Mountain Home Attorney John Russo is making a third attempt to help his client, Rodney Kankey, regain custody of more than 100 horses seized from his Viola farm in December of 2010 because of animal cruelty allegations.
A motion filed in Fulton Circuit Court on July 28 requests that Judge Tim Weaver reconsider a recent decision regarding custody of the horses, or grant Kankey a new trial.
The horses were seized after the Fulton County Sheriff's office obtained a court order, with the help of the ASPCA and Humane Society of the United States.
Following a Fulton District Court trial in January, the ASPCA and Humane Society hoped to hold adoption events to find new homes for the horses, who are doing well after receiving proper food, water and medical care.
Judge Jim Short ruled there was evidence the horses had been abused and awarded the horses to the ASPCA, unless Kankey paid a $50,000 bond and filed an appeal.
While Kankey did not post the required bond or file an appeal within 30 days, the case was on hold because of delays in obtaining the results of a court ordered mental health evaluation.
The mental health evaluation ruled Kankey is competent to stand trial for the criminal charges he faces.
After hearing arguments at a June hearing on the civil case over the horses, Judge Weaver ruled the Sheriff's Department obtained a valid search warrant, after gathering evidence that the horses were being abused by neglect.
Judge Weaver also ruled Kankey had failed to post bond and file a timely appeal, apparently clearing the way for the ASPCA to gain control of the horses and find homes for them.
In his July 28 motion, defense attorney Russo claims that the January decision by Judge Short was unconstitutional, because District Court jurisdiction is limited to civil matters where personal property in dispute does not exceed $5,000 in value.
Because the value of the horses seized from Kankey exceeds $5,000, Russo's motion asserts that District Court Judge Short had no jurisdiction in the case and his decisions are "null and void."
Russo goes on to state, "Where the lower court lacks jurisdiction, dismissal is an appropriate disposition of the case."
Since Russo claims Judge Short's decisions were invalid and Weaver upheld Short's rulings, the new motion asks Weaver to reconsider his decision and, in the least, grant Kankey a new trial over his claim the horses were illegally taken and should be returned to Kankey.
Besides the civil case, a December 6 trial is scheduled for the five felony and 113 misdemeanor criminal charges Kankey faces because of the alleged animal cruelty.