Buford v. Rucker , 27 Ky. 551 ( 1830 )

Judge Underwood,

delivered the opinion of tlio court.

The following palpable errors have been committed in the proceedings and decree of the circuit court.

1st. The decree is against Buford when it does not appear from the bill, that he was made a party. No decree was asked for, against him. Ills answer should not have been received as he was no party, lie should have been made a party as the assignee of the note, This error is sufficient for the reversal of the decree.

2d. The note executed by Rucker to White, bears date in October, 1821; judgment was obtained thereon, in the name of Buford, the assignee, in February, 1822. Now, the transactions of which, the witnesses speak, occurred in 1820, before the note, consituting the subject of controversy had any existence, and it does not appear, from any thing stated by them, that there is any connexion whatever between the note and said transactions. The depositions, therefore, can have no influence upon the decision. When they are laid aside, and the bills and answers inspected, the former should have been dismissed. But as the proper parties were not before the court in a regular manner, the bill on the return of the cause, maybe dismissed without prejudice.

The decree is reversed with costs, and the cause remanded, with directions to dismiss the bill without prejudice.