Hackett v. Ford

20 Ky. 88, 4 T.B. Mon. 88, 1826 Ky. LEXIS 125

• Court: Court of Appeals of Kentucky
• Decided: January 23, 1826
• Status: Published

Opinion

Opinion of the Court by

Judge Owsley.

[Absent Chief Justice Bibb.]

To have execution of a judgment which Ford had recovered inf lie Madison circuit court against Hackett. the former sued out a scire facias, against the latter, returnable to the Mai eh term. 1825. Upon this scire facias the sheriff of Madison returned Hackett to be no inhabitant of his county, and not found.

On the 19th of April. 1825, an alias scire facias was sued out against Hackett, returnable to the next March term, and upon which the sheriff again returned that Hackett was no inhabitant of Madison county, and not found.

At the June term, 1825, the cause was called, and Hackett failing to appear, judgment was rendered against him.

The judgment cannot be sustained. The scire, facias which last issued, is most clearly insufficient to authorize judgment against Hackett, without his having appeared. Instead of being made returnable to the next term of the court, after its date, as it should regularly have been, the scire facias which bears date in April, 1825, commanded the sheriff to warn Hackett to appear at the next succeeding March term; and not only so, but before the March term, at the June term preceding it, the judgment was taken by default against him.

Turner, for plaintiff; J. Speed Smith and Caperton, for defendant.

The judgment must he reversed with cost, the cause remanded to the court below, and further proceedings had not inconsistent with this opinion.