Puff v. Huchter

• Decision Date: 04 November 1879
• Parties: Puff, & c., v. Huchter.
• Court: Kentucky Court of Appeals

78 Ky. 146

Puff, & c., v. Huchter.

Court of Appeals of Kentucky.

November 4, 1879

1. The court did not err in permitting appellee to file an amendment to his demand, after an appeal from the justice's court.

2. The payment by Avery & Sons as garnishees to Puff, after the justice discharged the attachment obtained by appellee, was void, because the appellee appealed from the judgment, and perfected the appeal by a bond as required to suspend the judgment, in a few hours after the appeal was taken.

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

A. H. &amp WM. L. JACKSON FOR PUFF.

1. The amount in controversy being over fifty dollars, a petition should have been filed by appellee in the justice's court. (Civil Code, secs. 39, 705, 90, 663; Peabody v Spalding, MS. Opinion).

2. The amendment should not have been permitted.

W. O. & J. L. DODD FOR AVERY & SONS.

1. A. & Sons had the right to pay the money to Puff as soon as the order of attachment was discharged.

2. They were ignorant of the appeal, and paid the money without notice of it. (Civil Code, secs. 223, 225; sec. 4 art. 1, chap. 38, Gen. Stat.; Atchison v. Smith, 3 B. Mon., 502; Drake on Attachments, 411, 451, 453, 691; Sherrod v. Davis, 17 Ala. 312; Danforth v. Rupert, 11 Iowa 551; Brown v. Harris, 2 G. Greene, 159; Harrow v. Lyon, 3 Ibid, 159; Clapp v. Bell, 4 Mass. 99; Suydam v. Huggeford, 23 Pick., 465).

KOHN & BARKER FOR APPELLEE.

1. The court did not err in refusing to dismiss the case, because of appellee's failure to file a petition before the justice. (Civil Code, sec. 134.)

2. Neither did it err in holding that the garnishee was not released by paying to Puff the money attached after the attachment was discharged, inasmuch as an appeal was taken from the judgment and perfected by an appeal bond on the same day. (Subsec. 4, art. 1, chap. 38, Gen. Stat; Civil Code, secs. 714, 729, 269, 70.)

OPINION

COFER JUDGE:

The appellee filed with a justice of the peace his affidavit, showing an indebtedness to him by the appellant, Birch Puff, of $59.75, for groceries and house rent, and stating sufficient grounds for an attachment, and caused a warrant and attachment to issue therefor. The warrant was served on Puff, and a corporation, styled B. F. Avery & Sons, was summoned as garnishee. The corporation, by an indorsement on the attachment, admitted an indebtedness of $59.75 to Puff.

The warrant and attachment were returned, and, on hearing, the justice dismissed the action, and discharged the attachment. From that judgment the plaintiff (now appellee) prayed an appeal to the Jefferson court of common pleas, which prayer was noted in the order of dismissal, and on the same day an appeal bond was executed before the clerk of the court of common pleas, and a summons to answer the appeal was issued and served on that day on the defendant, Puff, and on the garnishee.

Puff appeared in the common pleas court, and moved to dismiss the action on the ground that no petition had been filed in the justice's court; but the motion was overruled, and the plaintiff was allowed, over the objections of the defendant, to file what is styled an amended petition, to which the defendant excepted.

The matter set up in this pleading was evidently the same that had been attempted to be sued on in the justice's court, and the allegations of the pleading, and the grounds for the attachment not being denied, the court rendered judgment for the debt, and sustained the attachment, and from that judgment Puff appeals.

A rule was awarded against the garnishee to pay into court the amount admitted by its indorsement to be due from it to Puff at the date of the service of the attachment.

The garnishee responded that, after the making of the order dismissing the action and discharging the attachment, and before notice of the appeal, Puff presented to it a writing signed by the justice directing it to release and pay over to him the amount garnisheed, and giving notice that the attachment had been discharged, and that it had thereupon paid the same as directed. The court held the response insufficient, and made the rule absolute, and from that order B. F. Avery & Sons have appealed.

First, as to the appeal of Puff:

The common pleas judge seems to have regarded the affidavit as intended for a petition, and on that idea to have allowed an amendment to be filed. The affidavit did not contain all that was necessary to be alleged in a petition, and was insufficient to authorize a judgment. But its defects were in matter of form rather than of substance, and in view of the rule that proceedings in justices' courts are to be construed with great liberality (Long v. Ray, 1 Dana, 430), and that appeals from their judgments are to be tried de novo (section 726, Code), we think there was no error in overruling the motion to dismiss or in allowing the plaintiff to set forth his demand in a formal...