Slaughter v. Mattingly

• Decision Date: 21 October 1913
• Citation: 159 S.W. 980,155 Ky. 407
• Parties: SLAUGHTER et al. v. MATTINGLY.
• Court: Kentucky Court of Appeals

159 S.W. 980

155 Ky. 407

SLAUGHTER et al. v. MATTINGLY.

Court of Appeals of Kentucky.

October 21, 1913

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by William H. Slaughter and others against P.J. Mattingly, in which judgment was rendered against defendant, and thereafter plaintiff, in an equitable action to satisfy the judgment sued out a new summons against defendant and an attachment against others. From the judgment quashing the attachment plaintiffs appeal. Reversed and remanded.

Nunn J., dissenting.

Richard Priest Dietzman, Augustus E. Willson, and Arthur E. Hopkins, all of Louisville, for appellants.

J. W. Clements, of Louisville, for appellee.

HANNAH J.

On the 26th of February, 1894, a judgment was rendered in the Jefferson circuit court against J. G. Mattingly, L. D Mattingly, A. R. Sutton, and appellee, appellant being now the owner of said judgment. Execution was issued on this judgment on March 17, 1896, and was on March 18, 1896, returned, "No property found." On March 19, 1896, appellant instituted an equitable action "for the discovery of money, choses in action, equitable or legal interest, and all other property to which the said defendants, or either of them, is entitled, and subjecting the same to the satisfaction of said judgment." In this action, the Columbia Finance & Trust Company, as assignee of the Belle of Nelson Distillery Company, was made a party defendant, and asked to be required to disclose any money, property, or chooses in action of the said P.J. Mattingly which they, or either of them, had in their possession or under their control. On June 13, 1896, the Columbia Finance & Trust Company, as assignee of the Belle of Nelson Distillery Company, filed its answer as garnishee, saying that appellee, P.J. Mattingly, claimed that the Belle of Nelson Distillery Company was indebted to him in the sum of $317.36, but that his said claim had not been acted upon, and that it could not then state whether said claim was valid, but that whatever sum might be adjudged to P.J. Mattingly would be held by it subject to the garnishment therein. On October 7, 1899, appellee, P.J. Mattingly, filed his affidavit in said action, setting up and claiming the fund attached in the hands of said trust company to be exempt property, and entered a motion to release the levy of the attachment on the fund in the hands of the Columbia Finance & Trust Company, as assignee of the Belle of Nelson Distillery Company. On October 26, 1899, an order was entered in said action, sustaining said motion and releasing the levy of the attachment on said fund to the extent of $320, and directing said garnishee to pay said amount over to P.J. Mattingly, but reserving the question as to the levy of the attachment on the interest that accrued on the fund in the hands of the garnishee. On December 9, 1899, said garnishee, Columbia Finance & Trust Company, reported that it had paid to appellee the $320 ordered to be paid to him, and still had in its hands $63.47 of the amount which was allowed to said Mattingly, and it paid the said sum into court. On January 27, 1900, on motion of appellee, an order was entered releasing and discharging the levy of the attachment on the remainder of said fund, and leave was given appellee to withdraw said $63.47, which he did. So far as the record shows hostilities then ceased until September 1, 1911, when a second summons was issued by the clerk in favor of appellant against appellee on the original petition, together with an attachment against all the defendants in said action. This summons was executed on appellee on September 6, 1911, and on September 4, 1911, the attachment was levied on the one-eighth undivided interest of P.J. Mattingly in a tract of land in Marion county, Ky. On October 28, 1911, the defendant, P.J. Mattingly, filed his answer in four paragraphs, charging, in substance: In paragraph 1, that as no steps had been taken by the plaintiff after the order of January 27, 1900, the action had been abandoned and stricken from the docket. In paragraph 2, that the execution upon which the action was based was issued on March 17, 1896, and returned on the next day, "No property found," the attorney for the plaintiff having placed on said execution the following indorsement: "The sheriff will return this execution forthwith according to the facts"--and alleging that such return in law and in fact was the return of the plaintiff, and not the return of the officer, and was therefore void, and no action could be maintained thereon. In paragraph 3, that more than 15 years had elapsed from the date of the issual and return of the execution referred to in the petition before another execution was issued, and that more than 15 years had elapsed since the issual of the original attachment before another attachment was issued, and the statute of limitations was relied on. In paragraph...