Embry v. Devinney

38 Ky. 202, 8 Dana 202, 1839 Ky. LEXIS 47

• Court: Court of Appeals of Kentucky
• Decided: June 13, 1839
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

The enactment of 1796 (2 Slat. Law, 1459,) which pro-that — “ if the defendant cannot be arrested by the “s^er'®» and shall be a known inhabitant of another corn“iy, the sheriff shall return the truth of the case, and “thereupon the process, as to such defendant, shall “abate” — do,es not apply to such a case as this, in which the sheriff of the county in which the suit was institute([ returned on the writ that he had executed it on one of the defendants, and that the other defendants were “ not found. The object of the enactment of 1796, was to Prevent the prosecution of a suit against a party not residing, at its commencement, in the county in which it was brought; and therefore, the statute directed the sheriff to ascertain the truth, and return it on his writ, in all such cases; and thereupon required a peremptory abatement of all such improper suits.

When a writ is returned exceuted on one or more of the defts. by the sheriff of the county where the suit is instituted, and that others are not found, the pltf. is not bound to abate as to any; but may, at his election,abate as to them, or send process for them, to other counties. It is the duty of a lawyer who is. to defend a suit, to attend at the day to which it is continued, upon being called. His failure to do so, it seems, is not. ground for reversing a judg’t. An affidavit of surprise, by a. judg’t, rendered when the cause was called unexpectedly to the deft, is not sufficient, unless it, discloses, also,, an available defence.

But the fourth section of an act of 1812 (1 Stat. Law, 343,) authorizes a plaintiff to sue several defendants in any county in which either of them resides, and to issue process to any other county.in which a co-defendant resides; and the sixth section of the same act(Ibid. 88-9,) authorizes an abatement as to any one as to whom the sheriff of the county in which the suit is brought, shall have returned “no inhabitant of the county”' — and the second section of an act of 1825, (Ibid. 90,) authorizes the same judgment, in the same class of cases, on a return of “not found by the same officer.

And consequently, as the sheriff'of Jefferson, in which this action was brought, returned that he had executed the writ, on one of the defendants, and that the other defendants were not found in his county, the plaintiff was not bound to abate his suit as to all or any of them; but had the right to elect, as he did, to issue an alias to another county; and, upon a return of sufficient service thereof,he had a right to abate as to those returned “not found,” and ask a judgment against those upon whom there had been sufficient service.

Wherefore, the first objection to the judgment in this case, cannot prevail.

Nor can we decide that the next, and only other objection to the judgment is sufficient to authorize a reversal.

Though the special docket, which the Circuit Court of Jefferson is required to keep, may, so far as this case was concerned, have been somewhat irregular, yet the case being called on the 12th of January, and continued to the 13th, it was, we think, the duty of the counsel of the defendants to be in Court on the 13th, if he had any defence to make.

But however this may be, the affidavits do not suggest that any available defence would or could have been made, had the defendants or their counsel been in Court.. The alleged surprise does not appear, therefore, to have-been prejudicial; and we are not authorized to direct anew trial when we have no ground for presuming that it will be availing to the party seeking it, or have any other effect than that of delay.

Wherefore, we feel constrained to affirm the judgment.