281 S.W. 476 | Ky. Ct. App. | 1926
Affirming.
Appellee, Sanders Deposit Bank, sued appellants, Albert T. Jennings and his wife, to recover $2,778.70, with interest, that being the amount of their promissory note it held, and to enforce a first mortgage lien upon an 80-acre tract of land, and a second mortgage upon a 274-acre tract of land owned by them. The latter tract was covered by first mortgage to the amount of $10,500.00.
The petition alleged the grounds of attachment set forth in subdivisions 7 and 8 of subsection I of section 194 of the Civil Code, and also the grounds of attachment set forth in subsection II of that section. At the same time appellee in another action sued appellant, A.T. Jennings, to recover the amount owing to it by him on two small promissory notes, one for $199.48 and the other for $51.02. In the latter action the same grounds of attachment were alleged. The general orders of attachment in the two actions were issued at the same time and were simultaneously levied by the sheriff of Owen county upon a lot of tobacco. After the levy, by agreement of the parties, the sheriff sold the tobacco on the market and held the proceeds subject to the orders of the court. No answer to either of the petitions was filed by appellants, but in each case they filed an affidavit traversing the grounds of attachment. On that question the chancellor consolidated the two actions; set a time for hearing; tried the issue so joined; and entered judgment sustaining the attachment. No answer for appellants having been filed, judgment in favor of appellee was also entered granting relief in conformity with the prayer of the two *481 petitions. This appeal has been prosecuted only from the judgment of the court sustaining the attachments which issued herein.
Appellee's motion to dismiss the appeal upon the ground that the judgment sustaining the attachment is not a final order and may not be appealed from can not be sustained. Section 266 of the Civil Code of Practice expressly authorizes an appeal from the order sustaining an attachment, upon the rendition of judgment in the action in which it issued and was sustained.
Appellee offered no proof in support of the grounds of attachment under subdivisions 7 and 8 of subsection I of section 194 tending to establish that appellants had sold, conveyed or otherwise disposed of their property or suffered or permitted it to be sold with the fraudulent intent to cheat, hinder or delay their creditors, or that they were about to do so with such intent. The proof offered by appellee tended to sustain the attachment issued herein only upon the ground set forth in subsection II of section 194 of the Code, which provides that it shall be grounds for attachment "if the defendant have no property in this state subject to execution or not enough to satisfy plaintiff's demand and the collection of the demand will be endangered by delay in obtaining judgment or a return of no property found." It was shown by uncontradicted proof that appellants owe $14,548.37, consisting of the notes sued on herein; the $10,500.00 note owing to Columbia Life Insurance Company, of Cincinnati, Ohio; graded school taxes on the real estate for the years 1921, 1922, 1923 and 1924, and the state and county taxes for the years 1923 and 1924, and a note to Byron Coates for $200.00. The only property of any consequence owned by appellants are the two tracts of land containing 274 and 80 acres, respectively. The crop of tobacco attached when sold brought $596.05. Appellant testified to owning a few head of stock and a small quantity of corn. Witnesses for appellee valued the farm lands owned by appellants, and according to their testimony appellants are hopelessly insolvent and have not enough property in this state subject to execution to satisfy plaintiff's demand, and its collection will be endangered by delay in obtaining judgment or a return of no property found. Appellant alone testified for himself. His testimony went largely to establish the nonexistence of the two grounds abandoned by appellee. *482 Appellant's contention that the attachment herein was wrongfully sued out and that the judgment of the chancellor sustaining it is not sustained by the evidence herein is wholly without merit. The judgment appealed from is therefore affirmed.
Judgment affirmed.