Forman v. Rodgers

8 Ky. 428, 1 A.K. Marsh. 428, 1819 Ky. LEXIS 7

• Court: Court of Appeals of Kentucky
• Decided: June 4, 1819
• Status: Published

Opinion

On farther consideration we think it proper to remark, that the cause, so far as the bill went for compensation for the land that was taken by Craig, was not in a state to be regularly heard. For South and Carr had not answered, nor do they appear to have been served with a subpoena.

It is proper aiso to remark, that John Forman, under whom the complainants claim as assignees of a bond, bearing date in 1192, was a necessary party; and as he was not a party, either complainant or defendant, the cause could not regularly be heard and decided, upon its merits. If, in other respects, the cause had been properly prepared for hearing, the court, in its discretion, might either have permitted the complainants to have amended their bill, or dismissed it without prejudice, for wrant of the necessary parties. But as the cause was, in other respects, not in a state for hearing, the complainants, as a matter of course, had a right to amend their bill, and they will consequently still have a right to do so when the cause is remanded.

It is therefore, in addition to the former decree of this court, decreed and ordered, that the complainants have leave when the cause is remanded to the circuit court, to amend their bill bv making John Forman a party, and that such other proceedings be bad as are not inconsistent with this and the former-opinion of tipis court.