Tripp Bros. v. Hymer

• Decision Date: 30 January 1907
• Citation: 99 S.W. 330
• Parties: TRIPP BROS. v. HYMER ET AL.
• Court: Kentucky Court of Appeals

99 S.W. 330

TRIPP BROS. v. HYMER ET AL.

Court of Appeals of Kentucky.

January 30, 1907

Appeal from Circuit Court, Kenton County.

"Not to be officially reported."

Action by Tripp Bros. against Charles B. Hymer and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Hall &amp McLean, for appellants.

S.D Rouse and C. B. Thompson, for appellees.

CARROLL C.

To recover damages for the wrongful issual of an attachment finally discharged, the appellants brought this suit against the appellees, sureties on the attachment bond. The averments of the petition as amended are that the attachment was levied upon a Star engine, the property of appellants, and that R G. Reagan and P. H. Stewart, debtors of appellants in the sum of $800, were summoned as garnishees in the action. It was averred that appellants employed an attorney to contest the attachment and agreed to pay him a reasonable fee, namely $150, for his services, and that the engine upon which the attachment was levied was allowed to stand out in the weather for more than two years-- that being the period of time that elapsed between the levy and the discharge of the attachment--and that the engine was practically ruined by exposure to the weather, and by reason of valuable portions of it being carried away by trespassers. Damage in the sum of $925 was sought to be recovered. The return of the officer on the attachment, and the only return in the record, shows that it was executed by levying on the engine and separator. Upon the conclusion of the evidence for plaintiffs below, now appellants, the jury were peremptorily instructed to return a verdict for the defendants below, now appellees. From the judgment on that verdict this appeal is prosecuted.

The principal question in this case is whether or not the appellants were the owners of the engine levied on under the attachment. The evidence concerning this issue is substantially as follows: Reagan & Stewart owned a Russell engine upon which A. R. Taylor had a mortgage. This engine did not have sufficient power to do the work desired by Reagan & Stewart, so they contracted with appellants for the purchase of the engine that was levied on. In part payment for the engine, appellants took the Russell engine, upon which Taylor had a mortgage, and the notes of Reagan &amp Stewart for the balance of the purchase money. When the trade was made, appellants removed the Russell engine from Kenton county, Ky. where it was located, and in which county the mortgage on it was recorded, to the state of Indiana, delivering to Reagan & Stewart, in Kenton county, the engine bought by them. Some two months afterwards Taylor brought suit on his mortgage, and, as the mortgaged property had been removed to another state by appellants, he obtained an attachment against them, had it levied upon the engine they sold Reagan & Stewart, and also garnished in the hands of Reagan & Stewart the money they owed appellants. This is the attachment that was discharged. It seems there was an understanding of some sort between Taylor and Reagan & Stewart that he would release his mortgage on the Russell...