Bandy v. Roberts' Admrs. , 1868 Ky. LEXIS 504 ( 1868 )

Opinion op the Oouet by

Judge Petebs:

Two objections urged, against the judgment only, need be noticed.' Tbe action was brought in the Meade circuit court by appellees against appellant, and one J. W. Brown on their joint note, the summons against both defendants was executed on Brown alone, and returned as to appellant not found. At' the October term, 1866, of said court, a judgment was. rendered as follows: “The defendant having been duly summoned, and failing to answer, it is adjudged by the court that the plaintiff recover of the defendant one hundred and one dollars and ninety cents, the amount claimed in the petition” with interest and costs, etc. And no order made continuing the case against the other defendant.

Afterwards a summons was issued directed to the sheriff, of Breckinridge county, and by him executed on appellant on the 18th of April, 1867. And at the following September term of the Meade circuit court,- judgment was rendered against appellant by default.

The defendant Brown resided in Meade county, when the action was brought and the summons served on Mm there, the judgment rendered against the defendant, must be understood to apply to Brown upon whom the summons was served, especially as there is nothing in the judgment or any entry to repel that conclusion. Clark, &c., vs. Finnell, 16 B. Mon, 329-334. Kountz vs. Brown, &c., Ib, 555.

Coale, for appellant. Walker, for appellee.

No order was made as to appellant on whom the summons had not been served; but the action was still pending against him, the court having rendered judgment against Brown, had the power and should have continued the action against appellant, and although no order seems to have been made to that effect, still the action stood continued by operation of law. Sec. 108 and 899 Civ. Co., and Patton vs. Shanklin 14. B. Mon. 15.

No error, therefore, prejudicial to appellant occurred in the proceedings or judgment. Wherefore, the judgment is affirmed.