Griswold v. Popham

62 Ky. 170, 1 Duv. 170, 1864 Ky. LEXIS 11

• Court: Court of Appeals of Kentucky
• Decided: September 17, 1864
• Status: Published

Opinion

JUDGE ROBERTSON

delivered the opinion op the court :

Although, the service prescribed by the 86th section of the Code is therein denominated “ actual,” as contradistinguished from “ constructive,” as defined in section 88 and regulated in title 10, chapter 1; yet section 450 forbids a judgment in personam, against not only a party “ constructively ” summoned, but a defendant also who had been cited in the mode prescribed in the said section 86.

Consequently, the personal judgment against Griswold ’was unauthorized, and must be reversed.

The personal judgment against Allen as garnishee is also erroneous. There was no charge that he was a debtor of Griswold, or held any of his property. He was cited only by serving on him the attachment against Griswold; and no property was attached. He did not appear, nor was required to appear, to disclose facts. And, in that attitude, no personal judgment against him was authorized, as indicated by section 248, and settled by this court in Smith, &c.,vs. Gower. (3 Met., 177.)

Wherefore, the judgment against Griswold, and that also against Allen, are reversed, and the cause remanded for further proceedings.