Rogers v. McHenry

Court of Appeals of Kentucky

Rogers v. McHenry

5 Ky. Op. 255, 1871 Ky. LEXIS 360

DecidedSeptember 20, 1871

StatusPublished

This text of 5 Ky. Op. 255 (Rogers v. McHenry) 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

Rogers v. McHenry, 5 Ky. Op. 255, 1871 Ky. LEXIS 360 (Ky. Ct. App. 1871).

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Opinion

Opinion by

Judge Pryor:

The agreed facts in this case show that after the note was assigned to the appellee (it being then due) the regular term of the Daviess Quarterly Court began and was held on the second Monday in February, 1869, and that the regular term of the circuit court for the county began and was held on the third Monday in February, 1869. The judgment was obtained on the note in the circuit court on the 19th of March, 1869, and no execution issued until the 30th day of the same month. This court in the case of Carter vs. O’Bryen (M. S. opinion) decided that when the circuit and quarterly courts of the same county have concurrent jurisdiction in a case like this that the assignee must institute his action in the court holding its regular session first after the assignment is made.

The regular term of the quarterly court beginning first after the appellee became entitled to the note by the assignment, it was his duty to have instituted suit in that court, and having failed to do so his action cannot be maintained against the appellant. The judgment of the court below should be set aside and a new trial granted appellant and for further proceedings not inconsistent with this opinion.

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Opinion by

Judge Pryor:

The agreed facts in this case show that after the note was assigned to the appellee (it being then due) the regular term of the Daviess Quarterly Court began and was held on the second Monday in February, 1869, and that the regular term of the circuit court for the county began and was held on the third Monday in February, 1869. The judgment was obtained on the note in the circuit court on the 19th of March, 1869, and no execution issued until the 30th day of the same month. This court in the case of Carter vs. O’Bryen (M. S. opinion) decided that when the circuit and quarterly courts of the same county have concurrent jurisdiction in a case like this that the assignee must institute his action in the court holding its regular session first after the assignment is made.

The regular term of the quarterly court beginning first after the appellee became entitled to the note by the assignment, it was his duty to have instituted suit in that court, and having failed to do so his action cannot be maintained against the appellant. The judgment of the court below should be set aside and a new trial granted appellant and for further proceedings not inconsistent with this opinion.

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Bluebook (online)

5 Ky. Op. 255, 1871 Ky. LEXIS 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-mchenry-kyctapp-1871.