122 Ky. 760 | Ky. Ct. App. | 1906
OPINION of the Court by
— Reversing.
Appellants', together wiith G-. M. Patterson, J. B. Conm, R. Gr. Ward, J. J. Barton, J. B. Kinnaird, William H. Kinnaird, and William' Herndon, were jointly bound as sureties for the Lancaster Oil Company upon a note for $5,000, executed to the National Bank of Lancaster, Ky. The bank sued all the makers of the note and recovered judgment against them. Appellants paid off the judgment and took an assignment of it to themselves.- Thereafter appellants caused an execution to be issued upon the judgment in behalf of the bank, indorsed for their benefit, against all of the obligors in the note excepting themselves and William H. Kinnaird, for the sum of $5,000. This execution was placed in the hands of the sheriff of Garrard county, and returned “No property found.” Whereupon appellants filed a
Two questions are argued in briefs as. being presented by this ruling of the court: One, whether the execution upon which the return of no property was made, and which, was the basis of this equitable action, instituted under section 439, Civ. Code Prac.,
It is settled that sureties may be bound as among tbemselces in different measures of liability. Daniel v. Ballard, 2 Dana, 296. All are bound, of course, for the whole debt to the obligee, yet as between principal and sureties the principal alone is bound for the whole of it. Generally as among sureties they are equally bound, excepting that, if some are insolvent or non-residents, those who are solvent are equally bound, without respect to those who are insolvent or beyond the court’s jurisdiction. The sureties may nevertheless contract among themselves for a different proportion of liability, which will be respected and enforced by the courts, The statutes above cited were aimed to provide a speedy and simple method of enforcing such liability as among the sureties. If one surety pays more than his just part of the liability, the others who were bound to the obligee, and whose obligation to the obligee was thereby extinguished ought to make whole the'one who had discharged their liability^ and this according to the terms, of the contract as between themselves. The statute, which gives to a surety who paid off a judgment the right to have the judgment assigned to him and to control subsequent issues of the execution upon- it, is an enlargement upon the common-law remedy — is a summary action. It is more or less open’ to. initial abuse; that is, a surety may claim that another who merely appears as a joint debtor is in fact his
The execution is said to be void for another reason. Subsection 2 of section 1652, Ky. Stat., 1903 (tit. “Executions”), requires that an execution on a joint judgment against several must be joint. This section relates to an execution issued upon a judgment rendered in favor of the person in whose name the execution is issued. It would be in conflict with section 4666 otherwise; for that section expressly allows a surety who had paid a judgment to have it assigned, and have an execution issued upon it against the principal for the whole of it, or against any of the
The other question raised in the argument is made more difficult by the conflict of authorities elsewhere and the absence of precedent in this State. The estate of M. W. Johnson, an intestate, had been committed by a court of competent jurisdiction to the defendant Herndon for administration. There came to his hands personal assets to be administered, for which the estate owed him a reasonable money consideration, within the statutory maximum of $1,750 or less, as might be determined by the court wherein his final. settlement should be made. This compensation was due him in money for services rendered to the estate, and was wholly unpaid. It Was not exempt per se from liability for his debts. On the contrary, it ought to be liable therefor precisely as any other chose in action which may have belonged to him. He is, by the admission of the demurrer, not only in default to his creditor, but entitled to receive a considerable sum from Johnson’s estate, owing to him personally and then due, which, could the court’s process lay hold upon it, ought, in law as in morals, to be applied to the payment of his debt. The defense is an issue of law presented, which is that the law’s process is ineffectual to reach this debt or fund. The reasoning is that, as the .defendant owes himself the debt, the presumption .is that it has been discharged; or, if that presumption be not indulged, that the judgment to be rendered against him as garnishee would be for so much money, which would be tolly covered by the judgment against Mm as debtor. If the object of the
Our code allows that every person who is indebted to the defendant, sued in- an action to recover money, or who bolds, property for him, may be summoned as garnishee, and be compelled to disclose tbe amount owing to, or the property held for, the defendant, which upon such disclosure may be subjected in that action toward the satisfaction of tbe debt sued on. Section 225, Civ. Code Prac. On grounds of public policy, salaries of officials serving the public are not liable to- attachment. Webb v. McCauley, 4 Bush, 8; Allen v. Russell, 78 Ky., 105; Bridgeford v. Keenehan, 8 Ky. Law Rep., 268; Dickinson v. Johnson, 54 L. R. A., 566; 110 Ky., 236; 22 Ky. Law Rep., 1686; 96 Am. St. Rep., 434; 61 S. W., 267. Pensions granted by the federal government to disabled soldiers or their dependents are likewise not liable, because tbe federal government may not be sued or summoned as garnishee, but not because tbe money is exempt from debt after it reaches tbe pensioner’s bands. Section 4747, Rev. Stat. U. S. (U. S. Comp, St., 1901, p. 3279); Moxley v. Andrews, 5 Ky. Law Rep,, 425; Robion v. Walker, 82 Ky., 60; 5 Ky. Law Rep., 799; 56 Am. Rep., 878; Herreld v. Skillem’s Assignee, 6 Ky. Law Rep., 666; Carter & Co. v. Strange, 7 Ky. Law Rep,, 302; Sims v. Walsham, 7 S. W., 557; 9 Ky. Law Rep., 912; Suter v.
There are but two> cases which we have found bearing on this question. One is Shepherd v. Bridenstine, 80 Iowa, 225; 45 N. W., 746. The Supreme Court of Iowa thus stated and answered the question: “Where the indebtedness is unconditional, and not dependent on any contingency, and is due, it has always been the practice in this State to render an unconditional judgment against the garnishee. Sup1-pose that in this case judgment should be. rendered against the defendant in her representative capacity, and she should refuse to pay it,, what remedy would the plaintiff have, other than another execution against the defendant? It is claimed that tire sureties on the defendant’s bond would be liable; but sureties on such bonds are liable only for maladministration, or for failure to perform orders in probate. The case is an anomaly. All tire statutes in this State,’ and all the law upon the subject, contemplate that there are three persons to every garnishment proceeding.” The court concluded: “We are clearly of opinion
Our practice appears to be not altogether similar to that in Iowa. Here the garnishee personally appears and answers what he owes the defendant. Section 224, Civ. Code Prac. He is not made a party to the suit at.all (except as stated below) if he makes such answer. Wilder v. Shea, 13 Bush., 128; Smith v. Gower, 3 Metc., 171. A personal judgment cannot be rendered against a garnishee upon the mere assertion of liability to the defendant debtor. Bowen v. Emmerson, 4 Bush, 345; Griswold v. Popham, 1 Duv., 170; Joyce v. O’Toole, 6 Bush, 31. Should the garnishee fail to. answer, or fail to make true and satisfactory answer, he may then be made a party defendant; a cause of action being stated against him by the plaintiff on behalf of the debtor defendant. Section 229, Civ. Code Prac., and eases just cited. If the garnishee does answer, and it is satisfactory to* the plaintiff, the court may order the sum owing to be paid into court, or may hear proof, and from it determine the sum owing and order it so paid in, or fix the terms on which it may be held. Section 225, Civ. Code Prac.; Cavanaugh v. Fried, 3 Ky. Law Rep., 253; Smith v. Gower, supra. Or, in an action in equity brought pursuant to section 439, Civ. Code Prac., on a return of nulla bona, for discovery of assets, debtors of the principal debtor may be made defendants.; a cause of action in the latter’s behalf against them"being stated in the petition.
In the case at bar, a cause of action in favor of defendant Plemdon against the estate of M. W. John
■ But for the reasons indicated the judgment is reversed, and cause remanded, with directions to overrule the demurrer to the petition and for proceedings consistent herewith.