Minor v. Smallwood

Court of Appeals of Kentucky

Minor v. Smallwood

5 Ky. Op. 385, 1872 Ky. LEXIS 295

DecidedMay 7, 1872

StatusPublished

This text of 5 Ky. Op. 385 (Minor v. Smallwood) 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.

Bluebook

Minor v. Smallwood, 5 Ky. Op. 385, 1872 Ky. LEXIS 295 (Ky. Ct. App. 1872).

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Opinion

Opinion by

Judge Peters :

As Moore was absent and actual service of process on him not attainable, a personal judgment against him could not be rendered, and the only mode by which appellants could obtain effectual relief was by a proceeding in rem.

The mere injunction which might compel all within the jurisdiction of the court to refrain from action, could afford appellants no relief against those upon whom they, could not get actual service, nor was it the remedy they needed, it could not advance their rights, either as a temporary remedy or as the final judgment of the court. Their case needed more active remedies, as their debtor was not within the jurisdiction of the court, it was needful for them to seize on some property, choses in action, or some thing on which the judgment of the court could operate, but the means to attain that end appellants failed to adopt, and even in their amended petition they refrain from asking for, or suing out an attachment; these were fatal omissions which cannot be remedied after others equally meritorious have profited by them.

Whether or not the funds in the hands of the master were subject to be attached is a question which need not be discussed on this appeal, for let’it be decided either way, still the judgment would not prejudice appellants, and they are not therefore interested in the question.

Judgment affirmed.

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Opinion by

Judge Peters :

As Moore was absent and actual service of process on him not attainable, a personal judgment against him could not be rendered, and the only mode by which appellants could obtain effectual relief was by a proceeding in rem.

The mere injunction which might compel all within the jurisdiction of the court to refrain from action, could afford appellants no relief against those upon whom they, could not get actual service, nor was it the remedy they needed, it could not advance their rights, either as a temporary remedy or as the final judgment of the court. Their case needed more active remedies, as their debtor was not within the jurisdiction of the court, it was needful for them to seize on some property, choses in action, or some thing on which the judgment of the court could operate, but the means to attain that end appellants failed to adopt, and even in their amended petition they refrain from asking for, or suing out an attachment; these were fatal omissions which cannot be remedied after others equally meritorious have profited by them.

Whether or not the funds in the hands of the master were subject to be attached is a question which need not be discussed on this appeal, for let’it be decided either way, still the judgment would not prejudice appellants, and they are not therefore interested in the question.

Judgment affirmed.

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Bluebook (online)

5 Ky. Op. 385, 1872 Ky. LEXIS 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minor-v-smallwood-kyctapp-1872.