On December 12, 1911, the relator, Nellie Short, in the district court of Murray county, .sued to enjoin a sale of her property to pay a pretended special assessment which, she said, was wrongfully levied .against it; the same beings lots 2 and 3 of block 198 in 'the city of Sulphur. By amended petition she made Hoehler & Cummings parties defendant, who were brought in without other service than by publication in a newspaper, alleging them to be the holders of the bonds issued pursuant to said pretended assessment. When the cause came on for trial, as none of the defendants appeared, the district court, upon her
ex parte
showing, granted the relief prayed, whereupon •defendants filed .their petition in error and transcript of the record in this court and had reviewed the sole question of whether the petition stated facts sufficient to constitute a cause 'of action. The lower court held .that it did, and in this court the judgment was affirmed.
Hoehler et al. v. Short,
Code of Practice of Kentucky 1859, sec. 445, provides-:
“Where a judgment ibas been rendered against a defendant or defendants constructively summoned, and who.- did not appear, such defendants, * * * may, at any time, within five years after the rendition of the judgment, appear in court, and move to have the action retried; * * * and, thereupon, the action shall be retried as to -su-ch defendants, as if -there had been no judgment. * *
In
Payne v.
Witherspoon,
“It is also contended that, in as much ’as defendant could, under the provisions of the 446tli (445th) section of the Code, have appeared in the court below at -any time within five years after the rendition of the judgment, and moved a retrial of the action, that thereafter he cannot bring the cause to this court to reverse the judgment, but must avail himself of the privilege, thus allowed him, to correct any errors that may exist in the proceedings to his prejudice. The right conferred upon a defendant, who has been only constructively summoned, and who did not appear, to make his appearance, 'after a judgment has been rendered against Mm, within the time specified and have a retrial of the action, does not divest him of 'his right to' reverse the judgment in this court, for errors .apparent on the record. If the plaintiff in the court below lias not proceeded according to law, and has improperly recovered a judgment against the defendant, the latter can reverse it in this court. If, however, the judgment is apparently regular and -proper, but imjustly obtained, then the defendant’s appropriate remedy is by moving for a retrial in the circuit court. He can avail liimself of either of these remedies that the circumstances in the case may indicate as the proper one.”
Later the court, in Beazley v. Maret, 64 Ely. (1 Bush) 466, in effect held that he might prosecute both, remedies. In tha-t case suit was brought against an absent defendant, -and his real ■and personal property attached on the -alleged ground 'that he concealed himself and was voluntarily in the lines- of the Southern Confederacy. The petition was improperly taken as confessed and *804 the property .sold to satisfy the judgment. His wife hired an attorney and prosecuted an appeal, and the judgment ordering the sale was. reversed. At the March term, 1865, tire mandate of -the Court of Appeals was entered in tire trial court, but tire sale was nevertheless confirmed, and a second appeal was prosecuted by the wife in her husband’s name; he being still absent. In the Court of Appeals the order confirming the sale was affirmed, but within -a few -days prior thereto- defendant appeared in the trial eo-urt, and, presumably pursuant to the -statute, s-upra, asked and obtained leave to- file his answer. This he offered to do at the next term of court, but, although it presented a valid defense, leave was refused. On -appeal the Court of Appeals held the refusal e-rr-or and reversed the -cause, -with directions that the -same be- filed and .the -cause to- proceed in conformity to- the opinion. Throughout the -opinion the wife’s -appeal in the husband’s naane was treated -a-s the appeal of the husband. To- the effect that -the remedies were cumulative, the court said:
“A case more extraordinary has rarely, if ever, occurred in the hist-o-ry o-f Kentucky jurisprudence; ‘and the ap-pellees now insist that the -anomalous judgment of March, 1865, concluded all the’ appellant’s rights, and that, consequently, the -circuit court had ho right to- admit the- -answer, the rejection of whi-ch is sought ■to be reversed by -this -appeal. If this be -so> then the appellant’s right to open the- -decree by personal -appearance . and answer, within five years, having been abandoned by -his constructive -appearance and election to proceed by the alternative remedy by appeal, -the benefit of reversal is -also- lost by hype-rtecbnicality and perversion whereby he had been, without his- own fault, prevented from making the defense to which the reversal entitled him, -and to make which was the only object of the appeal. If the law regula,ting proceedings against absent defendants -authorized such an absurdity, justice to all parties, which was its aim, would, in this -case, be unreasonably frustrated and the appellant mocked -and victimized.”
See, also,
Parks Ex'r v. Cooke,
*805 We are therefore of opinion that the trial court had jurisdiction to proceed as invoked by defendants and for that reason the writ prayed for will not run.