Appleton v. Southern Trust Company

• Decision Date: 14 June 1932
• Citation: 244 Ky. 453
• Parties: Appleton et al. v. Southern Trust Company et al.
• Court: Supreme Court of Kentucky

244 Ky. 453

Appleton et al. v. Southern Trust Company et al.

Court of Appeals of Kentucky.

Decided June 14, 1932.

1. Action. — Making warning order under circumstances justifying it constitutes "commencement" of action, though defendant later

enters appearance (Civil Code of Practice, secs. 39, 57; Ky. Stats., sec. 2524).

2. Action. — Action is not "commenced" by summons issued on petition against defendant known by plaintiff to be nonresident (Civil Code of Practice, secs. 39, 57; Ky. Stats., sec. 2524).

3. Action. — Action is "commenced" by summons issued on petition, where it is not shown that plaintiff or attorney knew defendant to be nonresident (Civil Code of Practice, secs. 39, 57; Ky. Stats., sec. 2524).

4. Attachment. — Attachment issued before commencement of action is nullity (Civil Code of Practice, sec. 194).

5. Process. — Allegation that defendant is absent from state, without alleging he is nonresident, would not authorize issuance of warning order (Civil Code of Practice, sec. 57).

6. Domicile. — Person may be "nonresident" of state, though he is citizen thereof.

7. Domicile. — Temporary residence out of state, even for indefinite period, will not constitute person "nonresident," if, at departure and during absence, he had intention to return to state.

8. Courts. — To constitute person "nonresident" within provisions respecting jurisdiction, fixed, though not permanent, abode outside state is required, but animus revertendi need not be abandoned (Civil Code of Practice, secs. 39, 57, 194; Ky. Stats., sec. 2524).

9. Attachment. — To hold that summons did not commence action, so as to authorize discharge of attachment, it must appear plaintiff in bad faith, had summons issue instead of warning order (Civil Code of Practice, secs. 39, 57, 194; Ky. Stats, sec 2524).

Before discharge of attachment is authorized on such ground, it must appear defendant was nonresident of state in the sense the term is used with regard to acquisition of jurisdiction, that defendant was believed by plaintiff to be absent therefrom, and, as reasonable conclusion, that plaintiff's action in having summons issue instead of warning order was not in good faith.

10. Attachment. — Finding that issuance of summons instead of warning order was not in good faith, requiring discharge of attachment, held not supported by facts (Civil Code of Practice, secs. 39, 57, 194; Ky. Stats., sec. 2524).

Facts disclosed that person filing affidavit with plaintiff's petition within two days after defendant's departure knew that defendant had left his home and property with intention to sacrifice it, but such affiant, who advised defendant not to leave home, had no knowledge as to defendant's ultimate destination, and could not have reasonably and safely concluded at that time that within so brief a period defendant had actually abandoned his home, family and property, with intention to live elsewhere, and that he would not on

reflection return, although it afterward developed that he would remain away for extended period.

Appeal from Todd Circuit Court.

COLEMAN TAYLOR and OSCAR M. SMITH for appellants.

E.S. PENICK, S.Y. TRIMBLE, and PETRIE & STANDARD, for appellees.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

T.C. Mason was a man of affairs in Todd county, but became financially involved. Domestic troubles seem also to have arisen. On July 24, 1926, Mason turned over his property to his brother-in-law, Eugene Flowers, for a settlement of his obligations, and left home. The paper he executed was in form a general power of attorney, but was treated by Flowers as an assignment for the benefit of creditors, although it did not vest title in him. Mason was the guardian of his brother and sister, with Flowers surety on his bond. Certain land in which his wards and an infant niece had an interest was sold, and Mason executed bonds so that the proceeds might be paid him. Flowers, Orndorff, and Johnson were sureties on those bonds. Two days after his departure, suit was filed against Mason by his wards, through next friends, setting up his indebtedness to them and his failure and refusal to make settlements as their guardian. The sureties joined in the suit as plaintiffs and set up their liability and a right to be indemnified against loss. Summons was issued to Todd county and attachments were levied upon Mason's property. This precipitated other creditor's attachment suits in rapid order. After a time Flowers filed a suit as an assignee under the instrument referred to, and all the cases were consolidated and referred to the master commissioner for a settlement of Mason's affairs. Nearly three years later, while the suits were pending Mason returned, entered his appearance, and testified. During the course of the years, different orders were made and judgments entered adjudging the respective rights of the numerous parties. Mason and his wards and sureties prosecute the appeal.

The principal question involved is whether the court erred in discharging the attachment issued in the first suit filed by the wards and sureties, which had the effect of eliminating them in the distribution of the insolvent estate. The grounds of attachment were not attacked, and it was discharged only because under the circumstances the plaintiffs should have proceeded by warning order instead of by summons; that is, that the issuance of the summons was not in good faith, and hence that the action was not properly commenced.

Section 39, Civil Code of Practice, provides that the commencement of a suit shall be by filing a petition or statement of account and "by causing a summons to be issued, or a warning order to be made, thereon." Section 2524, of the Statutes, provides:

"An action shall be deemed to have been commenced at the date of the first summons or process issued in good faith from the court or tribunal having jurisdiction of the cause of action."

The making of a warning order under circumstances justifying it constitutes a commencement of the action, even though the defendant later entered his appearance. Hoffman v. Brungs, 83 Ky. 400. Section 57 of the Civil Code of Practice authorizes a warning order when any one of several conditions is made to appear, but the only one claimed to have existed in this case is that the defendant, Mason, was at the time "a non-resident of this State and believed to be absent therefrom." When a plaintiff has a summons issued on his petition against a defendant known by him to be a nonresident, it cannot be said that the action was thereby commenced. Traders' Deposit Bank v. Hoffman, 99 Ky. 240, 35 S.W. 631, 18 Ky. Law Rep. 148. It is otherwise where it is not shown that the plaintiff or his attorney knew the defendant to be a nonresident at the time the summons is issued. Walston v. City of Louisville, 66 S.W. 385, 23...