Foster v. Hall

25 Ky. 546, 2 J.J. Marsh. 546, 1829 Ky. LEXIS 151

• Court: Court of Appeals of Kentucky
• Decided: October 31, 1829
• Status: Published

Opinion

■ Judge Robertson-

delivered the opinion of the Court.

Ttiss was a suit in chancery for alimony. The bill charged that the husband had abandoned the wife, and left some slaves in the possession of Foster, who was, therefore, made a defendant. He and ’another, Rankin, (both of whom were defendants,) asserted title to the negros, by an alleged purchase from the, husband of the defendant in error. The circuit court decreed that she was entitled to alimony in the slaves, and the claimants have prosecuted a writ of error.

The husband vvas-a necessary party. Process was never served on him, nor did he ever answer, or otherwise enter his appearance. The language of the record, “the defendants appeared, &c.” means only those who were made defendants by service or by a voluntary appearance-

Feemster, for .plaintiffs; Denny^lor defendant»

As the plaintiffs in error derived claim, from the husband of the defendant, no decree as to the title 1 i” . . , should have been rendered against them until he had been made a party to the controversy; nor had the defendant any right to a decree against them, until she had established her right against her husband, which she could not do, without making.., him a defendant.

Wherefore, the decree of the circuit court is reversed, and the-cause remanded, in order that the proper parties may be made, or the bill, dismissed, without prejudice, unless the husband be made a-party in a reasonable time.