93 Ky. 315 | Ky. Ct. App. | 1892
delivered the opinion of the court.
The action below was on an account for goods sold and1 delivered amounting to forty-six dollars, and was insti
By the provisions of an act passed in the year 1880, the real estate of debtors who are non-residents and who have no personal estate sufficient to pay the debt, may be' subjected by a proceeding in the circuit court in the same manner as in cases where such jurisdiction is expressly conferred on circuit courts. (Gen. Stats., ed. 1887, chap. 28, art. 4, sec. 5.)
It is then suggested that the creditor has no remedy by which he may make his debt out of the realty or avail himself of a provisional remedy for that purpose where his claim is for less than the jurisdiction given to' the circuit court. The mode of acquiring a lien on the-land by attachment or subjecting it in such a case is found in section 723, Civil Code, where it is provided that upon a return of no property on an execution from a justice’s or quarterly court the plaintiff may have a copy of the judgment, execution and return, and when filed in the clerk’s office of the circuit court he becomes-entitled to the same remedies as if the judgment had been rendered in the circuit court. It is argued that a lien created by resorting to a provisional remedy should confer the jurisdiction upon the circuit court to enforce the lien upon land for the same reason that liens are permitted to be enforced when created by deed or by contract. As between the vendor and the vendee, where the purchase price is less than fifty dollars, neither the court of a
The cause of action is for goods sold and delivered and is for less than fifty dollars, and the provisional remedy obtained being merely in aid of the judgment when rendered, the circuit court had no jurisdiction to render a judgment for the debt. In a case of lien created on land by contract, the right to enforce it is/ a part of the contract. It is as much a part of the cause of action as the sum to be paid, and the inferior court having no jurisdiction, it is necessarily conferred on the circuit court by the very terms of the act regulating the jurisdiction of circuit courts.
Although the judgment is void for want.of jurisdiction, the appeal must be dismissed because there was no motion made in' the court below to set the judgment aside, as required by the Code, section 763.
The appeal is dismissed.