Redwine v. Underwood , 101 Ky. 190 ( 1897 )

JUDGE WHITE

delivered the opinion, oj? the court.

The appellant, Redwine, sued H. C. Underwood in the circuit court of -Jefferson county, common pleas division, o'n a claim amounting to the sum of $-375. Underwood being a non-resident, a warning order was made by the clerk, and attachment sued out, and the Louisville & Nashville Railroad Company was served as garnishee. The said company admitted being indebted to the defendant in the sum of $171. The petition was filed on the 30th day of July, 1891, and on the same day the warning order was made by the clerk, and the attachment issued and served on the 7th day of August, 1891. The defendant, H. C. Underwood, sold and assigned all his claim against said Louisville & Nashville Railroad Company to his brother, Z. T. Underwood, and received therefor a sum equal to the amount so transferred. After the answer of the railroad company, Z. T. Underwood filed his petition in said suit, claiming the attached funds by virtue of his purchase, and filed the written, assignment of H. C. Underwood to him. Both H. C. and Z. T. Underwood knew at the time the assignment was made that the garnishee had been executed on the proper officer of the company. The circuit court adjudged that appellee was entitled to the money, and from this judgment appellant Redwine has appealed. And the contention arises on the validity of the warning order made by the clerk upon the petition filed, which was sworn to. The statement made in the petition to procure a warning order does not state that H. C. Underwood is believed to be absent from this State. Section 57, sub-section 2, authorizes the clerk to make a warning order when the defendant is a non-resident, and believed to be. absent from the State of Kentucky. 'Section 39, Civil Code, provides that: ‘An action is commenced by filing in the office of the clerk of the proper court, a petition stating plaintiff’s cause of action, * * * and by causing a summons to be issued or a warning order to be made thereon.” Section 194, Civil Code, provides: “The plaintiff may at or after the commencement of an action have attachment against the property of the defendant, including garnishee as is provided in section 227, as a security for the satisfaction of such judgment as may be recovered.” It is well settled by the decisions of this court that an attachment issued before summons or warning order is void, and there is no Us pendens' until a summons is issued, or a warning order made (sections 39, 194, Civil Code; Hall & Head, &c. v. Crogan, &c., 78 Ky., 11; Keller v. Stanley, 86 Ky., 240). Appellee contends that the order of warning made by the clerk in this case was void, and, being void, no action had been commenced, no summons having been issued when the attachment was sued out; and, therefore, by the service on the garnishee, no lien was created on the fund. This question was before the Superior Court in the case of Hamilton v. Reike & Son, 9 Ky. Law Rep., 197. The court says: “The clerk had no authority to issue a warning order against non-resident defendants, it not being stated in the plaintiff’s affidavit that the affiant believed that the defendants were then absent from the State.” In the case of Brownfield, &c. v. Dyer, &c., 7 Bush, 506, the court said: “In all proceedings-upon constructive service the provisions of the Code regulating the same must be literally followed. Nothing short of a substantial compliance with every prerequisite will give the court jurisdiction of the property sought to be subjected, to the payment of the plaintiff’s claim. * * * The record must show on its face that the provisions of the Code have been substantially complied with, or the'judgment will be void and inoperative.” In the case of Grigsby, &c. v. Barr, &c., 14 Bush. 330, the court held that “all proceedings to subject the property of non-residents not actually served, who do not appear to the action, are in derogation of the common law, and nothing is to be presumed in favor of the jurisdiction.” We are of opinion that the affidavit in this case for warning order was fatally defective, and gave the clerk no authority to make the warning order therein, and the same was void, and that the issual of the attachment and service on the railroad company gave appellee no lien on the attached funds.

The judgment of the lower court is affirmed.