
    Case 101 — ATTACHMENT
    Feb. 25.
    Schnabel, Etc. v. Jacobs, Etc.
    APPEAL FROM HENDERSON CIRCUIT COURT.
    1. Appeals — Jurisdiction—Attachment.—This court has jurisdiction of an order discharging an attachment hut giving judgment for the debt sued for, where the amount sued for is sufficient to authorize an appeal.
    2. Attachment — Specific, fob Mortgaged Peopertt. — An affidavit for a specific attachment under sec. 249 of the Civil Code need not state that the debt is due.
    2. Same. — A sale of mortgaged merchandise in the ordinary course of business is not such a selling, concealing or removal of the property from the State as to authorize an attachment under sec. 249 of the Civil Code.
    4. Same — Controverting Grounds of Attachment. — Where the grounds of attachment are set out in a verified petition, they .should be treated by the court as sufficiently controverted by an unverified answer, no motion having been made by the plaintiff to require the defendant to verify the answer.
    5. B. & R. D. VANCE, for the appellants.
    1. The answer was not verified. The grounds of attachment were, therefore, not controverted.
    2. Under sec. 249 of the Civil Code it was not necessary for the plaintiff to state that his debt had matured.
    SAME COUNSEL IN A PETITION FOR A REHEARING.
    1. The proof sustains the grounds of attachment. Selling the mortgaged merchandise without keeping the stock renewed was within the meaning of section 240 of the Civil Code.
    2. The grounds of attachment under the Code must he controverted by an affidavit or a verified pleading.
    Citations: Gaar, Scott & Co. v. Lyon, 99 Ky., 672; Locke v. Boles, 14 Ky. Law. Rep., 573; Civil Code, secs. 196, 263; Talbot V. Pierce, 14 B. M., 158; Scott v. Doneghy, 17 B. M., 321.
    
      MONTGOMERY MERRITT, rob appelt.ees.
    1. Under the judgment herein there' is nothing involved but the costs of the attachment and that is not sufficient to give this court jurisdiction. The appeal should, therefore, he dismissed. Civil Code, sec. 266.
    2. No ground for attachment was made out under section 249 of the Civil Code. The allegation is not made that the debt was due. Section 237 was intended to cover a case like this. Besides the grounds of attachment were not sustained by the proof. Defendant had a right to sell mortgaged property where the mortgage itself contemplated that he should do so.
    3. The filing of the unverified answer was a sufficient controverting of the grounds of attachment. If the plaintiff wished to object to the pleading for failure of verification he could have done so. Not having made objection and the attachment having been tried out as if the grounds had been controverted, plaintiff can not now complain.
   JUDGE BURNAM

delivered the opinion or the court.

This action was instituted on March 16, 1896, to enforce a mortgage lien on a stock of goods. At the same time, the plaintiffs 'sued out an attachment, under section 249 of the Civil Code. They allege that defendants agreed to pay them on the 13th day of May, 1896, $350, and to secure the payment of the debt made to .them a mortgage on their stock of goods, wares, and merchandise; that “they have reasonable cause to believe, and do believe, that, unless prevented by the court, the mortgaged property will be sold, concealed, or removed from the State;” and asked that an attachment be granted.

At the May term, 1896, defendants answered, admitting the execution of the note and mortgage, but denying the grounds of the attachment; and aver “that the debt sued on was not due until May 13, 1896; and they submit to the court that the plaintiffs are not entitled to, and should not have a judgment at this term, as the property attached has been sold, by an order of the court, and brought a price more than sufficient to pay plaintiff’s debt; that bond was taken for the purchase-money, payable in six months after date, and would be due in October next, until which time defendants ask that the case be continued.”

The only evidence in the case is the deposition of plaintiff who testified that he believed that, unless prevented by the court, the property covered by his mortgage would be sold, concealed, or removed from the State; and that the reason of his belief was that áefendants were disposing of their goods, and not replenishing their stock or paying his debt.

Upon the trial, the court gave judgment for the debt, and dismissed the attachment; and from that part of the order this appeal is prosecuted.

At the threshold of the case, we are met with a motion by appellees to dismiss the appeal, on the ground that this court has no jurisdiction, because the only issue in the court below was upon the attachment, and that all that is involved on the appeal would be the costs thereof; relying upon section 266 of the Civil Code, which provides: “An order for the discharge of an attachment made at or before the rendition of a judgment in the action shall be final, and can not be re-instated, as authorized by section 270, but shall be the subject of appeal, if the amount in controversy be such as to authorize an appeal.”

The right of appeal from an order dismissing an attachment must be determined by the amount prayed for in the petition. The attachment is' a mere incidental remedy; and, besides, its dismissal involves greater liability. If the attachment was improperly sued out, the mere cost of the attachment is not the full measure of liability on the part of plaintiffs. They máy be liable to an action for damages for the illegal suing out of the attachment. The motion should be overruled. See Hawkins v. Baldauf, 10 Bush, 624.

It is further contended for appellees that the specific attachment authorized by section 249 of the Code can not be taken advantage of until after the maturity of the obligation sued on; that sections 237 and 238 of the Code cover all the causes for which a creditor may obtain an attachment before the maturity of his debt. Section 249 provides: “In an action to enforce a mortgage of, or lien upon, personal property; or for the recovery, partition or sale, of such property; or, by a plaintiff having a future estate or interest therein for the security of his rights, if it satisfactorily appear, from a verified petition, or from affidavits, or the proofs in the cause, that the plaintiff has a just claim, and that the property is about to be sold, concealed, or removed from the State; or if the plaintiff states on oath that he has reasonable cause to believe and does believe that, unless prevented by the court, the property will be sold, concealed, or removed from the State, an attachment may be granted against the property.”

By this section a mortgagee is given a special remedy to secure the preservation of personal property on which he has a lien or future interest, which may be resorted to, and an attachment obtained against the property covered by the mortgage, when he has reasonable cause to believe that it will be fraudulently sold, concealed, or removed from the State, whether the debt secured by the mortgage is due or not; otherwise a mortgagee would be powerless to prevent the removal of personal property from the State on which he has a mortgage lien, unless he should al the same time have the grounds for a general attachment r->quired by sections 237, 238. There can be no doubt that “when a creditor has a lien upon goods, and they are about to be sold in violation of his rights, he can have the specific attachment provided for by section 249, without alleging or proving an actual fraudulent intent on the part of the debtor; but, where the selling is in accordance with the agreement of the parties, as the selling of a stock of merchandise in the ordinary course of trade, it does not come within the spirit or reason of the statute; nor does the fact that the debtor is selling the goods as contemplated, but not applying the proceeds to the payment of the debt or debts the lien was intended to secure entitle a creditor to an attachment.” See Locke v. Boles, 14 Ky. Law Rep., 573.

It will be observed that section 249 does not require an allegation that the debt is due. The debt sued on was not due, and it was manifestly the intention of the parties that defendants should have a right to conduct the store and sell the goods covered by the mortgage; and there is no evidence that any part of the stock had been concealed or removed from the State. We are of the opinion that the proof does not sustain the ground of the attachment.

It is contended for appellants that, as the answer of defendants was not sworn -to, the ground of attachment was not controverted, as required by section 263 of the Civil Code, and must be therefore taken, as true. The grounds for plaintiffs’ attachment were set out in their petition, and were specifically denied in the answer. They could by motion have required defendants to verify their answer, and upon failure to do so could have had it stricken from the record, and this is the ordinary practice; and the fact that the answer was not verified was not made a ground of objection on the trial in the court below, which precludes the raising of that point for the first time on appeal in this court.

For the reason that the proof fails to support the ground of the attachment, the judgment must be affirmed.  