64 Ky. 357 | Ky. Ct. App. | 1866
delivered the opinion of the court:
Appellee sued three defendants as joint trespassers as to personal property, in the Floyd circuit court, had service of process on two of them in Floyd county, and on
This is a case within the provisions of section 108, Civil Code; and though the defendant appeared and filed his answer, yet, when it was determined that no judgment could be rendered against any defendant served with process in Floyd, he did not fail to object, before the judgment, to its proceeding against him, but availed himself of the earliest practicable moment after this essential fact had been ascertained to so object.
This construction was given to this section of the Code in Fernold vs. Speers (3 Met., 460).
It being apparent from the verdict that no judgment could be rendered against any defendant served in Floyd, appellant’s motion should have been sustained. He did not waive this right by answering; for, until the verdict, it could not be ascertained whether those defendants served in Floyd were real or nominal parties — one object of the Code being to prevent a change of jurisdiction by making nominal parties.
Wherefore, the judgment is reversed, with directions to set aside the judgment and sustain appellant’s motion.