Voight v. Adams

7 Ky. Op. 557, 1874 Ky. LEXIS 208

• Court: Court of Appeals of Kentucky
• Decided: March 5, 1874
• Status: Published

Opinion

Opinion by

Judge Hardin:

The jurisdiction of this court in an appeal in a case like this, was expressly recognized and affirmed in the case of McCall v. Hitchcock, 7 Bush 615.

Webster, for appellant. G. B. Hodge, W. W. Cleáry, for appellee.

We cannot concur in the conclusion of the court below that the mere fact that the appellee was a foreigner, and in a great degree ignorant of the English language, and unable to read the copy of the summons served on him by the deputy sheriff, constituted, in the meaning of Sec. 579, Civil Code Practice, such “unavoidable casualty or misfortune” as to prevent him from appearing and defénding the action, and consequently a cause for adjudging him a new trial.

It seems to us that, having the summons delivered to him by the proper officer, ordinary prudence should have prompted him to have it interpreted and explained to him, and that it was amply sufficient to put him on the inquiry to ascertain its purpose, which he does not pretend to have made any effort to do.

Wherefore the judgment is reversed and the cause remanded for further proceedings.