Thomas v. Clark County Nat. Bank

• Decision Date: 18 March 1898
• Citation: 103 Ky. 335,45 S.W. 73
• Parties: THOMAS v. CLARK COUNTY NAT. BANK.
• Court: Kentucky Court of Appeals

45 S.W. 73

103 Ky. 335

THOMAS v. CLARK COUNTY NAT. BANK.

Court of Appeals of Kentucky.

March 18, 1898

Appeal from circuit court, Clark county.

"To be officially reported."

Bill by the Clark County National Bank against M. H. Clay.Several persons were summoned as garnishees.J. M. Thomas intervened as claimant, and an order was entered sustaining the garnishments, from which order no appeal was taken.At a subsequent term, claimant petitioned to have the case reopened, which was denied, and he appealed.Affirmed.

Beckner & Jonett, for appellant.

Buckner & Taylor and Geo. B. Nelson, for appellee.

BURNAM J.

In August, 1890, appellee instituted this suit, in equity against the defendant, M. H. Clay, and sued out general attachments against his property, and at the same time sought, by garnishments served upon divers persons, to attach in their hands money alleged to be due and owing by them to Clay, and to have same appropriated by a judgment of the court to the payment of its debt.About the same time, similar suits were instituted by the Winchester Bank and the Citizens' National Bank against the same party, the action of the Winchester Bank being a little prior in point of time to the others.The general attachments in each of these suits were levied upon all the tangible property in the possession of defendant, Clay, consisting of planing mill, lumber, horses wagons, etc.It was evident that all the tangible property would be consumed by the debts of the Winchester Bank and the Citizens' Bank, and appellee was vigilant in attempting to reach debts due defendant, Clay, which were not covered by the general attachments.During the pendency of this litigation, appellant, Thomas, intervened, as a claimant of the property, upon the ground that he was the trustee for the benefit of M. H. Clay's creditors, and held title to the property attached under a voluntary assignment of Clay, who was his son-in-law.Subsequently, and at the same term, he filed an answer and cross petition, in which he alleged that he was a partner of Clay in the firm of M. H. Clay & Co. that the property levied on and the debts attached in the action were, at the time of the levy and garnishment, the property of the firm of M. H. Clay & Co.; and that he had a lien upon same for the payment of the debts due by the firm and prayed that such lien be adjudged him, and that the attachments sued out be discharged.Appellee denied the alleged partnership, and that appellant had any interest in the property levied on, or in the indebtedness due M. H. Clay & Co., which had been garnished by it.At the February term, 1891, after proof taken, and upon a regular order of submission, the court entered a judgment sustaining appellee's attachment, garnishing the funds in the hands of the various persons who had been brought before the court by the garnishments which appellee had had served upon them; and thereafter orders were taken directing each of these garnishees to pay to the appellee the amounts admitted as due and owing to the defendant, Clay; the judgment further providing that, upon such payments being made, the garnishees should be discharged, pro tanto, of so much of their respective indebtedness to the defendant, Clay, and also providing that appellee might have execution for the amounts against the respective garnishees; and the record shows that in some instances the amount due by the garnishee became a matter of litigation between them and the appellee herein.Appellant excepted to this judgment, and prayed an appeal to the court of appeals, which was granted, but seems never to have been prosecuted.In February, 1895, the case was filed away, with leave to redocket; and subsequently, in February, 1896, on motion of appellant, the case was again put upon the docket, when he offered to file an amended petition, setting up all the facts which had been recited in his original petition to be made a party, and the additional fact that he, as a partner in the firm of M. H. Clay & Co., had in the meantime paid off a large amount of indebtedness due by that firm, and sought to have his claim to the funds which had been adjudged appellee upon its garnishments relitigated and determined; this court having in the...