Irish Building and Loan Association v. Clemons

• Decision Date: 24 September 1879
• Parties: Irish Building and Loan Association v. Clemons.
• Court: Kentucky Court of Appeals

Page 79

78 Ky. 79

Irish Building and Loan Association v. Clemons.

Court of Appeals of Kentucky.

September 24, 1879.

APPEAL FROM LOUISVILLE CHANCERY COURT.

R. & L. BUCHANAN FOR APPELLANT.

I. & J. CALDWELL AND WINSTON FOR APPELLEE.

CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.

The purchaser of the property in this case refused to pay the purchase money, on the ground that the non-resident defendant had not been summoned as required by the provisions of the Civil Code. Under the former Code of Practice applicable to the Louisville Chancery Court, section 780 of that Code provided, that the warning order shall warn the defendant to answer within sixty days after the time of making the order. This section is omitted from the present Code, and section 809, relating to proceedings in that Court, provides, that "the defense to an action shall be filed within twenty days after the service of the summons in Jefferson county, or within thirty days after such service elsewhere in the State; or, if the defendant be constructively summoned, the defense shall be filed in sixty days thereafter."

This being the only section designating the manner or character of service on a non-resident in the chapter organizing or regulating proceedings in that Court, it is maintained that the practice applicable to Courts of equity generally in the State, so far as the warning order is concerned, must govern; and in the absence of such a conclusion, that the Louisville Chancery Court or its clerk is without any authority to enter an order of warning.

The mode and time of service in this class of cases applicable to Courts generally, is to be found in sections 57 and 60 of the present Code. Subsection 7 of section 57 empowers the clerk "to make upon the petition an order warning the defendant to defend the action on the first day of the next term of the Court which does not commence within sixty days after the making of the order."

Section 60 provides, that "a defendant against whom a warning order is made, and for whom an attorney has been appointed, shall be deemed to have been constructively summoned on the thirtieth day thereafter, and the action may proceed accordingly.

The Louisville Chancery Court has no stated terms, and is regarded as always open for the transaction of business. This is an express provision of the Code, and therefore the clerk cannot enter an order warning the defendant, as required by section 57, to appear and defend on the first day of any term; and should an order be made requiring the defendant to appear within sixty days, it becomes delusive and misleading, for the reason that the defendant, by section 60, shall not be deemed constructively summoned until the thirtieth day after the order is entered; and section 809 provides that the defense shall be filed after the constructive summons, and, construing the statutes as one, the warning order should be ninety instead of sixty days; yet there is no section of the Code authorizing a warning order at the commencement of the action except section 57, and this fixes the time at sixty days. If sections 57 and 60 are to control as to the time, there is much difficulty in determining the question presented.

The order in the case before us warns the defendant to appear and answer within sixty days from the 15th of December, 1877. It is evident that sections 57 and 60 of the Code, as...