Citation Numbers: 46 S.W.2d 1088, 242 Ky. 519
Judges: OPINION OF THE COURT BY JUDGE WILLIS
Filed Date: 2/23/1932
Status: Precedential
Modified Date: 1/12/2023
Reversing.
The Peaslee Gaulbert Company instituted an action in equity against the Brownsville Auto Company to enforce an execution lien on land. The circuit court adjudged a lien on the land in favor of the plaintiff and ordered a sale of the land to satisfy the lien. The defendant has filed the record in this court and prayed an appeal from the judgment.
It was alleged in the plaintiff's petition that it had recovered in the Jefferson circuit court a judgment against the defendant upon which it had caused an execution to be issued to Edmonson county where the defendant owned real estate and was domiciled. The execution was levied by the sheriff on the parcel of land fully described in the petition, the levy was indorsed thereon, and it was returned by the sheriff of Edmonson county to the office from whence it issued. A copy of the execution with the return thereon showing merely the levy thereof was exhibited. A lis pendens notice of the execution was filed in the Edmonson county clerk's office in accordance with section 2358a-2, Kentucky Statutes.
The first point raised by the record, and the only one which we deem it necessary to decide, is whether the plaintiff could resort to an action in equity under the state of facts appearing. It is provided by statute that courts of equity shall have control over executions upon incumbered property, and there are other instances where it is necessary to bring actions in equity after the levy of an execution. Ky. Stats., sec. 1709. Garrison v. Clark,
A suit in equity is not necessary or proper to enforce an execution levy upon unincumbered property belonging to the defendant in the execution. Such a proceeding would violate a fundamental principle of equity jurisprudence, which precludes a resort to equity when the plaintiff has a plain, adequate, efficient, and appropriate legal remedy. 21 C. J., sec. 14, p. 35; Louisville N. Ry. Co. v. Smith,
The exact question now presented was thus discussed by Judge O'Rear in delivering the opinion of this court in Low v. Skaggs, 105 S.W. 439, 440, 31 Ky. Law Rep. 1292:
"After a good levy is made and a sufficient return upon the execution showing it, the lien created by the levy is preserved, although there is not a sale. The writ venditioni exponas may then issue to enforce the lien. A suit in equity is not the appropriate proceeding to enforce an execution levy. The power in the sheriff to enforce it by sale is ample. The defendant should not be put to the extra costs, and the courts' dockets incumbered with suits in chancery to do what could be done under the process in the action at law with less expense and more expedition. The petition in this case should have been dismissed."
See Ky. Stats., sec. 1664. In Mason v. Southern Deposit Bank,
It is insisted, however, that section 1659, Ky. Stats., requires an action to enforce the lien when an execution is issued from one county in this commonwealth to another, and levied upon land in the latter county. That statute provides:
"Where executions are, or shall be, issued from the courts of any county in this Commonwealth, and the same are sent to another county, and shall be by the sheriff of such county levied upon lands in such county, it shall be the duty of the sheriff so levying said execution to return the same to the clerk of the circuit court in his county, who shall record the same as executions are now required to be recorded; and, after recording same, such clerk shall deliver said execution back to the sheriff, who shall return the same to the office of the court whence it issued. The clerk recording such execution shall have the same fee therefor as now allowed for similar services."
It has been held that failure to record the execution in the circuit clerk's office where the land is situated does not invalidate the lien created by the execution (Soaper v. Howard,
It follows that the petition of the plaintiff should be dismissed without prejudice, unless an amended petition shall be filed changing the aspect of affairs, and setting forth facts authorizing the exercise of equitable jurisdiction.
All other questions raised in the record are reserved.
The appeal is granted, and the judgment is reversed, for proceedings not inconsistent with this Opinion.