Lewis v. Smith ( 1818 )

Judge Logan

delivered the opinion of the court.

Lewis prosecutes this writ of error to a judgment of the county court of Erauklin, altering the public road leading from Leestown-road to Lewis’ mid.

Several errors are assigned; but it will only be necessary to notice, such as involved the propriety of rendering judgment without having first had Lewis, through whose land neiv roa£* *“ Part runs» summoned as required by law.^a

The parties had previously entered into an agreement with respect to the manner of altering the road. Bat if the agreement is relied on, the judgment of the court is not conformable thereto; and if any variance therefrom can be warranted, the absent party should have been summoned, in order that an opportunity might have been afforded him of opposing such a variance: and in that event a writ acl quocl damnum ought to have been awarded. This not appearing to have been done, justifies tbe presumption that the coqrt intended to enter judgment conformable to the agreement; but not having done so, the judgment must be reversed with cost, and the cause remanded for further proceedings if required.

Pope tor plaiatiti in error. I(. ty through whose lands roa<* pas" th froad may run in a 5ivel1 wa!L should not be established in any other a summons.

a EWing. "