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Civil and Criminal codes of practice of Kentucky online

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and doings as such.

§ 24. An action on the official bond of the clerk, commissioner,
receiver, or depository of the court may be brought in said court as other
actions of which it has jurisdiction.

§ 25. Any person interested may sue on any of the bonds mentioned
in the preceding sections of this act for a breach thereof; and any
branch of the court may, by rule and attachment against the obligors
therein, enforce their performance.

§ 26. Transfers may be made between said branches in all cases in
which a common fund is involved in litigation either by way of
attachment or otherwise, so that the distribution of the fund may be
under the control of one branch of the court.

§ 27. In all districts where by law the number of circuit judges has
been or shall be increased from four to six, and as soon as the additional
judges shall be elected and qualified, the judges of the several branches
of the court, previously composed of four judges, shall, during the
remainder of their terms, preside over the several branches of such
courts composed of six judges as follows : The judges of the chancery
divisions of such courts, composed of four judges, shall preside over
the first divisions of the chancery branches of such courts composed of
six judges; the judges of the law and equity divisions of such courts,
composed of four judges, shall preside over the second divisions of the
chancery branches of such courts composed of six judges; the judges
of the common pleas divisions of such courts, composed of four judges,
shall preside over the first divisions of the common pleas branches of
such courts composed of six judges ; the judges of the criminal divisions
of such courts, composed of four judges, shall preside over the criminal
branches of such courts composed of six judges; and the two judges
added to such courts, previously composed of four judges, shall preside
over the second and third divisions of the common pleas branches,
respectively, of such courts composed of six judges.

§ 28. Whenever the number of judges of a circuit court shall have
been increased from four to six, all causes then pending shall be there-



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734^ APPENDIX.



after respectively determined in the branches presided over by the
judges before whom such causes were pending in the courts having four
judges, subject, however, to the other provisions of this act as to their
being heard and determined by request.

§ 29. Whereas, re-arrangements of the dockets of the different
branches of said courts are immediately necessary, in order to prevent
a confusion, an emergency exists. Therefore, this act shall take effect
from and after its passage.



III.

An Act to regulate Proceedings in Civil Actions in Circuit

Courts.

{Act of March 29, 1902: Acts 1902,/. 272.)

§ 1. That the first Monday in each month shall be rule day in the
office of the clerk of each circuit court in this Commonwealth, except
when said court is actually in session.

§ 2. That all summonses issued in actions, both at law and in equity,
brought in said courts, shall command the officer to whom it is directed
to summons the party or parties against whom it is issued to answer in
ten days after the service of the summons, if directed to the county
where issued, and in twenty days after the service of the summons, if
directed to any other county.

§ 3. At the first rule day after the summons has been served ten
days in the county or twenty days in any other county, the defendant
so served shall file his answer or other plea he may have, whether of law
or of fact.

On the next rule day the opposite party shall file his reply and any
other plea he may have, whether of law or fact ; and so on at each
succeeding rule day until the issue shall be fully made up. If any
party shall fail to file any plea at the rule day at which same is due, he
may file the same at a subsequent rule day, and as soon as practicable,
and he shall file therewith his affidavit or other sworn statement as to the
cause of his delay, and if the court shall consider his excuse insufficient,
it may, at the next regular term, strike such a plea from the files.



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act of 1902. 734g



If any demurrer, motion to elect, or like pleading is filed, the court
shall dispose of same as soon as possible and before the case is called
for trial or submitted, and the court in such cases shall direct when sub-
sequent pleadings should be filed.

§ 4. Actions at law shall stand for trial at the first term of court
after summons has been served in the county ten days, and elsewhere in
the State twenty days before the commencement of said term.

§ 5. Suits in equity shall stand for trial at the first term of court
after the issue shall be completed or, by the provisions of this act, shall
have been completed, thirty days before the commencement of the term.

§ 6. All warning orders, both at law and in equity, shall warn the
party against whom the same is issued to answer in thirty days after the
entry of the warning order, and the answer and other plea shall be due
at the first rule day after the expiration of said thirty days. As to
parties constructively summoned and not answering as herein provided,
the action, whether at law or equity, shall stand for trial at the first term
of court, which commences not less than sixty days after the said
warning order is entered.

§ 7. Any interlocutory order necessary for the preparation of the
action for trial, whether at law or in equity, may be entered by any
party at any rule day ; but no order shall be entered which deprives a
person of the possession of property.

§ 8. The clerk shall enter upon the minute book of the court all
orders, filing pleas and otherwise, except warning orders, and shall sign
same. He shall, as soon thereof as practicable, enter said orders in
full upon the order book of the court, and shall sign same ; and all
such orders shall constitute a part of the record in the case, for all
purposes, as fully as if made in open court. The court shall, at the
first ensuing term, have power to set aside any such order.

§ 9. The clerk shall docket all actions at law for the first day of the
term at which, under the provisions of this act, they stand for trial.
On said day the court shall call said docket and enter default judgments
where no defense is made. In all such actions where defense is made,
the parties shall be deemed to have waived a trial by jury, unless a jury
is demanded upon said call, and the court shall then proceed to set such
actions down for a trial at some convenient day in the term. Unless
otherwise directed by the parties, thfe clerk shall issue subpoenas for
witnesses to the first day of the term, and they shall attend at such days
as the case in which they are subpoenaed shall be set for trial, and until
the same is disposed of by trial or continuance: Provided^ however*
The court may by rule entered upon its order book, direct the clerk to set
actions at law for convenient days during the term instead of on the first



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734h APPENDIX.



day of the term, as provided above; and to issue subpoenas to said
days, instead of to the first day, as provided above.

§ 10. The clerk shall docket all suits in equity for the first term of
court which does not commence less than ten days after the same is
filed. On the third day of the term the court shall call the equity
appearance docket and enter default judgments where no defense is
made: Prcnnded, All parties to the action affected thereby have been
summoned; those in the county, ten days before the commencement of
the term ; those out of the county twenty days before the commence-
ment of the term ; and those constructively summoned, thirty days
before the commencement of the term.

§11. When the issue has not been completed before the commence-
ment of the term, the answer or next pleading due shall be filed on the
first day of the term, in law actions, and on the third day of the term,
in equity actions. In law actions, subsequent pleadings shall be filed
on or before the day on which the action is set for trial. In equity
actions each pleading, subsequent to the answer, shall be filed not less
than three days after the filing of the pleading to which it is responsive.
The court may, in its discretion, allow a pleading to be filed after it is
due under the provisions of this act.

§ 12. This act shall not apply to circuit courts having continuous
sessions.

§ 13. All provisions of the Code of Practice in conflict with this act
are hereby repealed in so far as in conflict.

§ 14. This act shall take effect and be in force from its passage.



IV
Rules of the Court of Appeals.

The following were ordered to be recorded as rules of practice of
the court :

I. — In accordance with section 118 of the Constitution, this court
after January 1st, 1895, will be divided into two departments, each one
of which shall consist of three judges, besides the chief justice, who
shall preside over each department. Each division shall sit on alternate
days during each week, when not in joint session, to hear arguments



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RULES OF THE COURT OF APPEALS. 735

and motions and deliver opinions. Opinions shall be delivered as the
judgment of the court without reference to the department delivering
them. When the chief justice is absent, or, if present, from any cause
fails to preside, the judge next oldest in commission shall preside with
each department, and shall require the presence of a judge from either
department when necessary to constitute a majority of the entire body.
The cases, when submitted, shall be assigned by the chief justice to each
department, and in such a manner as to equalize the burden.

II. — Whenever a case involves a constitutional question, either Fed-
eral or State, or in any case where, in the opinion of the chief justice,
the importance of the case requires, both departments shall hear the
argument, whether oral or written, and pass on the questions involved ;
and in cases where the judges composing one department do not concur,
it shall be the duty of the chief justice to notify the other department,
and have the questions at issue disposed of in joint session.

When a majority of either department, including the chief justice,
shall desire a joint session for the purpose of passing on any question,
or hearing any cause, the entire body shall be assembled for that pur-
pose.

III. — That in all cases or appeals hereafter filed, or now filed and not
submitted, it shall be the duty of the appellant to file his brief twenty
days prior to the day the case is set for hearing, and the appellee to file
his brief ten days prior to that time, and a failure to do so by the appel-
lant shall cause a dismissal of the appeal without prejudice, and upon
the part of appellee he will, if in default, be required to pay the costs
up to the date of filing his brief. No oral argument will be ordered or
heard on the part of the party in default unless his brief is filed as herein
provided. When the briefs are in, or the brief of the party not in de-
fault, an oral argument will be ordered if desired, and a time fixed for
the hearing.

All cases will be decided as nearly as practicable in the order of their
submission.

IV. — But two oral arguments on each side will be allowed in any
case, and every such argument will be limited to one hour.

V. — Records not made out in a legible handwriting, or not indexed,
are to be condemned, and the clerk making out such record to be pro-
hibited from collecting anything therefor; and the clerk of this court
will disregard the expense thereof in taxing cost without any special
order in the case.

47



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1$6 APPENDIX.



VI. — When two members of a department desire it, a rehearing
shall be granted.

VII. — When the record of a former appeal in the same cause is
necessary to the decision of a subsequent appeal, or when a record
already in this court is made part of a record in another case, and not
copied into the transcript, the attorney for the appellant must see to it,
on pain of having the appeal dismissed, that such old record is placed
with the new record before the cause is submitted.

VIII. — A party intending to move that the clerk of the inferior
court, or the adverse party, shall be adjudged to pay the costs resulting
from a violation by such clerk or party of subsection 1 1, of section 737,
of the Civil Code, shall make such motion at or before the submission of
the cause, and not thereafter; and such motion shall indicate the por-
tions of the record claimed to have been improperly copied, and the
pages of the transcript where they may be found.

IX. — If the motion is against the clerk, he must be served with a
copy of the written motion at least five days before the cause is sub-
mitted.

X. — If an appellant or his attorney, or an appellee with a cross-
appeal, or his attorney, shall, for any purpose, withdraw the record
from the clerk's custody without the special order of the court, and fail
or neglect to produce it in court on call of the case for submission or
argument, the appeal or cross-appeal, on motion of the adverse party,
shall be dismissed for want of proper prosecution.

XI. — Ten days' notice of a motion to affirm as a delay case must be
given appellant or his attorney, otherwise such motion will not be heard
until the case is called for trial on the day it is set on the docket.

XII. — Where time is extended to file a petition for rehearing, and
the time expires during vacation, or where the court adjourns before the
time for filing a petition for rehearing has expired, the filing of the peti-
tion with the clerk in the clerk's office within the time shall be held
sufficient. The clerk, however, has no right to extend the time for
filing, and this can only be done by an order from one of the judges.

XIII — Petitions for rehearing shall be considered by a judge other
than the one who delivered the opinion in the case.

XIV. — Ordered, That there be held three terms of the Court of
Appeals in each year, as follows:



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act of 1896. 737

September Term, beginning third Monday in September, and end-
ing the second Saturday in December.

January Term, beginning first Monday in January, and ending the
last Saturday in March.

April Term, beginning second Monday in April, and ending the
first Saturday in July.

XV. — Ordered, That no extension of time for filing a petition for
rehearing will be granted, except upon the affidavit or statement of the
attorney or client, stating sufficient cause therefor.

XVI. — Cases once adjudicated by this court, and again brought up
by appeal, may be advanced by leave of the court on motion of either
party.

XVII. — There shall accompany every brief a classification of the
questions discussed. The classification may be indicated by a "word"
which suggests a subject, or by a brief synopsis of it.

The authorities relied upon must be cited under the appropriate
heading.

XVIII. — No case on the appearance docket will be passed for oral
argument, unless there be filed by counsel a statement showing the legal
questions involved, and the court shall deem them new and of sufficient
importance to require" oral argument.

TAX ON APPEALS.

Counsel, in writing briefs, are requested by the court to write only
on one side of the paper.

The tax on appeals is one dollar, and in all cases must be paid to
the clerk of the Court of Appeals before the cases will be filed.



V.

An Act for the protection of Purchasers, Lessees, and Incum-
brancers of Real Estate.

§ 1. That no action, cross-action, counter-claim, or other proceeding
whatever (save actions for forcible detainer, or forcible entry or de-
tainer), hereafter commenced or filed, in which the title to, or the posses-
sion or use of, or any lien, tax, assessment, or charge on real estate, or



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738 APPENDIX.



any interest therein, is in any manner affected or involved, nor any order
or judgment therein, nor any sale or other proceeding thereunder, shall
in any manner affect the right, title, or interest of any subsequent pur-
chaser, lessee, or incumbrancer of such real estate or interest for value
and without notice thereof, except from the time when there shall be
filed in the office of the clerk of the county court of the county in which
such real estate, or greater part thereof, lies, a memorandum stating
(one) the number of said action where the action is numbered, and style
of such action or proceeding, and the court in which it is commenced
or is pending ; (two) the name of the person whose right, title, interest
in, or claim to, real estate is involved or affected ; (three) a description
of the real estate in said county thereby affected. Such notice may be
filed by any party in interest. No notice shall extend to the interest of
any person not designated therein, nor to any real estate or interest ex-
cept that described therein ; and when any amendment is made in such
action or proceeding changing the description of the real estate, or in-
terest involved or affected, or extending the claim against the same, the
party filing such notice shall file a new notice. Where the real estate
so affected consists of tracts lying in different counties, a separate notice
shall be filed in each county as to the tract lying in that county.

§ 2. No attachment or execution hereafter issued, nor any levy or
sale under either, shall in any manner affect the right, title to, or inter-
est of a subsequent purchaser, lessee, or incumbrancer, without notice
thereof, of any real estate or any interest therein upon which such at-
tachment or execution may be or may have been levied, except from
the time there shall be filed in the office aforesaid a memorandum, show-
ing the number and style of the action in which said attachment or ex-
ecution issued, the court from which it issued, the number, if any, of
such attachment or execution, the date thereof, and the name of the
persons in whose favor and against whom, respectively, it issued. Such
notice may be filed by any party in interest.

§ 3. The clerk shall number such notices in the order in which they
are received, shall endorse on each notice the day and hour of the re-
ceipt and the name of the person filing it, and shall record the same in a
book to be kept for that purpose. He shall forthwith index the notices
mentioned in section one by their numbers and by the name of each
person whose interest is therein stated to be affected, and the notices
mentioned in section two by their numbers and by the names of each
person against whom the attachment or execution is stated to have
issued. For recording each notice mentioned in section two, there
shall be charged thirty cents, and for the notices mentioned in section



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act of 1854. 739

one, fifty cents for each tract of land therein separately described, which
fees shall be paid in advance, and shall be- taxed as part of the costs of
the party filing the same in the action, attachment, or execution.

§ 4. Any notice mentioned herein may be discharged and annulled
by an entry to that effect on the margin of the record thereof, signed by
the person filing the same, of by his or their attorney of record in the
action, or by a writing executed, acknowledged, and recorded in the
manner provided for conveyance of land. The clerk shall enter a
memorandum of such discharge on the margin of such record, for which
there shall be charged a fee of twenty-five cents, to be paid in advance.

Approved March 17, 1896.



VI.

An Act to quiet the Title to Lands.

That hereafter it shall and may be lawful for any person having both
the legal title and possession of lands to institute and prosecute suit, by
petition in equity, in the circuit court of the county where the lands, or
some part thereof, may lie, against any other person setting up claim
thereto ; and if the plaintiff shall be able to establish, and does estab-
lish, his title to said land, the defendant shall be by the court ordered
and decreed to release his claim thereto, and pay the plaintiff his cost,
unless the defendant shall, by his answer,, disclaim all title to such land
and offer to give such release to the plaintiff, in which case the plain-
tiff shall pay to the defendant his cost, except for special reasons the
court should otherwise decree.

Approved March 9, 1854.

a. 1. This is a re-enactment of the act of December 19, 1796 (1 M. & B., 294), and
reference is made thereto on page 614. Query — Can a judgment be obtained under this act
quieting title against a non-resident who is before the court by constructive service only ? See
Hart v. Sansom, HO U. S., 151 ; Arndt v. Griggs ; 134 U. S., 316.

2. In Simpson v. Hawkins, 1 Dana, 303, 312 (1833), there is a dicta by Judge Under-
wood that a bill to quiet title may be brought against non-residents who shall be served by
constructive service of process, but that a decree quieting the title may be opened at the
instance of the non-residents within seven years after its rendition.

See dicta in Bank of U. S. v. Cockran, 9 Dana, 395, 398.

3. In Denny v. Wickliffe, I Met., 216, 228 (1858), there is a dicta by Judge Simpson to
the same effect as in Simpson v. Hawkins, except that under the Code then in force the
time limited for a non-resident defendant, constructively summoned, to apply for a reopen-
ing of the judgment was five years.



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740 APPENDIX.

4. In Arndt v. Griggs, 134 (/. S., 316, Mr. Justice Brewer delivering the opinion, gave
the subject great consideration, and after an elaborate review of the authorities held that
"a State has power by statute to provide for the adjudication of titles to real estate within
its limits as against non-residents who are brought into court only by publication."

I do not myself believe that a court of equity, by virtue of its general powers and in
the absence of a statute, can by constructive service of process quiet title to land as against
a non-resident; for an action to quiet title is a suit in equity, equity acts upon the per-
son, and the person is not brought into court by service by publication alone.

The question remains, whether the act of 1854 by its terms authorizes a proceeding
against a non-resident? I think not. It is true that }J 57, et sea., provides for a con-
structive service against non-resident defendants generally, but it is doubtful whether
they can be considered as extending the language of the act of 1854.

b. In an action to quiet title it is unnecessary to aver the nature of the adverse claim
and point out its defect; and even if the statements of the petition do not amount to an
averment that the defendants are claiming adversely, where their answer does so, the de-
fect is cured. Whipple v. Earick, 93 Ky,, 121-24.



VII.

Notes concerning Code-decisions not previously referred to.

§6. Equitable actions.

In Walker v. Leslie, 90 Ky., 642, the court approved the decision in Fraley v. Peters,
12 Bush, 469; and held that the plaintiff's allegation, that the defendant is "by fraud,
force, and violence, attempting to change the division line," fairly construed, means merely
that he is asserting that line to be at a location different from that claimed by the plaintiff,
and by force has entered upon and attempted to take possession of the land in dispute, and
did not give to the chancel lor jurisdiction to settle the question of boundary, and that the
plaintiff's motion to transfer the case to the ordinary docket should have been sustained,
with leave to the plaintiff to amend his petition by alleging and praying for damages.

i 8. Error as to form of action.

a. Such error must be objected to, not by demurrer, but by motion to transfer to the
proper docket. 88 Ky., 663.

b. The plaintiff having brought an ordinary action for the possession of personal prop-
erty, it was held that a judgment for the defendant must be affirmed, even though the
plaintiff may have had an equitable lien on the property, as he had failed to assert it by
amending his petition and moving for a transfer to the equity-docket. 89 Ky., 637-38.

g 10. Transfer of actions from one docket to another.

a, If, in an equity cause, there is an issue which either party might have had tried by
a jury, but did not, the finding of the chancellor on that issue will be treated as the find-



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 104 of 142)