1 S.W.2d 1062 | Ky. Ct. App. | 1928
Reversing.
Eighteen or twenty executions issued from the Perry circuit and quarterly courts in favor of different parties against J.C. Whittaker, three of which were on replevin bonds. These were placed in the hands of Tolbert Holliday, as sheriff of Perry county, who levied them without references to priority on a stock of goods and fixtures belonging to the defendant in the execution. Lizzie Whittaker became the purchaser at the execution sale at the price of $2,000, payable $383.29 in cash on those not subject to replevin, and executing a bond payable to the sheriff for the sum of $1,616.71; this bond being returned, together with the execution, to the circuit court. At its maturity an execution issued on this bond, and was levied on the property of Lizzie Whittaker, and $606.59 realized from a sale thereof, which was credited on the bond. Later a second execution issued on the same bond, and was levied upon the farm of one of the sureties, who enjoined further proceedings thereunder; the ground of injunction being that the bond was payable to the sheriff instead of to the judgment creditors; that it was not approved by the officer taking it; and that the execution issued in favor of W. T. Sistrunk Co., one of the creditors, although the bond was not payable to that company, and was far in excess of its judgment. The circuit court sustained the injunction, and on appeal the judgment was affirmed by this court. See W. T. Sistrunk Co. v. Whittaker,
General and special demurrers were sustained to the pleading as amended, and, plaintiffs declining to plead further, the petition as amended was dismissed, and they have appealed. On this ruling the learned judge of the lower court must have misapprehended the language of the former opinion, in which it was said:
"While under the provisions of section 1674, Ky. Stats., such a bond is required to be made payable to the plaintiff in the execution, the fact that the bond was under the circumstances made payable to the sheriff did not make it void, but only tended to deprive it of its quality as a statutory bond, and left it enforceable and good as a common-law obligation. Even if the bond had been taken for the full amount payable jointly to the several plaintiffs in the executions, it would have only been irregular and not void, but would have likewise lost its status as a statutory bond. Such bonds not being statutory bonds may not be enforced by the issual of an execution, although they may be enforced by actions in the court.
"Similar questions have several times arisen in this state, and it has been consistently held that while such bonds are irregular and lose the quality of statutory bonds upon which execution may be issued and enforced, yet they are good common-law obligations and enforceable in court. Cooper, etc., v. Hatter, 1. J.J. Marsh. 357; Debard v. Crow, 7 J.J. Marsh. 7 (22 Am. Dec. 113); Spradlin v. Pieratt, 12 Bush, 496."
That opinion is the law of the case and it clearly authorized the action taken by appellant.
Wherefore the judgment is reversed, and cause remanded for proceedings consistent with this opinion.
