Wittenauer v. Kaelin

• Decision Date: 22 March 1929
• Citation: 228 Ky. 679
• Court: United States State Supreme Court — District of Kentucky
• Parties: Wittenauer v. Kaelin et al.

228 Ky. 679

Wittenauer v. Kaelin et al.

Court of Appeals of Kentucky. Chancery Branch, Second Division.

Decided March 22, 1929.

1. Execution. — Under Civil Code of Practice, sec. 439, providing for equitable action by plaintiff in execution to discover money or chose in action, and subject same to satisfaction of judgment, term "chose in action" does not include any right of action that may not be assigned.

2. Execution. — An unliquidated claim for personal injuries may not be assigned since it involves personal right that injured party may or may not assert, and hence such claim is not subject to attachment under Civil Code of Practice, sec. 439, empowering plaintiff in execution to subject chose in action to satisfaction of judgment.

Appeal from Jefferson Circuit Court

BEN F. EWING and J. DONALD DINNING for appellant.

TRABUE, DOOLAN, HELM & HELM for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Affirming.

On February 4, 1922, Frank Wittenauer recovered a judgment against Edward Kaelin for $400, with interest and costs. On December 23, 1926, an execution was issued and returned "No property found."

In the month of August, 1926, Kaelin, while in the employ of the Louisville & Nashville Railroad Company, received personal injuries for which he asserted a claim for damages against that company.

On December 24, 1926, Wittenauer brought this action against Kaelin under section 439, Civil Code. An attachment was issued and served on December 27, 1927, on the Louisville & Nashville Railroad Company with the following indorsement:

"Louisville & Nashville Railroad Company Garnishee:

"The object of this action is to attach all money, choses in action, claim for damages, property, other evidences of debt in your possession belonging to Edward Kaelin or in which he has any interest, or (sic) to restrain you from paying the same to him or to anyone for him until the further order of this court. B.F. EWING, Plaintiff's Atty."

On January 4, 1927, the railroad company, which had not been made a party, filed an answer as garnishee, stating, in substance, that it was not indebted to Kaelin.

On about January 18, 1927, the railroad company paid Kaelin the sum of $2,500 in settlement of his claim for personal injuries.

On January 27, 1927, Wittenauer filed an amended petition making the garnishee, Louisville & Nashville Railroad Company, a party defendant. The amendment alleged, in substance, that, prior to the service of the attachment, Kaelin had asserted claim for damages for personal injuries against the railroad company, and that, after the service of the attachment, the legal department of the company had been personally notified of the order of attachment, and the purpose of same, and that the claim was paid direct to Kaelin. By another amendment the allegations were made more specific.

Demurrers to the petition and the amendments were sustained, and the petition as amended was dismissed. Wittenauer appeals.

Section 439, Civil Code, is as follows: "After an execution of fieri facias, directed to the county in which the judgment was rendered, or to the county of the defendant's residence, is returned by the proper officer, either as to the whole or part thereof, in substance, no property found to satisfy the same, the plaintiff in the execution may institute an equitable action for the discovery of any money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled, and for subjecting the same to the satisfaction of the judgment; and in such actions persons indebted to the defendant or holding money or property in which he has an interest, or holding evidences or securities for the same, may be also made defendants."

It is argued that this section embraces claims and demands that cannot be reached by ordinary attachment, and is broad enough to include the claim in question. It is not contended that at the time of the levy of the attachment the claim had been reduced to judgment, or the amount thereon had been fixed by agreement between Kaelin and the railroad company. Therefore, assuming, without deciding, that the attaching creditor may avail himself of all the remedies and rights afforded by the foregoing section of the Code, without making the garnishee a party defendant, the question sharply presented is whether or not an unliquidated claim for personal injuries is subject to attachment under that provision. There are definitions of "chose in action" broad enough to include every right which may be enforced by action at law, but that can hardly be the sense in which the words are used in the statute.

In the early case of Estill v. Rodes et al., 1 B. Mon. 314, Estill, a judgment creditor of Rodes, brought suit on a return of "no property found" against Rodes, Miller, and Bronson, alleging that Rodes...