페이지 이미지
PDF
ePub

FENSE.

of a nolle prosequi, without the procurement | 3. INDICTMENT AND INFORMATION (§ 202*)-of the defendant, is such a termination of AIDER BY VERDICT-DESCRIPTION OF OFthe criminal prosecution in defendant's favor as is contemplated by the rule requiring that the original suit be terminated in favor of the plaintiff before he can commence his suit for malicious prosecution.

There is a division of authority upon the question. The following authorities are in accord with this holding: Graves v. Scott, 104 Va. 372, 51 S. E. 821, 2 L. R. A. (N. S.) 927, 113 Am. St. Rep. 1043, 7 Ann. Cas. 480; Stanton v. Hart, 27 Mich. 539; Southern Car & Foundry Co. v. Adams, 131 Ala. 147, 32 South. 503; Cooley on Torts, vol. 1, p. 341 (3d Ed.); American & Eng. Enc. of Law (2d Ed.) p. 681; Cyc. vol. 26, p. 60. Many other cases could be cited to the same effect, but the foregoing sufficiently illustrate the trend of authority.

The uncertainty of an indictment charging the unlawful transportation of intoxicating liquors "from one point or county in this state to Tipton county" was made certain by proof that the initial point was in Shelby county, and was cured by the verdict of conviction.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 640-650; Dec. Dig. § 202.*]

Error to Circuit Court, Tipton County; S. J. Everett, Judge.

Richard Green was convicted of unlawfully transporting intoxicating liquors, and he brings error. Affirmed.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3183-3189; Dec. Dig. § 1177.*]

Nat Tipton, of Covington, for plaintiff in error. Wm. H. Swiggart, Jr., Asst. Atty. Gen., for the State.

LANSDEN, J. Plaintiff in error was inIt is further said by the petitioner that in- dicted and convicted for unlawfully conveyasmuch as the present suit was brought the ing, transporting, and carrying vinous, spirday following the entry of the nolle prosequi, ituous, malt, and other intoxicating liquors and as it was within the power of the court "from one point in this state, or one county to set aside the nolle prosequi during the in this state, to Tipton county, for his own term, or within 30 days, if the term should use in quantities larger than one gallon," as last longer, it does not sufficiently appear set out in the first count of the indictment, that the criminal prosecution is finally ter- and for unlawfully transporting, carrying, minated, and for that reason this suit was and conveying vinous, spirituous, malt, and prematurely brought. This contention, how- other intoxicating liquors "from one point ever, is not sound. It was settled in Swep-1 or county in this state to Tipton county, for son v. Davis, supra, in response to the peti- the purpose of delivering to some person, tion to rehear, that the court could not look whose name is to the grand jury unknown," beyond the final judgment in the original as set out in the second count. suit, and whether the original suit was terminated in the plaintiff's favor would be determined alone by the final judgment therein.

We concur in the opinion and reasoning of the Court of Civil Appeals and affirm its judgment.

The evidence is that the plaintiff in error carried four gallons and one quart of whisky from Memphis to Tipton county; that one gallon of it was for his personal use, and the remainder, divided into four packages, was for friends who had requested him to bring the whisky to them on his return from Memphis. These friends had previously sent orders for the whisky to Memphis, and plaintiff in error carried no money to Memphis for them and had no connection with the sale of

STATE v. GREEN.

(Supreme Court of Tennessee. June 13, 1914.) the whisky to those persons to whom he de

1. CRIMINAL LAW (§ 749*)-TRIAL-ASSESS-livered it.

MENT OF PUNISHMENT.

Const. art. 6, § 14, providing that no fine shall be laid in excess of $50 unless assessed by the jury, requires the assessment by the jury of the fine for an offense finable in excess of $50 at discretion, if it merits more than that amount, and it was error for the court to assess the fine for transporting intoxicating liquor in violation of Acts 1913 (2d Ex. Sess.) c. 1, imposing a fine of $100 to $500 therefor.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1723; Dec. Dig. § 749.*] 2. CRIMINAL LAW (§ 1177*)—APPEAL AND ERBOR-REVIEW-HARMLESS ERROR-SENTENCE.

Error in the court's assessing the fine for transporting intoxicating liquor in violation of Acts 1913 (2d Ex. Sess.) c. 1, imposing a fine of $100 to $500 therefor, instead of submitting its amount to the jury, as required by Const. art. 6, § 14, was harmless, where the fine was made $100, as it could not be made less.

He was tried before the circuit judge without a jury, and was found guilty and fined $100 and costs. The conviction evidently was under the second count of the indictment, and the penalty provided for this offense by chapter 1 of the Acts of the Extra Session 1913 is a fine of not less than $100 nor more than $500 and imprisonment, at the discretion of the court, not less than 30 nor more than 60 days.

[1] Two errors are assigned in this court: First, that the trial judge was without power to assess a fine of $100; and, second, that the trial judge erred in overruling the motion in arrest of judgment.

It is provided in section 14 of article 6 of the Constitution that:

"No fine shall be laid on any citizen of this state that shall exceed $50.00, unless it shall be assessed by a jury of his peers, who shall

assess the fine at the time they find the fact, if they think the fine should be more than $50.00."

[2] It cannot be doubted that the amount of the fine to be imposed upon the plaintiff in error, within the minimum and maximum limits prescribed by the Legislature, is within the discretion of the court and jury, and the case would be controlled by the principles upon that subject stated in Metzner v. State, and evidently recognized in France v. State. However, the trial judge, in fixing the fine, fixed it at the minimum sum of $100. This is the least sum that the jury could have imposed upon plaintiff in error had the question of the amount of the fine to be inflicted been submitted to a jury. While it was error for the court to assess the fine without submitting the question of its amount to the jury, it is not reversible error, because he exercised his assumed power for the benefit of the plaintiff in error.

It was held in France v. State, 6 Baxt. 478, that the foregoing provision of the Constitution had no application to fines exceed ing $50, where the Legislature had prescribed a fine of more than that amount, to wit, $500, and in the application of which the court had no discretion. The court said in that case that neither the court nor the jury had anything to do in assessing the fine, inasmuch as the law fixed $500 as a flat penalty, and as a consequence of the verdict.

In the case of Metzner v. State, 128 Tenn. 45, 157 S. W. 69, it was said that the provision of the Constitution under consideration "withholds from the court or judge the right to inflict fines exceeding $50, and confers upon the jury exclusive power or jurisdiction to impose fines above that sum." That case also holds that inflicting fines exceeding $50 is "a matter of jurisdiction." In Metzner v. State, the statute authorized a fine of not less than $50 nor more than $500. In France v. State, the statute imposed a fine of $500. In this case the statute fixes the fine at not less than $100 nor more than $500. So this case is not exactly within the facts of either of the cases referred to. However, the principle recognized in both France v. State and Metzner v. State is that, if the offense of which the defendant is convicted is to be punished by fine which may exceed $50 at the discretion of the court and jury, the constitutional provision referred to requires that the jury must assess the fine, if the offense merits more than $50. In France v. State, the majority of the court seem to consider that the fine prescribed in the statute under consideration there was a legislative sentence against all who might be convicted of violating that law. But see State v. Fleming, 7 Humph. 152, 46 Am. Dec. 73. It was said in the France Case that this provision of the Constitution "refers to cases where the court has a discretion in fixing the amount of the fine."

We cannot reduce the fine to the sum of

$50, because the Legislature has fixed the minimum fine at $100. It would be useless to reverse and remand the case, with directions to submit the question of the amount of the fine to a jury, because the jury could not reduce it to less than $100. This assign

ment of error is overruled.

[3] It is next assigned as error that the trial judge erred in overruling the motion in arrest of judgment. The point made is that the indictment fails to charge that the initial point from which the plaintiff in error started with his cargo of intoxicating liquors was beyond the limits of Tipton county. The language of the indictment is: "From one point or county in this state to Tipton county." We think this criticism is cured by the verdict. The proof shows definitely the initial point at which plaintiff in error received his cargo of intoxicants to have been in Shelby county, and that he carried the whisky from Shelby county into Tipton county. Thus the uncertainty of the indictment is made certain by the proof, and the motion in arrest was properly overruled. Judgment affirmed.

tingent interest that he had in the land beBANK OF TAYLORSVILLE et al. v. VAN- came fixed and certain as of the date of his DYKE et al. father's death, and passed under his father's will.

(Court of Appeals of Kentucky. June 19, 1914.)

WILLS ($ 686*)-INTEREST OF DEVISEE CON-
TINGENT REMAINDER.

Under a devise of real property in trust for the support of the trustee's wife and children, he to have the control of the property for such purpose, and at his death the trust to end and the property to descend to his heirs per stirpes, the death of one of the trustee's sons before him terminated the son's contingent interest in the

estate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1631-1637; Dec. Dig. § 686.*]

Petition for modification of opinion. Petition overruled.

For former opinion, see 166 S. W. 1024.

PER CURIAM. Counsel for appellants, in a petition for a rehearing, direct the attention of the court to an error of fact in the opinion where it is stated that at the time the deed was made by the assignee to George Vandyke that John Vandyke had a onefourth, not a one-fifth interest in the land, due to the fact that Wade Vandyke had died before the deed was made. In truth, Wade Vandyke died after the deed was made, and not, as stated in the opinion, before it was made. It is now argued that, as Wade Vandyke died after the deed was made, upon the death of Wade, his interest fell to the four surviving children, John acquiring a one-twentieth, which it is claimed may be subjected to the payment of the appellants' debts.

The petition for a modification of the opin-, ion is overruled.

BASSETT v. LUSH.

(Court of Appeals of Kentucky. June 19, 1914.)

On rehearing. Denied.

For former opinion, see 156 Ky. 490, 161 S. W. 227.

TURNER, J. By reason of a confused state of this record it was inadvertently and erroneously stated in the opinion (156 Ky. 490, 161 S. W. 227) that appellant claimed that appellee's deed from Collard did not embrace the land in controversy, but conceded that same was embraced in the deeds from Jarboe to Simms, and from Simms on down to Collard. On the contrary, as pointed out in the petition for rehearing, it is conceded that appellee's deed to Collard does embrace the land in controversy, and it is claimed that the prior deeds do not embrace it.

P

The deed from Collard to appellee, dated December 4, 1909, refers to the land therein conveyed as "being the land conveyed to first parties by J. R. Layman and wife by deed dated 13th of May, 1898, which is duly recorded in Deed Book G, page 300, etc.," and it is conceded in the petition for rehearing that the land described in the deed thus referred to in appellee's deed does embrace the The error of fact in the opinion is not at land in controversy. It must be admitted all a material one. It did not make any dif- that there is some material difference in the ference whether Wade died before the deed calls of the deed from Collard to appellee and was made or afterwards. When Wade died, in the deeds from Jarboe to Simms and Laythat terminated his contingent interest in the man to Collard; but it would seem to be conestate. He did not leave any interest that clusive, from the reference in the Collard could or did descend to any person, and, deed to the description in the Layman deed, this being so, of course John Vandyke did that it was intended in the older deeds to not inherit from him anything. All the in- convey the same land, and that the mistake, terest that John Vandyke had in the land if any, in either conveyance, was in the prior came to him by the will of his grandfather, deeds; for the evidence discloses by the and all this interest, whatever it might be, daughter of Kennison, who formerly occuhe conveyed to his assignee, and the assignee pied the land, that her father, who claimed conveyed to George Vandyke. John Vandyke under Layman, claimed to the Joe Grant survived George Vandyke, and therefore up-line, and it is in evidence by Collard, who on the death of George Vandyke all the in- purchased from Kennison, but took a deed terest that George Vandyke had acquired directly from Layman, that while he (Colby virtue of the deed of the assignee passed lard) occupied the land he claimed to the under his will to the devisees named there- Grant line, and that Kennison had previously in. The interest that John Vandyke conveyed cultivated land within what is now the dis

to the assignee related to and covered what-puted boundary, and that he (Collard) had ever interest he 'might have when his father cleared additional land within that interferdied, if his father died before he did. If ence while he occupied it. John had died before his father, his father, While it is apparent that the land in conas purchaser from the assignee, would not troversy is within the exterior lines of appelhave taken anything by virtue of the as- lant's deed, it is equally apparent that he signee's deed, because John's interest de- knew this interference was in the possession pended entirely upon his survival of his of another when he bought the land, and that father. Having survived his father, the con- he did not pay for the acreage embraced in

this interference, but said that he intended | ceedings, or that its claim for the taxes was to if he could. therein adjudicated.

No injustice has been done appellant, and Ed. Note. For other cases, see. Beruptes,

Bankruptcy,

the petition is overruled.

2. BANKRUPTCY (§ 268*)—SALES-PAYMENT OF TAXES.

Though Bankr. Act July 1, 1898, c. 541, § 64a, 30 Stat. 563 (U. S. Comp. St. 1901, p. 3447), provides that the court shall order the of dividends to creditors, and that he, on filing trustee to pay all taxes in advance of payment receipts for such payment, shall be credited therewith, the purchaser of land on which is the lien of taxes may not complain of their not being paid by the trustee; he having no funds, and deriving none from the sale.

BOREING et al. v. MELCON et al. (Court of Appeals of Kentucky. June 19, 1914.) On petition for rehearing. Former opinion (159 Ky. 14, 166 S. W. 612) modified, and petition overruled.

HANNAH, J. Upon petition for rehearing, it is said by appellant that the first tract mentioned in the petition in the Harlan circuit court was not devised under the will of Vincent Boreing, but that his heirs acquired it by purchase after his death; and we are asked to modify the opinion herein delivered (159 Ky. 14, 166 S. W. 612) in so far as it refers to tract No. 1 in the petition described.

The petition does not disclose in what manner title to the tracts sought to be sold was derived by the heirs of Vincent Boreing; but the will of said Boreing is set out in the petition filed in the action instituted in the Laurel circuit court (copied in answer of guardian ad litem herein), and it is therein alleged that the lands therein described, consisting of more than 50 separate tracts (the second tract described in the petition in the Harlan circuit court being one of them), were all devised under the will of Vincent Boreing. Upon a comparison of the description of tract No. 1 as set out in the petition filed in the Harlan circuit court with the descriptions of the 50-odd tracts set out in the petition filed in the Laurel circuit court, we find that this tract is probably not included therein, and that there is nothing in the record to show in what manner the heirs of Vincent Boreing did derive title to tract No. 1 as set out and described in the petition filed in the Harlan circuit court.

As that part of the opinion herein delivered, having reference to the want of jurisdiction upon the part of the Harlan circuit court to order a sale of tract No. 1 in the petition described, was unnecessary to the decision of the questions raised by appellant upon this appeal, that part of the opinion is withdrawn, and the opinion modified to that extent.

The petition for rehearing is overruled.

Cent. Dig. §§ 372-379; Dec. Dig. § 268.*]
[Ed. Note. For other cases, see Bankruptcy,

Appeal from Circuit Court, McCracken
County.

Action by the City of Paducah against the Citizens' Savings Bank of Paducah to enforce a lien for taxes. Judgment for plaintiff, and defendant appeals. Affirmed.

J. D. Mocquot, of Paducah, for appellant. Bradshaw & Bradshaw, of Paducah, for appellee.

CLAY, C. The Paducah Glass Company, a corporation, was adjudged a bankrupt. Prior to the bankruptcy, it had mortgaged its property to the Citizens' Savings Bank for a sum in excess of its value. The city of Paducah likewise had a lien on the same property for taxes due for 1908. This lien was prior to the mortgage lien of the bank. On petition of the trustee in bankruptcy, a sale of the property of the bankrupt was ordered. The bank purchased the property. Before acquiring a deed, it was compelled to pay certain costs incurred in the bankruptcy proceeding.

The city of Paducah instituted this action against the purchaser, Citizens' Savings Bank, to enforce its lien for taxes. On final hearing there was a judgment in favor of the city for the amount sued for, and the bank appeals.

Section 64a of the Bankruptcy Act provides, in part, as follows:

"The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district, or municipality in advance of the payment of dividends to creditors, and upon filing the receipts of the proper public officers for such payment he shall be credited with the amount thereof, and in case any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court."

[1, 2] For the bank it is insisted that the

CAH v. CITY OF PADUCAH. (Court of Appeals of Kentucky. June 19, 1914.) 1. BANKRUPTCY (§ 268*)-LIEN OF TAXES.

CITIZENS' SAVINGS BANK OF PADU- city of Paducah is now estopped from asserting any claim against it or its property for taxes due by the bankrupt, by its failure to assert a claim for taxes in the bankrupt court, and by reason of the failure of the court to make an order directing the trustee to pay the taxes. In the present case the order is silent as to how the property was sold, whether free of liens or subject to liens.

The purchaser at a sale in bankruptcy proceedings of property on which a city had a lien for taxes takes it subject to the lien; the sale not having been free of tax liens, and the city not having had notice of the bankruptcy pro

It is well settled that a court of bankruptcy, two or more persons, may be sold in an action including the referee, has authority to direct brought by either of them, though either be a a sale of property by the trustee in bank-person of unsound mind or an infant, provided the estate is in possession and the property ruptcy free and clear of all liens and incum- cannot be divided without materially impairing brances, in which event the liens are trans- its value, where the petition neither alleged ferred to the proceeds according to their that the infant wards were in possession of the land nor that it could not be divided without priority. In re Worland (D. C.) 1 Am. Bankr. materially impairing its value, and the judg Rep. 450, 92 Fed. 893; McNair v. McIntyre, ment did not provide that a lien should be re113 Fed. 113, 51 C. C. A. 89; Brandenburg tained on the land until the guardian_should on Bankruptcy, § 1195. However, it is well execute the bond required by section 497. settled that a trustee should not be required to sell any portion of the estate, where the appraisers' return shows it to be so heavily incumbered with valid liens that nothing can be realized for the unsecured creditors. In re Cogley (D. C.) 107 Fed. 73, 5 Am. Bankr. Rep. 731. It is further held that a sale free of liens does not affect a lien in the nature of a tax assessment against the property, but in such a case the trustee should protect the purchaser by providing for the payment of the taxes. In re Keller (D. C.) 109 Fed. 131, 6 Am. Bankr. Rep. 351.

[Ed. Note. For other cases, see Infants, Cent. Dig. §§ 82, 83, 97; Dec. Dig. § 37.*] 3. INFANTS (§ 37*) — SALE OF LANDS

CEEDINGS-POWER OF CHANCELLOR.

In the present case there was no sale free of tax liens. It is further shown that the trustee had on hand no assets, and acquired by virtue of the sale no assets, out of which he could pay the taxes. For failing to provide for the payment of the taxes under these circumstances, neither the court nor the trustee can be blamed. The property not being sold free of tax liens, the purchaser acquired it subject to the tax lien in question. If the trustee had any assets out of which to pay the taxes, the purchaser might require that this be done. Here the trustee could not pay the taxes unless the purchaser furnished the money. The purchaser is therefore in no position to complain of the fact that the taxes were not paid by the trustee. Whether the purchaser furnished the money to the trustee in the first instance, or is now required to pay the taxes, the result is the same. It does not appear that the city had notice of the bankruptcy proceeding, or that its claim for taxes was therein adjudicated; hence it is in no wise concluded by the bankruptcy proceeding.

Judgment affirmed.

--

[Ed. Note. For other cases, see Infants, Cent. Dig. §§ 82, 83, 97; Dec. Dig. § 37.*]

2. INFANTS (§ 37*)—SALE OF LAND-REGULAR

ITY.

PRO

The chancellor is specially charged with the protection of infants and their real estate, and, having no inherent power to order a sale, he should deny a sale, unless all of the provisions of the statute are carefully followed.

[Ed. Note. For other cases, see Infants, Cent. Dig. §§ 82, 83, 97; Dec. Dig. § 37.*]

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Proceeding by W. J. Yager's guardian for the sale of land. From a judgment overruling exceptions by the purchaser, L. Melcher, to the sale, he appeals. Judgment reversed, with directions to sustain exceptions and set aside sale.

E. L. McDonald, of Louisville, for appellant. George Cary Tabb and Ray Mann, both of Louisville, for appellee.

The appellant became the purchaser and filed exceptions to the sale upon the ground

MELCHER v. YAGER'S GUARDIAN.

PROPERTY POWER OF

(Court of Appeals of Kentucky. June 19, 1914.) that it was void because of the failure to execute such a bond; but the lower court, as we 1. INFANTS (§ 37*) gather from the record and the briefs, was COURTS. The courts have no inherent power to orof opinion that the sale was a valid one, der the sale of an infant's real estate. under the provisions of subsection 2 of section 490 of the Civil Code, which is as follows, to wit:

Where a proceeding by a guardian for sale for reinvestment of the property of his infant wards could not be sustained under Civ. Code Prac. & 489, because he had not given the bond* required by section 493, it could not be sustained under section 490, subsec. 2, providing that a vested estate in real property, owned by

"A vested estate in real property jointly owned by two or more persons may be sold by order of a court of equity, in an action brought by either of them, though the plaintiff or defendant be of unsound mind or an infant. If the estate be in possession and the property cannot be divided without materially impairing its value, or the value of the plaintiff's interest therein."

TURNER, J. This is an action by the guardian of the two infant appellees, W. J. Yager and Houston Yager, for the sale of a house and lot, jointly owned by them in the city of Louisville, for the purposes of reinvestment of the proceeds.

It is apparent that the action was originally instituted under the provisions of subsection 5 of section 489 of the Civil Code, authorizing such procedure. But the bond required under section 493 of the Code to be executed before such a sale is ordered, and expressly providing (subsection 3) that any sale or conveyance so made without the execution of such bond shall be void, was not complied with, and it is therefore perfectly clear, and is conceded, that the sale cannot be upheld under the provisions of that section.

*

« 이전계속 »