Licking River Lumber & Mining Co. v. Cox

Court of Appeals of Kentucky

Licking River Lumber & Mining Co. v. Cox

7 Ky. Op. 519, 1874 Ky. LEXIS 183

DecidedFebruary 20, 1874

StatusPublished

This text of 7 Ky. Op. 519 (Licking River Lumber & Mining Co. v. Cox) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Licking River Lumber & Mining Co. v. Cox, 7 Ky. Op. 519, 1874 Ky. LEXIS 183 (Ky. Ct. App. 1874).

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Opinion

OpiNion by

Judge PeyoR:

The only judgment that could have been rendered in the case was to subject the steamboat to the payment of the mortgage debt. There is no allegation in the petition that the contract between the company and the. purchasers of the boat had been cancelled, or that the note had in any way been discharged. It is alleged that the appellants had used the boat for ten months, but there is no statement even that the company was to account for the use, or that the value of the use of the boat was to. be credited on the note. The parties, however, were not properly before the court. The company seems not to have been served with a summons. The return of the sheriff shows that it was served upon certain parties, naming them, without showing that they had any connection whatever with the real defendant, viz., The. Licking River Lumber & Mining Company. The return should show that it was', executed on the company, by delivering a copy of the summons to its chief officer, superintendent or managing agent, as provided by the Code.

The judgment was also premature, even if the summons had been properly served. None of the defendants had been served with process in the county where the action was instituted, and therefore were not required to answer. The voluntary appearance of one of the parties not served with a summons, and not interested in the company whose rights are .to be affected by the judgment, and entering an appearance by answer during the term at which the judgment was rendered, although giving the court jurisdiction, would not authorize a judgment at that term' of the court, without consent, so as to prejudice-the rights of those who had been summoned out of the county in which the action was brought.

The court, however, having jurisdiction of the case by the appearance of the company on this appeal, can now proceed to try [521]*521the case so far as the rights of appellants are concerned. The parties, if desired, should be allowed to amend their pleadings. For the reasons indicated the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

Carlisle & Foote,, for appellant. Cooper & Hazelrigg, for appellees.

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OpiNion by

Judge PeyoR:

The only judgment that could have been rendered in the case was to subject the steamboat to the payment of the mortgage debt. There is no allegation in the petition that the contract between the company and the. purchasers of the boat had been cancelled, or that the note had in any way been discharged. It is alleged that the appellants had used the boat for ten months, but there is no statement even that the company was to account for the use, or that the value of the use of the boat was to. be credited on the note. The parties, however, were not properly before the court. The company seems not to have been served with a summons. The return of the sheriff shows that it was served upon certain parties, naming them, without showing that they had any connection whatever with the real defendant, viz., The. Licking River Lumber & Mining Company. The return should show that it was', executed on the company, by delivering a copy of the summons to its chief officer, superintendent or managing agent, as provided by the Code.

The judgment was also premature, even if the summons had been properly served. None of the defendants had been served with process in the county where the action was instituted, and therefore were not required to answer. The voluntary appearance of one of the parties not served with a summons, and not interested in the company whose rights are .to be affected by the judgment, and entering an appearance by answer during the term at which the judgment was rendered, although giving the court jurisdiction, would not authorize a judgment at that term' of the court, without consent, so as to prejudice-the rights of those who had been summoned out of the county in which the action was brought.

The court, however, having jurisdiction of the case by the appearance of the company on this appeal, can now proceed to try [521]*521the case so far as the rights of appellants are concerned. The parties, if desired, should be allowed to amend their pleadings. For the reasons indicated the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

Carlisle & Foote,, for appellant. Cooper & Hazelrigg, for appellees.

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Bluebook (online)

7 Ky. Op. 519, 1874 Ky. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/licking-river-lumber-mining-co-v-cox-kyctapp-1874.