Mansfield v. Wilkinson

• Decision Date: 20 September 1894
• Parties: MANSFIELD et al. v. WILKINSON.
• Court: Kentucky Court of Appeals

27 S.W. 808

MANSFIELD et al. v. WILKINSON.

Court of Appeals of Kentucky.

September 20, 1894

Appeal from circuit court, Warren county,

"Not to be officially reported."

Action by W. L. Wilkinson against Joseph H. Mansfield and another to subject defendants' real estate to the payment of debt. Judgment for plaintiff, and defendants appeal. Reversed.

J. A. Mitchell, for appellants.

Sims & Covington and Jos. G. Covington, for appellee.

HAZELRIGG, J.

Upon the issuance of an execution from a quarterly court merely, and a return thereon of nulla bona, the creditor cannot resort to his proceeding in rem to subject to sale the real estate of his debtor. He must first exhaust his legal remedies.

An allegation that no transcript of the judgment had been lodged with the clerk of the circuit court, and no execution sued out thereon, for the reason that the debtor had no other real estate than that sought to be sold in the equitable proceeding, does not meet the requirements of the law. Weatherford v. Myers, 2 Duv. 91.

In the case under consideration the appellee, Wilkinson, as surety of the appellant Mansfield, having satisfied the execution from the quarterly court against his principal and himself, may be entitled to recover a personal judgment against the principal debtor, but cannot subject his lands to sale in an equitable proceeding for that purpose until after exhausting his remedies at law for the satisfaction of his judgment. On a return of the cause the sale must be set aside. It is not necessary to notice the other questions raised on the appeal. For the reasons indicated the judgment is reversed, and cause remanded for proceedings in conformity with this opinion.