96 Ky. 72 | Ky. Ct. App. | 1894
delivered the opinion oe the court.
Julia W. Beckham brought this action to recover a tract of land in possession of T. J. Morrison and others. But T. J. Sheets being, upon his petition,, made a defendant, filed separate answer, denying plaintiff was, as alleged by her, owner and entitled to recover, and stating he was in right of his deceased wife, Lncinda, owner of a life estate, his co-defendants being his tenants. He further stated that Josephine Powell, a daughter, and Powell, Charles and Ma,ry Sheets, children of a deceased son of himself and
At the February term, 1891, was a trial of the action which resulted in verdict and judgment for plaintiff. And motion for new trial having been overruled, defendants prayed an appeal to this court, which was granted, and time for preparing a bill of exceptions extended to October term of court. But instead of tendering a bill of exceptions and then prosecuting the ■appeal, they instituted an independent action to have the judgment set aside and a new trial of the original action granted. And upon trial of the second action at October term, 1891, judgment was rendered, giving the relief prayed for. But upon appeal to this court, that judgment was reversed, and as a result the first judgment was left in force.
The appeal now before us is from the original judgment, which, if reversed at all, must be done for errors .apparent on the record, there being no bill of exceptions. The first ques'ion then to be determined is, whether the present is, as contended, barred by decision of this court on the former appeal. It seems to us not, because the question there presented and decided was not whether the lower court on trial of the original action at the February term, 1891, committed any reversible error, but the real- and only question was whether the second action could, for the cause stated in the petition, be maintained under the Civil Code. That cause was refusal of the lower court to sustain motion of defendants for a continuance of the origi
The record shows, in respect to the first error complained of, that, although a motion for continuance was made February 18, 1891, no affidavit was then filed or grounds stated ; nor was it, in fact, filed until the next day after the jury had been sworn and evidence heard in part; and then the court did offer to sustain the motion of defendants to withdraw the jury and continue the case, upon condition of payment by them of plaintiff’s costs up to that time, which was refused; so that as, in our opinion, the condition was reasonable, no error was committed in their overruling the motion. But other alleged errors are complained of, which we will consider.
It appears a warning order was made by the court •at October term, 1890, against Josephine Powell, who is a non-resident of the State, and an attorney was duly appointed to defend for her. But counsel contends that as the attorney failed to file a report as required by the Civil Code, the judgment was premature. 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 keen constructively summoned on the thirtieth day thereafter, and the action may proceed accordingly;
Section 410 is as follows: “Before judgment is rendered against a defendant constructively summoned, and who has not appeared, a bond shall be executed with good security, approved by the court, to the effect that, if the defendant shall procure a vacation or modification of the judgment, the person in whose favor it is rendered shall restore to the defendant any property or money obtained under such judgment, restoration of which shall be adjudged. If the judgment be in favor of persons having distinct interests, such bond may be executed for each according to his interest.”
It has been distinctly and repeatedly decided by this court that a judgment against a non-resident who has not appeared, before the execution of the bond
In our opinion, disregard by the lower court of the injunction of section 410 to require a bond executed for security and protection of Josephine Powell, was ■erroneous. And the judgment must, therefore, be reversed, and cause remanded for a new trial consistent with this opinion.