Gale's devisees v. Clark

7 Ky. 415, 4 Bibb 415, 1816 Ky. LEXIS 92

• Court: Court of Appeals of Kentucky
• Decided: October 17, 1816
• Status: Published

Opinion

OPINION of the Court, by

Judge Owsxey.

This is an appeal from a decree of the court below, rendered in favor of Clark, in a suit in chancery brought by him to settle a contest between adverse interfering land claims. ,

Part of the devisees of Gale, who were made defendants in that court, appear from the record to have been nonresidents ; and without any service of process upon them, or proof of publication, the cause was heard and a decree entered; and the question made in this court Ls, should the cause have been heard in that state of preparation ?

The absent defendants, as they are charged in the bill to have an undivided interest in the land, were certainly necessary parties to the suit; and according to the repeated adj udications of this court, the cause should have been prepared for hearing as to all of the defendants before a decree could regularly have been made in favor of the complainant. But although there is no evidence of-publication, or service of process upon the nonresident defendants, yet under the circumstances of this cause, it is contended the court did right in proceeding to a hearing; because, as is urged, the object of a service of process is but to compel an appearance of the defendants, and from the record in this cause it is contended the whole of the defendants must be supposed to have appeared. That part of the record from which an appearance is inferred, contains an entry of the parties by their counsel having consented that the survey, &c. should be used in this suit. But we do not suppose that entry, when fairly construed, can warrant the inference of any others but those defendants who had previously appeared and answered the bill consented to using the survey, &c. That the consent was given by the counsel of such of the defendants only as had answered, is not only most probable, from the circumstance of the other defendants being without tlie state, and no counsel having appeared expressly for them, but we apprehend is abundantly manifest from other entries previously made by ⅜⅜⅜ court: for ata preceding term, although for a different purpose, a similar entry of the parties having consented, &c. was made, but as an order to advertise against the absent defendants was thereafter made, that order shows clearly by whom the consent was given, and demonstrates beyond all doubt that it was not done by the nonresident defendants. If, therefore, an order similar in its expressions, made when the case as relates to its preparation was in the same attitude, does not imply the consent of the absent defendants, it furnishes strong reason to suppose the order subsequently made should not be construed to have been made upon the consent of those defendants.

Because, therefore, the cause was not prepared for hearing as to all of the defendants in the court below, the decree of that court must be reversed with costs, the cause remanded to that court, and further proceedings there had not inconsistent with this opinion.