Ball v. Poor
| Decision Date | 27 February 1883 |
| Citation | 4 Ky.L.Rptr. 746,81 Ky. 26 |
| Parties | Ball v. Poor, & c., & c. |
| Court | Kentucky Court of Appeals |
1. The failure of the attorney appointed to defend for appellant as a nonresident, cannot affect the rights of appellees.
2. The first power of attorney executed by the defendant to the plaintiff's attorney authorizing him to enter her appearance in the action, although not within the letter of section 1, chapter 19, General Statutes, is void as against the policy of the law, and the judgments in rem and that in personam under it are error.
3. The second power of attorney is void for the same reason. The attorney for appellee may have acted in good faith, but the practice of allowing the plaintiff's attorney to enter the appearance of the defendant is so obviously against public policy, and affords such facilities for fraud and oppression, that it ought not to be tolerated.
4. Before the city of Covington can enforce a lien upon property within the city for taxes, it must show that they have been lawfully and regularly assessed under its charter.
5. There is no authority shown enabling Ridgway, as alleged agent of appellent, to execute either of the mortgages to appellees Poor or Wallace.
APPEAL FROM KENTON CHANCERY COURT.
T. F HALLAM FOR APPELLANT.
1. Neither the city of Covington nor Shillito are entitled to any judgment. The process against appellant was only constructive, and they are bound to make proof of their demands.
2. The powers of attorney executed by appellant, authorizing plaintiff's attorney to enter her appearance, are void. It is against the reason, as well as the policy of the law to tolerate such a practice.
3. In the absence of an appearance by appellant, both the judgment in favor of appellee Poor, as well as Wallace, is error.
W. H MCKOY FOR APPELLEES.
No brief on file.
This is an appeal from the judgment and orders of the Kenton chancery court, rendered in favor of plaintiffs in certain actions consolidated and tried together.
The first one commenced was by the city of Covington to enforce a lien upon appellant's real property for the payment of city and school taxes alleged to be due by her.
The second was by Shillito & Co. to subject the same property under an attachment, issued upon the ground of her non-residence, to pay a merchant's account.
And the third was by M. P. Poor, to enforce an alleged mortgage lien.
To the last mentioned action the city of Covington, Shillito & Co. and M. Wallace were, as required by subsection 3, section 694, Civil Code, made defendants, their several liens being stated in the petition. The answer thereto by Wallace was made a cross-petition against appellant, and an alleged mortgage lien in his favor upon the same property was sought to be enforced.
Upon all the foregoing demands, except that of the city of Covington, personal judgment was likewise prayed for.
Upon the trial personal judgment was rendered against appellant in favor of Poor and Wallace for the amount of each of their debts, and interest upon each at the rate of ten per cent. per annum, and her property was held subject to all the liens mentioned, and directed to be sold to satisfy them: the city of Covington, Wallace, Poor, and Shillito & Co. being adjudged entitled to priority in the order named.
In pursuance of that judgment the property was sold, and by orders of court at a subsequent term the sale was confirmed, and a deed directed to be made to the purchaser. At the same term an order was made for an execution to issue in favor of plaintiff Poor for $1,162.77, with interest at the rate of ten per cent. per annum, from the 20th of October, 1881, the date of the sale by the commissioner, being the assumed balance not satisfied by that sale.
After the rendition of the judgment, and during the same term, appellant appeared in court and moved to vacate and set it aside; but her motion was overruled, as were also her exceptions to the report of sale.
From the judgment and all the foregoing orders she has appealed to this court.
In each of the three original actions appellant was summoned by constructive service only, there being no actual service in either. But on the cross-petition of Wallace there was no service of summons, either actual or constructive.
The report of the attorney appointed to defend for appellant as a non-resident in the case of the city of Covington, shows that he merely wrote a letter to her, and delivered it to her agent in the city of Cincinnati, Ohio, instead of making " diligent efforts to inform the defendant by mail concerning the pendency and nature of the action," as required by law. But as by section 60 of the Civil Code " a defendant against whom a warning order is made, and for whom an attorney has been appointed, shall be deemed to have been...
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