157 Ky. 172 | Ky. Ct. App. | 1914
Opinion op the Court by
Reversing.
These three appeals, styled as above, and involving the same questions, were by agreement submitted together and will be disposed of by this single opinion. It is alleged in the petitions, respectively, that the appellee, Walker Jameson, as sheriff of Lee County, has in his hands a writ of habere facias possessionem, issued, upon a judgment of the Lee Circuit Court in the ease of John M. Smyth, etc. v. Wash Miller, etc., under and by virtue of which he is illegally threatening to dispossess the appellants, respectively, of certain lands particularly described in the petitions, respectively, and that he will dispossess them thereof, unless restrained by an injunction from so doing.
In addition to the formal averments required in obtaining an injunction, it is alleged in each of the petitions that the plaintiffs therein were the owners, and had for more than fifteen years continuously been in the actual adverse possession of the lands therein described; that the appellants, plaintiffs therein, respectively, were not parties or privies to the action in which the writ of habere facias possessionem was issued and were not bound by the judgment rendered therein or the writ held by the sheriff; and, further, that the boundary and description of the land set out in the writ do not include the lands, or any of them, claimed by the appellants, and described in the petitions, respectively. A temporary injunction was granted in each case, restraining the appellee sheriff from executing the writ. At the succeeding term of the circuit court appellee filed a special and general demurrer to each of the petitions; the first being interposed upon the ground that the several petitions manifest a defect of parties, in that they do not make' the plaintiffs in the action in which the writ of habere
Section 22, Civil Code, provides: “All persons.having an interest in the subject of an action and in obtaining the relief demanded may be joined as plaintiffs, unless it is otherwise provided in this Code.” Section 23 provides: “Any person may be made a defendant who claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of the question involved in the action.” Section 28 provides: “The court may determine any controversy between the parties before it, if it can ¡do so without prejudice to others; if it cannot do so, it must require such other persons to be made parties, or must dismiss the action without prejudice. ’ ’
A special demurrer for defect of parties will lie only when such defect appears on the face of the pleading to which the demurrer is filed. Section 92, subsection 4, Civil Code. But section 118, Civil Code, provides: “A party may, by an answer or other proper pleading, make any of the objections mentioned in section 92, the existence of which is not shown by the pleading of his adversary; and failure so to do is a waiver of any of said objections, except that to the jurisdiction of the court of the subject of the action.” In our opinion a defect of parties was not shown by either of the petitions in question, therefore, the court should have overruled the special demurrer, leaving it to the appellee, the defendant in each of the actions, to show by prope'r pleading such defect of parties, as provided by subsection 4, section 92, Code. The petitions make no attack upon the' judgment rendered in the action in which the writ of possession issued. The plaintiffs therein, respectively, merely contenting themselves with the allegations that
But if we are mistaken in this conclusion, it was, in any event, the duty of the court in dismissing the actions, because of the failure of the appellants, plaintiffs therein, respectively, to make the plaintiffs in the action in which the writ was issued, parties, to adjudge that such dismissals were without prejudice; for the dismissals, if proper at all, were authorized by section 28, Civil Code, which, as we have already stated, provides that where the court cannot determine a controversy between the parties before it, without prejudice to others, “it must require such other persons to be made parties, or must dismiss the action without prejudice.” Carpenter v. Miles, 17 B. Mon., 598; McAlester v. Savings Bank, 80 Ky., 684; Rudd v. Deposit Bank, 20 R., 1497.
As the judgments appealed from must be reversed because of the error committed by the circuit court in sustaining the special demurrer and dismissing the actions absolutely; and the case will be remanded to that court for further proceedings, we deem it proper to say that in overruling the general demurrer to each of the petitions it did not err. Each of the petitions states a cause of action, the facts of which, if established by proof, would entitle the plaintiffs therein to the relief prayed. If the circuit court had been in session when the sheriff attempted to execute the writ, appellants might have moved to quash it; they were not, however, confined to this remedy, but had the right to apply for an injunction to restrain the sheriff from dispossessing them of their lands. Indeed, in view of the necessity for immediate action, injunction was their only adequate remedy. The mere facts that appellants were neither
It is admitted that appellants were not parties to the action in which the writ issued; and as they aver that they were not privies thereto, they cannot be in possession of the lands of which they are sought to be dispossessed as tenants of or claimants under the unsuccessful parties in the former action. In Robinson v. Carlton, etc., 123 Ky., 419, we held that injunction would lie to prevent the sale of the plaintiff’s land under an
If, as was properly held in the ease supra, injunction will lie to prevent the sale of one’s lands under an execution issued on a void judgment, no reason is perceived for saying that injunction is not the proper remedy for preventing him from being dispossessed of his land under a writ of habere facias possessionem, issued upon-a judgment to which, and the action in which it was rendered, he is a stranger.
For the reasons indicated the judgment in each of the three cases appealed is reversed, and cause remanded for further proceedings consistent with the opinion.