Burdine v. White
| Decision Date | 11 January 1917 |
| Citation | 190 S.W. 687,173 Ky. 158 |
| Parties | BURDINE v. WHITE ET AL. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Madison County.
Suit by George Burdine against Roy C. White and another. The attachment served on White, as clerk of the Madison circuit court, was quashed on his motion and the attachment discharged, and plaintiff moves for an appeal. Motion for appeal sustained, appeal granted, and judgment reversed for proceedings consistent with the opinion.
Chenault Wallace & Wallace, of Richmond, for appellant.
John Noland and G. Murray Smith, both of Richmond, for appellees.
The appellant, and plaintiff below, George W. Burdine, recovered a judgment in an Illinois court against R. C. and J. M. Stapp for the sum of $627 and cost, which was entirely unsatisfied on January 13, 1915, when this suit was filed. On September 14, 1914, a suit styled Richard Kanatzar's Heirs v Richard Kanatzar's Heirs was filed in the Madison circuit court for the purpose of selling land which belonged to the decedent, Richard Kanatzar, jointly owned by his heirs, for the purpose of division among them. A judgment, ordering the sale of the land, was rendered in that case on October 8 1914, and the land ordered to be sold by the master commissioner, who sold it on the 28th day of November, 1914, for the sum of $8,919.45, for which sum he took the bonds of the purchaser and reported the sale, which was confirmed. The defendants in the Illinois judgment were heirs of Richard Kanatzar, and entitled to participate in the proceeds of the land sold under the judgment of the Madison circuit court to the extent of 1/21 part thereof, which made their combined interest, after the payment of costs, the sum of $395. The purpose of this suit was to attach their interest in the proceeds of the land. Proper allegations were made in the petition for the procuring of an attachment, and the clerk of the Madison circuit court, who is the appellee Roy C. White was made a defendant to the suit, and served with summons, as well as with an order of the attachment, as provided by section 207 of the Civil Code of Practice. In addition to the usual allegations setting up plaintiff's cause of action, the facts hereinbefore recited, pointing out the fund sought to be reached, were made in the petition. James L. Kanatzar, administrator of Richard Kanatzar, was also summoned as a garnishee, but that branch of the suit, seeking to reach funds in his hands, is not before us on this appeal.
The appellee White, clerk of the Madison circuit court, entered a motion to quash the attachment so far as he was concerned, or rather so far as it sought to reach any of the proceeds of the sale of the land, upon the ground that that provision of section 207, supra, saying "With a notice specifying the fund," had not been complied with by the officer who served the attachment, which motion was sustained, and the attachment served upon the clerk, having for its object the purpose stated, was quashed and the attachment discharged. The plaintiff has filed a transcript of the record in this court, and entered motion for an appeal. Omitting the style of the case, the name in which the attachment runs, the direction to the officer, and the signature, the copy served upon the clerk reads:
There was a written response filed to the motion made by the clerk to quash the attachment in which it appears that the defendants in the Illinois judgment were interested in no other property in the custody of the clerk except their interest as heirs in the Kanatzar suit. It was furthermore shown by the response that the clerk was notified, upon the occasion of the filing of the petition and the issuing of the attachment, of the precise fund sought to be reached; but as this was an oral notification, its sufficiency is questioned, and according to our view, it is not deemed necessary to determine the question thus raised. A demurrer to this response was sustained, followed by the judgment, supra.
It will be seen that in the face of the order of attachment there is this sentence:
"Especially that in the hands of Roy C. White, clerk of the Madison circuit court, and James L. Kanatzar, as administrator of Richard Kanatzar, deceased, going to or belonging to the said R. C. Stapp and J. M. Stapp."
There are no intervening rights of third parties involved. The question, then, is, was the requirement as to specifying the fund as provided in the section of the Code, supra, sufficiently complied with?
The precise question presented has not been passed upon by this court so far as we are aware. It is true that the question of the sufficiency of the notice required by subsection 3, of § 203, of the Civil Code was before this court in the case of Bell v. Wood, 87 Ky. 56, 7 S.W. 550, but it was there held that the phrase "with a notice specifying the property attached," required therein to be given to the person holding the attached property, applied only to attached corporeal property, and not to a debt which the one to whom the order of attachment is delivered owed to the defendant in the attachment. As the property sought to be reached in this case is not corporeal property, it is evident that the doctrine of that case can be of no service here, as section 207 does not appear to refer to corporeal property. We are driven, then, to determine, as an original proposition, what constitutes "a notice specifying the fund," as required by section 207.
Notice generally, may be defined as that which imparts information of the fact to the one to be notified, and is divided by the law into several classes, such as actual, constructive, implied, and presumptive notice. But with these divisions we are not concerned, for manifestly the notice here meant is actual notice. Even this character of notice is...
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Jennings v. Jennings
... ... gathered from the context of the instrument. 37 C.J.S., Fund ... or Funds, p. 1401; Burdine v. White, 173 Ky. 158, ... 190 S.W. 687. It is insisted that, when this will is regarded ... in the light of the presumptions, it manifests an ... ...
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Grieb, County Clerk v. Natl. Bank of Ky.'s Rec.
...that throw intelligent light on the intention of the Legislature. Sewell v. Bennett, 187 Ky. 626, 220 S. W. 517; Burdine v. White, 173 Ky. 158, 190 S.W. 687; Brown v. Thompson, 14 Bush, 538, 29 Am. Rep. 416. The general conditions at the date of the enactment, and the mischief intended by t......
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Jennings v. Jennings; Same v. Jennings' ex'R
...the sense in which it is employed is to be gathered from the context of the instrument. 37 C.J.S., Fund or Funds, p. 1401; Burdine v. White, 173 Ky. 158, 190 S.W. 687. It is insisted that, when this will is regarded in the light of the presumptions, it manifests an intention to embrace only......
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United States v. CERTAIN PARCELS OF LAND, ETC., Civ. No. 5712.
...sometimes means implied notice); and "constructive notice" means that notice imparted by the recording statutes. In Burdine v. White, 173 Ky. 158, 190 S.W. 687, 689, it is said that notice is actual, constructive, implied and presumptive, while actual notice is susceptible of subdivisions s......