Anderson v. Sutton

• Decision Date: 25 June 1866
• Citation: 63 Ky. 480
• Parties: Anderson v. Sutton, & c.
• Court: Kentucky Court of Appeals

63 Ky. 480

Anderson v. Sutton, & c.

Court of Appeals of Kentucky.

June 25, 1866

1. Although several cases, in the names of different plaintiffs against the same defendant, may be heard at the same time yet, if each retains its distinctive characteristics, and the judgment in each case is several, and the proceedings and judgment in any of the cases be erroneous, such error must be fatal in that particular case, though the others may be free from error.

2. Clerks had authority to make a warning order against parties constructively summoned under section 6 of act 23d December 1861.

3. In proceedings against persons constructively summoned it is not necessary that a summons should issue against the defendant.

4. Where a sheriff returns, on an order of attachment, that he has levied it on land, and does not state how he levied it the law, nothing appearing to the contrary, will presume he did his duty and left a copy with the occupant of the land, if there was one, and if none, that he posted up a copy in a conspicuous place on the property.

5. The heirs of a vendor who has not conveyed land sold are necessary parties to an action by his administrator to enforce the vendor's lien, and also to an action in which the administrator seeks by attachment to sell the land to pay the purchase money. (5 Litt., 48; 2 Dana, 98; 6 B. Mon., 74.)

6. That the heirs of the vendor were not made parties to an action in which land not conveyed was sold under attachment, will be so far prejudicial to the rights of the defendants as to be fatal to the judgment.

7. That no affidavit was filed as required by section 251, Civil Code, before a judgment for the sale of real property under attachment in an action in which the defendant has not appeared or been actually summoned, is fatal. (14 B. Mon., 271.)

8. An affidavit for a provisional remedy by one other than the plaintiff must show that the affiant is the agent or attorney of the plaintiff.

9. When no attachment bond has been executed as required by section 224, Civil Code, the court should dismiss the attachment on hearing.

10. If neither the petition nor affidavit for an attachment states that the plaintiff's claim is just, and the amount the affiant believes the plaintiff ought to recover, the attachment should be discharged.

11. Where garnishees are summoned, who, as alleged by the plaintiff, owe an amount sufficient to pay his debt, and do not answer, it is error to render judgment for the sale of real estate to pay it; the debts garnisheed should be first applied to its payment. (Sub-div. 2, sec. 250, Civil Code.)

12. An attorney appointed under section 440, Civil Code, to defend for one constructively summoned, has no authority to consent to a judgment against the defendant, and a recital in a judgment against one not appearing that it was rendered by consent, will not sustain an erroneous judgment.

13. An appearance by an attorney of the court for a party in court will be prima facie evidence of his authority.

APPEAL FROM GARRARD CIRCUIT COURT.

R. M. & W. O. BRADLEY, for appellant, cited 91st sec. C. C., 328 th sec., ib.; MS. opin., Myers vs. Spillman, & c., Oct., 1864; sec. 253, C. C.; 1st, 2d, and 3d sub-divs., sec. 259, C. C.; 1st sub-div., sec. 440, C. C.; sec. 251, C. C.; 6th sub-div., 88th sec., C. C.; 1st sub-div., sec. 228, C. C.; secs. 221, 222, C. C.; sec. 253, C. C.; MS. opin., Hardin vs. Halsell, June, 1856; Dunn vs. Salter, 1 Duv., 342; Berryman vs. Mullins, 8 B. Mon., 154; 4 B. Mon., 544, 545; 3 Mon., 267; 2 Mar., 500; 6 Mon., 70; 7 Mon., 658; 1 Dana, 462; 6 Mon., 205; 2 B. M., 245; 6 Dana, 325; 3 Met., 546; 2 J. J. Mar., 546; 7 Mon., 324; 3 J. J. Mar., 105; 12 B. M., 600; 2 J. J. Mar., 463; Ib., 75; 1 J. J. Mar., 166; 16 B. M., 334; 7 Mon., 658; 5 J. J. Mar., 517; 7 J. J. Mar., 539; 3 Mon., 243.

S. TURNER, on same side, cited Civ. Code, secs. 88, 89, 228, 259, 446; 14 B. Mon., 271; 6 Mon., 70; 1 Marsh., 249; Hard., 94.

J. F. BELL and M. J. DURHAM, for appellees, cited Civ. Code, sec. 444.

OPINION

PETERS JUDGE:

Appellees and others, claiming to be creditors of appellant, severally instituted proceedings in the court below to enforce the collection of their claims, and caused attachments to issue against his estate by virtue of the act of the Legislature approved 23d of December, 1861, entitled " An act to amend the Code of Practice in civil cases" (Supple. to R. S., p. 38), which were levied on a large and valuable real estate, including a number of slaves.

On the 22d of January, 1862, a receiver was appointed by the court below to take into his possession the property upon which the attachments had been levied, make out and return to court a complete inventory of all that might come to his hands, and, after advertising the time and place of sale, he was required to sell all the personal property of a perishable nature, except such as was by law exempt from sale under execution, which he was to leave with the wife of appellant for the use of herself and family.

The commissioner was directed to sell the personalty, at public outcry, on a credit of three months, at the residence of the appellant; and if the sale was not completed in one day, he was, by the order of sale, allowed a discretion to sell on different days. And after having laid off to the wife of appellant a part of his lands, including the mansion-house, & c., not to exceed in value one third of the whole of his land, and setting apart to her such of his slaves as she might select, he was to proceed to hire out the other slaves and rent out the residue of the lands to the highest and best bidder to the end of that year, taking bonds with approved sureties from all who purchased property, hired slaves, and rented lands, payable to himself as receiver; and he executed bond with approved surety for the faithful performance of his duties as such receiver.

After having returned an inventory of the property which came to his possession, the receiver made sale of the perishable property, hired out the slaves, rented the lands as directed, and reported to the court the manner in which he had performed his duties, and his report was approved and confirmed.

The judgment of the 22d of January, 1862, is complained of by appellant.

The judgment conforms substantially to the provisions of section 239, Civil Code, and was fully authorized by said section. The act of the Legislature requiring notice to be given to the opposite party, or his attorney, of the intended application for an order for a sale of property of a perishable nature to a judge in vacation, was passed and took effect in March, 1862 (Supple, to R. S., p. 40), subsequent to the rendition of said judgment, which does not appear to be prejudicial to appellant, and is therefore affirmed.

The judgment rendered on the 26th of August, 1863, is the next in numerical order complained of as appears from the statement made at the close of the record by appellant's counsel, by which the attachments of Rodes, administrator of W. C. Anderson, deceased, L. B. Hudson, W. J. Lusk, Nannie B. Lusk, P. L. Summers, Clifton Anderson, Clifton Rodes, and O. Serrel, were sustained, and so much of the attached property ordered to be sold as would be required to pay them their respective debts.

While it is insisted by the counsel, on both sides, that the cases were heard together, and must, therefore, be regarded as one case, yet their conclusions as to the effect of such hearing are very different. Those for appellant contend that an error in either one of the cases should reverse all of them; while those for appellees contend, that if, in any one of the cases, the proceedings are all regular and free from error, they should all be affirmed. An examination of the judgment will show that the cases were not consolidated. The statement in the judgment is, that " those of the above cases that were pending on the ordinary side of the court's docket having been transferred to equity, and the same having been heard together," & c., referring certainly to those only which had been transferred from the ordinary to the equity docket, while some of the cases were originally brought in equity, which would have been by implication, at least, excluded from those which were heard together. But all this we deem unimportant, as it is manifest from the record, that, although all the cases were heard at the same time, each case retained its distinctive characteristics. The judgment in each case is several; and if the proceedings and judgment in either or any of the cases, be erroneous, such errors must be fatal in that particular case, however free others may be from error.

The first objection urged to this judgment is, that the clerk of the court had no legal authority to make the warning orders, and there was no constructive service of process in consequence of want of legal authority in the clerk to make these orders, and all proceedings subsequent thereto are void. A formal and somewhat extended answer to that objection is elicited by the zeal, and we may say confidence, with which it is urged.

Section 88, Civil Code, provides, that " where it appears by the affidavit of the plaintiff, filed in the clerk's office at or after the commencement of the action, that the defendant is--1. A foreign corporation, having no agent in this State; 2. Or a non-resident of this State; or, 3. Has departed from this State with intent to delay or defraud his creditors; or, 4. Has been absent from this State four months, or has left the county of his residence to avoid the service of a summons; or, 6. Conceals himself so that a summons cannot be served upon him; or where either of the two last mentioned facts is stated in the return, by the proper officer, of a summons...