Hall v. Grogan

10 Ky. Op. 296 | Ky. Ct. App. | 1879

JUDGE PRYOR

delivered the opinion of the court.

The question raised in this case is, can an attachment issue before the summons. We see no escape from the conclusion, reached by the Court below.

The plaintiff may, at or after the commencement of an •action, have an attachment, and not before. An action is ■commenced by filing in the clerk’s office the petition and causing a summons to be issued or a warning order made. (Secs. 39, 194, Civil Code.) There is no lis pendens until a summons is issued or a warning order made, and the provisions of the General Statutes are not in conflict with this view of the case; and if such were the case, the provisions ■of the Code of Practice must control.

The various actions in which attachments had been obtained were consolidated, and the question presented as to the rights of the creditors. Each creditor was directly interested in having the property or its proceeds applied to the payment of his debt; and we perceive no reason why, in such a case, one creditor should not be allowed to contest the right of priority on the part of other creditors, and to show that they have, in fact, no lien on the property sold. The attachment of the appellant was void,

• as no summons had issued.

The judgment below is therefore affirmed.