Craig v. Barker

34 Ky. 600, 4 Dana 600, 1836 Ky. LEXIS 135

• Court: Court of Appeals of Kentucky
• Decided: November 5, 1836
• Status: Published

Opinion

Chief Justice Robertson

delivered (he Opinion of the Court.

There having been no waiver of notice by appearance, or otherwise—the order approving the partition of the land must be deemed erroneous, for want of proper evidence of sufficient notice of the application for the appointment of commissioners under the act of 1811, 2 Stat. Law, 1070,

The statute requires a notice, and prescribes a particular kind of proof of it; and, in sdch a summary pro-heeding, in such a forum, the record should exhibit the prescribed proof of a proper notice to all .concerned. 'The record in this case contains no proof of notice. The declaration that there had been “due proof of clue notice” is only the opinión of the court, and is insufficient to sustain the partition; because, as that court may have erred in its opinion respecting the requisite proof of proper notice', its record should contain sufficient facts, and not mere deductions from undisclosed facts, so that this court may revise the judgment and determine whether it was right.

A recital .in a record, that there Ivas due notice of an intended ap plication, is not sufficient: the notipe itself, and the proof of 'service, must be inserted, that this court may judge of their sufficient cy, and see tliat the statute was pursued!

The record of a county court pro deeding in allotting dower, rn.ust show, that the 1. nd is in the county: othert wise the proceed: ih'gs will be deem ed void; for want of jurisdiction in the court:

Wherefore, as, without legal notice, the partition was unauthorized, and as the record exhibits no'proof of such notice, the order appointing the commissioners and approving their report as to the partition must be set aside and annulled-.

And as the record does not show that the land lies in the county in which the allotment of dower was made, the County Court must be deemed to have erred in appointing commissioners to allot dower, and also, in approving their report; because unless the land lie in that county the court had no jurisdiction; and the jurisdiction of the County Courts being, irt such cases; special, the record should exhibit facts sufficient to show that the court assuming power to allot dower had jurisdiction over the subject.

Wherefore, the order approving the allotment of dowter, is also set aside.