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\ 604. Proof of writing.

Where a writing has been proved but not read to the jury, it is within the discretion of
the court to permit it to be read when the witness is called in rebuttal. Underhill v.
Underhill, 16 Ky. L. Rep., 717.



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j66 APPENDIX.



\ 605. Competency of witnesses generally.

The testimony of a formerly-attending physician, upon the question whether or not a
child was born alive thirty-five years before, should not be rejected, even if the reasons for
his opinion be not entirely convincing. 91 Ky., 305.

I 606, subs. 1. Competency of husband and wife.

a. The act of Feb. 23, 1898 {ante, p. 417), repealed J 606; but as it substantially re-
enacted it, the decisions under old $ 606 are still of value- in construing the new act.

b. CommWlfi v. Snapp, 90 Ky., 585-86, accords with cases ched in note (a), ante, page 41b.

c. In action by husband and wife for an injury to real property owned by them jointly,
both cannot testify against the defendant. City of Covington v. Geyler, <5r*r., 93 Ay., 275.

\ 606, subs. 2. Competency as to transactions with decedent, etc.

a. Contestants of a will were held to be competent to •• testify to the conduct, the con-
versation, and character of the testator." 90 Ky., 35.

b. In an action by the assignee against the payor of a note, he is competent to prove
what took place between him and the deceased payee, in order to support a plea of no
consideration. Hurry v. Kline, 93 Ky., 358.

c. In WhaUn v. Nisbii, 95 Ky,,, 464, it was held that a son, to prove title, could testify
as to declarations of pedigree made by his deceased father ; the court saying that the Code
prohibition has no application "to testimony concerning a declaration of a dead person as
to a matter of pedigree; that is, though hearsay in character, made, according to long estab-
lished rule, competent from necessity."

d. "It is competent for an agent, who acts for a party in a transaction with one after-
wards dying, to testify for his principal concerning any verbal statement of, or any transac-
tion with, or any act done by, the decedent." Cobb*s adm'r v. Wolf, 96 Ky., 418, 421.

e. In an action to recover for services rendered a decedent, it was error to allow the
plaintiff to testify as to the state of the decedent's health, the nature of services performed,
etc. Newton v. Field, 98 Ky., 186, 193.

/. Plaintiff claimed to be owner of certain notes by gift from a decedent. In an action
against the administrators, involving the ownership of the notes, it was error (I) to allow
plaintiff to testify as to the statements he made to the administrators wherein he recited
how he obtained the notes from the decedent, and (2) to allow any one else to testify as
to the conversation between plaintiff and the administrators wherein such recital was made;
because the effect of the admission of such testimony was to allow plaintiff to testify for
himself concerning a transaction had with a decedent. Jones v. Jones, Jr., 19 Ky. Z.
Rep., 1 5 16.

g. The holder of a note who endorsed certain credits thereon, can not, after the death
of the maker, testify as to the meaning of the endorsements — they are prima facie evidence
of payments. Vannata v. Willett, 20 Ky. L. Rep., 59.

h. A person can not testify for himself concerning a transaction had with a decedent
who was agent for the other party to the suit. Breckinridge v. Mc Roberts, 20 Ky. L. Rep., 699.

\ 606, subs. 3. Testimony of party after the taking of testimony.

a. In an action in equity, the defendant, a corporation, filed an answer and cross-petition
against S and M for the value of stock therein which they were charged with having
fraudulently issued, to which M did not answer, but S filed an answer denying its allega-
tions: field, that the answer of S put everything in issue as to both him and M; and that
M's deposition for S, after S had taken other depositions, was incompetent, "as the witness
was also really testifying for himself." American Wire and Nail Co. v. Bay less, &*c, 91
A>., 94.

b. Stockholders in a corporation may testify for it, after it has introduced testimony of
persons not stockholders nor interested in it. Western Warehouse Co. v. Hayes, 97 Ky., 16.

c. After a party who has testified, introduces other testimony, it is within the sound



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NOTES OF DECISIONS. 767



discretion of the court to allow him to be recalled, and testify to facts that might have been
given in chief on his first examination. Louisville Ins. Co. v. Monarch, 99 Ky., 578, 589.

d. If appellant has not been prejudiced by a violation of this rule, the case will not be
reversed. Barkley v. Bradford, 100 Ky., 304.

\ 606, subs. 4, Testimony of attorneys, etc., as to professional-communications.

An attorney may testify as to the mental condition of a deceased client at the time of
executing a deed. Wicks v. Dean, 19 Ky. L. Rep., 1708, 171 1.

\ 6o6, subs. 7. Incompetency of assignors.

It is immaterial whether the assignment by the proposed witness was made before or
after the death of the decedent. NeaU v. Neale, 18 Ay, X. Rep., 343, 345.

22616-619. Surety for costs.

a. A hotel company and an insolvent assignee of a portion of its bonds, though suing
by cross-petition, must give surety for costs. 92 Ky., 278.

b. This applies only ta private corporations, and not to a school district or other public
or quasi public corporation. Trustees of School District v. City of Flemingsburg, 97 Ky., 702.

§ 625. Service of notice.

This section applies, in the absence of a special statute, to notice in a contested elec-
tion ; and if the person with whom the notice is left is in other respects the proper person,
it is immaterial that he was two hundred yards away from the abode of the person to whom
the notice was directed. Broaddus v. Mason, 95 Ky., 421, 425.
g 643. Rights of claimant.

This section refers only to the damages the claimant would be entitled to by reason of a
wrongful seizure ; and does not bar the claimant's right to sue for the possession of the
property itself. Hoskins v. J. M. Robinson & Co., 19 Ky. L. Rep., 877.
J 645. Rights of claimant.

The remedy given a claimant by this section is not exclusive, and does not bar him
from asserting any other right he would otherwise be entitled to. Hoskins y.J. M. Robin-
son, &c, 19 Ky. L. Rep., 877.

$ 661. Surety's action against principal after debt is due.
This section applies in favor of the heirs .of a surety. Js8 Ky., 220-21.
g 667. To whom process shall be directed.

An execution is a "process," and should be directed to the sheriff or coroner, &c,
who is not interested, in the order named in $ 667; and action on it by an officer to whom
it was not directed or to whom it should not have been directed is void ; as, a coroner's
return v of nulla bona on an execution directed to a sheriff {Johnson v. Elkins, 90 Ky.\ 163) ;
or a levy and sale by a jailer under an execution directed to the "coroner or jailer," it not
being shown that the sheriff and coroner were interested. Gaiodyv. Saunders, 88 Ky., 346.
§ 668. Person appointed by court to serve process or order must be a resident
nf the county in which he acts. 91 Ky., 514 to 516.
{ 678, Acts of deputy.

A deputy can only perform ministerial acts; and where quasi judicial duties are imposed
upon a ministerial officer, such as the power to grant injunctions by the clerk, the deputy
can not perform them. Payton v. McQuown, 97 Ky., 757, 765.
§ 681. Computation of days between acts.
See Board, <5tV., of Frankfort v. Farmers Bank, 495". W. Rep., 811, overruling same case
in 47 -5- W R<p.% 872.

2 692. Enforcement of lien of plaintiff and defendant.

a. In an action to enforce a lien a party was made defendant but no statement was made
in the petition as to the lien of such defendant; such defendant set up his lien by cross-
petition, but no process was issued thereon against the main defendant. It was held that
a judgment of sale to satisfy the liens of the plaintiff and such cross-defendant was void.
Afiichtll v. Fidelity Trust, &c, Co., 47 S. W. Rep., 446, 448.

49



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768 APPENDIX.



b. Where the holder of one of three notes secured by mortgage, filed suit to enforce the
mortgage, making the other note holders defendants, and stating that they had liens but
plaintiff did not know to what extent they had been paid, and the two defendant lienors
filed answers setting up their liens, but had no summons issued against the mortgagor, it was
held that a judgment was properly entered ordering a sale of the property to satisfy all the
liens. McKibben v. Worthington, 20 Ky. L. Rep., 61.
1 694. Sale of real property for debts.

a. See Vanmeter v. Vanmeter* s assignee, cited in note, ante, page 713.

b. A sale was set aside on the defendant's motion, upon proof that the land brought
less than its value, and that the special commissioner who made it had obtained the judg-
ment under which it was sold as plaintiff's attorney, though there was no proof of improper
conduct on his part. Adkinson v. Randle, 93 Ky., 310.

c. \f, in an action to enforce a mortgage, an inferior execution lienor be not made de-
fendant, he may, as against a purchaser with notice of his lien, have the sale set aside and
a resale to satisfy the two liens ; Quare as to an innocent purchaser. Co mmo n w ealth v.
Robinson, 96 Ky., 553.

8696. Terms of sale.

a, A sale made pursuant to a judgment authorizing the commissioner to make a sale
privately and for cash is void. Luttrell v. Wells % 97 Ky., 84, 90; and it is reversible error
to order a sale of realty on credits of less than six months. McKenzie v. Salyer, 19 Ay, L.
Rep., 1414.

b. See Meyer v. Covington, 20 Ky. L. Rep., 239, and Underwood v. Cartwright, Id., 809,
as to the requirement that the judgment must be explicit in describing the property and
naming the time, terms, and place of sale.

i 696. Notice of time of sale under order of court.
See Barnes v. Jackson* s adm f r, cited in note (t ), ante, page 714.
JJ 722, 723. Subjecting land for debts of which inferior courts have juris-
diction.

a. Land can not be sold under executions issued from such courts; nor have they juris-
diction of an attachment of land or of an action to enforce a contract-lien thereon. See
{} 722, 723, and notes thereto, ante, page 454; and Easterling v. Chiles, Thompson & Co.,
93 A>., 315.

Nor, prior to the act of 1893, to b* presently cited, did circuit courts have jurisdiction
of an action and attachment of land, on a legal demand against a resident debtor for less
than $50.00, unless the plaintiff had obtained a judgment thereon and a return of nulla
bona on an execution issued from the circuit court ; though circuit courts had jurisdiction
to enforce contract-liens on land, whatever the amount of the debt might be. See Easter-
ling ease, supra.

b. An act of March 10, 1880 (B. & F.'s G. S., 354), gave to circuit courts jurisdiction
of actions and attachments of lands of non-residents when the amount in controversy does
not exceed $50.00, in the same manner as if it exceeded said sum ; which act seems to have
been unnecessary, because the plaintiff could not obtain a personal judgment against such
a defendant, and, therefore, circuit courts had jurisdiction of a proceeding against his land
(see note (a), ante, page 597), just as they had jurisdiction to enforce contract-liens on
land for less than $50.00. But, whether necessary or not, an act of 1893 (S. A., 1033)
declares that the circuit court shall have jurisdiction " in all cases ... in which it is
sought to enforce a lien upon or to subject land by provisional remedy to the payment of
debt."

\ 724. Appeals to circuit courts.

The issuance of a supersedeas is a necessary averment in order to plead the pendency of
an appeal in bar of the plaintiff's right as administrator to maintain an action. O. & N.
Ry. Co. v. Barclay, 19 Ky. L. Rep., 997, 999.



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NOTES OF DECISIONS. 769



2 726. Trial of appeals from inferior courts.

This section does not apply to appeals concerning contested elections. Cowan v. Prowst,
«93 Ky., 156.

\ 732. Rules of construction of code.

Subs. 7. Relating to signatures, &c, applies only to snch instruments as are required
to be executed under the provisions of the Code, and not to mortgages. Meaiels v. Martin,
93 Ky., SO-

Subs. 33. Chief officer of corporation.

The chief officer of a railroad company is its president, if there be one in the State, or,
if not, its vice-president, if there be one in the State. 90 Ky., 362.

Subs. 36. Who is to be deemed plaintiffs, <SrV.

See note to \ 616, ante, page 767.

§ 734. Appeals to the. Court of appeals.

\\) Jurisdiction of the Court of Appeals.

a. Oswald, &c, v. Morris, &*c, 92 Ky., 48, accords with Zable, &*c, v. Harris, cited
in note (b ) 2, ante, page 456.

b. Unless expressly allowed by statute, no appeal lies from an order refusing to grant a
-writ of habeas corpus. 92 Ky., 1 18-19.

c. Where, in response to a rule against defendants to show cause for violating an in-
junction, they contend that what they have done is not a violation of the injunction, and
rely upon an alleged change of the status of the parties since the judgment, and the re-
sponse is held insufficient and they are adjudged to be in contempt, they are entitled to an
appeal. City of Newport v. Newport Light Co., 92 Ky., 445.

d. Title to land is involved by an order confirming or setting aside a commissioner's
report of sale of it (88 Ky., 257-58; 90 Id., 175), but not by a contest between creditors
as to liens on land about the title to which there is no dispute. 90 Ky., 174; 91 Id., 372.

e. Act of March 14, 1898. The Court of Appeals has no jurisdiction to entertain an
appeal prayed after June 10, 1898, even though the judgment appealed from was ren-
dered prior to that time; and in determining the jurisdictional amount all interest prior
to the institution of the suit is to be excluded. Hale v. Grogan, 50 S. W. Rep., 257.

(2) Who may appeal.

a. From a [personal] judgment against the defendant he can, after the plaintiff's death,
prosecute an appeal against his personal representative. Hopkins, <5rV., v. Hopkins adm'r,
^l Ky., 310.

b. The granting of an appeal and the issuance of ^supersedeas by the clerk of the Court
•of Appeals during the term at which the judgment was rendered, is absolutely void.
Schmidt v. Mitchell, 15 Ky. L. Rep., 768.

c. The Jefferson Circuit Court may grant an appeal within sixty days from the date of
overruling a motion for a new trial. City of lAfuisville v. Muldoon, 19 Ky. L. Rep., 1386.

{ 737» subs. 12. Clerk's certificate.

A clerk's certificate that the transcript " is a true copy, in substance, of the records," etc.,
-is defective, and the appeal must be dismissed. Brashears v. Venters, 19 Ky. L. Rep., 1285.
J 738. Time for filing transcripts.

a. The time within which the transcript must be filed is computed from date of grant-
stsg the appeal, and not from the date of filing of the bill of exceptions — even though time
was given for filing the bill. Western Union, &*c, Co. v. Johnson, ICO Ky., 589-90.

b. An appeal will not be dismissed because of a failure to file the transcript within
time, except on motion of the appellee ; and after the appeal is decided in the Court of
.Appeals, it is too late for appellee so to move. Welch, Jr., v. National Cash Register Co.,
J9 Ky. L. Rep., 1857.

t 739- Statement with transcript.

a. Appeal was, on court's own motion, dismissed without prejudice, but with damages,



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JJO APPENDIX.



for failure of appellant to file statement with the transcript Bain v.McAlpin Co., 17 Ky.
L. Rep., 575-

b. The action of the lower court will not be reviewed if the names of the persons against
whom relief is sought, do not appear on the statement required to be filed with the tran-
script. Reinhardi v. Lou. Bk. Co., 17 Ky. L. Rep., 982.

\ 740. Dismissal of appeals.

See Welch v. National Cash Register Co., 17 Ky. L. Rep., 1857.

\ 744. Security for costs in Court of Appeals.

See note to \ 6i6> ante, page 767.

J 745. Limitation of appeals,

a. An appeal from an order confirming or setting aside a sale, on exceptions thereto,
lies within two years thereafter, though an appeal from the order of sale may have been
barred by limitation. Gentry v. Walker, &*c, 93 Ky., 405.

b. This section does not apply to appeals from judgments of circuit courts in will cases.
Duffy. Duff, 20 Ky. L. Rep., 52.

c. Where a judgment was rendered on January 21, 1896, and an appeal granted on
January 21, 1898, the appeal was dismissed. Board of Councilmen, &*c, v. Bank of Ken-
tucky, 49 S. W. Rep., 811.

J 747. Supersedeas.

See King v. Tilford, 18 Ky. L. Rep., 978, and Davis v. Connolly, 20 Ky. L. Rep., 411.

\ 748. Supersedeas-bond.

An act of 1888 having allowed interest on judgments for damages in actions for injury
to the person, it was held, in 1891, that no interest, in the form of damages or otherwise,
could be recovered on a bond executed in 1881, to supersede such a judgment, though the
bond, in addition to the requisite stipulations, unnecessarily contained the stipulations
which are required when a judgment for specific property is superseded. L. & N. R. Co.
v. Sliarp, 91 Ky., 411.

1. Under the act of 1796 (M. & B., 128), which required the appellant, in every case, to
give a bond, with approved security, "for the due prosecution of his appeal," it was held —

(1) That, upon an appeal from a decree ordering the sale of land to satisfy a mortgage-
debt, it was not necessary for the bond to secure payment of the debt (5 Litt., 326-27);
and that, upon an appeal from a decree for the foreclosure of a mortgage, a bond condi-
tioned to pay the amount recovered by the decree, if affirmed, did not make the surety liable
for the mortgage-debt. Sumrall v. Reid, 2 Dana, 65. Query, whether a like rule would
apply as to personal property ordered to be sold to satisfy a mortgage. 12 B. M., $27.

(2) That, upon an appeal from an order dissolving an injunction against proceeding on
a judgment, it was not necessary for the appeal-bond to secure payment of the judgment.
5 Litt., 326-27; and see ace, 9 Bush, 699.

(3) That, upon an appeal by one of several creditors between whom there was a con-
test concerning a fund under the control of the court, the appeal-bond did not make the
surety liable for said fund or any part of it. Worth v. Smith, 5 B. A/., 504.

(4) That an appeal-bond entered into by sureties only was obligatory: "the principal
would not be further bound by such bond than without it. 5 J. f. M., 376: ace, 85
Ky., 219.

(5) That, upon an. appeal by D, from a decree against him and K for separate sums of
money, and a joint decree against both for costs, the obligors in the appeal-bond were
liable for the money decreed against K as well as that decreed against D. Young v. Ditto,
2 J. J. M., 72, which was cited with approval in 85 Ky., 217.

But in Young v. Ditto, the court went further, and expressed the opinion that the
obligors would have been thus liable if there had been no joint decree for costs; which
seems doubtful; see note III, 1, ante, page 472.



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NOTES OF DECISIONS. JJl



(6) That the dismissal of an appeal for want of prosecution was a virtual affirmance of
the judgment appealed from. Harrison v. Bank of Ky., 3 /. J. M., 375.

(7) That an appeal-bond estopped the obligors from denying the existence of a decree,
the existence of which was acknowledged in the condition of the bond. 4 J. /. M., 656.

(8) That the replevying of a judgment, after its affirmance, did not satisfy and discharge
an appeal-bond, the condition of which was that the appellant should "pay and satisfy"
the judgment. J J. J* M., 370.

(9) That an appeal-bond which substantially complied with the provisions of the statute
was sufficient. 2 Litt., 187; 3 Mon., 392.

2. It was held that a covenant in a supersedeas bond to pay "all such damages and
costs in case said appeal or writ of error shall be dismissed, or the judgment of the court
below affirmed," was, in effect, .1 covenant to pay such damages and costs as might be
awarded by the Court of Appeals. 4 B. M., 360.

3. Upon a writ of error to reverse a decree which was both in rem and in personam, a
supersedeas bond for the prosecution of the writ with effect, &c, was held to bind the
obligors for the amount of the decree in personam, Graham v. Sutigert, 12 B. M., 522.

1 752. Supersedeas.

Elizabethtown, <&V., R. R. Co. v. Ashland, &c, R. R. Co., 94 Ky., 481, accords with
Smith v. Western Union Telegraph Co., cited in note (7), ante, page 485; and in Kentucky
and Indiana Bridge Co. v. Kreiger, 91 Ky., 625, it was held that an appeal with supersedeas
from a judgment perpetuating an injunction leaves the injunction in force. But see
Amendments of 1 894, pages 241a, 241b, and 484.

i 755« Cross-appeal.

See McKay v. Mayes, 17 Ky. L. Rep., 827.

J 759. Delay cases.

Whether or not a judgment should be affirmed as a delay case, must be determined
from the face of the record only, and not from any statements of appellant or its counsel as
to its intentions or reasons for appealing. L. & N. R. R. Co. v. Schmidt, 20 Ky. L.
Rep., 810.

J 761. Proceedings in court below after reversal of judgment.

The decision or dictum in Baker v. Baker, <SrV., 87 Ky., 464 (cited, ante, page 493), that
ten days notice of the filing of the mandate is unnecessary if it be filed in open court, was
overruled in Lloyd, Trustee, v. Matthews, 92 Ky., 300.

J 763. Reversal for errors which may be corrected in the court below.

a. Though the Court of Appeals has reversed judgments, upon appeals therefrom, on
the ground that they were void (2 Duv., 540; 6 Bush, 394); and though, since the adoption
of the present Code, it has been held that an appeal from a void judgment, a motion to
set aside which has not been overruled by the court below, should be dismissed (Bullitt v.
Commonwealth, 14 Bush, 74; Easterling v. Chiles, Thotnpson <Sr* Co., 14 Ky.,)', according
to American Accident Company v. Reigert, 92 Ky., 142, a motion to dismiss such an appeal
should be overruled, because "a void judgment is, in legal effect, no judgment.

It is the same as if no order had been made. This being so, there is no appeal pending
to be dismissed." The proper course, perhaps, is an order to strike the case from the
docket of the Court of Appeals. Ford v. Commonwealth, 3 Dana, 46.

b. Several married persons having recovered money to which the wives were entitled
as distributees, a creditor of the decedent obtained judgment against them therefor, which
the court affirmed, saying, however: "The distribution was made on the application of

femes covert and their husbands, and the husband, by reason of his marital rights, will be
presumed to have applied the money to his own use, nothing else appearing ; and the judg-
ment z>* personam against their wives is void, and can be set aside on motion, the petition
and pleadings showing that they were married women." Rubel v. Bushnell, 91 Ky., 254.
I submit that the judgment against the wives, assuming it to have been erroneous, was



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JJ2 APPENDIX,



not void, as the circuit court had jurisdiction of their persons and of the subject of the
action (see, for instance, $ Bush, 35, 36; 7 Id., 662; 8 Id., 299; 9 Id., 125); and that, if
it was void, their appeal should have been dismissed or stricken from the docket, with in
affirmance of the judgment against the husbands only.

i 764. Damages on affirmance or dismissal of appeal.

a. The circuit court having made an order granting an appeal from a judgment after the
term when it was rendered, it was held that no damages could be awarded on a bond
which was thereupon taken by its clerk, as it was void as a statutory bond ; but the court
declined to express an opinion concerning its effect as a common law bond. America*
Accident Co. v. Reigert, 92 Ky., 142.

b. The 10 per cent, damages allowed upon affirmance of a judgment that was superseded,
is to be computed only on the amount of the judgment at the date of the supersedeas.
Popp v. L. & A/. R. R. Co., 19 Ky. JL Rep., 328.

c. Where an appeal is dismissed for lack of jurisdiction damages on the supersedeas are
to be given. American, <5rV., Co., v. Slaughter, 19 Ky. L. Rep., 418.

d. Supersedeas bond in record. Upon an affirmance of a supersedeas judgment, damages



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