Moores v. Parker

13 Ky. 268, 3 Litt. 268, 1823 Ky. LEXIS 66

• Court: Court of Appeals of Kentucky
• Decided: April 12, 1823
• Status: Published

Opinion

OlUNION OF THE COURT.

THIS writ of error is prosecuted to reverse a judgment rendered against both of the present plaintifís jointly, in an action of debt brought against them on a joint and several obligation by the present defendant, Parker.

There was no service of process on Harbin H. Moore, and the judgment was rendered without any appearance or plea by him. It is true, the record recites that the parties came by their attorneys, and thereupon came a jury who were elected, tried and sworn to en-quire of damages; and it was upon the return of the inquest by the jury that the'judgment was rendered. Rut such a recitation on the record, we think, ought not to be construed into an appearance of the defendant not served with process, and who, as appears in this case, is returned by the Sheriff, not found. The most rational inference from the recital, is, that the plaintiff in that court and the defendant who was served with process, appeared by their attorneys when the inquest was taken; and the appearance of one defendant, where the process is not served on the others, can never authorise a joint judgment against all.

The judgment must consequently be reversed, with costs, the cause remanded to the court lielow, and further proceedings there had not inconsistent with this opinion.