161 S.W.2d 602 | Ky. Ct. App. | 1942
Affirming.
The appeal is from an order overruling a motion to quash a sheriff's return on an execution. A default judgment on a promissory note for $5,000 was rendered by the Boyd circuit court in January, 1935, in favor of B.E. Lykins against the Park Hill Realty Company and two individual sureties. An execution issued on August 30, 1935, and same was returned to the clerk's office with the certificate of the officer that it had been executed by a levy upon certain described lots located in Ashland as the property of the defendant, Park Hill Realty Company, on October 4, 1935. The return is signed, "A.J. Buckley, S. B. C., by J.E. Apple, D. S." Lis pendens notice had been filed in the office of the county court clerk on August 8, 1936. In November, 1939, the Park *500 Hill Realty Company filed a motion to quash the return on the execution upon the ground that it was never levied on the property described as reported to have been done and that the return was a forgery. Supporting the motion was an affidavit by J.E. Apple, former deputy sheriff, whose name was signed to the return, that he did not levy the execution and did not sign the return thereon or authorize anyone else to sign the same for him; that the purported signature was not his own. The court overruled the plaintiff's motion to strike the motion to quash the return. The case was then submitted on the motion to quash and it was overruled, "the court having considered the same upon affidavit of J.E. Apple and the certified copy of the lis pendens notice and the return of the execution."
A motion to quash an execution is an appropriate procedure where the attack goes to the validity of the process itself, as where it is claimed to have been improperly issued, since the court has inherent power over its own processes. Columbia Building, Loan Savings Association's Assignee v. Gregory,
In the instant case if the motion to quash the return of the execution be deemed sufficient as a pleading, the only evidence presented was the original document and the original lis pendens notice, together with the affidavit of the officer that he had not signed the return and had not levied it as therein declared. Clear and convincing evidence is required to prove that a judicial process or its execution, regular on its face and following a regular and natural course of procedure, is a nullity. The original papers have been brought to this court for our inspection and comparison of the signatures on the return and the affidavit. We think the court upon that record properly overruled the motion to quash the return.
Judgment affirmed. *502