Lee v. Smyser

• Decision Date: 12 January 1895
• Parties: Lee v. Smyser.
• Court: Kentucky Court of Appeals

96 Ky. 369

Lee v. Smyser.

Court of Appeals of Kentucky.

January 12, 1895.

APPEAL FROM BULLITT CIRCUIT COURT.

CHARLES CARROLL FOR APPELLANT.

FAIRLEIGH & STRAUS FOR APPELLEE.

JUDGE GRACE DELIVERED THE OPINION OF THE COURT.

This is an appeal by John A. Lee, who was defendant in the court below, in the suit of J. L. Smyser against him in the Bullitt Circuit Court from an order of said court in refusing to quash the attachment issued by the clerk of said court in said action, and is made upon the ground that said attachment, which issued for four thousand seven hundred dollars, was for a greater amount by eighty-one dollars and eighty-four cents than was then due upon plaintiff's debt, as stated by him in his affidavit, or rather than the amount ascertained by calculation from the data given by plaintiff of his debt in his affidavit; said affidavit stating that the amount due him and which he believed he ought to recover of defendant was the sum of three thousand nine hundred and ninety dollars and sixty-four cents, with interest on same from the 14th day of December, 1889, to that date, which was July 28, 1892.

It appears from the record in this cause that plaintiff's suit, with attachment, was filed in the Bullitt Circuit Court July 28, 1892, with warning order made against the defendant Lee to the November term of court 1892, and that at that term of court and before the entry of the appearance in person by defendant, the court made an order sustaining said attachment for the sum of three thousand nine hundred and ninety dollars and sixty-four cents (the amount named in plaintiff's attachment), with interest from the 14th of December, 1889 (the time named in said attachment), thus of its own motion correcting any error that may have been made by the clerk in the amount for which this attachment was issued. The said defendant not appearing and entering his motion to quash said attachment until the following spring term of said court, we think the court below ruled correctly. It thereby said that a creditor who had a valid debt unpaid and who was proceeding against a non-resident defendant, and whose proceedings were in all other respects valid, should not have his debt imperiled, or rather should not lose his lien secured on the property of his debtor simply by an error of the clerk (a ministerial officer of the court) in making a calculation of the amount due plaintiff under his affidavit. This excess of the amount named in the attachment was by...