Gill v. Johnson's Adm'rs

• Decision Date: 10 February 1859
• Citation: 58 Ky. 649
• Parties: Gill v. Johnson's Administrators.
• Court: Kentucky Court of Appeals

58 Ky. 649

Gill v. Johnson's Administrators.

Court of Appeals of Kentucky.

February 10, 1859

APPEAL FROM JESSAMINE CIRCUIT COURT.

1. In an action against a non-resident defendant, constructively summoned, who does not appear, it is not incumbent on the plaintiff, under the requisition of section 439 of the Civil Code, to prove the execution of a promissory note which he holds upon such defendant, and which is the foundation of the action asserted in the petition. The note itself is prima facie evidence of indebtedness on the part of the defendant.

2. In such case, although the plaintiff is not the payee of the note, but the holder of it by delivery without written transfer, the possession of it is prima facie evidence of ownership, and, it being produced and made a part of the petition, no other evidence of title is necessary.

3. Where the plaintiff has only an equitable right to the note sued on, the legal title not having been transferred to him the payee is a necessary party to the action.

4. Where it appears from the petition that there is a defect of parties, and the objection for the want of parties is not made by demurrer, it shall be deemed to have been waived. (Civil Code, sec. 123.) This provision applies to all actions, whether the defendant has been actually or only constructively summoned.

5. A judgment against a non-resident defendant constructively summoned, and who has not appeared, rendered before the bond required by section 440 of the Civil Code is executed, and which authorizes the plaintiff to receive the money upon giving the bond in the clerk's office, is unauthorized. The bond must be taken and approved of by the court.

6. In such case, the prosecution of an appeal by the defendant amounts to an appearance to the action; no bond will be necessary on the reversal and return of the cause to the circuit court. But the defendant may make defense either by answer or demurrer.

In this proceeding in equity an attachment was sued out against appellant as a non-resident, and upon constructive service without appearance, judgment was rendered for the plaintiffs from which this appeal is prosecuted. The judgment provided that the plaintiffs might receive the money " when they give bond in the clerk's office of this court as required by law, and the court retains power over the judgment, and the papers are filed away." The remaining facts appear in the opinion of the court.

J. S Bronaugh, for appellant.

There was no affidavit as required by Civil Code, section 222, and the statements of the petition are not sufficient to authorize the attachment to issue. The bond required by section 440 of the Code should have been executed before judgment; that the judgment provides for the execution of a bond before the clerk at a subsequent time, does not supply the defect. The payee of the note sued on is a necessary party. The plaintiffs should establish by proof their right to the note--mere possession is not sufficient. As against a defendant constructively summoned, and who has not appeared, the statements of the petition must be proved. (Civil Code, sec. 439.)

Wm. R. Welch, for appellees.

The fact that appellees were the holders of the note sued on, which was filed with their petition, dispensed with the necessity of proof on their part of the appellant's liability to them thereon, in the absence of an answer controverting it. The statements of the petition warranted the issuing of the attachment; no separate affidavit was necessary. (17 B. Mon., 324.) Bond was given by appellees prior to their receiving the money under the judgment--the court having adjusted the rights of the parties as required by section 442 of the Code. The court still retains power over the judgment, the order is not final, and the appeal should be dismissed. (Civil Code, sec. 15.) Appellant made no motion in the circuit court to correct the judgment. (Ib., sec. 903.)

OPINION

SIMPSON CHIEF JUSTICE.

This action was brought against a non-resident. The defendant was constructively summoned, but did not appear. In such a case, the statements of the petition, except such as are for the benefit of the defendant, are not to be taken as true, but are to be established by proof. (Civil Code, sec. 439.)

Is it incumbent on the plaintiff, under this requisition of the Code, to prove the execution of a promissory note, which he holds upon the defendant, and which is the foundation of the...