272 S.W. 878 | Ky. Ct. App. | 1925
Granting the appeal and reversing.
On September 16, 1921, the New York Beverage Company sued Jim Horvath in the Harlan circuit court to recover on an open account. At a special term held in July, 1922, the action was dismissed for want of prosecution. At the next term the plaintiff moved the court to set aside the order of dismissal, but the motion was overruled. Plaintiff has asked an appeal.
It is not clear from the record whether the special term was called under section 964 or 964a, Kentucky Statutes. If under the former and the style of the case was not given in the order or notice calling the special term, the court was without authority to make any order therein except by agreement of the parties. On the other hand, if the special term was ordered under section 964a, and the style of the case was not given in the order calling the term, the court was without authority to make any order in the case even though it was agreed to by the parties. The uncontradicted evidence shows that the style of the case was not given in the order or notice calling the special term, and that the order of dismissal was not entered by agreement of the parties. That being true it is immaterial whether the special term was called under section 964 or 964a, since, in either event, the court was without power in the circumstances to enter the order in question. The judgment being void, and a motion having been made in the lower court to set it aside, we are at liberty to reverse the judgment. Section 763, Civil Code; Stevens v. Young,
Wherefore, the appeal is granted and the judgment reversed with directions to set aside the order of dismissal. *345
