Landy v. Moritz

• Decision Date: 29 April 1908
• Citation: 109 S.W. 897
• Parties: LANDY v. MORITZ.
• Court: Kentucky Court of Appeals

109 S.W. 897

LANDY v. MORITZ.

Court of Appeals of Kentucky.

April 29, 1908

Appeal from Circuit Court, Marion County.

"Not to be officially reported."

Action by Herman Moritz to subject a fund in court to the satisfaction of a judgment, in which Annie Landy filed an answer claiming that the fund belonged to her. From a judgment for plaintiff, Annie Landy appeals. Reversed and remanded.

J. W Rawlings, Rawlings & Voris, Robert Harding, and Greene & Van Winkle, for appellants.

S. A Russell and W. J. Price, for appellee.

HOBSON J.

On February 14, 1905, Herman Moritz recovered a judgment against Samuel Landy in the Marion circuit court for the sum of $2,500. Execution was issued upon the judgment, and returned "No property found," and on February 23, 1905 Moritz instituted this action in equity to enforce satisfaction of his judgment. He took out an attachment which was served upon John C. Voris as trustee of the jury fund of the Boyle circuit court attaching in his hands a fund for $1,350 deposited in lieu of bail by Annie Landy, the wife of Samuel Landy. She filed an answer to the petition, in which she set up that the money referred to was hers. The circuit court ordered the case to be heard before a jury on the question of the ownership of the fund. The jury found in favor of the plaintiff Moritz, and Annie Landy appeals.

It was shown on the trial that on October 22, 1904, Annie Landy was arrested by the sheriff of Boyle county under bench warrants issued upon indictments found against her by the grand jury in the Boyle circuit court, and was placed in jail. Her bail in the cases was fixed at $700. That afternoon, on obtaining counsel, she wrote a check to the trustee of the jury for $700 in lieu of bail, and was discharged from custody. The check was drawn by her on the Citizens' National Bank of Danville in her own name, and was paid by the bank. About the time that she was released from custody her husband was arrested by the sheriff, and brought into the clerk's office. At the suggestion of her attorney, she then drew another similar check for $650, the amount of bail required of her husband under the indictments against him. He was then released from custody; the trustee of the jury fund executing to her a receipt for the sum of $1,350 in lieu of bail on 11 indictments against her and 10 indictments against her husband. This was before Moritz had brought any suit against her husband as we understand the record, but was after his cause of action had accrued, and he had threatened to bring suit. The proof for Annie Landy also showed that she had opened her account in the Citizens' National Bank on September 28, 1901, and had continued the account with the bank from that time on, depositing in the bank from time to time money, and checking on it, the balance in her favor varying from $1,000 to $3,000. She showed that she had received from her father money, on which she had traded and which she had kept separate from her husband. On the other hand, the proof for the plaintiff was to the effect that Samuel Landy had said that the plaintiff should never collect his judgment; that previous to the recovery of his judgment Samuel Landy had been engaged in business for a number of years, buying and selling poultry, groceries, and old iron doing a considerable business and handling a good deal of money; that he had died not long after the judgment; and that at his death no estate of his could be found. On the trial of the case Moritz was allowed to testify to declarations made to him by Samuel Landy not in the presence of Annie Landy as to what he had and what he was going to do with it. S. O Jeffreys was allowed to state that Samuel Landy had told him that he and his wife had...