178 Ky. 702 | Ky. Ct. App. | 1918
Opinion op the Court by
Reversing,
Dungey was a merchant in the village of Barlow. He lie came involved financially and left the state, abandoning the stock of goods. • On January 8, 1916, four of his creditors sued out attachments and they were all levied upon this stock of goods and fixtures. The principal question here is one of priority between attaching creditors. J. P. Smith, et al., through their attorney, prepared an attachment suit and filed it in the Ballard circuit court, claiming something more than eight hundred ($800.00) dollars. The process, including the order of attachment, was delivered to the sheriff at four-fifty o ’clock p. m., and this order of attachment was executed about six-thirty o’clock p. m. Between three and four ■o’clock of the..same day the other three attaching creditors appeared before a magistrate of the district and made and filed their affidavits for attachments and the magistrate, without a formal petition, issued orders of attachments.-' Two of these claims were for amounts greater than fifty ($50.00) dollars; the third one was for forty-four ($44.65) dollars and sixty-five cents, and this third order of attachment was issued before the jurat to the pretended affidavit had been signed by the officer administering the oath. In fact the jurat has never been signed. Each of the last three attachments were levied by the officer before that of J. P. Smith, et al. The circuit court adjudged the last three mentioned attachments prior to that of Smith, et al., and Smith, et al., prosecute
“The plaintiff, Barlow Mercantile Company, states that the claim in this action against W. J. Dungey, is for money due on account, etc.” This alleged affidavit is signed “Barlow Mercantile Company by Lloyd Gholsen, Sec.” In the first place the Mercantile Company could not make an affidavit, but an affidavit on its behalf could have been made by some of its officers or agents. It is not alleged to be a corporation nor is it styled a partnership. Passing this by for the present, the jurat to this affidavit reads as follows “Sworn to before me by the Barlow Mercantile Company, this the 8th day of January, 1916....................................J. P. B. C.” No one signed the, jurat. In fact, there was no affidavit. Viewed from either aspect, it can not be considered such an affidavit as is contemplated by the Code in attachment proceedings. Without an affidavit or verified petition there could be no attachment.
The question is made that this court has no jurisdiction of this appeal, because the separate claims of Lanm kin, Hall and the Barlow Mercantile Company, are each less than the jurisdictional amount and that -the claims of the three separate' creditors can not be added to give the court jurisdiction. This in part is quite true, but the amount adjudged Smith, et al., is more than eight hundred dollars. The amount realized from the sale of the attached property is three- hundred and eighty dollars, out of which the costs must first be paid. The total amount of the three smaller claims is two hundred and twenty-two dollars and ninety-three cents, so that when the costs are paid there- will scarcely remain more than enough to satisfy the three smaller claims, if indeed there will be sufficient to do this. Thus considered, the appellants will be deprived of their entire claim for the reason each of the smaller claims are adjudged to be prior to appellants’, and as to appellants the amount in controversy is the total sum which will be taken from the attached funds in satisfaction of the three, prior claims, because appellants are deprived of this, entire sum. Should the whole amount realized from the sale of the attached property be applied to the eight hundred
For the error of the circuit court in adjudging' the attachment of J. P. Smith, et al., subsequent to that-of the other attaching creditors, the judgment must be- reversed.
Judgment reversed.