Miller v. Allen

Court of Appeals of Kentucky

Miller v. Allen

4 Ky. Op. 268, 1871 Ky. LEXIS 190

DecidedApril 21, 1871

StatusPublished

This text of 4 Ky. Op. 268 (Miller v. Allen) 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

Miller v. Allen, 4 Ky. Op. 268, 1871 Ky. LEXIS 190 (Ky. Ct. App. 1871).

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Opinion

Opinion op the Court by

Judge Lindsay:

The summons, the execution of which, appellee claims had the legal effect of bringing the appellant before the court, was issued and executed on the 18th of March. The petition upon which the judgment was rendered is endorsed filed on the 19th of the same month. Taking the record for true, the summons was void, and its execution a nullity. We are not prepared to admit that the acts of the clerk whilst in office, can be contradicted by an ex parte affidavit made after his term of office expires.

The official acts of such an officer can only be contradicted, or avoided, in a proceeding to which he is made a party, and in which fraud or mistake is directly charged. We are of opinion that Miller was not before the court when the jurgment against [269]*269him was rendered. The same is therefore reversed and the canse remanded for further proceedings.

Stone, for appellant. Turner, for appellee.

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Opinion op the Court by

Judge Lindsay:

The summons, the execution of which, appellee claims had the legal effect of bringing the appellant before the court, was issued and executed on the 18th of March. The petition upon which the judgment was rendered is endorsed filed on the 19th of the same month. Taking the record for true, the summons was void, and its execution a nullity. We are not prepared to admit that the acts of the clerk whilst in office, can be contradicted by an ex parte affidavit made after his term of office expires.

The official acts of such an officer can only be contradicted, or avoided, in a proceeding to which he is made a party, and in which fraud or mistake is directly charged. We are of opinion that Miller was not before the court when the jurgment against [269]*269him was rendered. The same is therefore reversed and the canse remanded for further proceedings.

Stone, for appellant. Turner, for appellee.

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Bluebook (online)

4 Ky. Op. 268, 1871 Ky. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-allen-kyctapp-1871.