Butler v. Stump

7 Ky. 387, 4 Bibb 387, 1816 Ky. LEXIS 73

Opinion

OPINION of the Court, by

Ch. J. Boyíé.

This was an action upon a note, brought by the defendant in error in the Bullitt circuitcourt against the plaintiff in error and another jointly. " The sheriff of Bullitt having returned the writ as to the other defendant in the action “ not found,” the suit was abated as to him; and a writ being sent to the sheriff of Shelby comity, which was returned “executed upon the plaintiff in error,” judgment was taken against him by default; to which this writ of error is prosecuted.

According to the repeated decisions of this Court,

(a) the return of the sheriff of Bullitt was not sufficient to warrant an abatement of the suit 'as' to the other defendant in the action, and consequently could not justify a separate judgment against the plain tiffin error, if even he had been within the jurisdiction of the court. But as the plaintiff in error did not reside in the circuit where the action was brought, it is plain that the court below could only take jurisdiction of the case as to him in a joint proceeding against both defendants; and if; therefore, the return of the sheriff of Bullitt had been sufficient to justify the abatement of the suit as to the other defendant, no judgment could have been rendered against the plaintiff in error: so that in any point of view the judgment against him is erroneous. (

Judgment reversed with costs; and the cause remanded fór new proceedings.

2 Vol. Shields vs. Perkins, 229 —— Hardwick vs. M'Kee, 596 — Lewis vs. Davis 571-3 Vol. Lockhart vs Roberts, 361.