McKinsey v. Anderson

34 Ky. 62, 4 Dana 62, 1836 Ky. LEXIS 15

• Court: Court of Appeals of Kentucky
• Decided: April 12, 1836
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

This writ of error is prosecuted to reverse a judgment rendered on an attachment against McKinsey, as an absconding debtor.

On the calling of the attachment, in the Circuit Court, he pleaded in abatement, the pendency, at that time, of a suit by petition and summons, brought before the •issuing of the attachment, for the same debt, in the same Court, and between the same parties. But the Court, being of the opinion, that the matter of the plea was insufficient and inapplicable in a procedure by attachment, therefore sustained a demurrer to the plea. And the correctness of that judgment is the only matter now to be considered.

The attachment was certainly a suit at law; and we can perceive no reason why, in such a suit, any plea may net be admissible and available which might be proper and effectual in any other form of action. A creditor has no right to persist in proceeding against his debtor by the ordinary legal remedy, and also by attachment at the same time, and for the same debt. They are distinct and independent actions, and the one is not sub-1 ordinate or subsidiary'to the other. And consequently, if Anderson preferred a prosecution of his attachment to that of his petition, he ought to have dismissed the latter; otherwise his attachment, like any other suit, was liable to abatement. The pendency of the petition ■ivhen the attachment was issued, would not per se have been sufficient to abate the latter. But the continued pendency of the petition to the time of pleading in Court, furnished unanswerable matter in abatement of the suit which was last instituted.

Wherefore, it is considered by this Court that, the judgment of the Circuit Court be reversed, and the cause remanded with instructions to overrule the denjurrer to. the plea in abatement.