Blincoe v. Head

• Citation: 44 S.W. 374,103 Ky. 106
• Parties: BLINCOE v. HEAD et al.
• Decision Date: 01 February 1898
• Court: Court of Appeals of Kentucky

44 S.W. 374

103 Ky. 106

BLINCOE v. HEAD et al.

Court of Appeals of Kentucky.

February 1, 1898

Appeal from circuit court, Nelson county.

"To be officially reported."

Action by Rowan Blincoe against F. M. Head and others to recover damages for wrongful attachment. Judgment for defendants, and plaintiff appeals. Reversed.

L. S Pence and C. T. Atkinson, for appellant.

DU RELLE, J.

From the evidence introduced on behalf of appellant, Blincoe, in this case, it appeared that he was in the employ of appellee Miles, who was indebted to him in the sum of $20, as wages that Blincoe was a housekeeper, with a family, and, on request for payment, was informed by Miles that his wages had been garnished; that Blincoe then called on appellee Head police judge of New Hope, a city of the sixth class, to find out who had sued out the attachment, and was informed by Head that appellee Greenwell had done so, and that the trial would come off on the 4th of September; that appellant employed an attorney, who appeared on September 4th to defend the case and was informed that judgment had been entered in August and that the money had been paid to Greenwell before the trial; that no summons or order of attachment had been served upon appellant, and he knew nothing of the judgment until some time after it was rendered; that he was not indebted to Greenwell in any amount at the time of the suit; that he had owed him $17, but had paid same in money and live stock. It appeared further that the only record to be found in the case was the judgment (which was not signed) in the judge's book, which was as follows:

"Order of Attachment.

J. C. Greenwell vs. Rowan Blincoe. 1895. July 30. To amount of account attached in the hands of E. L. Miles........................................... $25 85 1895. Aug. 1. By cash by Miles ............................ $20 00 to plaintiff ------------------- $ 5 85

The defendant having been duly summoned, and failed to answer, it is adjudged by the court that the plaintiff, J. C. Greenwell, recover of the defendant $5.85, and his costs expended, $1.60, with int. at the rate of 6 per cent. from August 21st, 1895." Blincoe brought suit against the appellees for damages, alleging in his petition, as twice amended, the facts above recited, and that Greenwell had instituted a pretended action before the police judge for the amount of a whisky bill, for the purpose of converting to his own use the wages of plaintiff, which were exempt from attachment; that neither a summons nor an order of attachment was issued against, or served upon, Blincoe, but that a pretended order of attachment was issued, without an affidavit or bond being filed, and was served on Miles, who thereupon paid Blincoe's wages to Greenwell; that this was done by Greenwell and Head fraudulently, maliciously, and unlawfully; that the order of attachment and the proceedings thereunder were void; and that he had no notice thereof, and did not appear to the action. He prayed damages in the sum of $125.

A demurrer by Miles to the petition as amended was sustained. If, as alleged in the petition, an order of attachment was served upon him, he, as garnishee, was not bound, in our opinion, to inquire into the regularity of the proceedings upon which that order was issued; and the mere fact that he paid an amount equal to the wages of appellant to Greenwell would not of itself give to Blincoe a right of action against him for damages whether done with or without an order of court.

The answer of Head and Greenwell is a denial of most of the averments of the petition, but it contains an explicit admission that the order of attachment was issued without bond; averring that it was issued innocently, and without malice towards Blincoe. The averment that it was issued without affidavit is not denied. Moreover, the denial of the nonservice of process upon Blincoe is both evasive and imperfect; being a denial "that no process was issued or order of attachment sued out, and deny that such process or order of attachment was never executed on plaintiff." At the conclusion of the testimony on behalf of appellant, the court sustained a motion to instruct the jury peremptorily for defendants Greenwell and Head. In this, we think, the court erred. There was evidence, for the jury to consider, tending to show that the order of attachment alleged to have been served upon Miles was fraudulently procured; and the case, upon this record, is much stronger against the police judge. The police court is one of special and limited jurisdiction, and in granting the attachment it was exercising a special power in derogation of common right, and to be most strictly construed as against the officer. As said in Drake, Attachm. § 85, p. 70 (considering the immunity of judicial officers from liability for judicial acts): "But where a court or officer exercises an extraordinary power under a special statute prescribing the occasion and mode of its exercise,...