Citation Numbers： 97 Ky. 98
Judges： Paynter
Filed Date： 3/9/1895
Status： Precedential
Modified Date： 7/24/2022
delivered the opinion of tiie court.
On the 8th of November, 1872, in the Nicholas Circuit
J. X. Proctor, Sr., and J. X. Proctor, Jr., then instituted an action in the Xicholas Circuit Court alleging that the judgment had been improperly obtained against them, and that a large part of the judgment against them was wrong, as certain items with which they were charged and which went to make up the amount of the judgment were individual debts of A. W. Proctor, and for which they were not liable as his sureties, or at all. An injunction was sued out restraining the collection of the judgment of them. After the pendency of this action until the 26th of September, 1878, an order was entered on that day, by consent of parties, directing that the injunction shouldbe dissolved without damages, and that an execution on the judgment should be issued against M. W. Proctor, administrator of the estate of J. X. Proctor, Sr. (he having died pending the action), to be levied of assets, and against J. X. Proctor, Jr., for the sum of $289, interest and costs, thus fixing their liability on the judgment at that sum.
Xo execution save the one directed to Fleming county in 1873 was issued upon the judgment until the 11th day of March, 1890, which also was directed to the sheriff of Fleming county, and upon which that officer made a return in substance, no property found to satisfy the execution.
Upon the'jndgment obtained in lS72,and the return of “no property found,” this action is based, and in which an attachment was obtained against the property of appellant.
Two grounds of defense to the action were relied upon:
First. That appellee could not maintain the. action be
Second. That no execution having been issued upon the judgment from March, 1873, until the 14th day of March, 1890, the right to an action upon the judgment was barred by the statute of limitations.
We are of the opinion that both defenses are good, and we will consider them in the order stated.
Title 10, ch. 4, Civil Code, particularly prescribes the conditions upon which the extraordinary equitable remedy may be applied to enforce the payment of a judgment.
No rule in equity afforded such a remedy as is given by the Civil Code in cases where there is a failure to collect the judgment by an execution. It being a statutory remedy it must be strictly pursued.
Every fact must exist as required thereby before the aid it intended to afford in the collection of a judgment can be invoked.
Under these provisions of the Civil Code the judgment creditor by an equitable action can subject any chose in action,or legal or equitable interestinanyproperty,tothe satisfactionof the judgment. Toaid in doing thiswithout affidavit or bond he can procure an order of attachment against the-property of the defendant by summary proceedings, the-court can enforce the surrender of money or securities therefor, or of any other property of the defendant in the execution, which may be discovered in the action, and for such purpose may commit to jail any defendant or garnishee failing or refusing to make such surrender.
When such extraordinary remedies are afforded a judgment creditor, and such vast power is conferred upon the court to enforce it, the law should be strictly followed.
The testimony is entirely satisfactory that the appellant lived in Mason county when the execution was directed to Fleming county. The fact that one of the defendants in the execution lived in Fleming county when the execution was directed to and placed in the hands of the sheriff of that county, and by him returned, “no property found,” did not authorize the appellee to maintain the action against the appellant. When the execution is not directed to the county in which the judgment was rendered, then it must be to the county of the- residence of that defendant against whom it is desired to institute an equitable action as in this case. The fact that there are several defendants, and an executionis directed to the county of the residence of some of them, does not obviate the necessity of having one directed to the county where the judgment is rendered, or to the county of the residence of that one against whom it is proposed to institute proceedings on a return of no property.
It may be said that it will work a hardship upon the party holding the judgment because it may be difficult to learn, or may be uncertain, as to the county in which the defendant resides, but this is not true, because when that is the case the execution can be directed to the county in which the judgment is rendered, and be returned, “no property found,” and then the right to maintain the action is complete.
More than fifteen years had elapsed from the date of the issual of the first execution until the next was issued.
It is insisted that appellant obstructed the collection of the judgment by a connivance with J. N. Proctor, Sr., and
The injunction proceedingsnever suspended the collection of the judgment so far as the appellant was concerned. The appellant was made a defendant to that action. No relief was sought against him, nor did he file any pleading in the' action asking for any relief. He was a nominal and unnecessary party to it.
In the proceedings of J. N. Proctor, Sr., and J. N. Proctor, Jr., against the appellee, a consent judgment was entered fixing their liability in the judgment at $289, which was an acknowledgement that they were not liable as the appellant’s sureties for the entire amount for which judgment was obtained against them.
Although the appellant may have given his sureties the information that they were not liable for the whole amount of the claim which appellee asserted against him, and aided them in proving it, yet as the injunction did not suspend the collection of the judgment as to him, it can not be said that he obstructed the collection of the judgment so as to prevent the running of the statute of limitations pending that litigation.
The statute of limitations barred appellee’s right to maintain an action on the. judgment, and the clerk should not have issued an execution thereon against appellant.
Judgment reversed with direction to dismiss the petition.