Maynard v. Damron

• Decision Date: 10 March 1931
• Citation: 237 Ky. 793
• Parties: Maynard v. Damron.
• Court: United States State Supreme Court — District of Kentucky

237 Ky. 793

Maynard v. Damron.

Court of Appeals of Kentucky.

Decided March 10, 1931.

1. Attachment. — Payment of judgment discharged attachment obtained therein and precluded any inquiry as to sufficiency of grounds therefor.

2. Attachment. — Attachment is ancillary remedy to secure alleged debt, and, when debt itself is paid, attachment is annulled.

3. Attachment. — Generally attachment defendant may by his conduct waive or become estopped to assert nonexistence of grounds for attachment.

4. Attachment. — Settlement of claim in litigation prevents further inquiry to determine whether attachment was properly sued out.

5. Attachment. — Trial court, after satisfaction of judgment in main action by payment thereof, properly sustained order of attachment obtained therein (Civil Code of Practice, sec. 757).

Since no appeal was prosecuted by either party and purpose of action had been accomplished when judgment was paid, any further investigation respecting ancillary remedies became moot, and admission on record that judgment had been satisfied by payment relieved court from necessity of further action except entry of appropriate orders to finally dispose of case.

Appeal from Pike Circuit Court.

STRATTON & STEPHENSON for appellant.

J.J. MOORE and W.W. BARRETT for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

The question involved upon this appeal is the propriety of the action of the circuit court in sustaining an order of attachment. Frank P. Damron sued A.J. Maynard to recover $10,000 for legal services thertofore rendered him, and $35 for expenses incurred on behalf of the defendant. An order of attachment was obtained on the ground that the defendant had no property in the state subject to execution, or not enough thereof to satisfy plaintiff's demand, and that the collection of the claim would be endangered by the delay in obtaining a judgment or return of no property found. Civil Code of Practice, section 194, subsec. 2.

The answer traversed both the grounds of liability and the grounds of attachment. The case was tried before a jury, resulting in a verdict for the plaintiff for $3,035. A judgment was rendered pursuant to the verdict, but a ruling on the attachment branch of the case was reserved. A motion for a new trial was overruled, and Maynard paid Damron the full amount of the judgment. The funds attached in the action were then ordered paid to Maynard. A subsequent hearing on a motion to discharge the attachment was had before the circuit court, and the testimony has been preserved in a transcript and bill of exceptions. The court sustained the order of attachment, and the appeal is prosecuted solely from the order manifesting that ruling. It is argued that the proof fails to show that the collection of the demand was endangered, even though defendant's property subject to execution was insufficient to pay the claim asserted by the plaintiff.

The payment of the judgment discharged the attachment and precluded any inquiry as to the sufficiency of the grounds therefor. Attachment is an ancillary remedy to secure the alleged debt, and, when the debt itself is paid, the attachment is annulled. 6 C.J. sec. 542, p. 285; Lawson on Rights, Remedies, and Practice, vol. 7, sec. 3580, p. 5560. The exact question does not appear to have been decided in this state, but the result is similar to the consequences flowing from the execution of a bond, under section 221 of the Civil Code of Practice, to discharge an attachment. At any time before judgment, a defendant by virtue of that provision may cause a bond to be executed to the plaintiff to the effect that the defendant shall perform the judgment of the court, whereupon the attachment shall stand discharged, and any property taken under it must be returned to the defendant. It has been held that, when such a bond is executed, all power of the court and its officers over the property attached ceases, and the plaintiff must look to the bond for his security. When...