Todd v. Neaff

7 Ky. 190, 4 Bibb 190, 1815 Ky. LEXIS 100

• Court: Court of Appeals of Kentucky
• Decided: October 7, 1815
• Status: Published

Opinion

OPINION of the Court, by

Judge Owsuey.

This writ of error is brought to reverse a judgment obtained by Neaff, ill an action by petition and summons brought by him against Todd in the court below,

jg asS3gned for error that the court erred in per-mitüíig Neaííto amend his summons, which issued upon tiie petition in that court.

The coiTcctness of that amendment need not now be inquired into: for as Todd appears by the record to have appeared to the action, it cannot be material whe-foerthe summons was or was not amendable.

It is. also assigned lor error, that the court erre^ in tryingthe cause at the first term after the suing out of foe SUffiUiOílS» r

tothe jurífdunoa o(foeJ »*« fhe t0 which fet for trial, was properly r‘j^ei by the

The summons which issued appears to have been served more than ten days before the day of appearance ; but the objection to the right of trial at that term is taken upon the supposition that the summons was fatally defective at the time of service. The objection would certainly have been entitled to weight, had it been taken in the court below ; but as the defendant in that court appears bv the, record to have been in court, he may have yielded Ins assent to a disposition oi the cause at that term, and as the record presents no objections on the part of Todd to the court then disposing of the cause, the conclusion is that court acted correctly in proceeding to trial.

It is also assigned for emir, that the court erred in rejecting the plea offered by Todd.

The plea appears to have been offered several days after the day to which the cause was docketed for trial; and as it is a plea to the jurisdiction of the court, according to the act of 1809, regulating proceedings in suits at law and in chancery, it was properly rejected.

Judgment affirmed with costs.