Turner v. Turner

16 Ky. 509, 1821 Ky. LEXIS 80

• Court: Court of Appeals of Kentucky
• Decided: December 14, 1821
• Status: Published

Opinion

Opinion of

the Court.

THIS writ of error is brought to reverse an order of the county court of Madison county, setting aside an order of said court previously made, establishing an alteration in the road leading from Tate’s creek to Bogy’s mill on Silver creek.

The order to reverse which the writ of error is brought, appears to have been made in a proceeding by writ of error coram vobis, sued out by Jesse Turner; but without any service of process on Thomas Turner, or notice otherwise given to him.

Were it conceded that the order altering the road might he regularly set aside, in a proceeding by writ of error coram vobis, still, we should entertain no doubt as to the irregularity of the order to which this writ of error has been prosecuted; for on setting aside the order altering the road, the road, of necessity, was thrown on the ground where it ran before the alteration was made, and as the road ran over the land of Thomas Turner before the alteration was made, the interest of Thomas Turner was affected by setting aside the order making the alteration, and, consequently, he ought to have had notice before the order setting aside the alteration was made.

And whether or not a writ of error coram vobis was the proper mode to obtain a reversal of the order altering the road, we have not thought proper, in the present case, to decide; for if it were, Jesse Turner has not shown such an interest as can authorize him to maintain the writ. The road ran over his land before the alteration was made, and he appears to have been no otherwise affected by the alteration, than the road being removed off his land; but the removal of a road from the land of a person, has been held not sufficient to authorise him to maintain a writ of error, when his interest is not otherwise affected.

Order reversed.