judicial record may not be proved in the same way until it is supplied. The court, therefore, improperly excluded the testimony of Mrs. Morrison and the police judge as to the record being lost and as to its contents.
If the defendant Price was present when the writ was issued and given to the officer, and the officer was directed to obey the order of the court, the writ being issued by the direction of his attorney in his presence, he in legal contemplation procured the issuance of the writ, and the acts necessarily done by the officer in executing it.
Where the defense to an action is made by another in the name of the defendant, the person so defending has been held bound by the judgment by estoppel; but an estoppel, if relied on by the defendants, must be pleaded. Schmidt v. L. C. & L. R. R. Co., 99 Ky. 143, 35 S. W. 135, 36 S. W. 168, 18 Ky. Law Rep. 65.