Pierce v. Cobb

Court of Appeals of Kentucky

Pierce v. Cobb

2 Ky. Op. 85, 1867 Ky. LEXIS 408

DecidedSeptember 14, 1867

StatusPublished

This text of 2 Ky. Op. 85 (Pierce v. Cobb) 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

Pierce v. Cobb, 2 Ky. Op. 85, 1867 Ky. LEXIS 408 (Ky. Ct. App. 1867).

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Opinion

Opinion oe the Court by

Judge Hardin:

On the question as to the service of process on the infant appellant, we incline to the opinion that the facts returned by the sheriff show a valid service, according to the 81st section of the Civil Code, even if it sufficiently appeared that the appellant was at the time under 14 years of age. Said section provides that—

“Where the defendant is an infant, under the age of 14 years, the service must be upon him and his father or guardian; or, if neither of these can be found, then upon his mother, or any other white person having the care or control of the infant. Where the infant is over 14 years of age, service on him shall be sufficient.”

The sheriff’s return on the attachment states that he delivered a “summons to Daniel Pierce and to Mary Elizabeth Pierce, his infant daughter.”

But it is not distinctly shown that the appellant was at the time under 14 years of age. In the absence of satisfactory proof to the contrary, the sheriff must be presumed to have done his duty under the sanction of his oath; and we do not think the mere expression of an opinion by a single witness that the party was “about thirteen years of age” is sufficient to repel the presumption that the officer properly served the summons upon due inquiry and information as to the age of the infant.

Without renewing at length the transactions and proceedings [86]*86leading to the judgment now before this court for revision, it seems to us the judgment and return of the execution there in the Kenton Circuit Court sufficiently established the indebtedness of Daniel Pierce to the appellants, and his insolvency; and we think it was further sufficiently established that the purchase and conveyance from Welch to the appellant was procured and the consideration thereof paid by Daniel Pierce, without any valuable consideration from the appellant, and was fraudulent as to the appellees, whose debt existed prior to said purchase and conveyance, and that the judgment was unauthorized by the pleadings and evidence in the'cause.

Iiallam & Webster, for appellant. Hawkins & Boot, for appellee.

Wherefore, the judgment is affirmed.

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Opinion oe the Court by

Judge Hardin:

On the question as to the service of process on the infant appellant, we incline to the opinion that the facts returned by the sheriff show a valid service, according to the 81st section of the Civil Code, even if it sufficiently appeared that the appellant was at the time under 14 years of age. Said section provides that—

“Where the defendant is an infant, under the age of 14 years, the service must be upon him and his father or guardian; or, if neither of these can be found, then upon his mother, or any other white person having the care or control of the infant. Where the infant is over 14 years of age, service on him shall be sufficient.”

The sheriff’s return on the attachment states that he delivered a “summons to Daniel Pierce and to Mary Elizabeth Pierce, his infant daughter.”

But it is not distinctly shown that the appellant was at the time under 14 years of age. In the absence of satisfactory proof to the contrary, the sheriff must be presumed to have done his duty under the sanction of his oath; and we do not think the mere expression of an opinion by a single witness that the party was “about thirteen years of age” is sufficient to repel the presumption that the officer properly served the summons upon due inquiry and information as to the age of the infant.

Without renewing at length the transactions and proceedings [86]*86leading to the judgment now before this court for revision, it seems to us the judgment and return of the execution there in the Kenton Circuit Court sufficiently established the indebtedness of Daniel Pierce to the appellants, and his insolvency; and we think it was further sufficiently established that the purchase and conveyance from Welch to the appellant was procured and the consideration thereof paid by Daniel Pierce, without any valuable consideration from the appellant, and was fraudulent as to the appellees, whose debt existed prior to said purchase and conveyance, and that the judgment was unauthorized by the pleadings and evidence in the'cause.

Iiallam & Webster, for appellant. Hawkins & Boot, for appellee.

Wherefore, the judgment is affirmed.

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Bluebook (online)

2 Ky. Op. 85, 1867 Ky. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-cobb-kyctapp-1867.