|17 Ky.L.Rptr. 694|
|Court of Appeals of Kentucky.|
|NEILSON v. JARVIS et al.|
|Oct. 15, 1895.|
Appeal from circuit court, Knox county.
"Not to be officially reported."
Action by L. H. Jarvis and others against L. H. Nugent, W. J. Neilson, and others, in which an attachment was issued against the property of defendants. From an order discharging the attachment an appeal was taken to the common pleas, and payment having there been ordered of the amount of the proceeds of the sale under the levy to defendant Neilson, he brings an action on the appeal bond for that amount. There was judgment for defendants, and plaintiff appeals.
L. H. Jarvis and others sued L. H. Nugent and others in the Knox quarterly court, in which action the appellant was a defendant, and obtained an attachment against the property of the defendants. On a trial of the motion of the appellant to discharge the attachment, the court adjudged that it was discharged, and further ordered that the receiver, John Golden, pay over to appellant the proceeds of the sale of the goods levied upon and sold under the attachment, to wit, $101.70. No personal judgment against any of the parties to the action was rendered, nor was there any judgment for costs. The appellees appealed from the judgment to the Knox common pleas court, and executed an appeal bond in that court, with a covenant to pay the costs of the appeal, and to satisfy and pay the judgment of the court that should be rendered on the appeal. On the trial of the case in the common pleas court, it was adjudged that the receiver, Golden, pay over to W. J. Neilson (appellant) "the amount of the proceeds of the levy, to wit, $101.70." This action is brought on the appeal bond. The court sustained a demurrer to the petition, and appellant failing to plead further, his petition was dismissed. To review the action of the court this appeal is prosecuted.
It appears from this record that there was no personal judgment against the principals in the appeal bond,-not even a judgment for costs in the common pleas court to which the appeal was prosecuted. The proceeds of the sale of the attached property was in the hands of the officer of the court, and he was ordered to pay it to the appellant. A similar order was made in the common pleas court. So far as the judgment shows, there was nothing in controversy except as to the fund in court. The court's officer having possession of that, it was within the control of the court. It was a judgment in rem. To hold that the sureties in the appeal bond made themselves liable for the amount of money in the hands of the receiver of the court is to make them pay something for which the principal was not liable. In the case of Worth v. Smith, 5 B. Mon. 504, there was contest of creditors over the proceeds of the steamer John Mills. The court adjudged that certain of the creditors were preferred, and ordered that, after the payment of costs out of the proceeds, the balance should be distributed pro rata among them. From this judgment certain claimants, whose claims were postponed, appealed to this court. The bond executed was substantially as the one upon which this action is based, except there was a covenant to pay 10 per cent. damages on an affirmance of the judgment. The judgment was affirmed, whereupon suit was brought on the appeal bond by the preferred claimants. This court held that the surety in the bond was liable for the costs and damages adjudged in this court, and not for the fund ordered distributed.
Wherefore, the judgment is affirmed.
NEILSON v. JARVIS et al.
32 S.W. 400, 17 Ky.L.Rptr. 694
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