Welch v. Davis

2 Ky. 48, 1 Sneed 48, 1801 Ky. LEXIS 38

• Court: Court of Appeals of Kentucky
• Decided: July 21, 1801
• Status: Published

Opinion

This judgment is illegal, because it is founded on a bond with a collateral condition, and no breach of the condition was assigned. And it is also illegal, because after the defendant in the court below had appeared and given the plaintiff in that court a rule to-declare, an office judgment and writ of inquiry were • awarded against the said defendant, without giving him a rule to plead, and which was not set aside, but thereon the inquest was had, on which the final judgment was rendered. As the error of taking an office judgment for non-appearance without a previous common order can only be cured by an appearance; so it seems to the court, that the error of taking an office judgment for want of a plea, without previously giving a rule to plead, can only be cured by pleading to issue. Therefore, it is considered by the court that the judgment aforesaid be reversed and set aside; that the cause be remanded to the court from whence it came for new proceedings to be had, to commence from the declaration, and that the plaintiff recover of the defendant his costs in this behalf expended,, which is ordered to be certified to the said court.