87 Ky. 501 | Ky. Ct. App. | 1888
delivered the opinion or the court.
The appellee, as the administrator of Warren Smith, sought by his petition, filed in the Bullitt Circuit Court, to recover of the appellant damages for injuries that his intestate received, which caused his death, by falling from the appellant’s passenger platform, which falling was caused by the “willful and careless negligence” of the appellant to keep said platform in a reasonably safe condition.
The petition was filed and summons was issued thereon and served on the appellant within a year from the accrual of the cause of action. But the summons cited the appellant to appear at the next term of court, which commenced within ten days from the date of the summons. At said term of court no order was made in the case, except that of a continuance ; at the following term of court the summons, upon the appellant’s motion, was quashed, upon the ground that it was made returnable to a term of court commencing within ten days from its date. Thereafter, an alias summons having been issued and served, the appellant, by its answer, put in issue the material allegations of the petition. And more than a year
The appellant contends that the first summons, having been made returnable to a term of court commencing within ten days from its date, was void, and in consequence thereof, the appellee’s action was not commenced within a year from its accrual.
Section 39 of the Civil Code of Practice provides: “An action is commenced by filing, in the office of the clerk of the proper court, a petition stating the plaintiff’s cause of action; * * * and by causing a summons to be issued, or a warning order to be made thereon.” ' f
Section 40 prescribes the requisites of a summons, and, among other things, provides that it must fix a time for the defendant to answer.
Section 44 provides: “The summons shall be returnable to the first day of the next term of the court, which does not begin'within ten days from the date of the summons.”
So, by section 41, the summons must fix a day for the defendant to answer; and by section 44, the day fixed must not be less than ten days from the next term of court; and if the next term of court commences within ten days from the date of the summons, the defendant must be cited to answer at the next term thereafter. The law is, that the defendant shall have at least ten days in which to answer. It is not the summons that gives him this, right, but it is the law. No judgment can be rendered against him until
So, it will be readily seen, from what has been said, that the provision of the Code, supra, in reference to citing the defendant in the summons to appear at a term of court, commencing not less than ten days after the date of the summons, is not mandatory, but merely directory; for the reason, as above intimated, that the section of the Code, supra, gives to the clerk directions which he ought to follow in issuing the summons, in order for it to repeat to the defendant a rule of law; but the directions so given are not essentia] to the ascertainment of the defendant’s legal rights;
Also, when the plaintiff has filed his petition setting forth his cause of action, and has caused a summons to issue thereon in time to save his right of action, he has done all that the law requires him to do; for it is the official duty of the clerk to issue the summons in accordance to law, and it is not incumbent upon the plaintiff to see that he issues it in accordance to law. On the contrary, he has the right to repose entire confidence in the clerk’s not only knowing his duty but doing his duty; therefore, the plaintiff is not guilty of the laches that is contemplated by the statute of limitation, in order to deprive him of his remedy; as it was caused by the act of the clerk, who was officially bound to act according to law, in the interest of both appellant and appellee, and in so far as he may be treated as an agent, he was equally the agent of both, as in issuing the summons,
The jury passed upon the question of neglect, and found the appellant guilty of ordinary neglect. And the deceased not being an employe of the appellant, the appellee, as his administrator, had the right under section 1, chapter 57, of the General Statutes, to recover for the injury and consequent death of deceased by ordinary neglect.
The fact that the petition fails to state that the deceased was not an employe of the appellant, does not render.the petition defective, for the reason that the appellee had the right to recover for either willful or ordinary neglect, the deceased not being an employe of the appellant; and as ordinary neglect is but a lower degree of willful neglect, the appellee had the right to sue for the higher degree, and if the proof failed to establish that degree, but established the lower degree, to recover for the same. And whether or not the deceased was an employe of the appellant, could be developed by the proof so as to control the right of recovery; or the fact, -if it existed, could have been made known by the answer.
The judgment of the circuit court is affirmed.