Yocum v. Moore, 7 Ky. 221

Yocum v. Moore

7 Ky. 221 | Ky. Ct. App. | 1815

OPINION of the Court, by

Judge Owsuky.

The defendants in error Inn ing obtained judgments at law in an action of ejectment brought by them against the plaintiffs in the court below, to be relieved against these judgments and obtain a surrender of tbe elder legal ti-tie, the plaintiffs exhibited their bill with an injunction, in which they rely upon their superior equity under an adverse claim. The suit in chancery having been regularly prepared, at the time it was set for trial, on the motion of the defendants, the injunction was dissolved, and at a subsequent day of the same term the bill was dismissed with costs. From this decree the present plaintiffs prayed and obtained an appeal to this-court. At a subsequent term, but pending the appeal, the clerk having refused to issue writs of possession on the judgments in ejectment, the present defendants moved court and obtained an order directing writs of possession to issue ; and exceptions having been taken to the opinion of that court, the cause is now brought before this court by writ of error.

The correctness of the decision of that court turns exclusively upon the operation of the appeai taken to tiie decision in the suit in chancery. If the appeal suspends the order dissolving the injunction, as well as that dismissing the bill, then most clearly it was irregular, whilst that appeal was depending, for the court to order the issuing of writs of possession. Why the appeal should not have such an operation, wc are unable to perceive any satisfactory reason. Both the orders were made during tbe same term; they were both in the power of tbe court during the same time, liable to be annulled, altered or amended at tbe discretion of tbe court; they were both intimately connected in their relation to *222the same subject matter; and in fact the present plai n-tiffs, by manifesting their superior right to the land-, the main subject of contest, would thereby necessarily shew themselves entitled to relief against the judgments in ejectment.

The appeal, therefore, under- these circumstances, whilst it suspends the decree as to the main subject, should also, we apprehend, suspend the operation of all orders made during the same term incidental and relating to the principal matter in contest.

The decision of the court below is consequently erroneous in directing the writs of possession to issue, and must be reversed with costs.