Brown v. Young's Admx.

4 Ky. Op. 701, 1872 Ky. LEXIS 154

• Court: Court of Appeals of Kentucky
• Decided: February 8, 1872
• Status: Published

Opinion

OPINION OK THE 0OURT BY

JlJDGE PRYOR '.

Tbe suit by tbe appellant, Brown, on tbe note for sixteen hundred dollars against tbe appellee as administratrix of ber husband, was dismissed by tbe appellant, and tbe note withdrawn.

There was then no suit pending in court between these parties. Tbe appellee bad pleaded a set-off to this note originating from tbe alleged liability upon tbe part of appellant’s assignor to her intestate. Tbe assignor of tbe note was not before the court, and no judgment could have been rendered against tbe appellant, as assignee, upon this set-off’other than an amount sufficient to extinguish tbe note. When this note is no longer in court, and the suit upon which it is beard is dismissed, we cannot well see bow tbe appellee can proceed with tbe trial as to ber set-off without baying tbe party against whom tbe set-off is plead in court. It cannot be insisted that tbe set-off affects tbe note when there is no such note in court and no suit pending to recover it. Tbe court permitted appellant to dismiss bis suit, and withdraw tbe note and this ended all controversy between tbe parties, and tbe set-off could not be tried without having the party before tbe court against whom a judgment might have been rendered upon it. Tbe judgment is reversed and cause remanded with directions to set aside tbe judgment upon appellee’s set-off and for further proceedings not inconsistent with this opinion.