Hays' Exr. v. Mackin

4 Ky. Op. 43 | Ky. Ct. App. | 1870

OPINION OP THE COÜET BY

JoBGE WILLIAMS:

Appellee having obtained a common law judgment and having a return of nulla bona on execution against the Maxville, Willis-burg & Beeclifork Turnpike Boad Company, then brought this suit in equity, making appellants defendants as garnishees, and calling on them to state what amount they owed as subscribers of stock in said company.

They answered, and denied they owed anything, as their subscription of given amount of stock were conditioned that it was to be laid out upon that division of the road upon which they lived, known as the lower division, and that said division had not been completed, and that all they and the other subscribers in said division had subscribed would not complete it; that the plaintiff was a contractor on another division of the road, and not upon this one, and was to take the subscriptions in said division, and they denied the right to appropriate their subscriptions otherwise than upon the conditions set out. The treasurer of the company was made a defendant; he answered and set out the various subscribers and their indebtedness, and says the road was divided into three precincts or divisions; the terms of subscription were that the several amounts subscribed were to be laid out on that division of the road in which the respective subscribers lived, and not on the others.

Says, for appellant.

There is no evidence controverting the statements of these garnishees; hence, their responsibility depends on the statements of their several answers.

As the read company could not sue and recover of these garnishees the amounts of their various subscriptions to be laid out on other divisions of the road, so a contractor of work, on such other divisions, could not recover from them to pay for such work.

As these appellants lived in the lower or third division of the road, they had a right to subscribe upon conditions that the amount so subscribed should be appropriated to the completion of (heir division, and as their subscriptions were received upon such conditions, neither the corporation nor any of its creditors have a right to a1 tor the contract. Whatever might be the rights of a judgment creditor for work on their division of the road, a creditor for work on other divisions has no right to garnishee them.

Wherefore, the judgment is reversed, with directions to dismiss the petition against them.

Judge Hardin not sitting.