101 Ky. 219 | Ky. Ct. App. | 1897
delivered tiie opínion of the court.
The appellee obtained a judgment in the Marion Circuit Court against the appellant for $95.00, with interest from September 28, 189á, and $18.30, cost of suit, and afterwards caused an execution to be issued thereon against appellant, directed to the sheriff of Fulton uounty, which execution was, as is alleged, returned in substance no property found.
December 24, 1894, appellees instituted an action in the Marion Circuit Court for the enforcement of said judgment, and obtained an attachment against the property of the appellant, and prayed for and obtained an order or judgment placing the appellant’s railroad in the hands of a receiver, to be operated by him until the judgment and cost of operation should be paid, and from that judgment this appeal is prosecuted.
The answer and amended answer denied the jurisdiction of the court, and also denied the return of no property found. Both answers were stricken from the files or at least held to constitute no defense, and appellant’s demurrer to the petition was overruled.
It is manifest from this record that appellant is a non
It is true that the court of the county in which the judgment was rendered has jurisdiction of a suit to enforce the collection thereof according to the provisions of section 4.39 .of the Code, but before any such suit can be maintained there must have been an execution directed to -the county in which the judgment was rendered, or to the county of defendant’s residence returned by the proper officer as to the whole or a part thereof, in substance no property found to satisfy the same.
It is not claimed in this case that’ any execution had ever been issued to Marion county, the county in which the judgment was rendered, nor is it claimed that the appellant resided in Fulton county. The fact that appellant had property as an agent in Fulton county can in no wise dispensewith the requirements of the Code of Practice authorizing suGh actions as the one under consideration.
It will be seen that 'the provisions for enforcing the collection of judgments after proper return of no property found are ample, in fact extraordinary. This court, in Proctor v. Bell’s administrator, 16 Ky. Law Rep., 824, in discussing this question, said: “Under these provisions of the Civil Code the judgment creditor by an equitable action can subject any chose in action, legal or equitable interest in any property to the satisfaction of the judgment.” ‘ To aid in doing this without affidavit or bond he can procure an order of attachment against the property of the defendant.
By summary proceedings the court can enforce the sur
The amount in controversy in this suit was more than $100, within the meaning of the statute regulating the appellate jurisdiction of this court.
The term “exclusive of interest and cost,” as used in the statute, means the cost incurred in the 'suit and embraced in the judgment from which the appeal is taken. In the case at bar the amount in controversy is not only $95, with several years’ interest, but also $18.30, for which sum judgment has been heretofore rendered, and, besides, the judgment placing the railroad in the hands of a receiver is such a final order as gives this court jurisdiction of the appeal.
The other questions discussed by counsel need not be decided.
For the reasons indicated the judgment of the court below is reversed and the cause remanded, with directions to dismiss the petition of the appellees and for proceedings consistent herewith.
