Knox County v. Melton

105 S.W.2d 816, 268 Ky. 649, 1937 Ky. LEXIS 513

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 18, 1937
• Status: Published

Opinion

Opinion of the Court by

Stanley, Commissioner

Reversing.

The appellee, Mrs. Sarah Goodin Melton, brought this suit in equity in the Bell circuit court under section 439 of the Civil Code of Practice, upon a return of “no property found” on an execution issued against J. H. Lee upon a judgment rendered in that court, making Knox County and its treasurer, and the Knox County Board of Education and its treasurer parties defendant. It is alleged that the county is indebted to Lee in the sum of $3,333.33, and the Board of Education owed him $2,999.99 on contracts, which sums are described as being a percentage of amounts recovered of a former sheriff in compromise of claims based upon an audit made by Lee. See Knox County v. Lewis’ Adm’r, 260 Ky. 254, 84 S. W. (2d) 25. The prayer of the petition is that the defendants be summoned “and brought into court,” for a general order of attachment against them, and that the money owing by the defendants to Lee be paid into the court for the satisfaction of plaintiff’s judgment against him.

At the February term of court next following the filing of the petition, .an order was entered reciting that the defendants had been summoned but had failed to answer. The allegations of the petition were taken as true and the attachments together with attachments procured by tbe American Association and Brandenburg and Gibson (not previously referred to in any part of tbe record) were ordered sustained and a lien created on tbe fund owing Lee by ,Knox County and tbe Knox County Board of Education. Later in the term another order was entered rested upon tbe statement that the funds bad been admitted to 'be owing Lee by Knox County and tbe Knox County Board of Education, and those defendants were ordered to pay same into tbe bands of tbe clerk of tbe Bell circuit court within ten days. Tbe case was continued for further orders. On tbe first day of tbe ensuing April term of court Knox County and tbe Knox County Board of Education and their respective treasurers entered their appearance specially for tbe sole purpose of filing special demurrers questioning tbe jurisdiction of tbe court and motions that tbe court set aside tbe order and jugdment upon numerous grounds, including that of tbe absence of jurisdiction. Tbe court did not presently pass upon these pleadings and tbe case was tried by a special judge upon depositions. Pinal judgment was rendered to tbe .same effect as that entered at tbe February term of court. Tbe county and tbe Board of Education and tbe treasurers appeal from that judgment.

A number of questions are raised, but it seems necessary to pass upon only one of them. It is an ancient rule of all but universal application, founded upon public policy,, that a state or a county as a major division of the state cannot be subjected to tbe process of garnishment in tbe absence of an express statutory provision. This rule is upon tbe theory that to allow garnishment would work inconvenience and detriment in tbe performance of public service. It is applicable to equitable garnishment as well as to a legal proceeding. 4 Am. Jurisprudence 643; 12 R. C. L. 842; 28 O. J. 58; Annotations, 60 A. L. R. 823; Webb v. McCauley, 67 Ky. (4 Bush) 8; Heilbronner v. Posey, 103 Ky. 462, 45 S. W. 505, 20 Ky. Law Rep. 156; Dodd v. Burnett, 172 Ky. 89, 188 S. W. 884; Miracle v. Hopkins, 260 Ky. 712, 86 S. W. (2d) 681; B. B. Wilson Co. v. Van Diver, 230 Ky. 27, 18 S. W. (2d) 308. With less unanimity but quite generally, tbe courts also apply tbe rule to school districts. 4 Am. Jurisprudence 644, 12 R. C. L. 844; 28 C. J. 59. We have so held in Clark v. Lee’s Assignee, 8 Ky. Op. 882.

It may be observed that the Legislature has recently changed the rule as to salaries due state, county, and school district employees, section 1701b, Statutes, 1936 Acts, c. 23, but that statute does not affect the claims asserted in the case at bar.

We are of the opinion that the judgment was in this respect void. The motion made at the April term of court to set aside the judgment entered at the previous term should have been sustained. It will be regarded as sufficient to give the right of questioning the void judgment on appeal as provided by section 763 of the Civil Code of Practice. Kentucky Bonding Company v. Commonwealth, 178 Ky. 605, 199 S. W. 807.

For this reason, the judgment is reversed.