McQuarry v. Rochester

Court of Appeals of Kentucky

McQuarry v. Rochester

2 Ky. Op. 112, 1867 Ky. LEXIS 424

DecidedNovember 23, 1867

StatusPublished

This text of 2 Ky. Op. 112 (McQuarry v. Rochester) 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.

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McQuarry v. Rochester, 2 Ky. Op. 112, 1867 Ky. LEXIS 424 (Ky. Ct. App. 1867).

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Opinion

Opinion ok the Court by

Judge Hardin:

This appeal brings up for revision a judgment of the Garrard circuit court in several consolidated suits against Mrs. L. McQuarry and others, directing a sale of a house and lot in the town [113]*113of Lancaster, levied on under attachments against Mrs. McQuarry, and a subsequent judgment confirming a commissioner’s report of the sale.

The action of the court is complained of on various grounds, of which it is only necessary to refer to such as must control our decision. 1. In all the cases except that of L. Lusk the plaintiff failed to file an affidavit as required by section 251 of the Civil Code, to the effect that Mrs. McQuarry, who had not appeared or been actually summoned, had no personal property or not enough to satisfy the plaintiff’s claims in this State known to them or the party making the affidavit. 2. As the price for which the property was sold exceeded the amount of the debts and costs, it was not necessary to adjudge the sale of the entire property unless it was made to appear that it was not reasonably susceptible of such a division as to admit of a sale of so much only as was necessary to pay the debts and costs, and as this fact was not made to appear, the judgment was on this ground erroneous. 3. In the cases of Rochester & McNeil, M. T. Evans, Yantis & Sweeney and Sutfield & Smith, the attorney, M. L. Rice, appointed to defend the action for the absent defendant, does not seem to have filed a written statement signed by him, of what he had done as required by section 441 of the Code before any order for his compensation should have been made; the orders allowing said Rice compensation in these cases was therefore erroneous.

Other irregularities appear in the record, but as the judgments must be reversed for the errors already indicated, it is unnecessary to consider them.

We express no opinion as to the validity of the sale. On the return of the cause, that matter may be litigated by proper proceedings, and the defendants will be permitted to defend the actions.

Wherefore, the judgments are reversed, and the causes remanded for further proceedings not inconsistent with this opinion.

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Opinion ok the Court by

Judge Hardin:

This appeal brings up for revision a judgment of the Garrard circuit court in several consolidated suits against Mrs. L. McQuarry and others, directing a sale of a house and lot in the town [113]*113of Lancaster, levied on under attachments against Mrs. McQuarry, and a subsequent judgment confirming a commissioner’s report of the sale.

The action of the court is complained of on various grounds, of which it is only necessary to refer to such as must control our decision. 1. In all the cases except that of L. Lusk the plaintiff failed to file an affidavit as required by section 251 of the Civil Code, to the effect that Mrs. McQuarry, who had not appeared or been actually summoned, had no personal property or not enough to satisfy the plaintiff’s claims in this State known to them or the party making the affidavit. 2. As the price for which the property was sold exceeded the amount of the debts and costs, it was not necessary to adjudge the sale of the entire property unless it was made to appear that it was not reasonably susceptible of such a division as to admit of a sale of so much only as was necessary to pay the debts and costs, and as this fact was not made to appear, the judgment was on this ground erroneous. 3. In the cases of Rochester & McNeil, M. T. Evans, Yantis & Sweeney and Sutfield & Smith, the attorney, M. L. Rice, appointed to defend the action for the absent defendant, does not seem to have filed a written statement signed by him, of what he had done as required by section 441 of the Code before any order for his compensation should have been made; the orders allowing said Rice compensation in these cases was therefore erroneous.

Other irregularities appear in the record, but as the judgments must be reversed for the errors already indicated, it is unnecessary to consider them.

We express no opinion as to the validity of the sale. On the return of the cause, that matter may be litigated by proper proceedings, and the defendants will be permitted to defend the actions.

Wherefore, the judgments are reversed, and the causes remanded for further proceedings not inconsistent with this opinion.

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2 Ky. Op. 112, 1867 Ky. LEXIS 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcquarry-v-rochester-kyctapp-1867.