Butts v. Turner & Lacy

68 Ky. 435, 5 Bush 435, 1869 Ky. LEXIS 30

• Court: Court of Appeals of Kentucky
• Decided: June 26, 1869
• Status: Published

Opinion

JUDGE ROBERTSON

delivered the opinion oe the court:

This appeal seeks the reversal of a judgment against the appellant for seventy-four dollars and ninety-five cents, on a merchant’s account, actionable on the 2d of January, 1862, and barred by limitation on the 2d of January, 1863. The petition was filed 30th December, 1862, before the bar; but, according to the certified record on certiorari, no summons appears to have been issued on the petition until the 31st of December, 1863. As the object in filing the petition on the 30th of December, 1862, was only to avoid the limitation, it is not unlikely that the summons was issued the next day — -December 31st, 1862 — instead of December 31st, 1863, and that the figure “3” is a mistake; but, if a mistake, the appellee, after sufficient warning, has failed to correct it, and this court cannot assume that the record is false.

Both the Code and Revised Statutes prescribe that the issuing of the summons is the commencement of the action.

Therefore, on the issue of the statute of limitations, the circuit court erred in instructing the jury that they must regard the action as having been- commenced on the 31st of December, 1862, before the bar; and for this now apparent error — the only one among a multitude assigned and argued — the judgment must be reversed, and this cause remanded for a new trial.