78 Ky. 79 | Ky. Ct. App. | 1879
delivered the opinion of the court.
The purchaser of the property in this case refused to pay the purchase money, on the ground that the non-resident defendant had not been summoned as required by the provisions of the Civil Code. Under the former Code of Prac
This being the only section designating the manner or character of service on a non-resident in the chapter organizing or regulating proceedings in that Court, it is maintained that the practice applicable to Courts of equity generally in the State, so far as 'the warning order is concerned, must govern; and in the absence of such a conclusion, that the Louisville Chancery Court or its clerk is without any authority to enter an order of warning.
The mode and time of service in this class of cases applicable to Courts generally, is to be found in sections 57 and 60 of the present Code. Subsection 7 of section 57 empowers the clerk ‘ ‘ to make upon the petition an order warning the defendant to defend the action on the first day of the next term of the Court which does not commence within sixty days after the making of the order.”
Section 60 provides, that “a defendant against whom a. warning order is made, and for whom an attorney has been appointed, shall be deemed to have been constructively summoned on the thirtieth day thereafter, and the action may proceed accordingly.
The Louisville Chancery Court has no stated terms, and is regarded as always open for the transaction of business.
The order in the case before .us warns the defendant to appear and answer within sixty days from the 15 th of December, 1877. It is evident that sections 57 and 60 of the Code, as to the time given for answer, were not intended to apply to the Louisville Chancery Court. Those sections cannot be- made to harmonize with the sections regulating proceedings in that Court, and the 'clerk, when entering the warning order, must necessarily disregard the one section or the other so as to give either any practical effect.
The framers of the Code never contemplated any change from the old Code in the manner of summoning a non-resident when adopting section 809. The entry of the order is the summons in the case, and when made, the purpose was to require the defense to be filed in sixty days. Such was the practice in that Court prior to the adoption of the pres
In ascertaining the meaning and intention of the Legislature, the Court is not confined to the mere words of the statute, but may look to the spirit and object of the enactment. “The context, the subject-matter, the effects and consequences, and the reason and spirit of the law, may be called kq to aid in determining the legislative intent. ” (Phillips v. Pope’s heirs, 10 B. Monroe.) And the former practice may be looked to when the mode of proceeding is involved in doubt. If the sections applicable to Courts of equity generally, in questions of this character, were to regulate the proceedings in the Louisville. Chancery Court, the framers of the Code would have so stated; and it being the purpose to make no change in the time intervening between the warning order and the time at which the defense was required to be made, they have adopted the same rule in section 809 that was engrafted in the old Code, and it was intended by the language used to convey the same meaning. In reviving actions against non-residents, in the same chapter applicable to that Court, the defendant is allowed sixty days ' in which to appear and show cause, evidencing a purpose to give that time and no other in which such parties are to make defense. Section 809 certainly recognizes the existence
Judgment affirmed.
