Lillard v. Fields

Court of Appeals of Kentucky

Lillard v. Fields

30 Ky. 148, 7 J.J. Marsh. 148, 1832 Ky. LEXIS 17

DecidedApril 6, 1832

StatusPublished

This text of 30 Ky. 148 (Lillard v. Fields) 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

Lillard v. Fields, 30 Ky. 148, 7 J.J. Marsh. 148, 1832 Ky. LEXIS 17 (Ky. Ct. App. 1832).

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Opinion

Chief Justice Robertson,

delivered tl e opinion of the Court

Thomas Lillard and Mark Lillard are plaintiffs in this writ of error, prosecuted to reverse a judgment obtained against Thomas Lillard only, Tho act of 1826 (Session Arts SO, Chapt. 23) authorizes this court to amend the writ, by striking out the name of the unnecessary party. And as it is a rule, that what may be amended by the court ex officio should, without any formal or express order of amendment, be deemed as amended nunc pro tunc, this writ should be regarded as a writ prosccuted in the name of Thomas Lillard alone.

j}l]t the defendant in error has pleaded in abatement that Thomas Lillard, the plaintiff, had died prior to the impetration of the writ, and, that fact being admitted, the only question submitted to the court is, whether the writ is thereby abated?

The fact admitted, proves that the writ was false and misconceived as to thc true party who should be plaintiff. This error is not amendable and is la-ta!.

Wherefore the writ of error must be quashed.

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Chief Justice Robertson,

delivered tl e opinion of the Court

Thomas Lillard and Mark Lillard are plaintiffs in this writ of error, prosecuted to reverse a judgment obtained against Thomas Lillard only, Tho act of 1826 (Session Arts SO, Chapt. 23) authorizes this court to amend the writ, by striking out the name of the unnecessary party. And as it is a rule, that what may be amended by the court ex officio should, without any formal or express order of amendment, be deemed as amended nunc pro tunc, this writ should be regarded as a writ prosccuted in the name of Thomas Lillard alone.

j}l]t the defendant in error has pleaded in abatement that Thomas Lillard, the plaintiff, had died prior to the impetration of the writ, and, that fact being admitted, the only question submitted to the court is, whether the writ is thereby abated?

The fact admitted, proves that the writ was false and misconceived as to thc true party who should be plaintiff. This error is not amendable and is la-ta!.

Wherefore the writ of error must be quashed.

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Bluebook (online)

30 Ky. 148, 7 J.J. Marsh. 148, 1832 Ky. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lillard-v-fields-kyctapp-1832.