Ewing v. Union Central Bank

• Decision Date: 29 May 1934
• Citation: 254 Ky. 623
• Parties: Ewing v. Union Central Bank et al.
• Court: United States State Supreme Court — District of Kentucky

Page 623

254 Ky. 623

Ewing v. Union Central Bank et al.

Court of Appeals of Kentucky. Chancery Branch, Second Division.

Decided May 29, 1934.

1. Execution. — Valid statutory replevin bond satisfies judgment, and liability thereafter attaches to and must be enforced under bond and not under judgment (Ky. Stats., sec. 1667).

2. Bonds. — Generally, strict compliance with letter or statute in giving form of bond is not necessary where language of statute is permissive or directory.

3. Statutes. — If end to be accomplished by statutes requiring bond may be obtained without strictly following its directions, statute is directory.

4. Statutes. — In determining whether directions of statute are mandatory or directory, court will not look to form alone, but will ascertain legislative intent from language of statute considered in connection with its nature and purpose.

5. Execution. — Replevin bond signed by surety alone and not by principal held void (Ky. Stats., secs. 1667, 1676).

6. Courts. — Jefferson circuit court, chancery branch, could enjoin enforcement of replevin bond taken in common pleas division of that court where bond was signed by surety alone (Ky. Stats., secs. 1667, 1676; Civil Code of Practice, sec. 285).

7. Judgment. — Void judgments may be collaterally attacked in any court of general jurisdiction (Civil Code of Practice, sec. 285).

8. Execution. — Surety executing replevin bond not signed by principal could enjoin sale of property under execution issued on bond, since bond was void (Ky. Stats., secs. 1667, 1676).

Appeal from Jefferson Circuit Court

WRIGHT & WRIGHT for appellant.

GEORGE C. BURTON for appellees.

OPINION OF THE COURT BY CREAL, COMMISSIONER.

Reversing.

From a judgment of the Jefferson circuit court, Chancery branch, Second division, sustaining a special demurrer to and dismissing her petition wherein she sought to enjoin the sale of her property under an execution which issued on a replevin bond, Mrs. Margaret A. Ewing is prosecuting this appeal.

By the petition and by affidavits found in the record it is made to appear that the Union Central Bank, through its liquidating agent, recovered judgment in the Jefferson circuit court, common pleas branch, Second division, against Mary E. Ewing, Bessie Riddell, and Ruth Booker for $79. Mary Ewing represented to her mother, appellant, Margaret A. Ewing, that she desired to replevy the judgment and requested that appellant sign a replevin bond as surety for the defendants in the action; and on November 10, 1932, appellant appeared before the clerk of the Jefferson circuit court for the purpose of signing the replevin bond as such surety. According to the allegations of her petition and the affidavits of herself and her son, the clerk informed her that the defendants had not, at that time, signed the bond, but that, in order to save her the necessity of returning to the office, she might sign the bond and the principals could sign same later; that, relying on and believing that the principal judgment debtors would be required to and would sign the bond, she signed in blank, but that none of the principals ever signed same, nor was it ever completed or perfected; that on the 12th day of February, 1933, the clerk of the Jefferson circuit court issued an execution against her on the replevin bond in favor of the Union Central Bank, and that same was placed in the hands of Hubbard R. Petty, sheriff of Jefferson county, and was levied upon a house and lot in Louisville owned by her; that this property was advertised to sell under the execution on May 1, 1933. She further alleged that, because of the failure of the principals to sign the bond, none of them were liable or obligated to her, and that she would not be subrogated to any rights against them and could not recover, as contribution, any amount she was forced to pay under the bond; and that it was void and of no force and effect whatsoever.

After making the necessary allegations she asked for a temporary restraining order prohibiting defendants, appellees here, from proceeding further with the sale, and that on final hearing the injunction be made permanent, and that the bond be declared void.

Mary Ewing made affidavit that she contemplated replevying the judgment and arranged with her mother to sign the bond as her surety, but when she learned that the bond was made out for the sum of $111.70, which was greatly in excess of the amount of the judgment, she refused to sign same and decided she would not replevy the judgment; that therefore neither she nor the other defendants in the judgment ever executed any replevin bond; that she was not present at the time her mother signed the bond and did not know she signed same until on or about November 12, 1932.

The chief deputy in the circuit clerk's office made affidavit that on November 10, 1932, at the request of Julian Ewing, brother of Mary and son of Margaret Ewing, the replevin bond was prepared; that it was completed before appellant signed it; that in addition to Margaret Ewing and Julian Ewing, her son, a woman approximately 30 years of age who he believed to be Mary Ewing was present at the time. It is further made to appear that on April 21, 1933, appellant entered a motion to quash the replevin, which motion was overruled on the 27th of that month.

The order sustaining the special demurrer to the petition does not assign any grounds for the court's action, but in brief it is made to appear that it was sustained on the theory that the court had no jurisdiction of the subject-matter.

It is urged by counsel for appellant that the replevin bond is void because it was not signed by the judgment debtors, and in support of this contention they cite and rely on the provisions of section 1676, Kentucky Statutes; and, further, that, since the replevin bond has the force and effect of a judgment and the bond in this instance is void, a court other than that in which the judgment was returned and the replevin bond taken may enjoin its enforcement.

To sustain the judgment of the lower court it is argued in effect by counsel for appellee: (1) That a replevin bond in due form signed by the surety alone and approved by the clerk of the court in which the judgment was rendered is a good and sufficient bond and enforceable against the surety; (2) that the...