Tucker v. Helm

7 Ky. Op. 205, 1873 Ky. LEXIS 511

• Court: Court of Appeals of Kentucky
• Decided: October 17, 1873
• Status: Published

Opinion

Opinion by

Judge Peters :

Appellee was wrongfully deprived of the possession of his wheat and corn by virtue of the order of attachment sued out by appellant, as has been judicially determined. He was therefore entitled to have retained what is alleged to have been set apart to him- when the attachment was levied', independent of the action of the sheriff, but also- to: that which was taken. Consequently all that the sheriff did in having a part of the grain set apart was unauthorized. When the execution issued and was levied on the grain detained by him, that was a proceeding wholly different and distinct from, the levy of the attachment and could not relate back to what was done under said attachment and make valid that which was before invalid. The position seems to be that because appellant did not- take all of appellee’s grain when he had no right to take any he may now retain as much as the law declares shall be set apart for the use of the family and appropriate it to the payment of his debt in place of a part he left, when he had no right to- take any. The law will not sanction that mode of adjustments.

Brown, Lewis, for appellant. Hays, for appellee.

The sheriff should have proceeded under the execution precisely as if no attachment had ever issued, and to this view the -instructions of the court below conform. Wherefore the judgment is affirmed.