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former case, the trustees and beneficiaries are not necessary parties, though they are in
the latter.

5. If a garnishee file an affidavit that the debt has been assigned, the alleged assignee
should be made a party. 17 B. M., 625.

6. In an attachment-suit, a prior lien-holder on the attached property is an indispensable
party. 2 Met., 406; 7 Bush, 124.

7. In an action, upon a return of "no property found," to subject an equitable title to
land to the payment of the plaintiff's demand, the holder of the legal title is a necessary
party (2 Duv., 145) ; and in an action by A, upon such return, against his debtor B, and
against C, the surety of D, who was the executor of a person who owed a certain sum of
money to B, the petition alleged that the executor D had committed a devastavit as to
said money, and was insolvent ; and prayed for judgment against the surety, ~C, for the
amount thereof: dictum — the executor was an indispensable party. Lee v. Waller, &*c. 9
3 Met., 61. (Query).

8. An administrator, against whom a judgment has been rendered for a debt of the
decedent, is a necessary party to an action by a creditor of the decedent to subject property
alleged to have been fraudulently conveyed by the decedent. 2 Duv., 399.

9. A trustee should be party to an action brought by cestui que trust against a person
to whom the trustee is alleged to have conveyed the property in violation of the trust. 9
Bush, 484.

10. It was held that, if heirs make oath that an administrator is defending a suit "in
bad faith," they have a right to be made parties, and to defend the action, under an act
of 1846 (1 Sess. Acts, 53), which was not, in the opinion of the court, repealed by the
Code or the Revised Statutes. Lusk v. Anderson's admW, 1 Met., 428; and see 15 B. M.,
208, which goes still further.

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11. The payee of a hen-note is not a necessary party to an action by his assignee to
enforce the hen. Leaeock v. Hall, 13 £. M., 210.

12. In an action by bond-holders against a city council for a mandamus to compel the
levy of a tax for payment of interest on bonds of the city held by the plaintiffs, neither
the tax-payers, nor the railroad company that assigned the bonds, nor other bond-holders,
are necessary parties. Maddox, 6rv., v. Graham & Knox, 2 Met., 65.

13. Sureties upon a guardian's bond in the county court are not necessary parties to an
action on a bond given by the guardian, in the circuit court, in a proceeding for the sale
of the ward's land. Johnson's heirs v. Chandler's heirs, 15 B. M., 584.

14. In a wife's action, as to her separate property, her husband is not a necessary, nor
even a proper, party. 78 A>., 553.

15. In Alexander & Lancashire v. Quigly, 2 Duv., 399, it was held that, in an action
by a creditor of a deceased debtor to subject land alleged to have been fraudulently con-
veyed by the debtor, his administrator was a necessary party ; although the plaintiff had
obtained a judgment, then in force, against the administrator for the debt.

16. The personal and real representatives of a decedent should be joined as defendants
in an action for specific performance of his contract to convey land or for damages for non-
performance. 3 J.J. M., 573.

17. In an action in equity against an administrator, for distribution, if any of his
sureties are made defendants, all should be. 5 Dana, 520.

18. In an action in equity to enforce the liability of an administrator's sureties, it was
held that the representatives of deceased sureties must be joined with the survivors. 6
Dana, 81.

19. A vendor having sold land by bond, for a part of which there is an adverse elder
patent, may be joined in action brought by the vendee to quiet the title : secus, if the
vendor had conveyed before the suit was brought. 1 Mar., 427.

20. As to necessary parties in action by a mortgagee or other lien-holder, when there
are other lien-holders, see J 692 and notes thereto.

21. The proceeds of a railroad tax, collected under an order of the county court of D
county, having been deposited in a bank ; in an action by tax-payers to prevent the bank
from misappropriating the money, the county of D and the county judge were held to be
necessary parties. 80 Ky., 496.

22. Can an undivided interact in property be attached without making the joint owners
parties? 14 B. M., 202, 203.

23. A judgment against the plaintiff will not be reversed, at his instance, for the want
of proper parties whom he should have brought before the court. 3 Met., 137.

§ 29 [41, 257]. Intervention in action by claimant. — In an action or
proceeding for the recovery of real or personal property, or for the
subjection thereof to a demand of the plaintiff under an attachment or
other lien, any person claiming a right to, or interest in, the property
or its proceeds, may, before payment of the proceeds to the plaintiff,
file, in the action (a), his verified petition, stating his claim and contro-
verting that of the plaintiff (b) ; whereupon the court may order him to
be made a defendant ; and upon that being done, his petition shall be
treated as his answer (c), but if he be a non-resident he must give security
for costs.

(a) 1. Who may intervene, and when.

(i) An adverse claimant can not intervene in an action by one joint owner against
another for partition of land. Melntire v. Mclntire, 82 Ky., 502.

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(z) Arbitrators having, under authority from the legislature, made an award for
money in favor of Craig against the State, he moved for a mandamus against the Auditor
to compel him to draw a warrant for the money ; and Rodman sought to intervene in that
proceeding in order to enforce an alleged attorney's lien on Craig's claim : per curiam —
"The appellee (Craig), by his petition, was not seeking to recover judgment for any
"money or property. His right to the money was not legally involved; that matter had
"already been adjudicated and his right established by a competent tribunal. He was
"merely asking the aid of the court to compel a ministerial officer to perform an act
"enjoined by law. The duty of that officer was to issue the warrant directly to the
"appellee, and the court's jurisdiction was limited to directing the officer to issue the
" warrant to the appellee without any conditions or qualifications whatever. And for the
"court to permit a third party to come in and litigate his claim with the appellee, upon
" the ground that he had some sort of lien upon the debt which the State owed the appel-
" lee, would open up a system of practice inconsistent with this character of proceedings.

" Suppose the appellee had recovered a common law judgment in a circuit court
" against an individual, and upon the refusal of the clerk to issue execution upon the
"judgment, he had sought the aid of the court to compel the clerk to issue the execution;
"Would it be contended that his attorney could interplead and litigate and establish his-
"right to his fees and have the same endorsed on the execution for his benefit? Surely
" not. The cases are similar." Hewitt v. Craig, 86 Ky., 23.

Query as to this. Of course it would have been the duty of the Auditor to give Craig
a warrant for the full amount of his claim, and the duty of the court so to direct, if there
had been no intervening claimant ; but do those facts prove, or even tend to prove, that
Rodman had no right to intervene ? The only other ground on which the opinion of the
court seems to rest is the assumption that the Code authorizes intervention in only unde-
termined actions — rendition of a final judgment for the plaintiff defeating the right of a
claimant against him to intervene; and, consequently, that, in a proceeding, by motion of
the plaintiff, to enforce satisfaction of his judgment, there can be no intervention. Is
that assumption correct? Such motion is a "special proceeding" (Code, §§3 and 623),
and the word action "embraces special proceedings so far as the provisions of this Code
concerning actions are properly applicable to such proceedings" (J 732, suds. 34); and
\ 29 declares, in effect, that, in an action or proceeding by a plaintiff to compel payment of
a claim, any person having a lien thereon may assert it by intervening, not before judgment
is rendered, but " before payment of the proceeds to the plaintiff." And, in Taylor v. Taylor,
3 Bush, 119 (not noticed by the court in Hewitt v. Craig), it was held that a person
having a lien on attached property may assert his claim by intervening " after the issues
between the original parties are entirely settled, and previous to the final disposition of the fund."
(See ace, 78 Ay., 379; 10 Bush, 151). And the illustration used by the court, in Hewitt*
&V., v. Craig, as proving conclusively the correctness of its decision, if it proves anything,
proves the reverse; for Ch. 2, art. 1, ? 15 of the General Statutes, declares that any attorney
who recovers for his client a judgment for money shall have a lien thereon "for the
amount of any fee which may have been agreed on by the parties, or, in the absence of
such agreement, for a fair and reasonable fee for the services of such attorney" — thus clearly
contemplating litigation between the attorney and client, as to the lien of the former,
after final judgment for the latter.

And how are they thus to litigate ? § 29 says it may be done upon the attorney's inter-
vention in any action or proceeding instituted by the client for recovery of the money; one
object of the legislature being to enable a claimant "to have his claim tried without the
expense and delay, and complications which might grow out of such delay in bringing
another suit" (Miller v. Desha, 3 Bush, 214). Nor do I perceive that there would be any
inconsistency between the attorney's intervention and the client's motion. The former
'would not interfere with the latter. The original defendant is not a party to the contro-

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versy between the plaintiff and his attorney (3 Bush, 119). The court will proceed against
the defendant as if there were no such controversy ; but will retain control over so muck
of the money, if collected, as may be necessary to meet the end of it.

And would not an order directing the Auditor to give Craig a warrant for the amount
of the award, excepting the amount of Rodman's claim — leaving that matter to be deter-
mined afterward — have conformed to the intention of the legislature in enacting J 29?

(3) See note (£), on this page.

2. A Special Case. — A got $500 from B by fraud. C soon afterward got $500 from A
by force. B sued C for the money, as having been received for the use of the plaintiff.
C paid the money into court. A having, upon his petition, been made a defendant,
claimed the money: held that the court erred in instructing the jury to find for A. Davis
v. Watkins, 2 Bush, 224.

(6) It seems clear, notwithstanding the words " stating his claim and controverting
that of the plaintiff," that this section embraces two classes of interveners, viz. : 1, one
who not only asserts his claim but controverts that of the plaintiff ; and, 2, one who asserts
his claim without controverting that of the plaintiff. Thus —

1. A, a creditor of B, having caused his property to be attached upon the ground that
he was about to make a fraudulent disposition of it ; and B having, soon thereafter, made
a general assignment for the benefit of his creditors, and failing to deny the alleged fraud ;
it was held that his other creditors had a 'right, as interveners, not only to assert their
claims under the assignment, but to controvert the attachments by showing that there was
no ground therefor. Bamberger, <5rV., v. Holberg, 78 Ky., 376.

And, A having sued B to enforce payment of a mortgage debt ; and B having afterward
mortgaged the same property to C, and the property being insufficient to pay both debts;
it was held that C, although the mortgage to him was made pendente lite and the debt to
him was not due, had the right, as intervener, to assert his claim and show that payments
had been made to A and that his claim embraced usury ; and that it was the duty of the
court to decide what was due to A and to render judgment subjecting the property there-
for — not enforcing C's claim, because it was not due. Hart, <5rV., v. Hay don y <5rV., 79
A>., 346.

2. But, if an attachment in favor of A against B be levied on property claimed by
C, C can, as intervener, assert his claim without controverting A's claim against B.
(Sckwein v. Simms, 2 Met, 209) ; and, a fortiori, if an intervener's claim depend on that of the
plaintiff (such as an attorney's lien on a judgment), the intervener may assert his claim
without controverting that of the plaintiff.

And it has been held that, in such cases, the intervener's claim may be investigated
without awaiting the trial between the original parties. 3 Bush, 119.

(c) The words "and upon that being done, his petition shall be treated as his answer"
were not contained in the Code of 1854, and were inserted in this Code in order to remove
any doubt as to the mode of making an intervener a party to the action. See Schwein v.
Simms, 2 Met., 209, and Taylor v. Taylor, 3 Bush, 118.



J 30. Interpleader by defendants generally.

j 31. by officers who are sued.

\ 32. Substitution of a creditor for officer [who is sued].

\ 33. Action by tenant for property distrained.

§ 30 [42]. Interpleader by defendants generally. — Upon affidavit of a
defendant before answer, in an action upon contract, or for the recovery

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of personal property, that a person who is not a party to the action,
without collusion with him, makes a claim to the subject of the action,
and that the affiant is ready to pay or dispose thereof as the court may
direct, the court may make an order for the safe-keeping of the subject
of the action, or for its payment or deposit in court, or for its delivery
to such person as the court may direct, and an order requiring such
alleged claimant to appear in a reasonable time and maintain or relin-
quish his claim against the defendant, and, in the meantime, stay the
proceeding. If such alleged claimant, being served with a copy of the
order, fail to appear, the court may declare him barred of all claim in
respect to the subject of the action against the defendant therein. If
he appear he shall be allowed to make himsejf defendant in the action,
in lieu of the original defendant, who shall be discharged from all liability
to either of the other parties in respect to the subject of the action upon
his compliance with the order of the court for the payment, deposit, or
delivery thereof.

1. The affidavit required by this section was designed to take the place of the bill of inter-
pleader under the old practice. Starling v. Brown, 7 Bush, 164.

2. Under the old practice —

(1) Though an affidavit as to collusion was requirable (3 J. J. M., 67; 5 Id., 235); the
court would not notice the want of it unless the proceeding was objected to for want of
the affidavit. 7 Dana, 411.

(2) A debtor could not delay payment of money due from him by suggesting a doubt as
to who was entitled to it (3 Bibb, 301 ; 3/./. M., 67) : he was bound to state the nature
of the claims of the defendants (5 J.J. M., 236) ; and to show that they had such a right
as they might interplead for, for otherwise both the defendants could demur; the one
because the bill showed no claim of right as against him, and the other because the bill,
showing no claim of right in the co-defendant, showed no cause for interpleader. 7
Bush, 166.

(3) It was also necessary for the plaintiff, in case of money due by him, to pay it into
court, or at any rate to offer to do so (3 /./. M., 67 ; 7 Bush, 165); and if he sought an
injunction, he was bound to pay the money into court or to give security for its payment
7 Dana, 411.

(4) As to proper cases for interpleading, see 3 J. J. Mar., 674; 7 Dana, 410, and 3
Bibb, 302 ; in the last of which it was held that, when there are several assignors of a
bankrupt, either can transfer a note given to all ; and, consequently, that, one of them
having transferred such' a note, the payor could not require interpleading between the
transferree and the assignees or creditors of the bankrupt.

3. As to deposit in court, in cases of interpleader, see $303, 304.

§ 3 1 [43]- Interpleaders by officers who are sued. — The provisions of
§ 30 shall be applicable to an action against a sheriff or other officer for
the recovery of personal property taken by him under execution or
distress warrant, or for the proceeds of such property so taken and sold
by him. And the defendant in such action shall be entitled to the
benefit of those provisions against the party in whose favor the exe-

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cution or distress warrant issued, upon exhibiting to the court the pro-
cess under which he acted, with his affidavit that the property, for the
recovery of which, or its proceeds, the action is brought, was taken
under such process.

§ 32 [44]. Substitution of creditor for officer who is sued. — In an action
against a sheriff or other officer for the recovery of property taken
under an execution or distress warrant the court may, upon the appli-
cation of the defendant and of the party in whose favor the execution
or distress warrant is issued, permit the latter to be substituted as the
defendant, security for the costs being given.

If the order of substitution be made without security, the plaintiff can not afterward
object, unless on the ground of surprise. Gunn v. Gudekus, 15 B. M. % 449.

§ 33 [45]- An action to recover the possession of specific personal
property taken under a distress warrant, if it be brought by the tenant,
or his assignee or under-tenant, may be against the party who sued out
the warrant ; and the property claimed in such action may, under the
order for its delivery, be taken from the officer who seized it if he have
no other claim to hold it than that derived from the warrant. The
indorsement of a levy on the property, made upon the warrant by the
officer holding it, shall be a sufficient taking of the property to sustain
the action against the party who sued out the warrant.

Art. 1. Coverture.
1 • 2. Other disabilities.
• • 3. General provisions concerning persons under disability.



2 34-1. Wife, when to sue or be sued alone.

a with husband.

3. defend for both.

4. for him alone.

5. marriage pendente lite.

6. actions by or against, when of unsound mind.

§34[49 to S 2 ]- [*• In actions between husband and wife (a); in
actions concerning her separate property (b); and, in actions concern- ^ ^ fc &
ing her general property [and in actions for the personal suffering of or
injury to her person or character (Act 1892, p. 85)], in which he refuses
to unite (c), she may sue or be sued alone.

2. In all other actions by or against a wife she and her husband j ^J ^_^
must join or be joined as plaintiffs or defendants (</).]

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3. She may defend an action against her and husband [for herself
and] for him [also] if he fail to defend.

The- Act of March 15, 1894, page 176, {33, provides that a married woman " may-
make contracts and sue and be sued, as a single woman," &c. This supersedes subsecs. 1
and 2 and the bracketed portions of subsec. 3, supra,

4. If a husband desert his wife, she may bring or defend for him any
action which he might bring or defend, and shall have the powers and
rights with reference thereto which he would have had but for suck

5. If a female party to an action marry, her husband may be made
a party by a motion, causing the fact to be stated upon the record ; and
the action shall not be delayed by reason of the marriage (/).

6. But if a wife be of unsound mind, or imprisoned, the actions
mentioned in subsections 1, 3, and 4, of this section, must be prose-
cuted or defended by her committee or curator, if she have one ; and,
if she have none, must be prosecuted by her next friend, or defended
by her guardian ad litem.

(a) 1. A wife can not, ordinarily, maintain an action against a gambler for money won
from her husband (82 A>., 187); but she can do so in an action against her husband for
divorce and alimony. 2 Bush, 263.

2. A husband having conveyed his wife's land (not her separate property), with a-
warranty of title — which made his interest antagonistic to hers — it was held that she had
a right, under § 49 of the Code of 1854, to sue him and his vendee for the land. 10
Bush, 259.

3. As to actions for divorce, &c, see j 57, subs. 2, and Title 10, chap. 2, and notes

(b) 1. Inherited land is not "separate property" within the meaning of this section
(14 B. M., 247). As to what constitutes "separate property," see cases cited in note (a)
to §17, art. 4, ch. 52, of Bullitt and Feland's General Statutes.

2. Under the old equity practice, a wife could sue, or be sued by, her husband or any
other person with respect to her separate property. $/•/• M., 230.

3. In Berry v. Tibbatts, <5rV., 11 B. M., 256, the court "inclined" to the opinion that
husband and wife might join in an action in equity concerning her separate property,
though such joining was not necessary; but in Basye v. Brawn, «5rV., 78 Ky., 553, it was^
held that in such action by the wife, her husband is neither a necessary nor a proper party.

(c) 1. According to & dictum in Wright v. Arnold, 14 B. M., 642, based on an alleged
decision in Moore v. Moore, Id., 259, a wife can sue creditors, &c, of her husband, for
an equitable settlement, without showing her husband's refusal to unite in the action.
The action in Moore v. Moore was brought, not by a wife, but by a widow ; and the state-
ment of the court on this subject in Wright v. Arnold was a dictum, because, as the court
held, the facts proved showed that the wife was not entitled to relief; and it seems clear
that, according to the express language of subsections 1 and 2 of J 34, a wife can not sue
alone in such a case without showing her husband's refusal to unite.

2. Under the Code of 1854 it was held that a wife could not maintain an action for
damages for an injury to her person, although the husband refused to unite {Anderson v.
Anderson, 11 Bush, 327). But that Code did not contain the words " in actions concerning,
her general property in which he refuses to unite."

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(a) I. Actions by married women.
I. Under the old practice.

(1) In suits in equity, it was held that (excepting the wife's separate estate) she and her
husband must join for the assertion of any right of hers, or of any interest of his in such
right (6 B. M., 517; 4 Lift., 18; A J* J* M., 50; 5 Id., 180; 13 B. M., 279); and that,
in such action by the husband's assignee, he must make the wife a party. 7 Man., 523.

(2) In actions at law it was held —

a. That husband and wife must join in an action upon a chose in action belonging to
her at the time of marriage ; as, a contract for money (though not due at the time of mar-
riage), or her right to recover damages for trespass, &c, or her right to personal property
in adverse possession (4 Bibb, 175; 3 Lift., 281 ; 4 Mon., 226; 5 /. /. M., 378; 7 Id.,
268; 1 Ch. Pl. % 18) ; and in an action for the conversion, after marriage, of property of
the wife which came to the defendant's possession before marriage ; there being a dis-
tinction between detinue and trover, for, in such a case, the husband alone could sue for
the possession {Bacon's Abridgment, title Detinue) ; and in an action for damages for the
wife's personal suffering caused by a tort committed during coverture. I Ch. PI., 50;

5// ^.,378; " A"*, 327.

b. That they might join or he might sue alone for a malicious prosecution and imprison-
ment of both (1 Ch. PI., 55) ; or for possession of her land (2 Mar., 457; l J. J. M., 98) ;
or upon choses in action accruing to her during coverture (3 Litt., 281;; including rents
for her land, whether the leases were made before or during coverture (I Ch. PI., 20); or
for cutting down corn or trees upon her land, though not for carrying them away. I Ch.

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 5 of 142)