Brentlinger v. Funk

26 Ky. 656, 3 J.J. Marsh. 656, 1830 Ky. LEXIS 150

• Court: Court of Appeals of Kentucky
• Decided: April 24, 1830
• Status: Published

Opinion

Judge Underwood

delivered the opinion of the Court.

So much of the decree in this cause as gives costs in behalf of Peter Funk and others, against Susannah Brentlinger, the plaintiff in error, upon the ground that she was co complainant with her husband, in a bill against Peter Funk, &c. is erroneous.

It does not appear from the record, that she was complainant with her husband in this suit. If they were co-complainants in another suit in the same court against the same defendants; it was erroneous to enter a decree touching that other suit in this cause.

The decree of the circuit court must be reversed, so fares it decrees cost against the plaintiff in error as a-complainant; hut for no other cause. The merits of the controversy could not be tried without reviving the suit instituted by A. Brentlinger in the names of the proper representatives. After the abatement by his death, there was no suit before the court, except Peter Funk’s cross bill.

The decree of the circuit court is reversed, so far as costs were decreed against the plaintiff in error, as a complainant. The parties in this writ must pay their own costs.