Brittenham v. Cummins

4 Ky. 487

• Court: Court of Appeals of Kentucky
• Decided: October 28, 1809
• Status: Published

Opinion

OPINION of the Court, by

Ch. J. Bibb.

— The judgment rendered upon this petition and summons must be held erroneous,

1st. Because the acknowledgment appearing, as if signed by Brittenham, was insufficient evidence of service upon him, so as to authorise a judgment by default. The process was not returned executed, and the acknowledgment of service endorsed might or might ndfc have been signed by him. Whether it was or was not, the court could not have legally enquired even if proof had been offered by the petitioner. The trial of that fact in his absence would have been as illegal as rendering of the judgment in chief, without a summons returned executed by the proper officer.

2dly. The petition is upon a note payable five months after date, the note bears no date and none is averred ; therefore the petitioner shews no right of action.

3dly. fflie judgment is for interest from a day not specified but wholly uncertain.

Judgment reversed.