Padgett v. Highland

3 Ky. Op. 537, 1870 Ky. LEXIS 186

• Court: Court of Appeals of Kentucky
• Decided: February 10, 1870
• Status: Published

Opinion

Opinion of the Court by

Judge Hardin:

Whether the circuit court properly perpetuated the injunction obtained by the appellee, of the judgment of $56 against' him, on the ground that he was not before the court in the original action, is the only question to be determined on this appeal.

Although an answer pleading a set-off, was filed, which on its face, purports to be the joint pleading of the appellee and his co-defendant, lies, and might, if filed .as such, have constituted an. appearance by the appellee, although he was not served with process, yet as the answer was only ’filed as the answer of lies, and an alias summons was at the same time ordered to be issued against the appellee, on’the appellant’s motion, the answer should only have been treated as the pleading of lies, and not as constructively entering the appearance of the appellee.

We are of the opinion, therefore, that the appellee was not legally before the court, and the judgment as to him was void.

Wherefore the judgment in this action, perpetuating said injunction, is affirmed.