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222 PROVISIONAL REMEDIES. [title Vin



§ 255 [279]. Sheriff's duties as to property. — The sheriff shall mala
such disposition of the attached property as may be directed by th(
court or judge ; or, if there be no direction upon the subject, he shal
safely keep the property subject to the order of the court.

§ 2 56 [28 1]. Pursuit of property by sheriff. — If, after an order of attach
tnent against specific property has been placed in the hands of th<
sheriff, such property be removed from the county, the sheriff may pur
sue and attach it in another county within twenty-four hours after sue!
removal.

§ 257 [282]. Power of court over defendant. — If it appear from th<
return of the sheriff, or the affidavit of the plaintiff, that any specific
property, against which an order of attachment is issued, has been con
cealed or removed by the defendant, the court may require him t(
attend and be examined on oath respecting such property, and ma]
enforce its orders in this respect as in cases of contempt.

§ 258 [283, 284]. General provisions applicable to specific attachments
The provisions of the first article of this chapter, not inconsistent with
nor inapplicable to, the foregoing sections of this article, shall regulat*
the proceedings in cases of attachments against specific property.

Section 283 of the Code of 1854 declared that " performance of bonds to obtain dis
•charge of specific attachments, or for the forthcoming of steamboats or other propert;
specifically attached, -may, in all cases, be summarily enforced by rules and proceedings a
in cases of contempt." Section 258 has abolished the distinction made by the Code o
1854 between proceedings on a bond to discharge a general attachment and proceeding
on a bond to discharge a specific attachment ; and, now, summary proceedings can no
be taken on bonds of either kind.

ARTICLE IV.

DISCHARGE AND REINSTATEMENT OF ATTACHMENTS.

\ 259. Attachments, when to be sustained or discharged.

-g 260. upon judgment in action for defendant, to be discharged.

\ 261. plaintiff, to be sustained unless contested

J 262. if sustained, property applied to judgment.

g 263. affidavits of parties constitute pleadings in.

\ 264. evidence admissible on trial of.

\ 265. motion to discharge.

\ 266. when order discharging, is final.

\ 267. sustaining, is final.

§ 268-1. when judge may discharge, for irregularity.

2. plaintiff may amend grounds of.

\ 269. application to reinstate.

\ 270. appellate judge may reinstate.

§ 259 [285]. When attachments to be sustained or discharged — An at
tachment obtained at the commencement of an action shall be sustaine<



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MARGE AND REINSTATEME1



ien judgment is renderec

i court extend the time

ed after the commencem

le defendant has had the

pter.

Discharge of attachment c

idered in favor of the deft

To be sustained onjudgme
rendered in favor of th
defendant be filed, denyi
li the attachment was issi
urt shall sustain the attac
If sustained, property a}
g sustained, the property
:en upon the attachment,
isfaction of the judgment
Affidavits of parties const
a) may file his affidavit \
nts of the affidavit on wr
the attachment shall be
> of the plaintiff and defe
ning the attachment, and
/as obtained at the comi
le his affidavit at such tin
by this Code for filing h
irhich period may be extei

ning claimant : see \ 29 and not<
261 ; Talbott v. Pierce, 14 B. M
hat the provision, that the ami
effect" than to constitute pleac
>revent them from constituting
i, appeared to the action, by filinj
'ickliffe, 4 Met., 1 18.

Evidence on trial of attat
ie by the court (a) ; and
>t in cases wherein dep<

lode of 18$ 1 did not expressly d
as held that such a trial might t
:, the attachment having been



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n



224 PROVISIONAL REMEDIES. [TITLE VI



(6) Under the Code of 1851 (§307), affidavits were admissible as evidence on moti
to discharge attachments. 14 B. M. f 197. Aliter now. 3 Met., 27.

§ 265 [291]. Motion to discharge attachment — At any time before tl
attachment is sustained (a) the defendant, upon reasonable notice to tl
plaintiff or his attorney, may move for its discharge ; and the hearii
of such motion may be postponed by the court, upon sufficient caus
from time to time; and upon the hearing, if the court be of opinic
that the attachment was obtained without sufficient cause, or that tl
grounds of the attachment, being controverted, are not sustained,
shall be discharged (b).

{a) A motion to discharge an attachment having been made during the progress of t
trial, and after most of the testimony had been given to the jury, the court said: "We
not see how a motion of this sort could well come too late, as the court, even upon fi
decision, should vacate the attachment if it were improperly issued. 1 ' 17 B. M., 542.

{b) See notes to $ 266 and 267.

t fc£i § 2 ^ [ 2 9 2 ]* W/ien order discharging or sustaining an attachment

>»»5f fituiL — An order for the discharge of an attachment, made at or afi

the rendition of judgment in the action, shall be final ; and can not
reinstated as is authorized by § 270 ; but snail be the subject of appe
if the amount in controversy be such as to authorize an appeal. 1
order sustaining an attachment shall, in like manner, on the renditi
of judgment in the action, be the subject of appeal.

§ 267 [293]. The reinstatement of attachments, as provided in § 2;
shall only be binding on the inferior court until judgment ; and wr
judgment is rendered in the action the inferior court shall make a c
position of the motion to discharge — which shall, in like manner,
final.

1. A preliminary order sustaining ah attachment, or, what is substantially the &
thing, overruling a motion to discharge an attachment, is not final (14 B. M., 195 ; 4 A
108), and, consequently, an attachment may be discharged on final hearing, thoug
motion to discharge it may have been overruled, and though no additional evidence 1
have been introduced (14 B. M., 195); and no appeal lies from such preliminary 01
even by consent of parties. 17 B. Af., 144.

2. Nor is a preliminary order, discharging an attachment, a final order; and, co
quently, the plaintiff can not appeal therefrom : he should apply for a re-instatemenl
his attachment to a judge of the Court of Appeals. 4 Afet., 55; 2 270.

3. Though an order, on a motion to discharge an attachment, is not final, it may, s
a final judgment in the action, be reviewed by the Court of Appeals. 14 B. Af., 195.

4. The defendant may appeal from so much of a judgment as sustains an attachn
of his property, without appealing from so much of it as orders him to pay the d
Such appeal [with a supersedeas] stays a sale of the attached property, but does not pre^
the plaintiff from enforcing his judgment in personam, by execution. If the judgn
sustaining the attachment be affirmed, the court will order a sale of the attached prope
to satisfy the personal judgment, unless it has been satisfied. 10 Busk, 624.

5. To enable defendant to appeal from a final order sustaining an attachment,



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HARGE AND REINSTATEMENT OF ATTACHMENTS. 225

•ial is necessary; nor is it necessary for the court to state in writing its
and fact separately. 84 Ky., 27.

hat the defendant may appeal from a judgment sustaining an attach-
ay have assigned the attached property, because, if the Court of Appeals
e attachment was wrongfully obtained, the defendant would have a right
in against the plaintiff for malicious prosecution. Francis v. Burnett,
which the court and counsel overlooked Spring &* Slepp v. Besore, 1 2
aye v. Kean, 18 Id., 846, according to which the judgment sustaining
>ugh reversed, was conclusive evidence of probable cause, and defeated
it to sue for malicious prosecution.

Discharge of attachment for irregtdarity — amendments.
nt, on reasonable notice to the plaintiff, may, at any time

next after the levy of the attachment, move the judge
vacation, to discharge the attachment, on the ground of
issued contrary to the provisions of article one of this
le judge, on an inspection of the papers in the action, or
d copies of them, shall have the same power of dis-
ttachment, by his written order, filed by the clerk, as he
ourt ; and shall have like power to permit amendments

iff may, by an amended affidavit, conforming to § 196,
the affidavit upon which he obtained an attachment ; or
und of attachment not mentioned in his first affidavit, ^
r have existed when he filed the first affidavit, or may
rward ; and may thus acquire a lien upon the attached
proceedings conform to law in other respects ; but such
feet a bona fide right to, or lien previously acquired upon,
y attachment or otherwise.

>4 contained only the first subdivision of this section. *

ti 15, 1862, declared that " in any proceeding by attachment, now pend-
nmenced, the affidavit or ground of attachment may be amended, so as
unds of attachment that may exist up to and until the final judgment

the amendments embrace only grounds existing at the commencement
the lien created by suing out or levying the original attachment shall
if the amendments embrace new grounds, not existing at the time of
ial attachment, the lien shall exist on the property levied on from the

Sess. Acts, 92.
[er the Code of 1854, relating to defective statements of grounds of

when it was obtained, or to defective statements as to the nature, just-

the plaintiff's demand, it was held that the plaintiff might amend a
which he had obtained an attachment under \ 476 {Lewis v. Quinker, 2
er §221 {Clarke v.Seaton, 1 8 B. M., 230); or might amend a defective
in attachment was obtained under J 221. Allen v. Brawn, 4 Met., 342

Webster, 3 Met., 282) ; Bailey v. Beadles &> Bolinger, 7 Bush, 383.
hat the amendment of March 15, 1862, relates only to the grounds of
d authorizes amendments merely for the purpose of stating grounds



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226 PROVISIONAL REMEDIES. [TITLE vm.

which existed when the attachment was obtained, and which were not stated in the orig«
inal affidavit; or new grounds arising subsequently. Allen v. Brown, 4 Met., 342.

3. It was held that an amendment of a defective attachment could not override an
intermediate attachment {Belly &c. t v. HalTs ex'rs, 2 Duv. f 288), or an intermediate mort-
gage. Peters v. Conway \ 4 Bush, 570.

4. The plaintiff's attorney withdrew from the sheriff, with his consent, an order of
attachment on which the sheriff had merely indorsed the time it came to hand. On a sup-
plemental affidavit, the clerk reissued the same order of attachment, having erased there-
from the indorsement; and under that order the sheriff seized the defendant's property:
held, that the order and levy were valid. Dean v. Garnett, 1 £>uv. f 408.

§ 269 [295]. Reinstatement of attachments. — A plaintiff who desires
a reinstatement of an attachment may have an entry made upon the
record of leave to apply therefor within a reasonable time, not ex-
ceeding twenty days ; whereupon the order of discharge shall be made,
to take effect at the end of the period so limited, unless the attachment
be reinstated in the meantime.

§ 270 [296]. A Judge, of the Court of Appeals, if the piaintif
have secured the right to apply for the reinstatement of an attach
ment, may, upon an inspection of a copy of the record, including the
evidence read upon the motion to discharge, reinstate the attachment
and, if the order of reinstatement be filed in the clerk's office of the
court in which the action is pending, within the time limited as provided
in § 269, the execution of the order of attachment shall proceed ; other
wise, it shall stand discharged, and restitution shall be made of an>
property taken under it.

CHAPTER IV.

INJUNCTION.

Art. 1. When and how an injunction may be obtained,
" 2. Dissolution and reinstatement of injunction.

ARTICLE I.

WHEN AND HOW AN INJUNCTION MAY BE OBTAINED.

{ 271. Injunction defined.

I 272. temporary, for what cause granted.

t 273. who may grant.

I 274. is subject to control of court.

I 275. notice of application for, after answer.

{ 276. generally.

t 277. evidence on hearing of application for.

I 278-1. bond to discharge levy of execution.

2. to obtain possession of property levied on.



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INJUNCTION — WHEN AND HOW OBTAINED. 227

a bond for other purposes.

amount of, to stay proceedings on judgment,
must be given before order issues,
to be taken by clerk,
order ot, requisites and service of.

notice dispenses with service of.
information of, sufficient,
not granted against judgment unless value exceed twenty-five dollars,
nor against judgment of another court,
disobedience of, how punished,
affidavits read on application for, to be filed,
bond, motion for additional security on.

. Injunction defined, — [An injunction may be the final
i action, or may be allowed as a provisional remedy, and,
it shall be by order. When any mandatory injunction
^d the order or judgment may affirmatively direct the
to do the act or thing required to be done. The writ
» abolished. (Act 1894, p. 200.)]

re mandatory or preventive, according as they command the defendant
from doing a particular thing. While the jurisdiction of equity, by way
iction, is rarely exercised, and while its existence has even been ques-
heless too firmly established to admit of a doubt " (High on Injunctions,
jh it seems clear that our Codes of 1854 and 1877 only authorized pre-
»; and that, as to them, it did not change the former law, except as to
curing process" (Keith v. Wilson, 3 Met., 201 ; Musselman v. Marquis, I
Barrett, 79 Ky., 295) ; it seems equally clear that the act of 1894 makes
ode as to procuring process and other matters applicable to mandatory
motions.

Temporary injunctions, — If it appear from the petition
ff is entitled to the relief demanded, and such relief, or
)f, consists in restraining the commission or continuance
li would produce great or irreparable injury to the plain-
uring the litigation, it appear that the defendant is doing,
is about to do, or is procuring or suffering to be done,
tion of the plaintiff's rights, respecting the subject of the
ling to render the judgment ineffectual, a temporary in-
>e granted to restrain such act. It may also be granted
.vhich it is specially authorized by statute {b).

fS AT COMMENCEMENT OF ACTION.
PROCEEDINGS UPON JUDGMENTS AT LAW.

tlor has no power to enjoin such proceedings on the ground that the
ous. 2 Dana, 328 ; 13 £. M., 234.

Id practice, a defendant in any action at law, who had a merely legal
e or part of the plaintiff's demand and who failed to plead it, or against
s found if he pleaded it, was not entitled to an injunction on account of



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V 228 PROVISIONAL REMEDIES. [TITLE VIII.

l \ such defence (4 Bibb, 414; 4 Mon., 175; 1 /. /. M., 385,- 2 Id., 28, 550; 6 /</., 440; 7

55 //., 172; I Z?a»<2, 253, 375) ; but a defence pleadable both at law and equity was ground

• 9 for an injunction, if not pleaded at law. 3 Biffb, 255; 4 B. M., 513.

But, under the Code, all equitable defences, known to exist, must be pleaded in actions
at law. • See ? 17 and notes.

3. As a general rule, the chancellor will not enjoin a sale under execution at the instance
of a stranger to the action who claims the legal title to the property, as he has a legal
remedy (5/. J. M. t 291); aliter, if he has only an equitable title. 3 J. J. M., 274;

79 ^-» 435.

4. Notwithstanding the general rule, that the chancellor will not interfere, by in-
junction, in behalf of a party who has a legal remedy, it was held in Knott v. Jarboe, I
Met., 504, that an injunction may be granted against an execution on a void judgment ;
though, clearly, the defendant had a legal remedy, by motion, to quash the execution, and
set aside the judgment. I do not see how that decision can be supported unless upon the
principle of quia timet, which does not seem to have been applicable in that case.

5. And, the court-house and all the papers in a suit having been destroyed after exe-
cution was issued on a judgment against the defendant, he was entitled to an injunction
against the execution until the lost record could be supplied, &c. Deshong v, Cain, 1
l>uv. t 309.

\ 6. A State-court has jurisdiction to enjoin an execution-sale of property acquired by a

1 bankrupt after his discharge, the execution being upon a judgment for a debt which was

provable in the court of bankruptcy. Turner v. Gatewood, 8 B. Af. t 613.

7. Partly on account of the public interest, the chancellor will enjoin the sale under
execution of a turpike road or of the cars, fuel, &c, of a railroad company, the creditor's
remedy being an action in equity to subject the net profits of the company or any sur-
plus funds. 5 B. M., I ; 18 Id., 448; 13 Bush, 137.

8. As to enjoining proceedings upon judgments in cases in which injunctions are allow-
able, see §272, §278, subs. 4, and §285.

II. Enjoining prosecution of actions or proceedings at law.

It seems to have been the practice, in some of the States, for a defendant in an action
at law to file a bill for an injunction against prosecution of it, upon the ground that he had
an equitable defence of which he could not avail himself in the action at law — equitable relief
not being granted, as a general rule, if he could make defence at law (High on Injunctions,
\ 89) ; and in such cases the chancellor frequently required the complainant, before his
application would be entertained, to confess judgment in the action at law. High on In-
junctions, % 59, 60.
J In Kentucky, before the adoption of the Code, the practice seems to have been for a

defendant in an action at law, who had only an equitable defence, to let judgment go by
default and then sue for an injunction. See note I, ante, page 227.

Though the Code does not expressly prohibit an injunction against prosecution of an
action at law on account of an equitable defence; yet, in view of \ 113, subs. 2, and of
§ 17, it is clear that, in general, a defendant in an ordinary action must plead therein any
equitable defence then known by him to exist.

But there are other grounds upon which a defendant may procure an injunction — such
as the prevention of vexatious or palpably unjust litigation. Thus, where the law allowed
a claimant of land to bring as many actions of ejectment as he pleased (a privilege abolished
by the Code) ; after verdicts and judgments for the defendant in several actions, the chan-
cellor would, in some cases, enjoin the bringing of another. Dedman v. Chiles, 3 Mon., 426.

And, numerous warrants having been issued against a person, charging him with the
violation of a city ordinance prescribing a penalty of $15 for each twenty-four hours anj
person shall hold exclusive possession of a public street, he sued for an injunction, alleging
title in himself to the alleged street, and he was held entitled to an injunction until th<



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CHAP. IV.] INJUNCTION — WHEN AND HOW OBTAINED. 229



right of property could be determined : " the amount of the fine not being sufficient to
authorize an appeal, an injunction was the only remedy." Shinkle v. City of Covington,
%1 Ay., 420. The fact that there were numerous warrants seems to be immaterial, for,
upon principle, one wrongful warrant, from which no appeal can be taken, is as injurious
as twenty; and such seems to have been the view of the court in Trustees 0/ Louisville v.
Gray, 1 IMt., 146.

The chancellor may enjoin a proceeding for the sale and distribution of devised prop-
erty until the question of will or no will is disposed of. 17 B. M., 10.

But the chancellor will not enjoin prosecution of an action, in order that the defend*
ant may learn from the result of a suit in another State whether or not he has a set-off
against the plaintiff. 16 B. M., 337.

III. Injunctions in aid of actions at law.

1. Under the old practice the chancellor would enjoin a defendant in an action at law
from removing or fraudulently disposing of his property, in order to defeat the object of
the action, whether it were upon a contract or for a tort. Monroe v. Cutter, 9 Dana, 93 ;
Cottrdl v.Moody, 12 B. M., 500. But the provisions of the Code concerning attachments
have dispensed with the necessity of an injunction in such cases. £g 194, 237.

2. The chancellor will not enjoin a defendant from relying on a defence, the right to
which he has acquired without fraud. Bowman v. Violett, 4 A/on., 350.

IV. Enjoining wrongful acts generally.

1. Illegal faxes. The chancellor will enjoin not only the collection of taxes unlawfully
assessed (3 Busk, 648; 5 Id., 243; 12 Id., 233; 79 Ay., 295; Norman v. Boat, 85 Ay. t
557) » but the proposed assessment of unlawful taxes (84 Ay., 502), or the sale of bonds
payable by means of unlawful taxation. 9 Bush, 247.

2. Trespass on land.

Though, as a general rule, the chancellor will not enjoin commission of a single tres-
pass on land, it was held that he may do so when the trespass is threatened by a munici"
Pal corporation. 12 B. M., 615-16.

But the chancellor may enjoin continuance of repeated trespasses threatened by a person
who is insolvent (I Bush, 463); and " the fact that redress can alone be had by a multi-
plicity of actions at law, for similar and continued trespasses upon the property, presents
strong grounds in favor of the jurisdiction of a court of equity." 84 Ay., 256; and see
Peak v. Hayden, 3 Bush, 125. That suggestion is supported by the general current of
authority concerning multiplicity of actions {High on Injunctions, \ 63) ; and it seems clear
that one threatened trespass by an insolvent person — such as a threat to tear down a house,
may furnish better ground for an injunction than threats to cut down twenty trees within
twenty days.

According to a dietum in Hillman v. Hurley, 82 Ay., 629, " the same character of pos-
session of real estate is necessary to maintain an injunction to prevent a trespass to it as to
support trespass quare clausum /regit. Unless the plaintiff is in the actual possession at
the time of the injury or threatened injury, he must fail in either action. This was the
rule of the common law, and it prevailed in this State until the passage of the act of
March 10, 1854, by which the owner of real estate was permitted to sue in trespass, even
if he did not have the actual possession ; " and the court proceeds to say that said act was,
by its title, made a part of chapter 50 of the Revised Statutes, and was impliedly repealed
by its omission from the General Statutes.

For said act of 1854 and comments thereon, see note b, ante, page 202. As said enact-
ment speedily followed the decision in Robertscm' s adm'rs v Rodes, 13 B. M. t 325; so the
dictum in Hillman v. Hurley (uttered in March, 1885) was followed by an act of March 13,
1888, which is as follows :

" An Act regulating actions for injury to real estate in this Commonwealth. — That the
owner of any land in this State may maintain the appropriate action to recover damages



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PROVISIONAL REMEDIES. [TITLE Vlll.



■ any trespass or injury committed thereon, or to prevent or restrain any trespasses or
ler injury thereto or thereon, notwithstanding such owner may not have the actual pos-
ision of the land at the time of the commission of the trespass."

The only difference between those acts consists in the fact that the latter contains the
>rds "or to prevent or restrain any trespasses or other injury thereto or thereon." The
Lin tiffs in both Robertson's adnfrs v. Rodes and Hillman v. Hurley claimed to have con-
uctive possession of the land ; and, for reasons stated in note {ante, page 103), con-
rning the act of 1854, it seems to me that the act of 1888 was intended to apply only

persons having constructive possession, and not to reversioners or equitable owners;
d, therefore, that it is proper to consider the rights of the latter to an injunction, in-
pendently of the statute.

The court, in Hillman v. Hurley ', cites no decision in support of its dictum; and I feel
nfident that no such decision can be found. Trespass on land being "an outrage on the
ssession " (4 J. J. A/., 19), the action of trespass could be maintained only by one in
tual possession : but a reversioner could maintain case for an injury to the freehold, and



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 34 of 142)