Adams v. Arnold , 27 Ky. 208 ( 1830 )

Judge Underwood,

delivered the opinion of the court.

Arnold owed Adams, and he owed Sturgus. Adams drew an order on Arnold, in favor of Sturgus, for $363 25, the amount due^ Sturgus, which order was accepted by Arnold, for the sum of $332 75, and protested for the residue. Afterwards, a note was executed to Sturgus, for the$332 75, on which, judgment was obtained in the Garrard circuit court, Whereupon, Arnold, &c* filed their bill, in the Garrard circuit, to enjoin the judgment upon the ground, that there was not as much due Adams, as the amount of the the note and acceptance.

u’hg administrators of Sturgus answered. Adams diet not. The subpoena was served on Adams in Clark county. The court dismissed the bill, as to the admin-Mrators of Sturgus, but decreed against Adams, upon taking the bill for confessed against him, the amount for which the note had been given more than was really dueffiy Arnold to Adams.

When process to several counties, if cause of action transitory, unless there be judgment or decree against resident defendant, court has ho juris", diction. Denny, Triplett, and Breck, for plaintiff; Turner, for defendant.

The decree dismissing the bill against Sturgus’ administrators, is correct. The complainants failed to show any equity against StUrgu's. For aught that appears, his claim was fair, and his conduct without fraud; and the complainant, Arnold, having undertaken to pay it, under the bélief that he owed Adams that much, must abide by his obligation lo Sturgús, and now look to Adams to correct any error. The bill, having been properly dismissed, in respect to the administrators of Sturgus, left the Garrard circuit court without any jurisdiction over the cause as it related to Adams. The court should therefore,ex officio have dismissed the bill as to him. It was error to proceed and decree against him; seethe case of Brown vs. McKee’s executors I Mar. 471, and authorities therein refered to. Wherefore the decree against Adams is reversed, and the cause remanded with directions to dismiss the bill against Adams, without prejudice. The decree dismissing the bill, so far as it relates to Sturgus’s administrators', is affirmed.

Adams must recover his costs in this court.