Gowdy v. Sanders

• Decision Date: 12 March 1889
• Citation: 88 Ky. 346,11 S.W. 82
• Parties: GOWDY v. SANDERS.
• Court: Kentucky Court of Appeals

11 S.W. 82

88 Ky. 346

GOWDY v. SANDERS.

Court of Appeals of Kentucky.

March 12, 1889

Appeal from circuit court, Taylor county; W. E. RUSSELL, Judge.

In an action by George H. Gowdy against E. T. Sanders an execution issued, under which defendant's curtesy in his wife's land was sold by the jailer of the county to plaintiff. From an order denying a motion for a writ of possession, plaintiff appeals.

Charles Patterson, for appellant.

J. T Collins, J. M. Wood, and J. Garnett, for appellee.

BENNETT J.

The appellee's, E. T. Sanders, curtesy in a house and lot belonging to his deceased wife was levied on and sold by virtue of an execution in favor of the appellant against the appellee. The appellant, having purchased said interest received a deed for the same. Thereafter he made a motion before the circuit court for a writ of possession. The appellee resisted the motion upon the grounds-- First, that he was entitled to a homestead in said property; second, that the levy and sale were void. If the lastnamed ground is well taken, there is no need of inquiring into the first. The execution was directed to the "coroner or jailer of Taylor county." By subsection 1, § 667, of the Civil Code of Practice, "every process in an action or proceeding shall be directed to the sheriff of the county; or, if he be a party, or be interested, to the coroner; or, if he be interested, to the jailer; or, if all these officers be interested, to any constable." By subsection 26, § 732, "process" is defined to be a "writ or summons issued in the course of judicial proceedings." Subsection 27 defines the word "writ" to be "an order or precept in writing issued by a court, clerk, or judicial officer." So the word "process," as used in section 667, means among other things, a writ of execution, which must be directed to the sheriff of the county, and executed by him if he be not a party to the proceedings, or interested; if he be a party or interested, it must be directed to the coroner and executed by him, if he be not interested; if he be interested, it must be directed to the jailer, and executed by him, if he be not interested; if he be interested, it must be directed to a constable. If the sheriff is not disqualified, neither the coroner, jailer, nor constable can execute a writ of execution; nor can the jailer execute it, unless the coroner is disqualified; nor can the constable execute it, unless all three are...