J. S. Merrell Drug Co. v. Dixon

• Decision Date: 07 January 1909
• Citation: 115 S.W. 179
• Parties: J. S. MERRELL DRUG CO. v. DIXON.
• Court: Kentucky Court of Appeals

115 S.W. 179

J. S. MERRELL DRUG CO. v. DIXON.

Court of Appeals of Kentucky.

January 7, 1909

Appeal from Circuit Court, Henderson County.

"To be officially reported."

Action by Nannie M. Dixon against the J. S. Merrell Drug Company to restrain execution. From a judgment for plaintiff, defendant appeals. Reversed.

E. L McDonald and Thos. E. Ward, for appellant.

Jno. F Lockett, for appellee.

CLAY C.

The appellant, J. S. Merrell Drug Company, having an unsatisfied claim against the appellee, Nannie M. Dixon, for $193.87 with interest at 6 per cent. from November 4, 1904 instituted suit thereon in 1907 in the Henderson quarterly court, and recovered judgment against the appellee. Execution was issued upon this judgment, and returned "no property found." Appellant then filed a transcript of the proceedings in the Henderson circuit court, sued out an execution, and caused it to be levied on certain real estate belonging to appellee in the city of Henderson. This levy was made on August 14, 1907, and on September 16, 1907, appellee instituted this action in the Henderson circuit court against appellant and Ed. Melton, sheriff of Henderson county, for the purpose of enjoining the collection of the execution by a sale of the property involved in this action. The petition charges that the property so levied on was purchased by her with the proceeds of a benefit certificate issued to her late husband, Dr. Wiley Dixon, in the Ancient Order of United Workmen, an assessment or co-operative life insurance association; that appellee was named as the beneficiary of the fund provided for therein, to wit, the sum of $2,000: that she collected said sum from said order, and invested it in said property as a home for herself and her children; that by the charter of said association the fund paid to her was exempt from execution, and was not liable to be seized or appropriated by any legal or equitable process for debt. With the petition was filed a copy of the charter and by-laws of the Grand Lodge of the Ancient Order of United Workmen. The petition also charges that said fund is exempt by the laws of the commonwealth from execution. Appellant's demurrer to the petition was overruled. Having declined to plead further, judgment was entered in favor of appellee. From that judgment this appeal is prosecuted.

Appellant asks a reversal on two grounds: (1) The judgment in question was the judgment of the Henderson quarterly court, and could not there be enjoined by the Henderson circuit court. (2) Though the fund itself may be exempt, property purchased with the fund is not exempt.

In view of the fact that we have determined to reverse this case upon other grounds, we deem it unnecessary to pass upon the...