Jones v. Jeffress

74 Ky. 636, 11 Bush 636, 1876 Ky. LEXIS 13

• Court: Court of Appeals of Kentucky
• Decided: January 22, 1876
• Status: Published

Opinion

CHIEF JUSTICE PETERS

delivered the opinion op the court.

Appellee having recovered a judgment in the Carter County Quarterly Court against W. A. Hatchett for the sum of $86.70, and having sued out execution on said judgment against Hatchett, directed to the proper officer of said county, and the same having been returned “no property found,” he filed a transcript of the record with the clerk of the circuit court of Carter County, and caused an execution to issue on said judgment directed to the sheriff of said county, who in like manner returned that execution indorsed “ no property found.” Appellee thereupon brought this suit in equity in the Carter Circuit Court with attachment, alleging that Hatchett had contracted to. purchase from William D. Jones a certain lot in the town of Grayson, in Carter County, at the price set forth, and then had possession of said lot, the legal title being in Jones, and he prayed that the lot might be subjected to the payment of his debt.

Jones answered and admitted that he had contracted to sell the lot to Hatchett at the price of $250; averred that the contract was by parol, and that Hatchett owed him the full sum of $250, the price he agreed to pay for the lot, no part of which had been paid; and in an amended answer he professed his willingness to execute the parol contract, and tendered a deed for the lot, and therein asserted an additional lien, alleging that Hatchett had erected a frame building on the lot, and that he had supplied him with brick, lumber, and other materials to construct said house amounting to $235, and claimed a' lien thei’efo» on the house and lot superior to appellee’s. Some mechanics also came in and claimed a lien on the building for labor performed by them in its erection.

On final hearing the court below adjudged that Jones had a superior lien on the property for the price of the lot, being $250, and that appellee’s debt should be next paid, and ordered a sale of the property to pay the debts in- the order aforesaid, giving appellee preference over Jones’s claim for materials, etc., furnished; and from that judgment Jones has appealed.

The first objection made to the judgment is that the Carter Circuit Court had no jurisdiction, and that the suit should have been instituted in the Carter County Quarterly Court, the court that rendered the first judgment.

Section 474, Civil Code, provides “that 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 a part thereof in substance no property found to satisfy the same, the plaintiff in the execution may institute an action by equitable proceedings in the court from which the execution issued or in the court of any county in which the defendant resides or is summoned. ...”

It has already been observed that the last execution was issued from the Circuit Court of Carter County, so that according to the literal construction of the section, supra the Carter Circuit Court had jurisdiction. Nor is this adjudication in conflict with Burnes v. Cade (10 Bush, 251). In that case it did not appear that án execution had ever issued from the circuit court.

Besides, by the proceedings in this case the equitable title to real estate was sought to be subjected to be sold, and that conferred jurisdiction on the circuit court.

The materials and lumber for which appellant claims a lien were furnished after the institution of this suit and service of process on him, and if he improved the lot, or contributed to its improvement by furnishing materials after be had become a party to the suit by actual service of process, he made the investment subject to the claim of appellee.

By section 476, Civil Code, appellee was entitled to his attachment without affidavit or bond.

Perceiving therefore no error in the judgment in the court below, the same is affirmed,