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ing of a properly instructed jury. Louisville, <5rV., Ry. Co, v. Taylor, 96 Ky,, 241, 248.

b. Where an ordinary action is transferred to equity because of the complication of
accounts, no motion for a new trial is necessary in order to prosecute an appeal. City of
Covington v. Limerick, 19 Ky, L, Rep,, 330, 332.



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NOTES OF DECISIONS. 741



J 12. Transfer of equitable action for trial by jury.

a. A creditor brought an equitable action to settle a decedent's estate and the adminis-
trator denied the plaintiff's debt, and moved that the issue be tried by a jury : held, that
the equity branch depending on the result of the legal issue, the motion should have been
sustained. Baxter v. Knox, 17, Ky. L. Rep , 489, 491.

b. In an action by a next friend to set aside a default judgment entered in a suit to
enforce a mortgage upon the ground that the mortgagor was of unsound mind when he
executed the mortgage, it was held that the question of the mortgagor's sanity when he
gave the mortgage was a legal issue properly triable by a jury. Small v. Reeves, 20 Ky.
L. Rep., 504, 5<>7-

i 17. Limitation of equity powers over judgments at law.

Walker v. Thomas, 88 Ky., 486, accords with cases cited in note I, ante, p. 8.

{ 18. In what name action to be brought.

a. An inhabitant of a city can maintain an ordinary action against a water-company
for failing to supply him with water pursuant to its contract with the city. Paducah Lutih-
ber Co. r. Paducah Water Supply Co., 89 Ky., 340.

b. Actions of several persons against a railroad company for injuring property belonging
to them respectively can not be consolidated without their consent, though property of
each was injured at the same time and by the same cause. Baughman, &c~, v. L. E. &*
St. L. R. R. Co., 94 Ky., 150, 153.

{ 19. Actions by assignees of notes.

a. In action on a note payable, and assigned to the plaintiff by the payee, in the State of
Ohio, by the law of which it was placed on the footing of a bill of exchange, it was held
that the defendant could not plead as a set-off the payee's note to him. Stewart v. Griggs
&c, 89 Ay., 461, overruling Davis v. Morton, Gall, <SrV., cited in note, ante, p. 14.

b. As to estopping a payer from pleading no consideration, &c, against an -assignee,
the decision in Crabtree v. Atchison, &e., 93 Ky., 338, accords with the cases cited in notes
to Form 137 b, and in the notes therein referred to. But see contra, Hill v. Thixton, cVa,
94 Ky., 96, from which Chief Justice Bennett dissented.

1 21. Actions by fiduciaries.

a. The heirs of a decedent conveyed real estate and the purchase-money notes were
made payable to the administrators " for the use and benefit of the heirs of the estate of
Jno. F. Triplett :" held, that in an action to enforce the lien the other grantors were not
necessary parties. McClure v. Bigstaff, 18 Ky. L. Rep., 601, 605.

. b. Where a mortgage is made to a trustee to secure the payment of coupon bonds pay-
able to the trustee or bearer, such trustee as the trustee of an express trust can enforce the
mortgage without making the holders of the bonds parties to the suit. Union Trust Co. v.
Brashears, 19 Ky. L. Rep., 37.

c. Where a corporation takes out a policy of insurance for the benefit of its servant, it
is a trustee of an express trust and the beneficiaries need not be joined with it in an action
on the policy. Fidelity & Casualty Co. v. Ballard, &*c, Co., 20 Ky. L. Rep., 1 169, 1 1 72,

\ 23. Who may be made defendants.

a. An action to enjoin collection of a replevin bond given jn satisfaction of a judgment
in favor of the Commonwealth for a fine was properly brought against the county attorney,
Commonwealth's attorney, circuit court clerk, and sheriff. 91 Ky., 151.

b. In an action for a division of the land of a decedent it was proper to refuse to permit
parties claiming title adverse to the decedent to be made defendants on their own petition.
Bacon v. Boyd, 17 Ky. L. Rep., 1276.

2 25. When one may sue or defend for others.

a* In an action to enjoin collection of a tax to pay certain county bonds, which were
held by numerous persons, an injunction-bond was given for payment of damages to certain
named persons and "to all holders" of said bonds: held that, on dissolution of the injwnc*



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742 APPENDIX.



tion, two of said holders could maintain an ordinary action of the bond in behalf of them-
selves and all other holders. Alexander, <5rV., v. Gish, 6v., 88 Ky., 13.

b. See a dictum in Randolph, &*c, v. Lampkin, <5rY., 90 Ky., 551, as to the right of
several heirs to defend for all — a dictum, because \ 25 of the Code, which was referred as
being peculiarly applicable, relates to actions, whilst Randolph, &*c, v. Lampion, &*c, was
an appeal from the county court to the circuit court in a will-case.

\ 26. Actions against sureties on separate instruments.

A plaintiff holding two bonds executed by the same principal, for performance of the
same class of duties, with the same sureties, in part, on each, can maintain an ordinary
action on both bonds against such sureties. Commonwealth v. Tate's sureties, 89 Ky., 60S.

$ 29. Intervention by claimant.

In Gevedon v. Branham, 20 Ky. L. Rep,, 791, an attachment suit was filed, an idemnify-
ing bond given to the sheriff, and then the attachment was levied on some hogs which were
sold. It was held that claimants could intervene, setting up their ownership of the hogs
and right to the proceeds, and were not remitted to an action on the bond.

J 34. Action or defence by wife whose husband refuses to join.

a. If the husband refuse to unite with his wife in assserting a homestead right, she can
sue or defend alone. 88 Ky., 495-96.

b. If a married woman sues for personal injury, the question whether her husband had
refused to unite, must be raised affirmatively by answer or by rule to show cause why the
action should not be dismissed ; and if her husband has deserted her and for several years
failed to support and protect her, such conduct is equivalent to a refusal to unite in any
action she might bring. Baumeistfr, &*c, v. Markham, 19 Ky'. L. Rep., 308, 310.

J 35, subs. 3. Action of person of unsound mind.

The words "person of unsound," in the statute, "embrace not only lunatics, but per.
sons whose minds have become so impaired or infirm by age, disease, or other cause as to
be unable to take care of their own interests." But if an adult object to the prosecution
of an action by his next friend, the court should cause inquiry by a jury as to his condition,
&c. Howard v. Howard, 87 Ky., 616.

i 35» subs. 4. Action of non-resident infant for sales of land pursuant to } 490 of
the Code can not be maintained by his foreign guardian, unless the guardian has received
authority from the county court pursuant to G. S., ch. 48, art. 2, J 16 (which is the same
as art. 2, J 27 of Act of 1892, S. A., 383.) Watts v. Wilson, <Sr»r., 93 Ky., 495.

{ 36. Defences of persons under disability.

a. A report of a guardian ad litem that "he has examined the record in the action, and
that there is no defence he can make for said infants " is a substantial compliance with the
Code. Gardner v. Letcher, 16 Ky. L. Rep., 778.

b. Rendering judgment against an infant before a guardian or guardian ad litem has
made defence or filed a report can not be considered as error on appeal unless the question
has first been raised and acted on in the lower court. Morrison v. Beckham, 96 Ky., 72, 76.

{ 38, subs. 1, a. Affidavit for appointment of guardian ad litem may be made
by plaintiff's attorney, though the plaintiff be in the county. 88 Ky., 27a

b. Where the statutory .guardian of an infant fails to make a defence the court may, of
its own motion, without the filing of an affidavit, appoint a guardian ad litem to defend for
the infant. Gardner v. Letcher, 16 Ky. L. Rep., 778, 779.

I 38, subs. 4. Fee of guardian ad litem.

If a guardian ad litem file an answer, with a set-off or counter-claim against the plaintiff,
not only defeating the action but recovering a judgment for the defendant, a judgment
should be rendered against the plaintiff for the amount of the guardian's fee, to be credited,
Jiowever, on the judgment in favor of the defendant. 87 Ky., 255-56.

i 39» Commencement of an action.

a. According to common law a lis pendens is, in general, created by the service of pro-



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NOTES OF DECISIONS. 743



cess; but under the Code it is created by the filing of the petition and the suing out of a
summons (Rothchild's adm'r v. Kohn Bros. 6° Co., 93 Ky., 107), though the summons may
have erroneously commanded the defendant to answer at a term commencing within ten
days after its date. (L.& N. R. R. Co. v. Smith's adm'r, 87 Ky., 501.)

b. After a petition is filed and warning order issued thereon the suit is begun and an
attachment may be taken out at any time without filing an amended petition or issuing a
new warning order. (Fremdv. Ireland, &*c, 17 Ky. L. Rep., 1140, 1142.) See United Mates
v. American Lumber Co., 80 F. R., 309, and 56 U. S. App., 655, for elaborate discussion of
the question at what point of time a suit is begun.

l\ 40, 43, 44. Time of filing answers.

If a summons be issued and served within ten days, or be issued more than ten days
and served within ten days, before the commencement of the next term, the defendant
need not appear at that term though commanded then to answer, but he must answer at
the next ensuing term. See case above cited, note {a).

$ 47. Service of summons.

a. In a transitory action brought in Jefferson county, the court, without referring to
ch. 81, \ 17, of the General Statutes, held that a return of service in that county could,
before judgment, be contradicted by showing that the service was made in Oldham county ;
and that the defendant's motion to dismiss the action on that ground did not give juris-
diction of the action to the court in Jefferson. Barbour v. Neivkirk, 83 Ky., 529; and see
notes to § 51, infra.

But, in Bramletts. AfcVey, 91 Ky., 151, it was held that, under said § 17, a person
against whom a judgment had been rendered by default had a right to enjoin it upon
showing that the sheriff had, by mistake, returned a summons as executed on him though
it had not been. And see note c, infra, p. 743.

b. Parol authority to a bailiff is insufficient; and indorsement of written authority on
a summons after it has been served will not make the service valid. 9 1 Ky., 80.

c. The bailiff must sign and swear to his return : swearing to it is insufficient. 88 Ky.,
$46-47.

J 51, subs. 3. Service of summons on private corporations.

a. In an action brought in McCracken county, which, under \ 73, the plaintiff had a
right to bring there or in Jefferson county, the sheriff of McCracken county returned the
summons as served on the defendant's agent, K ; the defendant pleaded and proved that
K was not its agent, but the court refused to dismiss the action, holding that the defend-
ant's answer was an appearance thereto; and the defendant, to prevent a judgment by
default, pleaded to the merits, the result befng a verdict and judgment for the plaintiff,
which the Court of Appeals reversed, because the court below had refused to dismiss the
action; but, as the plaintiff had a right to bring it in McCracken county, the defendant's
appeal was held to be an appearance thereto, which made another summons unnecessary.
C. O. &> S. W. R. Co. v. Heath's admW, 87 Ky., 651. See 91 Ky., 516.

b. The defendant having issued a policy of insurance in Jefferson county, the place of
its principal office, pursuant to an agreement made in Allen county between the plaintiff
and an agent of the defendant, it was held that, under \ 51, subs. 3, and \ 71, the plaintiff
had a right to sue on the policy in Allen county and have the defendant summoned in *
Jefferson county. Kentucky Afut. Security Fund Co. v. Logan's adm'r, 90 Ky., 364.

c. In C. <5r» O. R. R. Co. v. Cowherd, 96 Ky., 113, 1 19, where a summons was served on
the local ticket agent of a railroad company — who was its highest officer or agent in the
county — it was held that he was the chief officer or agent within the meaning of the law.

d. In L., H.&* St. L. Ry. Co. v. Commonwealth, 20 Ky. L. Rep., the railroad did not run
through the county-seat, and it was held that a summons was properly served on the de-
fendant's passenger agent at the station nearest the county-seat, even though there was a
man in the county-seat who, in conjunction with his other business, kept tickets for sale



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744 APPENDIX.



and gave freight rates to shippers. Quoj'e: If there had been a regular agency at the
county-seat should the summons have been served on such agent? There is ± dictum in
the opinion construing the Code to require service upon an agent "at its station at or near-
est to the county-seat." Nor is it necessary that the agent should be stationed in the
county where the action is brought. Nashville, <5rV., R. Co. v. Carrico, 95 Ky. 9 489, 491.
\ 52, Service on infants under fourteen.

a. Service upon infants under fourteen, by delivering a copy of the summons to their
mother, was sufficient even though the sheriff's return did not show that it was delivered
to her as their mother, nor did the petition show that they had no guardian. Rodgers v.
Rodgers, 17 Ky. L. Rep., 358, 363.

b. The failure of the affidavit to state that there was no one upon whom process could
be served except the plaintiff, did not render the judgment void where the guardian as
litem appointed by the clerk under that affidavit entered the appearance of the infants and
defended for them. Walch v. Davis, 17 Ky. L. Rep., 634.

c. The delivery of a copy of a summons to the father of an infant defendant under four-
teen, the father being the plaintiff, is insufficient to bring the infant before the court; and
even though a guardian ad litem is appointed who files a report, the sale under a judgment
therein is, so far as the infant's interest is concerned, absolutely void. Isert v. Davis, 17
Ky. L. Rep., 688.

\ 53. Service on persons of unsound mind.

The failure of the physician in charge to make out a certificate that personal service on
a lunatic in his charge would be injurious, may be cured by a subsequent affidavit of the
physician to that effect and by an amendment of the sheriff's return, under order of court.
Scan/an v. Forstadt, 18 Ky. L. Rep., 821.

§ 57. Warning orders.

a. A warning order is not a "process" within the meaning of the constitutional pro-
vision which declares that " the style of all process shall be 'The Commonwealth of Ken-
tucky '" (Con. of 1849, art. 4, $ 5; Con. of 1891, J 123.) Northern Bank of Kentucky ▼.
HunVs heirs, &c, 93 Ay., 67.

b. The case last cited arose under the Code of 1854, the provisions of which differ ma-
terially from those of the present.Code as to making wr.rning orders. The court, how-
ever, expressed what seems'to me the questionable opinion that, under the present Code*
the court, "having jurisdiction of the subject-matter and control of the clerk in the dis-
charge of his duties, the latter may be directed to enter an order of warning on the order
book, and when made it becomes as effectual as if made by the clerk in vacation." I sub-
mit, I, that the court gets no "jurisdiction -of the subject-matter" until the defendant has
been warned to appear as is required by the Code ; and, 2, that the Code makes no dis-
tinction, as to the clerk's duties, between times when the court is in session and when it is
not.

c. A warning order, though written on a separate piece of paper, if subsequently
attached to the petition, is a compliance with the Code. Harlammert v. Moody, 15 Ky. L.
Rep., 839.

\ 58, subs. 2. Affidavit for warning order.

a. Failure of affidavit for warning order to state defendant's post-office, or affiant's
ignorance thereof, does not render the judgment void ; and in action for dower, in which it
was contended that a judgment of divorce was void by reason of such failure, and alleged
that the plaintiff had been forced to abandon her deceased husband by his cruel treat*
ment, it was held that, though the judgment was erroneous, yet, as it appeared that she
knew of pendency of the suit for divorce, and as from the evidence " it is perfectly mani-
fest the decree in the divorce-suit was correct, . ^ . . the judgment of divorce should
not be re-opened and vacated upon petition as erroneous, even if this be allowable in this
character of action. Carr*s adm'r v. Carr 9 92 Ky. 9 552.



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NOTES OF DECISIONS. 745



6. The Code is complied with by giving the post-office address of the non-resident
without following literally the requirement to state •• the name of the place wherein a post-
office is kept nearest to the place," &c. Perkins v. McCarley, 97 Ky., 43, 47.

$ 60. A judgment rendered against a non-resident thirty days after the issuing of
a warning order is not premature even though the attorney appointed to defend has not
filed his report. Morrison v. Beckham, 96 Ky., 72, 75.

$ 62, subs. 3. Venue of actions for sale of land.

a. An action for the sale of land to satisfy an equitable lien for purchase-money must
be brought in the county where the land lies. Henderson, drY., v. Perkins, 94 Ky., 207.

6. A resident of Jefferson county died, owning lands in that county and McCracken
county. The lands in Jefferson county having been divided between his heirs by the
Jefferson chancery court, with an allotment to his widow of dower in the whole estate, it
was held that the McCracken court of common pleas had jurisdiction of an action for a sale
of the land in McCracken county pursuant to \ 490 of the Code. 90 Ky., 247-48.

c. A court having jurisdiction (as to which see note (6), ante, p. 601) of an action to
subject a debtor's property on the ground that he has preferred a creditor can order a sale
of his land in any part of the State, though it be encumbered by a mortgage. Pishback
▼. Green, &*c., 87 Ky., 107.

d. Where a mortgage embraces separate tracts of land lying in different counties, the
circuit court of either county has jurisdiction to enforce the lien against both tracts.
Hendrix v. Nesbitt, 96 Ky., 652, 655.

e. An action by certain devisees against other devisees to sell the land devised and dis-
tribute the proceeds, upon the ground that the land was indivisible without materially
impairing its value, must be brought in the county where the land is situated and not in
the county where the personal representative of the testator qualified. Perkins v. McCarley,

97 *>•» 43. 46.

f. A vendee under an executory contract for the purchase of land, if the contract be
rescinded, has a lien on such of the land as belongs to the vendor for reimbursement for
any purchase-money he has paid, whether the vendee was in possession of the land or not;
and an action to rescind the contract and enforce that lien was properly brought in the
county where the land was situated, though the vendors lived in another county. Bullitt v.
Eastern Ky., &c, Co., 99 Ky., 324, 330.

g-. In Shields v. Yellman, 18 Ky. L. Rep., 1092, a man and wife mortgaged the wife's lands
in Jessamine county to secure the husband's debt. The wife died in Fayette county and
there was no administration of her estate. It was held that an action to enforce the
mortgage was properly brought in Jessamine county. The opinion declares, however,
that the jurisdiction is sustained (not because it is an action for a sale of the wife's real
property under a mortgage lien) but because it seeks a sale of the husband's curtesy interest
and is therefore local as to him. As the opinion expressly says that neither { 65 nor \ 62,
subs. 3, applies, quaere, where should an action to enforce a mortgage lien be brought,
when the mortgagor (having no wife) dies in a county other than the one where the land
is situated and there is no administration of his estate?

62, subs. 4. Venue of action for injury to land.

The owner of land can maintain an action in the county where the land lies- against de-
fendants summoned elsewhere, for cutting and removing timber therefrom, though the
plaintiff was net in actual possession of the land at the time of the injury. Meehan, <5rY.,
v. Edwards, <5rV., 92 Ky., 574.

\ 63, subs. 1. Venue of action for penalty.

An action by the Commonwealth against a corporation to recover the penalty for fail-
ing to file with the Secretary of State a statement giving the name of the officer upon
whom process could be served, must be brought in the county where the corporation con-



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746 APPENDIX.



ducts its business and can not be brought in the Franklin circuit court.
Grand Central, 6rY. t 97 Ky., 325.

$ 65. Vbnuk op action to sbttle decedent's estate.

In an action to settle a decedent's estate the court has jurisdiction to decree a sale of
mortgaged property, though the property be situated in another county. Dictum in Stetes
v. Yellntan, 18 Ky. L. Rep., 1092.

See Hursts. Hamilton, 19 Ky. L. Rep., 1753.

\ 66. Venue of actions for distribution or partition.

The term "distribution of the estate has reference not to real but personal estate;" and
"an action to sell the land and distribute the proceeds is not the equivalent of, or of the
same nature as, an action to partition the land.'* Perkins v. McCarlev, 97 Ky., 43, 46.

J 70. Venue of actions on return of nulla bona.

See Martin v. Byrd, 19 Ky. L. Rep., 1030.

{71. Venue of actions against insurance companies.

a. See note b to J 51, ante, p. 737.

b. An application for insurance was mailed in Grant county to the insurance company's
agents in Kenton county who issued the policy. It was held that a suit on the policy
was properly brought in Kenton county because the issuance of the policy *« was a transac-
tion there (Kenton county) with the agents of the company, out of which the actioa
arose." Sun Mutual Ins. Co. v. Crist, 19 Ky. L. Rep., 305, 306.

\ 72. Venue of actions against corporations generally.

a. This section does not, according to its express terms, apply to the actions named in

8 73- 90 *>., 363.

b. A suit against a corporation for damages resulting from its wrongfully suing oat as
attachment against the plaintiff is properly brought in the county wherein the attachment
suit was prosecuted ; and the summons may be served on the corporation in another county.

Winn v. Carter Dry Goods Co., 19 Ky. L. Rep., 14 18.
§ 73. Venue of actions against common carriers.

a. In an action brought in Hardin county against a railroad company to recover dam-
ages for the destruction of the life of the plaintiff's son, the defendant pleaded that
"neither the plaintiff nor his intestate, nor the defendant nor its chief officers, ever re-
sided in Hardin county, and that the plaintiff's intestate did not receive the injury there-
in ;" and a judgment overruling a demurrer to the answer and dismissing the petition was
affirmed. 89 Ky., 303.

b. In a similar action brought in McCracken county, the defendant pleaded, " I, that
the plaintiff resides, and the injury was done, in Graves county; 2, that the chief office,
residence, and place of business of the defendant is in Jefferson county ; 3, that John Echols
being its chief officer and agent in Kentucky, is in that county ;" and a judgment over-
ruling a demurrer to the answer and dismissing the petition was affirmed. Hatperr.X.
N. &> M. V. Co., 90 Ky., 359.

c. A contract was made in Marion county by a shipper with the L. & N. R. R. Co. to
ship mules to Nashville, which, from that place, were to be carried to Atlanta by theN.,
C. & St. L. R. Co. The mules having been injured on the line of the latter company, ii
was held that, in a suit for damages the Marion circuit court acquired jurisdiction of tbe
N., C. & St. L. R. Co. by simple service of process on its chief officer or agent in hdte*
county; the court holding that the contract for through shipment which the L.&N. made
must be considered as having been made by the N., C. & St. L. R. R. Co. itself, in Marion
county. Nashville % &c, R. Co. v. Carrieo, 95 Ky., 489, 491.

d. Section 73 only applies where one or more of the localizing facts there mentioned
actually exists, to-wit, where the defendant resides in this State, or where the plaintiff is
injured in this State, or where the plaintiff resides in a county in this State in which the



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