Farris's Ex'r v. Rowland

Court of Appeals of Kentucky

Farris's Ex'r v. Rowland

8 Ky. Op. 819, 1876 Ky. LEXIS 283

DecidedDecember 5, 1876

StatusPublished

This text of 8 Ky. Op. 819 (Farris's Ex'r v. Rowland) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Farris's Ex'r v. Rowland, 8 Ky. Op. 819, 1876 Ky. LEXIS 283 (Ky. Ct. App. 1876).

Pincite

Opinion

OPINION by

Judge Cofer :

The discharge of the first attachment was a decision by the court that grounds for an attachment had not been made out, ánd as no new pleading was filed, and no step was taken afterwards that could furnish any ground or authority for an attachment that did not exist when the first attachment was discharged, we are of the opinion that the second attachment was issued without authority, and that it should have been discharged and the petition dismissed on the final hearing. It will not do to say that after a decision by the court that no grounds exist for an attachment, the clerk may afterward issue another attachment upon the record which the court has decided did not authorize it. To so hold would be practically to allow an appeal to the clerk from the decision of the court.

Whether the first attachment was properly discharged is not a [820]*820question we are now called upon to decide. If it was erroneous the law pointed out the mode of correcting it, and that mode not having been pursued within the time prescribed by law the order became final, so far as the first attachment was concerned until reserved by this court. We do not mean to decide that the court might not have ordered another attachment to issue, or that the appellees might not, by filing an amended petition setting up the fact that Bullock held a fund belonging to the appellant, have obtained an attachment against that fund. All we mean to decide is that the clerk could not virtually revise the ruling of the court by issuing an attachment upon the same record which the court had decided did not authorize it.

Breckenridge & Shelby, for appellant. Morton & Parker, for appellees.

This view of the case renders it unnecessary to decide whether the fund in Bullock’s hands can be attached by the appellees. The judgment is reversed, and the cause is remanded with directions to dismiss the petition and discharge the attachment.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION by

Judge Cofer :

The discharge of the first attachment was a decision by the court that grounds for an attachment had not been made out, ánd as no new pleading was filed, and no step was taken afterwards that could furnish any ground or authority for an attachment that did not exist when the first attachment was discharged, we are of the opinion that the second attachment was issued without authority, and that it should have been discharged and the petition dismissed on the final hearing. It will not do to say that after a decision by the court that no grounds exist for an attachment, the clerk may afterward issue another attachment upon the record which the court has decided did not authorize it. To so hold would be practically to allow an appeal to the clerk from the decision of the court.

Whether the first attachment was properly discharged is not a [820]*820question we are now called upon to decide. If it was erroneous the law pointed out the mode of correcting it, and that mode not having been pursued within the time prescribed by law the order became final, so far as the first attachment was concerned until reserved by this court. We do not mean to decide that the court might not have ordered another attachment to issue, or that the appellees might not, by filing an amended petition setting up the fact that Bullock held a fund belonging to the appellant, have obtained an attachment against that fund. All we mean to decide is that the clerk could not virtually revise the ruling of the court by issuing an attachment upon the same record which the court had decided did not authorize it.

Breckenridge & Shelby, for appellant. Morton & Parker, for appellees.

This view of the case renders it unnecessary to decide whether the fund in Bullock’s hands can be attached by the appellees. The judgment is reversed, and the cause is remanded with directions to dismiss the petition and discharge the attachment.

Cite This Page — Counsel Stack

Bluebook (online)

8 Ky. Op. 819, 1876 Ky. LEXIS 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farriss-exr-v-rowland-kyctapp-1876.