Farris v. Matthews

• Decision Date: 25 September 1912
• Citation: 149 S.W. 896,149 Ky. 455
• Parties: FARRIS et al. v. MATTHEWS.
• Court: Kentucky Court of Appeals

149 S.W. 896

149 Ky. 455

FARRIS et al. v. MATTHEWS.

Court of Appeals of Kentucky.

September 25, 1912

Appeal from Circuit Court, Knox County.

Action by J. D. Farris and another against John G. Matthews. From a judgment dismissing plaintiffs' petition, they appeal. Affirmed.

James M. Gilbert and E. F. Baker, both of Pineville, for appellants.

Hiram H. Owens, of Barbourville, for appellee.

CLAY C.

J. D Farris and I. W. Blair brought an action in the Knox circuit court against the Interstate Petroleum Company and others to recover on a promissory note in the sum of $500. An attachment was prayed for, issued, and levied on certain property belonging to the defendants. A forthcoming bond was executed by the defendants, with John G. Matthews as surety to the effect that the obligors were bound in double the value of the property, that the defendant should perform the judgment of the court in the action, or that the property or its value should be forthcoming and subject to the order of the court.

This action was brought by plaintiffs, J. D. Farris and I. W Blair, against defendant, John G. Matthews, to recover on the bond. The petition and amended petition set forth the former action, the character thereof, the fact that defendants were properly before the court and that an attachment issued and was levied on certain described property, and the further fact that judgment for the amount sued for and sustaining the attachment was obtained, which judgment was recorded in the office of the Knox circuit clerk in Order Book F, p. 596. A copy of the judgment, though not certified to or attested was filed with the petition. The defendant Matthews filed an answer, in the first paragraph of which he denied in terms each of the allegations of the petition and amended petition, including the allegation that a judgment had been rendered in favor of plaintiffs, sustaining the attachment, and adjudging a recovery of the amount sued for. The second paragraph of his answer contains the following allegation: "The defendant, John G. Matthews, for further answer and defense, states that there is a judgment of this court of record, Order Book F, p. 596, entered by the then circuit judge, Hon. H. C. Faulkner, on January 5, 1907, copy of which is filed herewith and marked 'Exhibit A' for identification, which judgment requires that the master commissioner take charge of, sell, and subject to the satisfaction of the claims of the plaintiffs the property taken under the attachment and sued out by them at the time of the institution of their suit, to wit, on January 5, 1905." The answer then goes on to allege that said property was then and had since been in the jurisdiction and control of the officers of the court, but that by delay and lack of care and protection, and lapse of time, without any fault or act on the part of the defendant Matthews, the property had depreciated in value, and had been wasted and carried away, etc. On a trial, the clerk of the Knox circuit court introduced in evidence the order book containing the alleged judgment. It developed that the orders for the day containing the judgment in question were not signed by the presiding judge or any judge, and that the adjourning order of the day, "Court then adjourned until court in course," was not signed. At the conclusion of the plaintiffs' evidence, defendant asked a peremptory instruction on the ground that, as the judgment in question was not signed by any judge, it was void, and, there being no judgment sustaining the attachment, the action on the forthcoming bond could not be maintained. Thereupon plaintiffs entered a motion asking that the trial court himself sign the judgment, or pass the case until the 12th day of the term for the...