Maynard v. Damron

• Decision Date: 10 March 1931
• Parties: MAYNARD v. DAMRON.
• Court: Kentucky Court of Appeals

36 S.W.2d 638

237 Ky. 793

MAYNARD v. DAMRON.

Court of Appeals of Kentucky

March 10, 1931

Appeal from Circuit Court, Pike County.

Action by Frank P. Damron against A. J. Maynard. From a judgment sustaining an order of attachment obtained therein, defendant appeals.

Affirmed.

Stratton & Stephenson, of Pikeville, for appellant.

J. J Moore and W. W. Barrett, both of Pikeville, for appellee.

WILLIS J.

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 theretofore 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. Civ Code Prac. § 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. § 542, p. 285; Lawson on Rights, Remedies, and Practice, vol. 7, § 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 that bond is given, it stands in lieu of the attachment, and the action proceeds as if no attachment had ever been issued. Hazelrigg v. Donaldson, 2 Metc. 445; Bell v. Western River Improvement & Wrecking Co., 3 Metc. 558; Turner Elkhorn Coal Co. v. Smith, 218 Ky. 503, 291 S.W. 715. On the other hand, bonds for the mere forthcoming of attached property, executed under section 214 of the Civil Code of Practice do not discharge the attachment, and the question as to its rightful issuance is not concluded thereby. Schwein v. Sims, 2 Metc. 209; Edwards-Barnard Co. v. Pflanz, 115 Ky. 393, 73 S.W. 1018, 24 Ky. Law Rep. 2296; Hobson v. Hall, 14 S.W. 958, 13 Ky. Law Rep. 109; Lee v. Newton, 87 S.W. 789, 27 Ky. Law Rep. 1004; Hudson Engineering Co....