91 Ky. 80 | Ky. Ct. App. | 1891
delivf.red the opinion of the court.
This was an action to enforce a lien upon land, resulting in a judgment by default that is now sought to be set aside for the want of service of process on the defendants. - On the motion to set aside the judgment the officer was allowed to amend his return as to the mode of service on the infant defendants, and it appearing by the amended return that he had delivered a copy to each one of the infants (they being-over fourteen years of age) in time for j udgment, that error in the proceeding was cured.
As to the appellant, Thompson, it appears that the sheriff had, by an indorsement on the summons, authorized a special bailiff to execute it as provided by subsection 2, section 47, Carroll’s Civil Code. That summons had been returned by the special bailiff not found as to Sherman Thompson, when an alias summons issued, and was served by the same bailiff without any indorsement by the sheriff giving this special deputy the power to execute it. The power to serve had been exhausted by the deputy after his return on
It is insisted by counsel for the appellee that the record shows the loss of an alias summons, on which the indorsement was made and summons had, and that the indorsement on the alias is but a copy of that lost summons that was, in fact, served. The record shows that this is not the true state of case, as is apparent from the certificate of the clerk on the return of the certiorari.
The judgment is reversed, and remanded with directions to set aside the judgment, and for proceedings consistent with this opinion. The parties must now be regarded as before the court, without an additional summons.