George E. Keith Co. v. Hummel

• Decision Date: 20 June 1913
• Citation: 157 S.W. 917,154 Ky. 540
• Parties: GEORGE E. KEITH CO. v. HUMMEL.
• Court: Kentucky Court of Appeals

157 S.W. 917

154 Ky. 540

GEORGE E. KEITH CO. v. HUMMEL.

Court of Appeals of Kentucky.

June 20, 1913

Appeal from Circuit Court, McOracken County.

Action by the George E. Keith Company against L. Hummel. Judgment for plaintiff with an order discharging his attachment, and he appeals. Reversed and remanded.

Eaton &amp Boyd, of Paducah, for appellant.

Miller & Miller, of Paducah, for appellee.

CLAY C.

In the month of March, 1912, plaintiff, George E. Keith Company, a corporation organized under the laws of the state of Massachusetts, sold and delivered to defendant, L. Hummel certain goods and merchandise at the price of $438.13. The account not being paid, it was sent to the law firm of Eaton & Boyd for collection. On October 16, 1912, they brought suit against the defendant, and on the 18th day of October took out a general order of attachment, based on an affidavit alleging that the defendant had left the county of his residence, to wit, McCracken county, to avoid service of summons; and (2) that he so concealed himself that summons could not be served on him. Another ground was relied on, but was defectively stated in the affidavit. On January 6, 1913 defendant filed an answer and affidavit controverting the grounds of the attachment. On January 8th he entered a motion to discharge the attachment, and filed notice of the motion which had been served on plaintiff's attorneys on the previous day. The hearing of the motion was continued until January 10th. Plaintiff filed a motion for a continuance. The motion was overruled, and the court, after hearing evidence gave judgment in favor of plaintiff for the amount of its claim, with interest, but entered an order discharging the attachment. Plaintiff appeals.

The evidence bearing on the grounds of attachment is, in substance, as follows: Defendant testified that Mr. Boyd had been pushing him very hard about the claim. At that time his mother was very sick, and he had to go to Chicago. He left for Chicago on the 8th or 9th of October. He stayed there three or four days. When he left Chicago his intention was to go to Guthrie to get the money. He went to Guthrie to see if his father-in-law would not let him have the money. His father-in-law was a wealthy man. From Guthrie he went to Louisville to see his brother-in-law, who was also wealthy, to get him to pay half the debt. While he was in Louisville he was doing nothing. While there he got a telegram that his store had been closed up. Did not know anything about when court began, and did not know anything about when court began, and did not know he was going to be sued. On cross-examination he stated that he promised to pay Mr. Boyd between the 10th and 25th one-half, and ten days later the balance. He did not tell Mr. Boyd that he was going away. He told the clerks to tell Mr. Boyd that he would be back between the 10th and 25th. On the 16th of October he was in Louisville. On the 17th and 18th he was in Louisville. When he get the telegram that his store had been closed up he left Louisville on the 4 o'clock train Saturday morning. Mr. B. M. Philley, who had several large claims against defendant, testified that he asked defendant if he had any relatives from whom he could borrow. Defendant said possibly his fatherin-law or brother-in-law might loan him the money. Philley suggested that his wife go to see them. Defendant said she could not go as the baby was not well. Philley then suggested that defendant go. A day or two later Philley called and defendant was gone. Defendant's stock was worth between $7,000 and $8,000. On cross-examination witness stated that at the time he had this conversation it was between the 1st and 10th of the month of October. He had four claims against defendant, one for $1,100, one for $700, and two small ones.

Ex Mason, a clerk in defendant's store, testified that defendant told him a few days before he left that he had to raise some money, and he spoke several times of going to see his father-in-law. On the 8th or 9th defendant told witness that he was going away and did not know when he would return. His purpose was to raise the money. On cross-examination witness stated that he did not know where defendant was, but only knew where defendant told him he was going.

For plaintiff Mr. A. E. Boyd, an attorney at law, who had the claim for collection, testified that he received the claim the latter part of September. He had several conversations with defendant about it in his office and at defendant's store. Defendant promised to pay half of the claim on the 10th day of October, and said he would pay the balance on the 20th. Witness told him that the people he represented were anxious for the claim to be paid or for suit to be filed that if defendant would pay the claim before the October term of the court it would be satisfactory. Defendant said he would pay half on the 10th and try to arrange for the balance before court. This conversation took place the latter part of September or the first part of October. On October 10th he went to see defendant. Defendant was gone and no one could tell him where he was or when he would be back. He afterwards went to defendant's store on several occasions and was informed by his brother-in-law that he did not...