Thomas v. Warford

4 Ky. 261 | Ky. Ct. App. | 1808

OPINION of the Court, by

Judge Trimble

— The first and third errors assigned may well be considered together. They in substance, object that the writ was not served on John Pattie, and yet proceedings were had and judgment rendered against him. This objection must be deemed fatal, unless it is cured by his appearance without service of the process. It appears that special bail was entered for the defendants, which is not.conclusive ; because the bail might have been so entered, without the knowledge of the defendant, on whom process had not been served ; but the record states that “ on motion of the defendants in their proPer Persons it is ordered that the office judgment en», tered against them be set aside ; and say they have paid' the debt in the declaration mentioned, and of this they Pllt t;ilei:nseives oa country, &C. We cannot falsify the record, and are therefore bound to take it, that both the defendants appeared in proper person, and pleaded t0 ⅛ action. A voluntary appearance supersedes the necessity ot service or process, which is intended to procure an appearance ; the want of service cannot therefore be 0bjected in this case as error. The second er-objects to the steps taken at the rules, which cannot, after issue joined, be regarded, no attempts having been made to correct them in the inferior court.

If two defen- and plead, and judgment is entered against the js considered as against both,

The fourth error alleges, the judgment is uncertain and erroneous ; because it is against the defendant, without saying which of the two. The previous part of the record already recited, proves that both appeared, and pleaded to issue ; the rendition of the judgment in the singular, must therefore be considered as a clerical misprision, and ought not to vitiate the judgment ; the judgment must be considered, upon the pleadings, as rendered against both. — —Judgment affirmed.