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facts authorizing the manner of service pursued.

3. If the person who serves a notice be an officer, his indorse
must show his official position ; if he be not an officer, he must
an affidavit that his indorsement is true, that he is over sixteen ye;
age, and that he is not a party to, nor interested in, the action.

4. Such indorsement of an officer, and such indorsement and aflf
of one who is not an officer, shall be proof of the service.

(a) 1. See §446 and notes, as to notices of motions.

2. Objection to sufficiency of notice is waived by an appearance and trial on the
78 A>., 602.

§ 625 [693]. How notice to be served generally. — A notice m
served by delivering a copy of it to the person to whom it is dire
or by offering to deliver it to him ; or, if he can not be found ;
usual place of abode, by leaving a copy there with a person ove
.age of sixteen years residing in the same family with him ; or,
such person be there, by affixing such copy to the front door of
place of abode ; or, if the person to whom the notice is directed
not be found and has no known place of abode in this State, the 1
may be served by delivering a copy to his agent or attorney.

A sheriff's return, on a notice of a motion, that he had executed it by leaving
copy with the wife of the defendant, he not being at home, is prima facie suffici<
Duv.\ 306.

§ 626 [694]. IV/ien court may direct mode of serving notice. — I
person to whom a notice is directed have no known place of abc
this State and no known attorney residing in this State; or, i
persons to be notified be numerous, the court may direct the mo<



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MOTIONS AND NOTICES. 425



* notices, and to what persons, if any, they shall be given.
1 copy of the order must be returned with the service of the

595]. Service of persons under disability. — A notice to a person
der any disability, excepting coverture, or infancy and cov-
ibined, shall be served on his guardian, guardian ad litem,
mnmittee, or next friend, if he have one, who represents him
on.

696]. Service on corporations. — A notice to a corporation
rved on its chief officer or agent, or on its attorney.
597] Service on married women. — If husband and wife unite in
r defending an action, the service of a notice on the husband
jemed a service on the wife.

598]. Sendee on absent defendants. — A notice to a person con-
summoned and not appearing shall be served on the attorney
to defend for him.

599]. Service on attorney. — Unless it be otherwise specially
1 this Code, a notice to a party in an action of any motion
ing to be made or taken therein, in court or before a judge,
•ved upon such party or his attorney ; but the service upon
jy must be by delivering to him a copy of the notice.
700]. Notice to attorney to take depositions. — If a party to an
tiis [guardian,] guardian ad litem, curator, committee, or next
not reside in the county in which it is pending, a notice to
e depositions may be served by delivering a copy thereof to

y-

eted word guardian is omitted from the enrolled act.

is taken on notice to a corresponding attorney appointed. for infants con-
mmoned and before the appointment of a guardian ad litem, .«« will be corn-
ice for or against the infants after they or their guardians, if they are still
appear and make defence." 9 Bush, 503-04.

701]. Punishment of officer failing to serve notice. — An officer
ny notice in an action is properly delivered for service within
shall serve and return it to the party who delivered it to him.
to perform this duty may be punished as a disobedience of
3 of the court.



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426' MISCELLANEOUS PROCEEDINGS. [TH

CHAPTER III.

OFFER TO COMPROMISE.

$ 634. Offer of defendant to let judgment go for certain sum.

{ 635. if his defence fail, to let judgment go for a specified

$ 636. Neither offer shall postpone trial.

§ 634 [702]. Offer of defendant to let judgment go for certain s
The defendant in an action for the recovery of money, only, m
any time before the trial, serve upon the plaintiff or his atton
offer in writing to allow judgment to be taken against him for th
specified therein. If the plaintiff accept the offer, and give
thereof to the defendant or his attorney, within five days after th
was served, the offer, and an affidavit that the notice of acceptan<
delivered in the time limited, may be filed by the plaintiff;
defendant may file the acceptance, with a copy of the offer verif
affidavit ; and, in either case, the offer and acceptance shall be
upon the record, and judgment shall be rendered accordingly,
notice of acceptance be not given in the period limited, the offc
be deemed withdrawn, and shall not be given in evidence nor men
on the trial. If the plaintiff fail to obtain judgment for more th<
offered by the defendant; he shall pay the defendant's cost fro
time of the offer.

An attorney at law, under general authority as such, independently of any
authority conferred upon him by his client, has no power to compromise the suit o
tender the claim of his client to the defendants in the action, and dismiss his ]
The extent to which the authorities go is, that admissions made by an attorney of r
court, in a case then pending, while conducting and managing it, and preparatoi
trial or decision of the case, are binding upon the client. 3 Met. % 438.

§ 635 [703]. Offer of defendant, if his defence fail, to let judgn
for a specified sum. — In an action for the recovery of money on
defendant, having answered, may serve upon the plaintiff or his at
an offer in writing that, if he fail in his defence, the amount
recovery shall be assessed at a specified sum. If the plaintiff
the offer and give notice thereof to the defendant or his att
within five days after it was served, and the defendant fail in his d<
the judgment shall be for the amount so agreed upon. If the p
do not accept the offer, he shall prove the amount to be recovei
if the offer had not been made. The offer shall not be given
dence nor mentioned on the trial. And, if the amount recovered
plaintiff do not exceed the sum mentioned in the offer, the def
shall recover his costs incurred in the defence in respect to the qi
of amount, to be taxed under the direction of the court.



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SUBMITTING A CONTROVERSY OFFER TO CONFESS, ETC. 427

ction "applies alone to cases in which something more than the mere amount
s involved. The defendant must rely upon a defence that goes to the whole
ome item or distinct portion of it, before he can avail himself of the benefit
n. . . . When the only matter in dispute is the amount of recovery to
lintiff is entitled, J 640 applies and § 635 does not. 13 Bush, 405-06.
defendant's offer be not accepted and the plaintiff recover less than the sum
lefendant should have judgment for the costs arising after the offer but not
17 B. M., 353.

704]. Offer shall not postpone trial. — The making of any offer,

the provisions of this chapter, shall not be a cause for a
:e of an action or a postponement of a trial.

CHAPTER IV.

SUBMITTING A CONTROVERSY.

reed case, submission of, to court.

what constitutes record of.
judgment in.

705]. Submission to court of agreed case. — Parties to a question
ht be the subject of a civil action may, without action, state
>n and the facts upon which it depends, and present a sub-
sreof to any court which would have jurisdiction, if an action
brought. But it must appear by affidavit that the contro-
U, and the proceedings in good faith, to determine the rights
ties. The court shall, thereupon, hear and determine the
ender judgment as if an action were pending.

t court has no jurisdiction to hear and decide an agreed case, unless there be
led stating that " the controversy is real, and the proceedings in good faith
the rights of the parties" (18 B. Af. t 656), if the agreed case contain the facts
the controversy depends (7 Bush y 108) ; but, if the agreed case merely state
, leaving the facts to be proved, the court has jurisdiction, though the practice
id inconvenient. Id.

706]. What constitutes record of agreed case. — The case, the
, and the judgment shall constitute the record.
707]. Judgment in agreed case. — The judgment shall be with
may be enforced, and shall be subject to reversal, in the
ler as if it had been rendered in an action, unless otherwise

1 the submission.

CHAPTER V.

OFFER TO CONFESS JUDGMENT.

set of offer to confess judgment for part of plaintiff's demand.

?o8]. After an action for the recovery of money is brought,
ant may offer, in court, to confess judgment for part of the



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428 MISCELLANEOUS PROCEEDINGS. [Til



amount claimed or part of the causes involved in the action. \
upon, if the plaintiff, being present; refuse to accept such confess
judgment in full of his demands ; or, having had reasonable noti<
the offer would be made, of its amount, and of the time of mak
fail to attend, and on the trial do not recover more than was so <
to be confessed, such plaintiff shall pay all the costs of the def
incurred after the offer. The offer shall not be deemed to be an
sion of the cause of action or amount to which the plaintiff is en
nor be given in evidence upon the trial.

"The offer must be made in court, either when the plaintiff is present or a
-when he has been notified that it will be made." In an action for $1,525 for pro!
services, the defendant answered, and, without denying that the services had b<
dered, controverted their alleged value and averred that they were not worth o^
and defendant's willingness that plaintiff should have judgment for that sum, an<
same day notified the plaintiff that " the defendant will let judgment be taken agai
for the sum of $55 ;" and it was held that, as the record did not show that any
confess a judgment was ever made in court when the plaintiff was present, an
notice did not specify when the offer would be made, the plaintiff had not been p
election, and had a right to take judgment for the $55 under §410 (now \ 380) of th
and his doing so did not prevent prosecution of his action for the residue of his c
Maxwell v. Dudley, 13 Busk, 403; see 80 A>., 576, 585.



CHAPTER VI.

PROCEEDINGS UPON EXECUTIONS AND DISTRESS WARRANTS.

{ 641. Indemnifying bond may be required by officer.

J 642. if not given, officer may refuse to proceed with execu

\ 643. claimant or purchaser must look to.

\ 644. if given, how surplus-proceeds of sale to be disposed

\ 645. Bond to suspend execution-sale.

\ 646. appraisement before taking.

\ 647. to what court to be returned.

g 648. motion on.

\ 649. objection to appraisement.

g 650-1. does not discharge levy.

2. but obligor may move to discharge it.

\ 651. Preceding provisions apply to executions issued by quarterly courts and

\ 652. And to distress-warrants.

\ 653. Tenant's bond to discharge levy of distress- warrant.
\ 654. motion for judgment on.

\ 655. trial of, before justice.

\ 656. in court.

\ 657. judgment on, against defendants.

\ 658. Bond for partial suspension of distress for rent not due.

\ 659. Jury-trial of right of property abolished.

{ 660. Levy of execution on interest in joint property.



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PROCEEDINGS UPON EXECUTIONS AND DISTRESS WARRANTS. 429



709]. Indetnnifying-bond may be taken by officer. — If an officer,
s or is required to levy an execution * upqn personal prop-
it (a) whether it is subject to the execution, he may give to
iff therein, or his agent or attorney, notice that an indem-
>nd is required. Bond may, thereupon, be given by or for
iff, with one or more sufficient sureties, to be approved by
', to the effect that the obligors therein will indemnify him
5 damages which he may sustain in consequence of the seizure
r the property ; and will pay to any claimant thereof the
le may sustain in consequence of the seizure or sale ; and will
any purchaser of the property such estate or interest therein
; and, thereupon, the officer shall proceed to subject the
o the execution (£), and, subject to the provisions of §651,
'n the indemnifying bond to the circuit court of the county
he levy is made (c).

iever the officer in good faith, and in the exercise of his official discretion,
jr the property is subject to levy or sale, the law gives him the right to
idemnifying-bond.

flf's return upon an execution showed that, in the action in which the judg-
idered, process had not been served on the party whose property had been
1, but on another person of the same name, and that the levy was made with
iding that he was to be indemnified by the plaintiff before selling. Upon
rule against the sheriff to compel him to make the sale — held, that he was
wtbting whether the property was subject to the execution, and in demanding
ff a bond of indemnity before he would proceed to sell. 2 Met., 500.
e to do so makes him only liable for such damage as the plaintiff actually
[lis misconduct ; and he may, therefore, in an action on his official bond, show
erty was not subject to the execution, and that the title was in some one else,
of damages. 1 Mei. t 160.

i bond is not required to be returned to the office 'before the officer proceeds
: be returned with reasonable dispatch, he will not lose the protection it was
fford him, even though the claimant institute his action before it is returned,
aount to reasonable dispatch must depend upon the facts of the particular
eturn on the day succeeding the sale ought to be regarded as legal diligence
cumstances. II Bush, 547-48.

\holm v. Gocch y 6rY., 79 Ky., 468, it was held that a claimant or a purchaser
an action on an indemnifying bond, though it has not been returned ; or
fficer on his official bond, if he has failed to return the indemnifying bond.

710]. Officers may refuse to proceed, if bond not given. — If the
tioned in the last section be not given, the officer may refuse
t execution ; or, if it have been levied, and the bond be not
reasonable time after it is required by the officer, he may re-
property to the person from whose possession it was taken,
ry shall stand discharged.



*See 1 652 as to distress-warrants.



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PROCEEDINGS UPON EXECUTIONS AND DISTRESS WARRANTS. 43 1

s sheriff: thus, where, under an execution for $320, hogs of the defendant,
abject to a lien for $422, were sold by the sheriff for $441, it was held that
sr was entitled to recover the $422 on the bonds. Secrets v. Markwell, 1 1

idant whose property that is exempt from execution is sold by an officer under
is a "claimant" within the meaning of the Code. Dixon v. Bacon, <5rV., 3

officer have taken the proper bond, and suit be brought against him by the
the plaintiff in the execution be substituted for the officer, as defendant in
le effect of the bond, as a bar to the suit, is the same, in favor of the substi-
nt, as it would have been in favor of the officer. 15 B. Af., 450.

12]. How surplus-proceeds of sale to be disposed of, ifindetnni-
l be given. — If property, for the sale of which the officer is
d, behold for more than enough to satisfy the execution under
as taken, the surplus shall be paid into the court to which the
ng bond is directed to be returned. That court may order
sition or payment of the money to be made, temporarily or
as may be proper, in respect to the rights of the parties

tng more property than enough to satisfy the execution, see §694, subs. 2,

^13]. Bond of claimant to suspend execution-sale. — The sale of
operty upon which an execution is levied, shall be suspended
ance of any person— other than the defendant in the exe-
timing the property, who shall execute, with one or more
fficient for double its value, a bond to the plaintiff (a) in the
to the effect that, if it shall be adjudged that the property
t of it is subject to the execution, he will pay to the plaintiff
of the property so subject, and ten per cent, thereon, not
the amount due on the execution, and ten percent, thereon (b).

d to the assignee of a judgment or execution is not valid as a statutory bond
•e proceeded on by motion. 18 B. Af., 661 ; 13 Bush, 589.
HderaUon of bond.

ion against A having been levied on his interest in tobacco owned by him
held that B's bond, executed pursuant to this section, was without consid-
aot obligatory, as, under $ 660, the sheriff had no right to seize or sell the
ay part of it. 78 Ky., 426.
f bond.

otion on the bond, the obligors can show any equitable cause against judg-
le or in part. Code, \ 449 ; Williams v. Smith, 4 Bush, 540 ; overruling, as
, Watson v. Gabby, 18 B. Af., 663 (see Lair's guardian v. Wilson, <5rV., 13

execution, in favor of A v. B, having been levied on property of B, on which
had a lien for rent; C, who was B's surety on a covenant to pay the rent,
i pursuant to \ 545 ; and afterward paid the rent, and took from the landlord
t of the covenant. A, having moved for judgment on the bond, it was held

28



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32 MISCELLANEOUS PROCEEDINGS. [TITLI

lat C was substituted to the landlord's lien on the property ; and that, the property
f less value than the rent paid by C, A was not entitled to judgment. Smith v. W
lush, 92.

3. Effect of replevying the debt.

The sheriff may take a replevin-bond after taking bond pursuant to \ 645 ; but thi
ot extinguish the liability on the last mentioned bond. The plaintiff would st
ntitled to ten per cent, thereon, and costs; and, if the replevin-bond be invalid, b<
: is not signed by all the defendants, the plaintiff may proceed on the claimant's tx
uthorized by J 648. I Duv., 290.

§646 [714]. Appraisement before taking claimants bond. — For
mrpose of taking the bond mentioned in the last section, the oi
hall select three disinterested houskeeepers, and administer to thei
>ath to make a fair appraisement of each article of the property — w
ppraisement, in writing, shall be recited in the bond.

§647 [715]. To what court bond to be returned. — Subject to the
isions of §651, the bond, with the appraisement annexed thei
hall be returned to the circuit court of the county in which the
iras made.

§ 648 [716]. Motion on bond. — The party to whom the bond is
uted may move the court to which it is returned for a judgment the
gainst all or any of the obligors or their representatives, having g
them ten days notice of the motion (a). The court shall dire
ury to be empanneled, and may cause such issues to be tried as it
irescribe, and direct which party shall be considered plaintiff in
jsues. If the property, or any part of it, be found subject to the
ution, judgment shall be rendered in favor of the plaintiff therei
he value of the property so subject and ten per cent, thereon, no
eeding the amount due on the execution and ten per cent, thei
\xi execution may be issued upon the judgment forthwith, on \s
he same indorsement shall be made as on the execution in virtv
irhich the property had been seized.

(a) 1. As to proceedings on motions generally, see $444 to 449 and notes.

2. In Smith v. IVeiPs adm y r % 4 Bush, 92, it was held that the provision of §446
squires the notice to "state the nature and grounds of the motion" was only in t
> apply "where the party proceeded against must necessarily look to the facts stal
tie notice for the grounds of the motion, as, in ihe case of a surety against his princi

client against his attorney;" that it does not apply to a motion on a claimant's bon<
uted under \ 645 ; and that, upon a motion, W's notice to the obligor that, at a sp<
ime, &c, she would move for "a judgment on your bond, executed by you to 1
November 4, 1866, attested by G. M. Harbison, sheriff of Shelby County, in the a
arah M. Wells, administratrix of W. W. Smith," was, considered in connection wii
ond, sufficiently explicit.

3. An execution against A having been levied on property in his possession, B exc
forthcoming bond in which the property was spoken of as "being the property ol

nd, upon a motion against Bon a claimant's bond subsequently given by him for the
roperty, it was held that, as the forthcoming bond " suspended a sale by the sheri



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PROCEEDINGS UPON EXECUTIONS AND DISTRESS WARRANTS. 433

levy on any other property," is estopped B from denying that the property
A, there being no proof of fraud or mistake. Spark v. Shropshire, 4 Bush, 550.

[717]. Objection to appraisement of property, — Upon the trial
)tion, either party may object that the property was not fairly
; and, thereupon, the jury trying the facts shall hear evidence
*, and find, the value of the property.

[718]. Bond does not discharge levy — obligor's motion to dis-
nd and release levy. I. — The giving of the bond mentioned in
11 not discharge the levy of the execution upon the property
But the officer may leave it, subject to the lien of the levy,
person in whose possession it was found, pending the pro-
Hi the bond; and may, in the meantiftie, proceed with the
1 against any other property of the defendant,
s obligor in such bond may, however, on ten days's notice to
tiff in the execution, move the cpurt to which the bond is
:o discharge the same and release the levy under the execution,
isions of §§ 648 and 649 shall, so far as applicable, govern the
igs upon such motion.

719]. Application of preceding provisions to quarterly and justices*
i distress warrants. — The foregoing provisions of this chapter
\y to proceedings upon executions issued by judges of quar-
ts or by justices of the peace, with these exceptions:
emnifying bonds shall be returned with the executions under
:y are taken.

imants' bonds shall be returned to any justice of the peace of
y, and motion thereon may be made before him, on five days'
Pie shall cause a jury to be empanneled to find whether the
is subject to the execution, subject to an appeal if the value
>perty exceed ten dollars.

[720]. The preceding provisions of this chapter shall also
>roceedings upon distress warrants levied or about to be levied
sonal property claimed by any person other than the tenant,
ee, or under-tenant ; except that in such case the bond of the
)f the property, if it exceed the value of fifty dollars, shall be
to the circuit court of the county, and the motion thereon
nade in that court ; and, if the value of the property do not
ty dollars, the bond shall be returned to some justice of the
the county, and the motion may be made before him. Indem-
>nds in such cases shall be returned with the warrants under
y were taken.

[721]. Tenant's bond to discharge levy of distress-warrant. — If
levy or be about to levy a distress-warrant upon any property.



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434 MISCELLANEOUS PROCEEDINGS. [TIT!

the tenant, his assignee, or under-tenant, may execute, with 01
more sufficient sureties, to be approved by the officer, a bond t
party in whose favor the warrant issued, to the effect that he wii
to such party the amount of the rent specified in the' warrant, wit
per cent, thereon, if the property be of the value of the rent so
Red ; or, if it be of less value, that he will pay to such party the
thereof, and ten per cent, thereon. For the purpose of taking this
the officer shall cause the property to be appraised as is provid
§ 646. The appraisement shall be annexed and referred to in the 1
Upon the giving of the bond, the levy, if one have been made,
be discharged, and the bond and warrant shall be returned to
justice of the peace of the county, if the amount claimed do nc
ceed fifty dollars ; and, if it exceed that sum, to the clerk's office <
circuit court of the county.

1. The obligor in a bond executed pursuant to this section is estopped from d<
upon a motion on the bond, that he is either tenant, sub-tenant, or assignee : the d
allowed are prescribed by §654. 4 Met., 260.

2. A bond executed pursuant to J 64 5 is unauthorized and does not release th
and the officer may retake the property, though he may have returned the warn
Met., 486.

3. The Code has not repealed \ 24, art. 2, ch. 66, of the General Statutes, which
a distress for rent to be replevied. 3 Bush, 503.

§ 654 [722]. Motion for judgment on tenants bond. — The pai
whom the bond is executed may move the justice of the peace <
court for a judgment thereon against all or any of the obligors or
representatives, having given to them five days' notice of the motic



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 58 of 142)