Cumberland Co. v. Lewis

• Decision Date: 17 March 1908
• Citation: 108 S.W. 347
• Parties: CUMBERLAND CO. v. LEWIS.
• Court: Kentucky Court of Appeals

108 S.W. 347

CUMBERLAND CO. v. LEWIS.

Court of Appeals of Kentucky.

March 17, 1908

Appeal from Circuit Court, Harlan County.

"Not to be officially reported."

Proceedings by W. W. Lewis against the Cumberland Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. F Hall and R. T. Irvin, for appellant.

H. C Clay, for appellee.

CLAY C.

Appellee W. W. Lewis, instituted this action in the Harlan circuit court to be relieved from the obligation of a title bond and to quiet his title to a certain tract of land located in Harlan county, Ky. The petition charges that by the title bond in question appellant agreed to pay him $12 per acre for the land therein described; that of this sum $100 had been paid; that the contract further provided for a survey of the land and a complete abstract of title; that, if any defects were found in the title, the same were to be cured by appellee, and thereupon the remainder of the purchase money was to be paid; that, if appellee could not make a good and sufficient title, then the money which had been paid by appellant was to be refunded; that, soon after the title was abstracted, appellant notified appellee that he declined to accept any conveyance therefor, or to pay anything more thereon; that upon receipt of said notice appellee tendered and offered to pay back the $100 received by him of appellant, and demanded of appellant a surrender or cancellation of the title bond. The petition concludes with the prayer that the title bond be canceled and appellee's title to said land be quieted, or that the appellant be required to accept a deed from appellee and to pay the balance of the purchase price.

The petition was filed on May 17, 1907. Thereupon the clerk of the Harlan circuit court issued a summons for appellant, directed to the sheriff of Harlan county. On the day said summons was issued it was served on J. H. Middleton by the sheriff of Harlan county, and the sheriff's return, written on the back of the process, is in these words: "Executed the within summons May 17, 1907, on defendant, Cumberland Company, by delivering to J. H. Middleton, chief agent of said company found in said county of Harlan, a copy of the within summons; there being no other officer or agent of said company found in said county. M. G. Ward, S. H. C., by T. S. Ward, D. S." On the third day of the May term, which was May 29th, 1907, the petition was taken for confessed, and a judgment rendered canceling the title bond, quieting appellee's title as against appellant, and adjudging the costs of the action against appellant.

On June 1, 1907, appellant filed its written motion to vacate and set aside the judgment in question, on the ground of improper service of process, and in support thereof tendered the affidavit of J. H. Middleton, the party upon whom process was served. That affidavit is as follows: "The affiant, J H. Middleton, states that he is a local employé of the Cumberland Company, purchasing real estate for it in Harlan county; that he is not the statutory agent of the defendant, Cumberland Company, upon whom process can be served for said company; that E. S. Jouett, who resides at Winchester, Clark county, Kentucky, is the duly constituted and authorized agent of the defendant company, upon whom process may be served for it in the state of Kentucky, and that it has no other...