Richart v. Goodpaster

116 Ky. 637 | Ky. Ct. App. | 1903

•Opinion of the court by

JUDGE NUNN

Reversing.

The facts in this case, as appear in this récord, are in substance as follows: Appellee Knox ' was a tenant of appellee Goodpaster in the year 1901, and as such he raised ■a crop of tobacco on the shares, which was housed in Goodpaster’s barn. Appellant, Richart, caused two executions to'' be issued upon judgments which he held against appellee Knox, and placed them in the hands of the constable of Bath county, and which were by him levied upon the interest of Knox 'in this tobacco. The constable left the tobacco in the care of appellee Goodpaster, but failed to have it appraised ■and inventoried as required by section 660 of the Civil Code, but indorsed the levy of the executions, and returned them to the - office from which they issued. Soon after this, ■Goodpaster sold the entire crop of tobacco, which had not been divided, and held that part of the proceeds belonging to appellee Knox, which he claimed was $80, and refused to pay it to either Knox or appellant until the matter was settled as to which was entitled to it, both claiming the funds. ■On the 30th day of July, 1902, the appellee Knox filed his petition in the Bath Circuit Court against Goodpaster and the appellant, Richart, in which he stated that he was entitled to two-fifths of the proceeds of this tobacco, which he claimed amounted to $80, and also alleged that appellant, Richart, claimed to'have some claim or lien on this tobacco, and asked that he be required to present same. Goodpaster answered, admitting the allegations of the petition to be true, and stating that he was ready to pay the $80 to the party whom the court might adjudge was entitled thereto. The appellant filed an answer and amended answer alleging that this judgment claim against appellee- Knox amounted to $250, and was wholly unpaid, and denied that appellee Knox’s interest amounted to only $80, and was two-fifths, but alleged that it amounted to $225, and was one-half interest in the crop, and also alleging that he had a lien upon Knox’s interest therein by reason of the levy of these executions thereon, and he made his answer a cross-action against Goodpaster, and asked ■ for a judgment over against him for the suin of $225. The court sustained a demurrer to appellant’s answer and amended answer, dismissing his answer and cross-petition, and adjudging that appellee Knox was entitled to the $80 in the hands of Goodpaster, from which judgment appellant has appealed. ■

The appellees moved to dismiss the appeal for the reason,, as they claim, that the amount in controversy is less than $200, the judgment being for only $80. We can not concur with appellees in this contention. By their demurrer they admitted the allegations of appellant’s answers, and his claim as stated amounts to $250, and the amount sought to be recovered in this action was the value of Knox’s half interest in this crop of tobacco, which, was alleged to be $225, and the-court adjudged against him on this claim, and it is this judgment that appellant' is seeking to have revised, and which makes the amount in controversy on this appeal more than $200.

The only other question to be determined is whether the action of the constable in making the levy and the manner in which he performed it created a lien in favor of the execution creditor. The appellees contend that because he failed to have the property appraised and inventoried no lien was. created. Under the laws of this State, from the moment an execution is placed in the hands of an officer for collection a lien is created for its payment upon all the property of the defendant in the execution situated in the county subject to execution. By the first part of section 660 of the Civil Code, it is clearly indicated that an officer may levy an execution upon personal property held by the execution debtor jointly with another person without having the property inventoried .and appraised; that such is not necessary to complete the levy. The purpose of this section of the Code was to protect aud preserve the rights of execution creditors, and especially joint owners of personal property other than the execution debtors, and to prevent the officer from taking possession of the property, to the possible injury-and detriment of the joint owner. The lien was created upon this tobacco when the execution was placed in the hands of the constable. The levy was made and indorsed on' the executions, and the lien still existed thereon, notwithstanding the failure of the constable to perform his duty as to having it appraised and inventoried.

For these reasons, the judgment of the lower court is reversed, and the cause remanded for further proceedings consistent herewith.