Jones v. Matheney , 1868 Ky. LEXIS 358 ( 1868 )

Opinion of the Court by

Judge Peters :

The possession of the note executed to McCoun, and the filing it with their petition, although there is not a distinct averment that it was transferred by delivery to appellees by the payee, together with the affidavit that it was just and due them and they ought to recover the amount thereof, would be sufficient to authorize them to recover the amount, and for the omission of the positive averment, that the note was theirs the judgment would not be reversed. But no bond was executed by appellees to appellant, W. Jones, who was constructively summoned, as is required by Sub-division 2 of section 440 Civil Code. And it has been repeatedly held by this court that a failure to execute the bond therein required is an error for which the judgment will be reversed, that a reversal in this case is unavoidable on that ground. Notwithstanding this question has been so repeatedly decided by this court, there seems to be a fatal carelessness on the part of plaintiffs in this character of actions, on that point, that warnings, no matter how oft repeated, are powerless to correct.

Wherefore, for failure to execute the bond as by Sec. Sufra the judgment is reversed, and the cause remanded for further pro- ' ceedings not inconsistent with this opinion. But appellant’s appearance in this court is an appearance to the action, and a bond will not be required.

Harlan, for appellant. J. D. Hardin; for appellee.