96 Ky. 369 | Ky. Ct. App. | 1895
delivered the opinion of the court.
This is an appeal by John A. Eee, who was defendant in the court below, in the suit of J. L. Smyser against him in the Bullitt Circuit Court from an order of said court in refusing to quash the attachment issued by the clerk of said court in said action, and is made upon the ground that said attachment, which issued for four thousand seven hundred dollars, was for a greater amount by eighty-one dollars and eighty-four cents than was then due upon plaintiff’s debt, as stated by him in his affidavit, or rather than the amount ascertained by calculation from the data given by plaintiff of his debt in his affidavit; said affidavit stating that the amount due him and which he believed he ought to recover of defendant was the sum of three thousand nine hundred and ninety dollars and sixty-four cents, with interest on same from the 14th day of December, 1889, to that date, which was July 28, 1892.
It appears from the record in this cause that plaintiff’s suit, with attachment, was filed in the Bullitt Circuit Court July 28, 1892, with warning order made against the defendant Lee to the November term of
Again, appellant complains of the ruling of the court below in entering an order at its fall term of court sustaining the attachment (though for the correct amount), and in declaring that said creditor had a lien by reason of said attachment and the levy of same on an undivided third of certain real estate named in said levy, and complains that this order was made by the court before the filing by plaintiff in said court of the affidavit required by the Code in such cases that defendant had no personal estate subject to the payment of said debt.
On this question we think the court below also ruled correctly. It will be observed that the order made by court (before recited) was not the final order of sale of the defendant’s property, and it is only the final judgment or order of sale of the realty of a non-resident, that by the Code is forbidden before the filing of the affidavit that defendant has no personal estate; but in this case and in the order complained of, the court refused to make this order of sale, but declared by same that it appearing to the court that the interest owned by defendant was only an undivided third interest in the land levied on, the other owners should first be made parties before the sale would be ordered, and thus the case stands on the record.
The judgment of the court on both motions of appellant should be affirmed, and appellees are adjudged their cost on this appeal.