Stewart v. Thomson

• Decision Date: 24 May 1895
• Parties: Stewart v. Thomson.
• Court: Kentucky Court of Appeals

97 Ky. 575

Stewart v. Thomson.

Court of Appeals of Kentucky.

May 24, 1895.

APPEAL FROM GREENUP CIRCUIT COURT.

BENNETT & BENNETT FOR APPELLANT.

A. E. COLE & SONS FOR APPELLEE.

JUDGE GUFFY DELIVERED THE OPINION OF THE COURT.

This action was instituted in the Greenup Circuit Court by the appellant, Linsey T. Stewart, against the appellee, Volney E. Thomson. It is alleged, in substance, in the petition and amended petition, that the appellee on January 31, 1894, brought suit on a note held by him against John Stewart and the appellant as surety in the court of Volney Row, a justice of the peace in Scioto county, in the State of Ohio, and sued out an attachment against appellant's property in said State, and caused the same to be levied upon a span of mules, harness and a two-horse wagon, the property of appellant, and exempt from execution and attachment under the laws of Kentucky. That at the time of said levy he had gone with them to Portsmouth, Ohio, temporarily, to haul a load of goods, going there in the morning intending to return in the evening. That appellee knowing all the facts aforesaid and with a fraudulent intent to cheat and defraud appellant out of his exemption under the laws of Kentucky, and with intent to subvert and annul the laws of Kentucky, procured the attachment and caused the levy to be made as aforesaid. That said mules were worth $300. That at the time of the levy said property was claimed and held by him as exempt, under the laws of Kentucky; all of which was known to appellee, appellant being a citizen and resident within Kentucky with a family, and being his only team of work beasts, wagon and harness, exempt by the laws of Kentucky. That appellee was then, and for years before had been, a citizen and resident of the Commonwealth of Kentucky. That immediately after said levy he returned to Kentucky and sued out an injunction against appellee, enjoining him from proceeding with a sale of said property, but appellee in violation of said injunction proceeded with his action and caused the sale of said mules in the State of Ohio, on the 20th of February, 1894, and applied the proceeds to the payment of said debt, viz., the sum of $212.

That appellant and appellee have been continuous residents and citizens of Greenup county, State of Kentucky, for years before the bringing of this action. That appellant has no property in Kentucky, subject to execution, and this fact induced appellee to perpetrate this fraud upon his rights. That the levy and sale was a great fraud upon his rights, by which he has been damaged in the sum of $500.

It appears that a demurrer was sustained to the petition after which appellant filed an amended petition in which it is averred that the said suit against him in Ohio was set for the 3d of February, 1894, and that he was there on that day for the sole and only purpose to demand from the officer and the defendant the restoration of said property as being his exempt property under the laws of Kentucky, and did in the presence of appellee and said Row make such demand from the constable, Wm. H. Williams, who had possession of said property by virtue of the attachment, which demand was refused by the officer and by appellee. That he did not claim the property as exempt under the laws of Ohio, as stated in official return of the officer; that he did not put in any defense to appellee's suit in Ohio, or submit himself to its jurisdiction, and upon refusal as aforesaid to restore him his property, he returned home to Kentucky and instituted suit in this court and sued out his injunction, which injunction was instituted 6th day of February, 1894.

Copy of the proceedings of the justice's court of Ohio and of the injunction are filed with petition.

A demurrer was sustained to the amended petition and petition as amended and petition dismissed by the court.

Appellant filed grounds and moved for new trial, which motion was overruled by the court and appellant has appealed to this court.

Appellee suggests that appellant failed to show by proper averments that the mules in controversy were by the laws of Kentucky exempt from execution, but we think the allegations are sufficient. The petition does not show that there is any other suit pending between the parties, hence the special demurrer can not be sustained, but appellee insists that the judgment of the justice of the peace, directing the sale of the property and disallowing the exemption, is conclusive of appellant's right to recover in this action.

Courts of justices of the peace are courts of limited jurisdiction, and there is nothing in this record to show that the justice's court had jurisdiction of the sum claimed and recovered. (Wood v. Wood, 78 Ky., 627.) But appellant does not rely upon the want of jurisdiction in the justice's court, hence we need not notice that question further.

The important question involved in this appeal is, whether or not a citizen of this State, who is an insolvent debtor, may go into another State for the purposes incident to inter-state commerce, social intercourse or special business, without subjecting his property, exempt by the laws of this State, from execution and attachment, which he happens to take with him, to the payment of debts due another citizen of this State, who may be watchful enough to follow and attach such property, and the debtor have no redress.

It seems to us that the law will...