Bottoms v. McFerran
| Decision Date | 18 November 1897 |
| Parties | BOTTOMS v. McFERRAN et al. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Boyle county.
"Not to be officially reported."
Contest between J. A. Bottoms, executor, attaching creditor, and S. B. McFerran and others, assignees of the attached fund. Judgment for S. B. McFerran and others, and J. A. Bottoms, executor, appeals. Affirmed.
Charles C. Fox, for appellant.
R. P. Jacobs, for appellees.
Section 207 of the Civil Code provides that, "if the property to be attached be a fund in court, the attachment shall be executed by leaving with the clerk of the court a copy thereof, with a notice specifying the fund; and, if several orders of attachment be executed upon such fund in the same day, they shall be satisfied out of it ratably." In the case before us, appellant attempted to attach funds in court by leaving a copy of the order with the master commissioner, who held the funds subject to the further orders of the court. Subsequently the appellees obtained from the debtor a written assignment of the fund sought to be attached, and in which authority was given Harding, as trustee or agent, to collect the fund in court, and pay same to appellees. After this assignment, appellant had his attachment served on the clerk. The chancellor adjudged the fund to the appellees, who held the assignment, and we think this was proper.
The assignment of this specific fund was not, as contended by counsel for appellant, such an assignment for the benefit of creditors as to require it to be acknowledged and lodged for record, under the provisions of the statute. The paper operated as an absolute appropriation of the fund in dispute, and as the order of attachment served on the master did not operate to create a lien, because not secured as required by the Code, the assignees took the fund free from any lien. The second attachment came too late. Judgment is affirmed.
To continue reading
Request your trial
-
Ames v. Parrott
...654, 65 N. W. 566;Main v. Tappener, 43 Cal. 206;Norvell v. Porter, 62 Mo. 309;Gates v. Tusten, 89 Mo. 21, 14 S. W. 827; Bottom's Ex'r v. McFerran (Ky.) 43 S. W. 236. Not only have very small irregularities in other respects been held fatal to the levy, but the courts have uniformly enforced......
-
Ames v. Parrott
... ... 654, 65 N.W. 566; Main v ... Tappener, 43 Cal. 206; Norvell v. Porter, 62 ... Mo. 309; Gates v. Tusten, 89 Mo. 13, 21, 14 S.W ... 827; Bottoms v. McFerran, 19 Ky. L. Rep. 1266, 43 ... S.W. 236. Not only have very small irregularities in other ... respects been held fatal to the levy, [61 ... ...
-
Green v. Robertson
...§ § 3897, 3898, 3899 and 3937, and note the construction placed thereon by the courts of said States: 9 Ky. Law Rep. 56; 20 Wash. 215; 43 S.W. 236; 19 Iowa 358; Ia. 535, and cases cited. Attachment and garnishment are statutory remedies, and the execution of the writ must be in the manner p......
-
Landy v. Moritz
... ... that attachments before judgment may be levied on a fund in ... court. See Bottom's Ex'r v. McFerran, 43 ... S.W. 236, 19 Ky. Law Rep. 1266; Price v. Taylor, 110 ... Ky. 589, 62 S.W. 270; Sanders v. Herndon (Ky.) 93 ... S.W. 14, 5 L. R. A. (N. S.) ... ...