Yeager v. Groves, &C.

• Decision Date: 07 June 1880
• Citation: 78 Ky. 278
• Parties: Yeager v. Groves, &c.
• Court: Kentucky Court of Appeals

Page 278

78 Ky. 278

Yeager v. Groves, &c.

Court of Appeals of Kentucky.

June 7, 1880.

APPEAL FROM LOUISVILLE CHANCERY COURT.

CLEMMONS & WILLIS FOR APPELLANT.

RUSSELL & HELM FOR APPELLEE.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

Elisha Bowman owned a tract of land on which the appellant had a lien. The appellant also had an unsatisfied judgment against Bowman, on which he had a return of nulla bona.

September 8, 1876, appellant brought suit in equity to enforce satisfaction of his judgment, and caused an order of attachment to issue, which was placed in the hands of the sheriff on that day, and was, on the 12th day of same month, levied on the land on which his lien existed.

September 26 Bowman conveyed the land to the appellee, Groves, who paid the consideration in full.

Groves alleged that the deed was made pursuant to an executory contract for the sale of the land made in September, 1875. The court below dismissed the petition and discharged the attachment.

We incline to the opinion that no contract was entered into until after the attachment had been placed in the hands of the sheriff. But if, as contended by counsel for Groves, the attachment was void, the error in deciding that he acquired title under the deed and alleged executory contract prior and superior to appellant's attachment did not prejudice the rights of the appellant.

The attachment, as copied into the transcript, reads as follows:

"The marshal is directed to attach and safely keep the property of the defendant, Elisha Bowman, not exempt from execution, sufficient to satisfy plaintiff's claim, not exceeding $130, for debt and probable costs; also to summons the garnishees to answer to the action on the return day hereof, and to make due return thereof.

                                                   "S. F. CHIPLEY, Clerk
                  "SEPT. 8, '76."
                

The Constitution, section 5, article 4, provides that "the style of all process shall be the Commonwealth of Kentucky."

Judicial process is but the command of the sovereign by whose authority the tribunal out of which it issues was established, commanding the person or officer to whom it is directed, or who is authorized to execute it, to do certain acts therein specified, and it is therefore appropriate that such process shall run in the name of the government. But whether appropriate or necessary or not, the Constitution requires it, and what that instrument requires should be done without hesitation or inquiry into the question whether, abstractly considered, the thing required is essential or not.

The clerk of a court has no power to command either officers or private persons. His only authority is to issue the command of the Commonwealth in those cases in which he has been authorized to use the name of the Commonwealth.

He is the mere agent of government, with authority to act for it and in its name in issuing judicial process, and he has no more authority to issue such process in his own name than a private person has.

That process so issued is void is well established by judicial authority. (Galbreath v. Kuykendall, 1 Ark., 50; Estill v. Bailey, Ib., 131; Woolford v. Dugan, 2 Ib., 131; Ferris v. Crow, 5 Gilman, 96; Leighton v. Hall, 31 Ills., 108; Hutchins v. Edson, 1 N. H. Reports, 139.)

In Little v. Little (5 Mo., 229), the supreme court of Missouri not only held that a writ which did not run in the name of Commonwealth was...