128 Ky. 130 | Ky. Ct. App. | 1908
Opinion op the Court by -
Reversing.
On January 20, 1906, the Wilbur Stock Food Company filed its petition in the Kenton circuit court; against A. E. Petty to recover judgment against him on a note for $1,500, dated December 23, 1905, and due 10 days after date. On March 5, 1906, process having been served and no answer having been filed, a judgment was entered in favor of the plaintiff as prayed in the petition. On March 31st the defendant, A. E. Petty, filed a motion to transfer the ease to Independence, and at the same time moved the court to set aside the judgment of March 5, 1906, and for leave to file answer. On April 9th Petty filed his answer and an affidavit showing why he had not answered before. A counter affidavit was filed by F. M. Tracy, the plaintiff’s attorney. The pending motions were then continued to April 14th. In his answer he alleged that he was a farmer living near the town of Independence: that on November 6, 1905, •there appeared in a newspaper circulating in the county, the following advertisement: “Wanted — Strictly high-grade man as state manager; large cor
The precise question raised here was decided in Riglesberger v. Bailey, 102 Ky. 608, 19 Ky. Law Rep. 1660, 44 S. W. 118. In that case, after judgment by default against him, the defendant appeared at the same term, tendered a good defense and moved to set aside the judgment. The motion was taken under
Section 980, Ky. St. 1903, contains among other things the following provision: “And all suits in which the defendant, or greater number of defendants, reside nearer to said county seat than to said city of the second' class, shall he docketed and tried' at said county seat, and the process in such cases shall so indicate. Foreign corporations nonresidents of the county, and common carriers whose lines extend into any part of said city or county shall he deemed residents of the places, and the plaintiff in any action against any such défendant may select at which place he will have the ease docketed and tried, and the process shall he made by the clerk to so indicate. By consent parties may have their case tried at either place. * * * That the. circuit courts may from time to time, cause such rules as they may adlopt to be certified to the Court of Appeals, and when this is done the Court of appeals shall take judicial notice thereof, and the same need1 not he copied into any transcript.” A. E. Petty was the sole defendant in the action. He resided twelve miles from Covington and near Independence. By the provision above quoted the case should have been docketed and tried at the county seat, and the process issued by the clerk should have so indicated. The process did not so
In view of the fact that the process was not issued as required by the statute, the meritorious defense set up by the answer, and the other facts shown by the record, the court should have set aside the judgment and allowed the answer to' be filed.