« EelmineJätka »
er died of tuberculosis, and not from the were witnesses to the deed. They testified cause stated in her application, and that the that it was signed in their presence. The false statement was fraudulently made be witness Serena states that the grantor recause it would be quite unusual and out of quested him to write his name and witness the ordinary if a grown daughter could live his mark to the deed as it appears there, the in the same home with her mother and not grantor touching the pen for his mark, and know that for years she was suffering and that after it was executed by the grantor he finally died from pulmonary tuberculosis, (Serena) took it to the county clerk's office a disease most any person can usually detect and certified it before the clerk. almost at sight of one afflicted with it, and  It is urged in appellants' brief that also be ignorant of the fact her mother's there was no delivery of the deed by grantor. menstrual periods had ceased.
The proof does not sustain this contention. This conclusion renders unnecessary a con- Besides, as stated in 13 Cyc. 734: sideration of the materiality of the false
"That a deed has been duly executed, acknowlstatement.
edged, and recorded is prima facie evidence of Wherefore the judgment is reversed, and its delivery and acceptance." the cause remanded for another trial consistent herewith.
Any one asserting the contrary has the burden of proving it. 8 R. C. L. § 66.
 Appellants insist the consideration is inadequate, and that the proof shows no part of
the consideration was paid. The covenant in BANNER et al. V. ASHER et al.
the deed is of special warranty. The con.
veyance is of the grantor's “right, title, and (Court of Appeals of Kentucky. Jan. 24, 1919.) | interest to any and all lands to which he
may claim through and by his father, James 1. DEEDS em 208(4)—DELIVERY-EVIDENCE. A. Robbins, deceased.” This is most indefi
That a deed has been duly executed, ac- nite, because the evidence is anything but knowledged, and recorded is prima facie evidence satisfactory as to the extent of the holdings of its delivery and acceptance.
of James A. Robbins. The status of his title 2. DEEDS 210 CONSIDERATION-PAYMENT
does not appear. William A. Robbins was -EVIDENCE.
one of nine children. Both the quantity and In a suit to set aside a deed which recited quality of the estate are veiled in so much payment of the consideration, evidence held in- uncertainty we cannot say the consideration sufficient to rebut the presumption of payment. is inadequate. The fact that some of the
witnesses testify they know nothing of the 3. DEEDS Ow207-EVIDENCE.
payment of the recited consideration by no To overcome a recorded deed which purports means proves it was not paid. The deed to be signed and acknowledged by the grantors, states it was paid. the evidence must be clear and convincing.
 We do not think the proof in this case
sufficient to overcome the presumption of vaAppeal from Circuit Court, Bell County. lidity and regularity incident to the acknowl
Suit by Vici Banner and others against edgment and recordation of the instrument. T. J. Asher and others. Judgment for de As said in Rockcastle Mining, Lumber & Oil fendants, and plaintiffs appeal. Affrmed.
Co. v. Isaacs, 141 Ky. 80, 132 S. W. 165 : C. Hurst and Jas. M. Gilbert, both of Pine signed and acknowledged by the grantors and is
"To overcome a deed which purports to be ville, for appellants.
thereafter put to record, the evidence must be William Low, of Pineville, for appellees. clear and convincing."
QUIN, J. Appellants brought this suit to The evidence in this case does not conform set aside a deed executed by William A. Rob- to this rule. bins to T. J. Asher, which deed was duly The appellant, Vici Banner, was the wife acknowledged before two witnesses and re of William A. Robbins. She did not join in corded in the Bell county court, the signa- the deed. Since the submission of this case ture being by mark. The appellants claim she has filed an affidavit stating that this that the instrument so recorded was not the appeal was obtained without her knowledge act or deed of their ancestor, and they ask or consent, and her motion to strike her that the same be set aside, canceled, and name as appellant and dismiss the appeal, held for naught.
so far as she is concerned, has been susAppellants contend that the grantor could tained. read and write, and there is evidence to this Under the pleadings and evidence in the effect in the record. The deed was type- record before us we do not feel authorized written and delivery made in the office of to set aside the ruling of the lower court; appellee Asher. Appellee's secretary and son therefore the judgment is affirmed.
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STEPHENS v. SCHADLER et al.
Tomlin & Vest, of Walton, for appellant.
John B. O'Neal, of Covington, for appel(Court of Appeals of Kentucky. Jan. 21, 1919.) lees. 1. ACTION 50(6) — JOINDER OF CAUSES OF ACTION-JOINT TORT-FEASORS.
HURT, J. This action was instituted by Plaintiff cannot in the same action prose
the appellant, Stephens whom we will call cute two defendants, for distinct torts, commit- the plaintiff, against the appellees, Joseph ted by each, independently, although the conse- Schadler and Ed Casson, whom we will call quences of the tort of one defendant united the defendants, to recover damages suffered with those of the tort of the other.
by the plaintiff on account of trespasses com2. TRESPASS Em31—"JOINT TRESPASS."
mitted by the dogs of the defendants, against
the plaintiff's sheep, growing tobacco, grass, A “joint trespass” is where two or more and alfalfa, and in his petition and amended persons unite in committing it, or wbere some actually commit the tort, the others command, petition is also included account for damages encourage, or direct it.
suffered by him for loss of time which he [Ed. Note.--For other definitions, see Words
was compelled to lose in driving the dogs and Phrases, Joint Trespass.]
from his premises in attempts to protect his
property. Motions were made by the de 3. PLEADING 369(3)—JOINT TORT-FEASORS fendants, to require the plaintiff to set out -ELECTION AS TO DEFENDANTS.
his causes of action more certainly and defiIf it appears from the face of the petition that the tort is the joint act of the defendants, nitely. These motions were sustained, and a motion to elect as to defendants should not in an endeavor to comply with the rulings prevail as against the petition, but may be re- of the court the plaintiff filed two amended newed when misjoinder appears in the trial. petitions. The defendants then moved the 4. PLEADING C369(6) – ELECTION-DISMiss- which of the defendants he would prosecute
court to require the plaintiff to elect against AL ON FAILURE TO ELECT.
Failure of plaintiff to elect which cause of the action, and over his objection the motion action he will prosecute does not authorize dis
was sustained. The defendants then moved missal of the action, but the court must strike the court to require the plaintiff, as is stated out one of the causes of action, and, if plain in the record, “to separate, paragraph, and tiff still refuses to proceed, the court may then number his petition and state separate cause dismiss without prejudice.
of action.” This motion was also sustained. 5. ACTION Cm 50(6) -- JOINDER OF CAUSES OF
The plaintiff declined to further amend his ACTION-ToRT-FEASORS.
petition, whereupon, on the motion of the In view of Ky. St. $ 68, providing "every defendants, the court adjudged that his petiperson owning or harboring a dog shall be lia- tion be dismissed. From the judgment the ble to the party injured, for all damages done plaintiff has appealed, and the soundness of by such dog," the owner and harborer, being the rulings of the court, with reference to each liable for the full damages, may be made the two motions, will be considered, respecjoint defendants, regardless of whether the dog tively, in the order in which they were made. be vicious or of the owner's or harborer's
[1-4] 1. It is presumed that the motion to knowledge thereof.
require the plaintiff to elect as against 6. PLEADING Om52(2)-ACTIONS IN TRESPASS which defendant he would prosecute his acSEPARATE PARAGRAPHING AND NUMBER- tion was sustained by the court, upon the
ground that the petition and its amendIt is sufficient that a petition against the ments showed upon their face that the difowner and the harborer of dogs for injury to ferent trespasses complained of were not the sheep, crops, and loss of time in driving off joint trespasses of the defendants, but showdogs during several years should allege theed the commission of the trespasses, as in
one continuous trespass, limited by beginning and ending dates, and every act of dependent acts, by one or the other of the trespass need not be made a distinct para defendants, without any concert of action or graph, and separately numbered, under Civ. unity of design with the other defendant, or Code, Prac. $ 113, subsecs. 2, 3.
in other words, that the tort of each defend7. DAMAGES 55-MENTAL DISTRESS.
ant was a several and distinct one, from the In an action for damages for injuries to torts of the other defendant. It goes withsheep, crops, and loss of time for trespass com
out question that a plaintiff cannot, in the mitted by defendant's dogs, damages for the
same action, prosecute two or more defendmental distress of plaintiff are not recoverable. ants for distinct torts which were commit
ted by the different defendants independentAppeal from Circuit Court, Kenton County, ly of and not in connection with each other, Common Law and Equity Division.
although the consequences of the tort, which Action by Ira W. Stephens against Joseph was committed by one defendant, united Schadler and another. From a judgment with the consequences of the torts, which dismissing the petition, the plaintiff ap- were committed by the other, because in such peals. Reversed and remanded.
state of case the one defendant cannot be
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made liable for the consequences of the tort “Every person owning, having or keeping of the other. A joint trespass is where two any dogs, shall be liable to the party injured or more persons unite in committing it, or for all damages done by such dog." where some actually commit the tort, and
Subsection 5, 8 68a, Ky. Stats., provides : the others command, encourage, or direct it. Ferguson v. Terry, 1 B. Mon. 96. If a tort is "Every person owning or harboring a dog not a joint one, and it so appears upon the shall be liable to the party injured for all dampetition, a motion to elect against which de- ages done by such dog. fendant the action will be prosecuted should
Hence both the owner and the harborer of be sustained, but if upon the face of the peti- a dog is liable for compensatory damages tion the tort appears to be the joint act of for all injuries to another inflicted by such the defendants, a motion to elect should not dog, regardless of whether the dog be of a prevail, and upon the trial the question as vicious nature or the knowledge of the ownto whether one or more of the defendants er or harborer of his nature. Faulkner v. were parties to the tort is to be determined Hall, 150 Ky. 416, 150 S. W. 506; Bush v. as any other issue in the case, and the fail-Wathen, 104 Ky. 548, 47 S. W. 599, 20 Ky. ure to connect with evidence all the defend- Law Rep. 731 ; Myers' Adm'r v. Zoll, 119 Ky. ants with the commission of the tort has no 480, 84 S. W. 543, 27 Ky. Law Rep. 167 ; other effect than the discharge of the ones Koestel v. Cunningham, 97 Ky. 421, 30 S. against whom the guilt of its commission is w. 970, 17 Ky. Law Rep. 296. The trespassnot shown. If a misjoinder arises from su
es committed by the dog are to be treated as ing two or more defendants for separate and the trespasses of the one who owns or harbors distinct torts committed by them without the dog. The petition and amendments allege connection with each other, a motion to that, while certain of the dogs which commitelect should prevail, if the misjoinder ap- ted the alleged trespasses were owned by the pears on the face of the petition, as provided defendant Casson, and others of them were by section 85 of Civil Code, but if it does owned by the defendant Schadler, who also not appear on the petition, a motion to elect harbored all of the dogs, the trespasses, were may be made, as soon as the misjoinder ap- committed jointly by the dogs owned by both pears, in the trial, Ferguson v. Terry, supra ; defendants; that in committing the trespasses, Clay v. Sandefer, 12 B. Mon. 334; Alexander the dogs of both defendants were together, v. Reed, 3 T. B. Mon. 246. In the instance and unitedly and in co-operation with each of a misjoinder, the failure of plaintiff, upon other did the acts complained of. Each of requirement, to elect which cause of action the defendants was therefore liable for the he will prosecute does not authorize the damages done by his codefendant's dogs, as court to dismiss the action, but the court well as the damages done by his own dogs. must strike out one of the causes of action, A rule different from this would make it imand if the plaintiff still refuses to proceed, possible for one, injured by a trespass of the court may then dismiss the action, with dogs of different owners, to secure damages out prejudice to a future action. Civil Code, therefor, as in every case it would be prac§ 851; Sheppard v. Stephens, 2 S. W. 548, 8 tically impossible to determine which parKy. Law Rep. 6031 ; Hilton v. Hilton, 110 Ky. ticular dog did the injury, or to what ex523, 62 S. W. 6, 22 Ky. Law Rep. 1934; Ban- tent the dog of the particular owner connon v. Bannon, 136 Ky. 556, 119 S. W. 1170, tributed to the doing of the injury. The 124 S. W. 843.
order of the court, requiring the plaintiff to (5) There is, however, no doctrine of the elect against which defendant he would law more firmly established than, if two or prosecute his suit, was therefore error. more persons unite or co-operate with each  2. The order of the court, which reother in committing an act which is a wrong quired the plaintiff "to separate, paragraph, to another, or do it under circumstances and number his petition and state separate which will fairly charge them with intend cause of action," was, as we presume, ining the consequences of it, each of them is tended to be an order to require the plaintiff guilty of the wrong, and liable for the con- to set out each of the different causes of sequences of it, for all engaged in the tort. action relied upon in a separate paragraph Bonte v. Postel et al., 109 Ky. 64, 58 S. W. and to number same. Section 113, subsecs. 536, 22 Ky. Law Rep. 583, 51 L. R. A. 187. 2, 3, Civil Code, provide that a pleading may For such joint tort the injured party may contain a statement of as many causes of maintain an action against all the wrong action as there may be grounds for in be doers jointly, or he may sue one separately. half of the pleader, and if there is more Buckles v. Lambert; 4 Metc. 333. Section than one cause of action stated, each must 68, Ky. Stats., provides :
be stated in separate, numbered paragraphs,
and that it is the duty of the court to en1 Reported in full in the Southwestern Reporter: force these provisions, and for that purpose reported as a memorandum decision without opinion may dismiss the action, without prejudice, or in 8 Ky. Law Rep. 603.
strike a pleading from the record of the 207 S.W.-45
case, or allow a new pleading. In the in- / was a separate trespass, and, if injury restant case, the court dismissed the petition, sulted, the damages could be recovered for but failed to do so without prejudice to a it, but it is apparent that the damages for future action. To determine whether the one trespass toward effecting the results al. court should have, in the instant case, or- leged would be infinitesimal and impossible dered a dismissal of plaintiff's action upon of ascertainment, but this should not dehis refusal to further amend his petition, prive the plaintiff of relief if the injuries and to set out his causes of action in addi- which resulted from the frequently recurtional paragraphs, it is necessary to consid- ring trespasses as a final result produced the er the statements of his causes of action. results complained of. With this view, the The grounds of his action, as appears from divers trespasses would necessarily have the petition as amended, consisted of three to be considered as one continuing trespass, classes of injuries suffered by him on account and constituting but one cause of action, of the trespasses by the dogs of defend- The chief reason for requiring that each disants: (1) Injuries to his sheep; (2) injuries tinct cause of action be set out in a separate to his crops; and (3) loss of time suffered paragraph is to apprise the defendant of in driving away the dogs and protecting his what he is called upon to answer and the cattle from them, The causes of action, nature and extent of the evidence which on account of injuries to the sheep, caus- may be adduced against him. Gillon v. Wiled by the dogs coming upon the plaintiff's son, 3 T. B. Mon. 217. The allegations of premises and frightening and chasing the the paragraph amply meet this requirement. sheep, and thereby causing ewes to abort and Further, in 2 Greenleaf, $ 229, it is said: lose the unborn lambs; crippling the ewes
"Originally every declaration in trespass, and lambs; frightening the ewes away from
seems to have been confined to a single act of newly born lambs, and thereby causing the trespass ; and if it was continuous in its nadeaths of the lambs; chasing and causing ture, it might be so laid, in which case it was to become overheated newly docked lambs, considered as one act of trespass. Subsequentand thereby causing them to lose blood and ly, to save the inconvenience of distinct counts retarding their growth-are each fully and for each tortious act, the plaintiff was permit
ted to consolidate, into one count, the charge specifically set out in seven separate, num
of trespasses done on divers days between two bered paragraphs, stating the times and cir- days specifically mentioned, in which case it is cumstances of the injuries and the damages considered as if it were a distinct count for suffered in each instance. There could be every different trespass. In the proof of such no basis for an order requiring any further | a declaration the plaintiff may give evidence separation of the causes of action growing of any number of trespasses, within the time out of the above enumerated injuries.
specified.” In another paragraph, it is alleged that
Substantially the same rule is found in the dogs of the defendants had entered upon 38 Cyc. 1083. The general rule obtaining at the lands of the plaintiff from one to three the common law was the same as provided times each week, during the preceding five by section 113, subsec. 3, Civil Code. Under years, and had, by their conduct and actions, the common law, as a general rule, the plainfrightened the plaintiff's sheep upon each of tiff was not allowed to give evidence of more these occasions, causing them to run, and by trespasses than were stated in the petition, their fear of the dogs were driven from the and each day's trespass upon real estate shade in the summer and from the shelter
was a separate cause of action. Since the of the barns in the winter, and were thus enactment of section 113, supra, the rule preexposed to the heat of the sum which, to vailing in regard to trespasses upon real esgether with their exertions in running, caus- tate is thus stated in 1 Newman on Pleaded them to become overheated in summer, ing and Practice, 425 : and to expose themselves to the cold and
"In an action for an injury done to real esrains in winter, and were thereby also driv- tate, where the trespasses are continued, it will en from feeding in the pastures because of be sufficient to allege in the same paragraph the presence and actions of the dogs, and that the trespasses were continued, from day that these continued aggressions of the dogs to day, or committed on divers days between from day to day kept the sheep in a fright-two stated periods, notwithstanding the Code ened and excited condition, and caused the requires each cause of action to be stated in a
distinct paragraph." ewes to fail to conceive and bear lambs, in which the chief value of maintaining sheep Where however, the trespass, whether upconsists, and from these repeated trespasses on real or personal estate, or upon the perthe sheep were injured in their growth, flesh son, is one of a nature which cannot be conand condition, and the damages resulting, tinued, it must be stated in a separate parawere laid at a gross sum. The plaintiff al- graph. It is impossible to discern why the leges that he is unable to state the facts rule applicable to trespasses upon real eswith any greater detail, and this seems ap-tate should not apply in the instant case, parent. Strictly each occasion upon which where the trespasses are, if not substantially the dogs entered and frightened the sheep continued, of the same kind, by the same persons, against the same person, and upon a bail bond executed by one H. Greenfield the same property. The statements of the for the appearance in that court of William second and third paragraphs of the second Phillips to answer a warrant charging him amended petition fall under the same rule. with the crime of grand larceny, a felony
 The character of damages sought in defined by section 1194, Kentucky Statutes. the fifth paragraph for the mental distress Phillips was arrested under the warrant by of plaintiff are not recoverable, and the sixth a police officer March 9, 1918, and on the paragraph of the second amended petition is following day taken before the police court but a recapitulation of the averments of the for an examining trial. March 10th the case, preceding part of the pleadings, and might upon Phillips' motion, was continued to be properly struck out as redundant, and as March 12th; the order of continuance adto whether certain of the causes of action mitting him to bail until that time in the are capable of proof of such tangible charac- sum of $300. On the following day Greenter as to justify a submission to the jury field became his bail by executing in due are questions to be determined upon the form a bond in the amount required by the trial.
order of the court, and Phillips was thereupon The judgment is therefore reversed, and released from custody. When the case was cause remanded for proceedings consistent called in the police court March 12th for trial, with this opinion.
it was on Phillips' motion continued to March 16th, and the latter, during the interim, allowed to stand on the bail bond. When reached for trial on the latter date, Phillips,
though called, failed to appear in obedience REAGAN, Chief of Police, v. GREENFIELD. to the bond, or to respond to the charge of (Court of Appeals of Kentucky. Jan. 21, 1919.) felony contained in the warrant. Thereupon
the court entered an order forfeiting the bond, 1. BAIL Om96-BONDS-FORFEITURE—DISPO- and, after indorsing such forfeiture on the SITION OF PROCEEDS.
bond, at once returned it to the clerk of the Ky. St. $8 3155 and 3162, relating to fines, Fayette circuit court, in whose office it was penalties, and costs collected in police court forduly filed. Following such filing of the bond a city of the second class, held not to entitle a and indorsement of forfeiture in the office of city of that class to the proceeds of a bail bond the clerk of the circuit court, that officer by a given to secure the appearance in police court of one to answer a warrant charging him with proper order of the circuit court immediately the crime of grand larceny; for, in view of sec- issued a summons thereon against the bail, tion 3147 and Crim. Code Prac. 88 58 and 94, a Greenfield, requiring him in 20 days to show police court has no final jurisdiction in felony cause, if any he had, why judgment in favor cases, but can sit only as an examining court, of the commonwealth of Kentucky should not and the bond could be forfeited only in circuit go against him on the ball bond for the court.
amount thereof and costs of the proceeding. 2. BAIL 96 - BAIL BONDS FORFEITURE Though duly served with the summons, -DISPOSITION OF PROCEEDS.
Greenfield made no defense, and judgment Under Ky. St. g 1139, relating to fines and was rendered by the circuit court against him forfeitures, the proceeds of a forfeited bail bond in favor of the commonwealth for the amount given in city police court to secure the appear- due on the bond and costs. ance of one to answer a warrant charging him At this juncture the appellant, Jere Reawith grand larceny belong to the state, and not gan, as chief of police of the city of Lexing. the city.
ton, and on relation of the city of Lexington, Appeal from Circuit Court, Fayette County. filed an intervening petition setting up claim
to the proceeds of the bail bond for the city Jere Reagan, Chief of Police, on the re- and praying that it be adjudged entitled lation of the City of Lexington, filed an in- thereto. A general demurrer was filed to tervening petition in a proceeding against H. the petition of Reagan and the city by the Greenfield for the forfeiture of a bail bond, commonwealth, which the circuit court sussetting up a claim to the proceeds of the tained, and dismissed the petition. From the ball bond, and a demurrer to the petition judgment entered in conformity to these rulhaving been sustained, and the same dismiss- ings the defeated parties have appealed. ed, intervener appeals. Affirmed.
 It will readily be seen that the sole James A. Wilmore, of Lexington, for appel- question presented for decision by the appeal lant.
is whether the commonwealth of Kentucky Chas. H. Morris, Atty. Gen., for the Com- or the city of Lexington is entitled to the monwealth.
proceeds of the bail bond forfeited in this John R. Allen, of Lexington, for appellee. case. In support of their contention that the
city of Lexington is entitled to the amount SETTLE, J. This appeal grew out of the received on the bond, appellants rely upon forfeiture in the Lexington police court of sections 3155–3162, Kentucky Statutes, both
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