Black v. Lackey

41 Ky. 257 | Ky. Ct. App. | 1842

jvdoe Marshall

delivered the Opinion of the Court.

It seems to this Court that the fact that the notes on which the petition is brought were on file in the same Court, in a suit in chancery, pending between the .same parties, when the petition was filed, and that they so remained up to the time of pleading, was a virtual compliance with the requisition of the statute in regard to the filing of the note, substantially answering all the objects of that requisition, as set forth in the opinion of this Court in the case of Gearhart vs Olmstead, fyc. (7 Dana, 442,) and that under such circumstances there was no ground for abating the suit or quashing the summons, on account of the fact that the notes were not literally filed in the same paper with the petition.

We are also of opinion that the pendency of the -chancery suit, for attaching and enforcing a lien for the same debt, was not a ground for abating this suit at law. The two suits were brought for different purposes, and were not commensurate in their objects. The chancery suit could afford no relief beyond the effects sought to be attached, and the creditor should not, thereby, be deprived of the right of obtaining a personal judgment for the debt, which might be essential to its security and ultimate satisfaction. The Chancellor could and would prevent any oppressive use of either remedy. Whether the creditor might not have been compelled, in one Court or the other, to make his election upon a rule or motion to that end, need not be decided.

■Owsley fy Goodloe for appellants; Turner for appellee.

There being no §nor in overruling the defendants demurrers to the replications presenting the foregoing facts in answer to the pleas in abatement, nor in overruling the motion to quash the summons, the judgment is affirmed.