130 Ky. 197 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing
Henry Roettger and wife rented rooms of M. ReifMn and wife to live in. By tlie lease they were to vacate within three days upon failure to pay rent. They failed to pay the rent, and a warrant of forcible detainer was taken out by the landlords. The case was' tried on Friday, January 4th, and a judgment was entered in favor of the plaintiffs. About 4 p. m. on Monday, January 7th, the Reifkins went to a magistrate, and had him to issue a writ of possession, which was then placed in the hands of the constable, who proceeded with Reifkin to the premises. Reifkin secured a key, and opened up the rooms for the constable to enter. He and the constable then entered, and the constable then and there removed the tenants’ goods from the premises, and placed them on the sidewalk, where rain fell upon them the following night. All this occurred about 4:30 p. m. Mionday, the tenants not being present, and not knowing that the goods were to be removed. Thereupon the tenants brought this suit to recover damages for the injury to their property, which they charged had been ruined. At the conclusion of the evidence for the plaintiffs the' court peremptorily instructed the jury to find for the defendants, and this being done, and the plaintiffs’ petition being dismissed, the plaintiffs appeal
It is true an execution prematurely issued is voidable, and not void. Freeman on Executions, section 25; Galot v. Pierce, 38 S. W. 892, 18 Ky. Law Rep. 1004. It may be quashed, but unless quashed it protects the officer or the purchaser at the sale; but this case does not turn on the question whether the execution was void or voidable. The defendants, when they were not entitled to the possession of the property, and when they were not entitled to a writ of possession, took out the writ, and set the plaintiffs’ property out on the street. This was a tort, and they must compensate the plaintiffs for such damages as they thereby sustained; for the plaintiffs were rightfully in possession of the rooms, and could not be lawfully disturbed until the expiration of three days after the judgment.
On another trial, the court will'exclude all evidence as to the plaintiffs having been heretofore evicted
Judgment reversed, and cause remanded fox a new trial. *