Miller v. McCrory , 3 Ky. L. Rptr. 774 ( 1882 )

OPINION by

Judge Hines:

The first question to be considered is as to the sufficiency of the pleadings. It is insisted that neither the petition nor the answer is good. Technically they are not, but the petition substantially sets forth a cause of action, and the answer states a substantial defense. The defect is not a failure to state a cause of action or a defense, but in stating a good cause of action, and a good defense in an imperfect manner. Such defects must be reached by motion to make more specific and not by general demurrer. Posey v. Green, 78 Ky. 162. The objection- on the part of the cross-appellants that the court struck out a portion of the answer will not avail for reversal, because it does not appear to have been prejudicial to cross-appellants. The pleadings as they now stand present all the issues in an intelligent and effectual manner for the determination of the rights of the parties. The objection by appellant to the refusal of the court to allow the filing of the supplemental petition is not available. The work caused to be done by appellant in completing the mantles, and thereby increasing their value, was done without the sanction of the court, in whose charge the property then was. The amelioration was for appellant’s benefit, and having been done without authority from the court, which might have been obtained, there was no -abuse of discretion in refusing to allow the filing of a pleading setting up claim for moneys so expended.

As to the question of fraud in obtaining the mortgages, we think the evidence amply supports the finding of the court below, to- the effect that there was no- fraud in their obtention and that they are founded upon a valuable consideration. We have read with great care the voluminous testimony, and have no doubt that the articles of agreement for the partnership between McCrory, White and Charles Miller were understandingly entered into, and that the first mortgage was made in pursuance to the agreement for the partnership previously entered into.

There was no error in discharging the attachment. The evidence is not sufficient to sustain it upon any of the grounds alleged in the petition. Nor was there any error in ’ adjudging against appellees $728.08 instead of $853.80, the amount stated in the mortgage, for the evidence is sufficient to establish that the difference between these sums had been paid to appellant.

The court properly adjudged that the laborers, mechanics and material-men held the first lien on the property covered by the mortgages. The mortgages were executed after the passage of the act of 1876, giving a lien in such cases to such persons, and the appellant must be held to have contracted with reference thereto. The case of Goodnight v. Adsitt has no application to this state of facts, and as to this case the act of 1876 is not unconstitutional.

John R. M. Polk, A. M. Gazlay, for appellant. John Mason Brown, R. H. Blain, for appellees.

But the court erred in so much of its judgment as dismissed that portion of appellant’s petition which sought a foreclosure of the mortgage for $1,000. The stipulation in the mortgage that the debt should become due, on the failure of appellees to pay the rent or to keep up the insurance, is legitimate, and a violation of this agreement, which is shown by the- evidence, entitles appellant to proceed immediately to enforce his demand. The rulings of the court in sustaining exceptions to depositions, where wrong, were not prejudicial to appellant, and will not, therefore, entitle him to have such rulings reversed.

The court did not err in ordering a sale of the attached property during the litigation. If it appeared to the court, as we must presume it did, that by reason of the cost of keeping the property it was to the interest of the litigants to sell, the subsequent speculative advance in the value of that character of property will not invalidate the order.

Nor was there any error in failing to expressly adjudge in terms that the order of attachment was wrongfully obtained. That is a matter properly to be determined in an action upon the attachment bond. In such an action the inquiry is as to whether the attachment was wrongfully obtained, and in the establishment of that fact ordinarily an order dismissing an attachment is prima facie evidence of its wrongful obtention; and if the suit was terminated by a finding in favor of the defendant, on an issue as to the truth of the facts alleged as the ground for the attachment, then the judgment would conclusively establish that the attachment was wrongfully obtained. Drake on Attachments (4th ed) § 173.

For the error in dismissing so much of appellant’s petition as sought to enforce the mortgage for $1,000, or for the amount due thereon, the judgment is reversed but affirmed in every other particular, both on the appeal and on the cross-appeal of Mc-Crory, White & Co.