Marks & Stix v. Gause

• Decision Date: 12 March 1903
• Citation: 72 S.W. 732
• Parties: MARKS & STIX v. GAUSE et al.
• Court: Kentucky Court of Appeals

72 S.W. 732

MARKS & STIX v. GAUSE et al.

Court of Appeals of Kentucky.

March 12, 1903

Appeal from circuit court, Rowan county.

"Not to be officially reported."

Action by Marks & Stix against A. J. Gause and others. From a judgment dismissing plaintiffs' petition, entered on sustaining a demurrer thereto, plaintiffs appeal. Reversed.

J. G Whitt and J. E. Clark, for appellants.

W. A Young, G. B. Caywood, and E. W. Senff, for appellees.

BURNAM C.J.

On the 12th day of July, 1901, appellants, Marks & Stix, brought this suit in equity in the Rowan circuit court against the appellees upon a note for $479.25, dated the 2d of February 1901, and due on the 2d day of August, 1901, with interest from date, which had been executed and delivered to them by the appellees. The suit was brought under section 237 of the Civil Code for indemnity. The petition is in the usual form and then goes on to allege that the defendants, A. J. Gause and Martha Gause, are about to depart from the state, and are about to move out of the state their property, or a material part thereof, not leaving enough therein to satisfy the claim sued on, or claims of other creditors; that A. J. and Martha Gause are principals in the note, and Wilson security. The necessary affidavit, bond, et cetera, having been executed, a general attachment issued against the property of the defendants, A. J. and Martha Gause, which was levied upon a stock of goods in the house of the defendants, and which was discharged, upon motion of the defendants, by the circuit judge of that judicial district on the 20th day of July, 1901, and which was reinstated by a judge of this court on the 1st day of August thereafter. The defendants, Gause and wife, filed a general demurrer to plaintiffs' petition, which was sustained, and plaintiffs declining to plead further, their petition was dismissed, and from that judgment they appeal.

It is insisted that the petition is fatally defective in that it fails to allege that neither of the defendants had sufficient property in this state subject to execution sufficient to satisfy the demand sued on, and that the collection thereof would be endangered by delay in obtaining a judgment or return of no property found. In support of this contention they refer to Francis v. Burnett, 84 Ky. 30, and Dunn's Trustee v. McAlpin & Co., 90 Ky. 83, 13 S.W. 363. The attachments in both of the cases relied on were sued out under subsection 8 of section 194 of the Civil Code. This ground of attachment is not based upon the idea that the defendant is a wrongdoer, or contemplated any wrongdoing with reference to his...