38 Ky. 74 | Ky. Ct. App. | 1839
delivered the Opinion of the Court.
This is an action of ejectment, in which Worthington’s heirs, who were lessors, recovered a judgment against Anne Sidwell and others, who were made defendants, in May, 1832, in lieu of Mary Foley, their tenant in possession, who had been served with a copy of the declaration and notice, in February, 1831.
The declaration and notice, with the service endorsed thereon, were filed in the clerk’s office on the 9th of May, 1831, a few days only before the commencement 0f ^[ie Alav term of the Mason Circuit Court, on the , , , . , first day of which the tenm^Jiad been required to appear. During that term, b^H^t on the first day there-°f> ^ie service °f the notice was suggested on the order book of the Court, anda common order was directed, against Anne Sidwell, therein described as terlenant. The record does not show that this order had ever been executed; but it shows that, during the May term, 1832, Anne Sidwell, Mahlon Sidwell, and William Sidwell, . . . , . , . ,, were, on their motion, admitted as deiendants, m lieu of their tenant, Mary Foley, and of the casual ejector, and thereupon, confessed lease, entry and ouster, and pleaded the general issue.
Nathan Sidwell, the deceased husband of Anne Sid-well, and father of the other two defendants, had been actually possessed of a portion of the land in contest, hy res>dence and enclosure, and perhaps of the whole ^ consh’uction of law, ever since some time in the winter of the year 1812; and that possession had been continued to the time of the trial of this ejectment; and was taken and adversely to the elder legal title of the lessors.
If the action should be considered as having been
The first question to be considered, therefore, is— when was the suit commenced?
As a declaration in ejectment is considered to be in the possession and under the control of the plaintiff until it is filed in Court, there is, in judgment of law, no Us pendens until' there shall have been such a filing, together with proof of previous service. But if, after sufficient service, the declaration and notice shall have been filed in Court on the return day — towit, the first day of the appearance term, the action will, by relation, be considered as ha v in gateen commenced when the notice was served. ^
If, however, there shall have been no such filing on the first day of the appearance term, there will be no lis pendens until an appearance and defence to the action, or a confession of judgment, and the suit may be discontinued on motion of any person who shall appear at any time, be made a defendant, and make such motion before pleading to the action. Fry et al. vs. Smith et al. 2 Dana, 40.
The counsel for the plaintiffs in error, (who were defendants below,) therefore insists, that the notice had been discontinued before the appearance in May, 1832, and that, consequently, the action should not be considered as having been commenced until that time.
But we are inclined to a different conclusion. The entry on the order book, during the May term, 1831, recognized the filing of the declaration and of the notice, with the proof of service thereon; and had the common order, which was thereupon made, been duly returned executed, and had the plaintiffs in error, in con
Now, though this record does not show that the common order was executed, and though, also, no judgment by default could regularly have been rendered, and the plaintiffs in error might, befo™they pleaded the general issue, have been entitled to a judgment of discontinuance, had they chosen to ask it — yet, as they elected to waive all objection to the regularity of the proceedings, and to defend the action as being regularly and effectually in Court, we feel authorized to conclude that the service on the tenant, which, as must be presumed, brought them into Court, should be deemed the commencement of that action, and that, by relation, it should now have the effect of a lis pendens from the time of the service on the tenant, Mary Foley.
The next and only other question we shall consider, is, whether the Circuit Court erred to the prejudice of the plaintiffs in error, in rejecting evidence offered by them on the trial.
They claim title under Hughes, who claimed under Orr, who claimed under Daniel. Russell, who claimed under Dr. Evans, the junior grantee of the land in contest. And, for the purpose of proving a continuous documentary title from the Commonwealth, so as to shield their possession by the limitation of seven years—
But the Circuit Court rejected the said record as evidence against Evans and J. M. Russel, and thereby broke two of the links of documentary title, so as to defeat the claim to protection by actual settlement and residence for more than seven years.
In this, we think the Circuit Judge erred. Though the record does not show that there had been any constructive notice to Russel, who was sued as a nonresident, yet it does show that his answer was filed; and, nothing appearing to the contrary, we must therefore presume that there was, of course, an appearance by him; and consequently, the decree is evidence against him.
As to Evans, the record states that the Court had been satisfied by sufficient proof, that an order of publication against him had been duly published according to law. Although, as has been decided, the decree as to Evans may be deemed erroneous, on the ground that the record does not exhibit the evidence of publication, and thus show that it was legal and sufficient, yet the decree is not therefore void as to him, because the record shows the fact that there was some evidence of publication deemed sufficient by the Circuit Judge; and we will not now presume that there was no regular publication.
And therefore, there having been no reversal of the decree, it was evidence against Evans, as well as Russell.
It is true that there had been no proof that John M. Russell was the heir of Daniel Russell. And such proof would certainly have been indispensable to show that the decree had operated on the title of Daniel Russell.
Wherefore, on this last ground, the judgment is reversed, and the cause remanded for a new trial.