299 S.W. 1065 | Ky. Ct. App. | 1927
Reversing.
On January 11, 1924, Edward Gillum filed a petition in the Graves circuit court against E.E. Van Horn in which he sought to recover a judgment on the ground that Van Horn had slandered him by charging that he had forged checks on Van Horn. He obtained an attachment against the property of Van Horn, and Bryant and Hawes were summoned as garnishees as was also the First National Bank of Mayfield.
On March 4, 1924, the First National Bank filed its answer as garnishee in which it stated that it had on deposit the sum of $327.10 to the credit of John Watson Co., and that E.E. Van Horn was claiming the money as his own individual property. On the same day Bryant *21 and Hawes filed their answer as garnishees, in which they stated that they had drawn a draft for $400 on the Clover Farm Dairy Company at the request of Van Horn, and that the draft had been deposited in the First National Bank to the credit of John Watson Co. They also stated in their answer that Van Horn was claiming the money.
On March 5, 1924, Van Horn filed an answer to the petition in which he denied the allegations of the petition, and in a second paragraph attempted to set out the language he had used concerning Gillum and sought to justify himself in using the language.
On March 29, 1924, the Clover Farm Dairy Company filed an intervening petition asking to be made a party to the suit and making claim to the $400 referred to in the answer of the garnishees Bryant and Hawes, and the answer of the First National Bank. Later appellee filed a reply to the answer of the garnishee First National Bank, in which it was alleged that the bank had received $400 and had answered saying that it had only $327.10. A motion was entered by appellee asking that the court adjudge the response of the First National Bank insufficient, but the court overruled the motion and adjudged the response sufficient.
On December 23, 1924, Gillum filed an answer to the intervening petition in which he denied that the $400 was advanced to. Bryant and Hawes, or that it was the property of the appellee.
The question as to whether the $400 belonged to appellant or Van Horn was submitted to the court without the intervention of a jury, and, after hearing proof, the court adjudged that the $327.10 on deposit with the First National Bank to the credit of John Watson Co., belonged to E.E. Van Horn and as such was subject to the attachment lien of Gillum. It appears that Gillum settled his case against Van Horn in some way, and later the court entered judgment in favor of Gillum for $25, and directed the First National Bank to pay the $327.10 into court, and the attorneys for Gillum, under the terms of the judgment, were to collect $25 of that sum, and in addition the cost amounting to $23 was to be paid, and the remainder, amounting to $279.10, was to be paid to J.E. Warren, attorney for E.E. Van Horn.
The evidence shows that Van Horn was buying cream from farmers in Graves county and shipping it to appellant at Memphis, Tenn. At times appellant furnished *22 him the money with which to pay for the cream, and at the end of each week a settlement was made between them. Van Horn approached Bryant and Hawes of Mayfield for the purpose of interesting them in shipping cream which they purchased, to appellant instead of selling it to Swift Co., as they were then doing. Bryant and Hawes kept their dairy account in the name of John Watson Co., in the First National Bank. They were willing to ship the cream to appellant, but they wanted a deposit which would guarantee the payment of such drafts as they might draw on appellant in payment for cream. Van Horn advised them that appellant would make such deposit, and he called appellant by telephone and explained the situation. A member of the firm of Bryant Hawes also talked with appellant, and as a result of the understanding then reached, Bryant and Hawes drew a draft on appellant for $400, the proceeds of which were placed to the credit of John Watson Co., in the First National Bank. This it appears was either an advancement to Bryant and Hawes, or a deposit to guarantee the payment of such drafts as might be drawn by them on appellant in payment for cream. After the money was deposited to the credit of John Watson Co., $72.90 was used by the bank to pay checks which had been drawn by Van Horn on another bank which apparently had been paid by the First National Bank. The cashier of the bank testified that this was done without authority from any one.
As the record stands, Van Horn nowhere claimed the $400. He does not claim it in any pleading filed by him in this action, and he did not testify in the case. It is true in the answer of the bank and also in the answer of Bryant and Hawes it was stated that Van Horn was claiming the money, but this is not evidence. Gillum joined issue with appellant on the question as to whether the money which had been attached belonged to appellant or Van Horn. He had no interest in the matter further than his attachment. Bryant and Hawes shipped no cream to appellant, and therefore no credit was entered against this $400, which was charged to them on the books of appellant. Appellant seems to have treated the $400 as an advancement to Bryant and Hawes, but Bryant and Hawes treated it as a deposit to guarantee the payment of any drafts which might be drawn by them on appellant, and, as no drafts were drawn, according *23 to their theory of the matter, the $400 belonged at all times to appellant.
Counsel for appellees in this case insist that no question can be considered other than whether the pleadings support the judgment of the lower court, because no motion and grounds for a new trial were filed, and further because the bill of exceptions was not filed in time. Undoubtedly a motion and grounds for a new trial are necessary in a common-law action whether the case be tried before a jury or before the court, and, if no such motion is made, the only question which may be considered by this court is whether the judgment is supported by the pleadings. Sovereign Camp, W. O. W. v. Hornung,
But is a motion for a new trial necessary to prosecute an appeal from an order sustaining an attachment? We think not. This court so held in the case of Francis v. Burnett,
"A motion for a new trial in the lower court was not necessary in order to bring the judgment sustaining the attachment before this court for revision. The rule of practice referred to by counsel has relation only to trials of actions, and does not apply to the trial of an attachment, which it is specially provided by section 264 (now section 243), Civil Code, shall be tried by the court."
It was further held in that case that it was not necessary for the court to state in writing its conclusion of facts and of law separately in order to give this court the right to revise the judgment.
Although a motion and grounds for a new trial may not have been necessary, it is insisted by counsel for appellees that a bill of exceptions should have been filed if the evidence was to be made a part of the record, and in that they are correct. Dupoyster v. Ft. Jefferson Improvement Co.'s Receiver,
Counsel for appellees rely on the case of City of Henderson v. Kentucky Peerless Distilling Co.,
Again in the case of City of Ludlow v. DeVinney,
In each of the cases referred to the party had his bill of exceptions ready and was prevented from filing it on account of the absence of the judge or the recess of the court. But in this case the party did not have his bill of evidence ready, although he had filed his bill of exceptions in the clerk's office. His purpose in keeping in touch with whether court was in session with the judge present and presiding was not to file the bill of evidence, but to enter a motion before his time had expired for an extension of the time in which to file his bill of evidence. He was prevented from making this motion, so counsel for appellant states, because of the absence of the presiding judge who was ill in another county. We can perceive no difference in his having been prevented from entering his motion for an extension of time and a case where he was prevented from filing his bill of exceptions in time. His motion was seasonably made after the court reconvened, and time was given. Under this state of facts the motion to strike the bill of evidence must be overruled.
Appeal granted, judgment reversed, and cause remanded for proceedings consistent with this opinion.