Lyle v. Bradford
| Decision Date | 22 April 1828 |
| Citation | 23 Ky. 111 |
| Parties | Lyle v. Bradford. |
| Court | Kentucky Court of Appeals |
Parties. Evidence. Process. Error. Appeals. Revivor. Lis Pendens. Lapse of Time.
ERROR TO THE FAYETTE CIRCUIT; JESSE BLEDSOE, JUDGE.
Wickliffe and Haggin, for plaintiff.
Barry and Depew, for defendants.
History of the case.
To obtain a conveyance of the elder legal title to land, of which John Lyle, Patterson and others were possessed Bradford exhibited his bill in equity against them, claiming the superior equity under an adverse conflicting entry. Several successive subpoenas in chancery were issued against all of the defendants named in the bill, but neither of which appears from the return of the sheriff, to have been served upon Lyle, and there is no entry upon the record of the proceedings of his having ever appeared to the suit, nor does he appear to have answered the bill. The other persons named as defendants, answered the bill, and the cause came on to hearing in the court of original jurisdiction, and a decree was therein pronounced, dismissing Bradford's bill. Bradford appealed from that decree, and brought the case to this court. By the decision of this court, the decree of the circuit court was reversed, and the cause remanded to that court for a decree, to be entered in favor of Bradford for the land. The cause accordingly went back to the circuit court, and a decree was there entered in favor of Bradford against all the persons named as defendants in his bill.
After this, John Lyle departed this life, and Bradford thereupon filed a bill of revivor, for the purpose of having the original suit, and the decree therein pronounced revived, and enforced against the decedent's heir and representative. The bill refers to the original bill, suggests the lack of any return of the sheriff, by which either of the subpeonas is proved to have been served upon the decedent, John Lyle but alleges the loss of several subpoenas, some one of which it is stated, was served upon him, but if not served, it is insisted that from his active agency in the preparation of the cause, Lyle must be considered as a party to the proceedings, and particularly, as the cause was brought to this court, and decided in favor of Bradford, it is contended that the representative of Lyle must be concluded by the decree.
Bill of revivor, stating the service of process on the original bill, upon Lyle, and its loss.
The bill of revivor was answered, in which it is expressly denied, that any procees upon the original bill was ever served upon the decedent, Lyle, or that he ever engaged in the management, or preparation of the cause, and it is insisted, that he was no party to the decree of the circuit court, or of that which was rendered by this court, on the trial of the appeal.
Answer, denying it.
The court was of opinion, that Lyle was a party and made a decree, reviving and directing to be enforced the original decree against his heir.
Decree of the circuit court.
To reverse that decree, this writ of error is prosecuted.
We have no hesitation in saying, that the decedent, Lyle, was no party to the decree, and that his heir is not concluded by the decree, which was made in the original suit.
Were it even competent for Bradford to travel out of the record and proceedings of the original cause, and prove Lyle to have been party in the active management and preparation of the cause, by extraneous evidence, so as thereby to make him a party to the suit, we should be bound to say, that Bradford has altogether failed to succeed in doing so in the present contest. It is true that Bradford has succeeded in proving that the decedent, before the cause was first heard in the circuit court, knew that he was named defendant in the bill, but instead of proving that he assisted in the preparation or management of the cause, it is expressly proved that he refused to do so, alleging that he had never been served with process. We would, however, reject any effort to prove the decedent a party by evidence foreign from the record, unless the evidence was calculated to supply some defect in the record, occasioned by accident, loss, or the like. But in this case, no such evidence was introduced, so that whether the decedent was a party, must be tested by the record, and by the record only, Turning therefore, to the record, Lyle was most obviously no party.
It can not be proved, a person is a party to a decree otherwise than by the record, except a loss of some part of the record be shewn.
He was prayed to be made a defendant, by the bill and process was afterwards sued out against him. but he appears not to have been served with process, and if not served, he was not bound to answer the complaint set up in the bill against him, and having failed to appear or answer, he can not be considered a party to the decree.
Naming a person a defendant in the bill does not make him a party, unless he appear, or is served with the process.
But after a decree was pronounced in the circuit court against Bradford, he seems to have brought the case before this court, and though it be true, that the decedent was no party to the decree, it is contended that by the record in this court, the cause appears to have been heard as to him, as well as the other defendants to the...
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