Lewis v. Quinker
| Decision Date | 01 October 1859 |
| Parties | Lewis v. Quinker. |
| Court | Kentucky Court of Appeals |
APPEAL FROM LOUISVILLE CHANCERY COURT.
1. Upon the issual and levy of a general attachment obtained in an action by equitable proceedings by a judgment creditor against the debtor, upon a return of execution ??‘ no property found," a lien upon the property of the debtor levied or created in behalf of the plaintiff to the extent of his debt, and he is entitled to its enforcement against all subsequent purchasers.
2. In such case no affidavit or bond by the plaintiff is required to be filed before the attachment issues.
3. The basis of the attachment in such case is the judgment and return of no property, which, when alleged, furnish prima facie evidence that the demand is still unpaid; but if the failure to allege in terms that the judgment is still unsatisfied be a material defect, it can be supplied by subsequent amendment to that effect, and will not then operate to vitiate the attachment or levy and lien.
4. Where the return of the officer shows that he levied the attachment upon a town lot of the defendant, and " posted a copy of the attachment on the premises, there being no tenant," the omission to state that the copy was left in a conspicuous place on the premises, is cured by the presumption that the officer did his duty, nothing appearing to the contrary. Quaere: Does not the word " posted" supply the omission?
Craig & Elliott, for appellant, cited Civil Code, sec. 228, sub-div 3; Ib., secs. 474, 475, 476; 17 B. Mon., 324; Ib., 542; Samuel v. Dallam, MS. opin., January, 1857.
Boone & Pennebaker, for appellee, cited Civil Code, secs. 474, 475, 476, 477; 9 B. Mon., 231; 7 Ib., 116, 314; 11 Ib., 310, 318; 2 Ib., 470; 3 Ib., 116; 6 Ib., 130; 2 Marsh., 40; 3 Marsh 350.
Quinker obtained a judgment at law against Armstrong, upon which an execution was issued, directed to the county in which the judgment was rendered, and returned " no property found." He then filed his petition in equity, setting forth his judgment and the return, and obtained against Armstrong a general attachment, which was, on the 4th March, 1857, levied upon a lot of ground in Louisville belonging to Armstrong, and on the 16th of the same month, served upon Armstrong in person.
On the 14th April, 1857, Armstrong sold the lot to Lewis, who paid him part in hand and executed his notes for the remainder, which he afterwards paid off.
On the 13th March, 1858, Lewis was made a defendant to the petition, and the chancellor asked to subject the lot to sale upon the ground that the levy of the attachment and service upon Armstrong had created a lien in favor of the plaintiff, and that Lewis, was a purchaser pendente lite.
Lewis answered, and resisted the sale of the lot upon the following grounds:
1. That the original petition disclosed no cause of action, and that the levy and service upon Armstrong created no lispendens or lien against any third person.
2. That the levy and return of the marshal were insufficient and illegal; and
3. That he was an innocent purchaser for value, and without notice of the suit, and that as to him there was no lien.
Upon hearing, his objections were deemed insufficient, and the lot was subjected, and from that judgment he has appealed.
By the Civil Code (sec. 474) it is provided, that " after an execution of fieri facias, directed to the county in which the judgment was rendered, or to the county of the defendant's residence, is returned by the proper officer either as to the whole or part thereof, in substance no property found to satisfy the same, the plaintiff in the...
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