McCullock v. Gallagher

1 Ky. Op. 164, 1866 Ky. LEXIS 244

• Court: Court of Appeals of Kentucky
• Decided: June 25, 1866
• Status: Published

Opinion

Opinion oe the Court by

Judge Bullitt :

After the order dismissing the original case between appellant as plaintiff and Gates as defendant, Gallagher by petition had himself made a party and claimed the horse attached, and the court adjudged it to him without any notice or rule being served on either of the original parties.

Under our Civil. Code any one claiming property attached may by petition have himself made a party to the suit and have his rights adjudicated.

But when the cause has been dismissed both the plaintiff and defendant are out of court, there is then no. cause pending, and a party would have just as much right to file an original petition and have judgment thereon without service of process, either actual or constructive.

The whole proceeding on Gallagher’s petition was erroneous; the Code does not allow a claimant to thus make himself a party when there is no cause pending in the court.

Wherefore, the judgment is reversed.