Wildin v. Duckworth

Citations

• 83 Kan. 698
• 112 P. 606
• 1911 Kan. LEXIS 219

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Executions — Judgment for Money and to Foreclose a Lien. An action was brought on promissory notes, and to foreclose a chattel mortgage given to secure the payment thereof. Judgment was rendered for the amount of the notes and interest, and for the sale of the personal property and the application of the proceeds to the payment of the costs and judgment. Thereafter a general execution was obtained by the judgment creditor and delivered to the sheriff to collect the amount of the judgment. The sheriff levied upon certain real estate of the judgment debtor for that purpose. An action was brought by the judgment debtor to enjoin the sale of the real estate, on the ground that the personal property mortgaged as security should he first sold and applied upon the debt. A temporary injunction was allowed. On motion of the judgment creditor the temporary injunction was set aside and a permanent injunction denied. Held, not error.</p> <p>:2. -Option of Judgment Creditor. In such case the judgment' debtor is entitled to a general execution upon the money judgment and is also entitled to an order of sale, or special execution, for the sale of the mortgaged property; and he may, at his option, first proceed to the sale of the personal property and the application of the proceeds to the payment of the judgment and have a general execution for any deficiency, or he may elect to. take execution upon the general judgment in the first instance.</p>