131 Ky. 212 | Ky. Ct. App. | 1909
Reversing.
The appellant, J. S. Merrell Drug Company, having an unsatisfied claim against the appellee, Nannie M. Dixon, for $193.87, with interest at 6 per cent, from November 4, 1904, instituted suit thereon in 1907 in the Henderson quarterly court, and recovered judgment against the appellee. Execution was issued upon this judgment, and returned “no property found.” Appellant then filed a transcript of the proceedings in the Henderson circuit court, sued out an execution, and caused it to be levied on certain real estate belonging to appellee in the city of Henderson. This levy was made on August .14, 1907, and on September 16, 1907, appellee instituted this action in the Henderson circuit court against appellant and Ed. Melton, sheriff of Henderson county, for the purpose of enjoining the collection of the execution by a sale of the property involved in this action. The petition charges' that the property so levied on was purchased by her with the proceeds of a benefit certificate issued to her late husband, Dr. “Wiley Dixon, in the Ancient Order of United Workmen, an assessment or co-operative life insurance association ; that appellee was named as the beneficiary of the fund provided for therein, to wit, the sum of $2,000; that she-collected said sum from said order, and invested it in said property as a home for herself and her children; that by the charter of said association the fund paid to her was exempt from execution, and was not liable to be seized or appropriated by any legal or equitable process for debt. With the petition was filed a copy of the charter and by-laws
Appellant asks a reversal on two' grounds: (1) The judgment in question was the judgment of the Henderson quarterly court, and could not there be enjoined by the Henderson circuit court. (2) Though the fund itself may be exempt, property purchased with the fund is not exempt.
In view of the fact that we have determined to reverse this case upon other grounds, we deem it unnecessary to pass upon the question whether or not an action to enjoin the sale of specific property under an execution issued upon a judgment of the quarterly court can be maintained in the circuit court upon the ground that the property is exempt from execution. We will proceed, therefore, to a consideration of the second question: Is the property involved exempt from execution for appellee’s debt? It is the contention of counsel for appellee that- under the charter provisions of the Ancient Order of United Workmen, not only the fund derived by the family of a member from the benefit certificate is exempt from execution for the debt of the family of a member, but any property thereafter purchased with such fund is also exempt; that the question of exemption of the fund for the debt a member's family was determined by this court in the case of Schillinger v. Boes, etc., 85 Ky. 357, 3 S. W. 427, 9 Ky. Law Rep. 18, wherein was involved a construction of the same charter provisions as those under discussion. It will be observed,
Our conclusion, then, is that the exemption contained in the charter of the Ancient Order of United Workmen and in the statute does not apply to the fund after its form is changed and it is invested in other property. When it is so invested, the property purchased becomes a part of the great mass of property in the Commonwealth, and is controlled by the general laws relating thereto. That being the ease, appellee’s property is not exempt from execution for her debts, except to the extent of her homestead therein.
Judgment reversed and cause remanded, with di
Petition for rehearing hy appellee overruled.