Beasley v. Doty , 33 Ky. 32 ( 1835 )

Chief Justice Robertson

delivered the Opinion of the Court.

There being no proof of publication against the' unknown heirs of McClelland, the decree against them is erroneous.

The decree, being joint against them and against Beasley, their co-defendant and co-plaintiff in error, cannot be reversed as to them and affirmed as to him,

Beasley’s agreement, that the case might be heard as to himself alone, cannot prevent a reversal of the whole decree as to all parties. Had the Circuit Court, according to that agreement, rendered a decree against Beasley only, no error as to other persons not affected by the decree would have been availing to him.

But the agreement did not authorize a decree against McClelland and heirs; and therefore, as it must be either reversed or affirmed altogether, and cannot be reversed as to the heirs of McClelland, and affirmed as to Beasley; and as those heirs had no notice of the pendency of the suit, it is, as to them, erroneous. It is decreed and ordered by this court, without considering any other point, that the decree of the court below be reversed, and the cause remanded for further proceedings.