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Civil and Criminal codes of practice of Kentucky online

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have given bond with sureties, or for whom sureties may have given
pursuant to the provisions of § 724 or § 748 — if such defendant or
lant have thereafter become a bankrupt under the laws of the t
States, upon notice thereof from his adversary being served on th
ties, pursuant to the provisions of chapter 2 of Title IV, concerni
service of a summons, the court shall decide whether or not any
and, if anything, how much, should have been adjudged agair
defendant or appellant, but for the bankruptcy ; and such decisioi
be conclusive as to the liability of the sureties ; but they shall 1
liable upon a bond given pursuant to §214, if property releasee
an attachment by reason thereof, or its proceeds, have lawfully cc
the defendant's or appellant's assignee in bankruptcy.

§ 694 [253, 405]. Sale of real property for debts generally — /
debts — division of property before sale. — 1. Before ordering a sale <
property for the payment of debt(#), the court must be satisfi
/Q the pleadings (b), by an agreement of the parties, by affidavits R

(/v (/-/ ^by a report of a commissioner or commissioners, whether or r
property can be divided without materially impairing its valu<
may cause it to be divided, with suitable avenues, streets, lar
alleys ; or without any of them.

2. If it be necessary to sell, for the payment of debt, a pai



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MISCELLANEOUS PROVISIONS. 445



*rty which can not be divided without materially impairing its
? officer shall sell the whole of it, though it bring more than
o be raised ; and the court shall make proper orders for the
mi of the proceeds.

* plaintiff, in an action to enforce a lien on real property, shall
is petition the liens, if any, which are held thereon by others,

the holders defendants ; and no sale of the property shall be
y the court prejudicial to the rights of the holders of any of
; and when it appears from the petition or otherwise, that
sbts are secured by one lien, or by liens of equal rank, and
ill due at the commencement of the action, or become so be-
ment, the court shall order the sale for the pro rata satisfac-

of them ; but if, in such case, the debts be owned by different
id be not all due, the court shall not order a sale of theprop-
they all mature. If all such liens be held by the same party,
may order a sale of enough of the property to pay the debts

unless it appear that it is not susceptible of advantageous
) ; or, that, for some other reason, the sale would cause a
lereof, or seriously prejudice the interests of the defendants {d).

> appraisement and redemption of land sold for debt by order of court, see act

r878 {B. <5r» F.'s G. S., 835).

legation that the land is divisible or indivisible is unnecessary. '* If the court

from the character of the boundary or the number of acres in the tract, as

the pleadings, that a division can be had of the land, it is all that is required.

doubt but that a tract of thirty acres of land can be divided and, ordinarily,

pairing its value "(13 Bush, 415-16) ; and the court will presume that a house

city or town is not susceptible of advantageous division (/</., 473); and the

m the defendant to show that a thirty acre tract can not be divided without

» value. Id,, 416.

an action by the holder of several lien-notes, some of which are due and some

j erroneous —

rder a sale of land for payment of the notes which are not due, though the

ge that a sale of the entire tract is necessary to prevent loss to him. 6

der a sale for payment of the notes due, subject to a lien for those not due :
)uld have directed a sale of enough of the land to pay the debt and costs then
iving the deferred installment of the price a lien on any remaining portion of
Bush, 24.

■der the sale of land which can not be advantageously divided or so much
ay be necessary to pay the notes which are due : no sale should be ordered
11 fall due. Faught v. Henry, 13 Bush, 471 ; Leopold \, Furber, 84 Ky., 214.
•or in failing to direct the commissioner to sell for only so much as would sat-
ment is not available when the land did not sell for as much as the debt. I

trt of a lien-note be contested, the court should not order a sale for the
part until the contest is settled, unless the plaintiff waive his lien as to the
rt. 13 Bush, 416.



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44^ MISCELLANEOUS PROVISIONS. [TI

§ 695. Sale of personalty for more than enough to pay debt, — Ii
necessary to sell, for payment of debt, one or more parcels of pc
property which, in the opinion of the officer making the sale, c
be divided without materially impairing the value thereof, he sh<
the whole of such property, though it bring more than the sun-
raised ; but he shall have no commission on the excess. The
shall be paid to the defendant, or the bond therefor shall be pay*
him.

§ 696. Credits, tune, place, &c. , of sales by otder of court — Eve
made under an order of court (a) must be public, upon reas
credits to be fixed by the court, not less, however, than three r
for personal, nor six months for real property (b) ; and shall be
after such notice of the time, place (c), and terms, of sale as the
may direct ; and, unless the order direct otherwise, shall be made
door of the court-house of the county in which the property,
greater part thereof, may be situated ; and the notice of sale mus
for what sum of money it is to be made (d).

An appraisement is essential before there can be a judicial sale of realty. A
9, 1878; now Ky. Stat., 2362.

(a) I. As to describing the property to be sold &nd the duties of the commission!
order of sale, see note {b) to { 390.

2. It is error to order a sale of property when the title is so questionable as to
a sale for a fair price. 1 Bush, 249.

(b) I. As to terms of sale in courts of continuous session, see Act 1892, (Appen

2. Authorizing the commissioner to fix the credits on which land shall b<
erroneous. I Duv., 347-48.

3. As to what are "reasonable credits," see Willeli v. Johnson, &c, 84 Ky., 41

(c) 1. Authorizing the commissioner to fix the time of sale is erroneous.
347-48; 2 Id., 124.

2. "The commissioner's report of a sale at the court-house on a county court d
sufficient notice, cures the alleged defect in the judgment in not prescribing 1
and place of sale, even if such omission could be deemed error." Doughty v
Bush, 161.

3w A judgment having failed to designate the place of sale and sale having b«
at a place other than the court-house and having been reported to and confirms
court, the judgment of confirmation was not void. 12 Bush, 563.

(d) I. Conduct of commissioner as to sales.

(1) Decretal sales are not within the provisions of the statute of frauds. 2 D

(2) If the commissioner fail to advertise the sale of land as directed by the jt
and the land sell for less than its value, the sale must be set aside. Williams v. I
1 Duv., 257.

(3) The fact that the commissioner designated which part of the tract of lan»
be sold, instead of referring the matter to the court, after having ascertained that
the whole tract would satisfy the judgment, is not sufficient of itself to quash
But the discretion conferred upon the commissioner in this respect, when abused
corrected. 2 Met., 551.

(4) The commissioner was directed to advertise the sale of land at the coi
door, and two other public places in the county of Henderson. It was advertised b;



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MISCELLANEOUS PROVISIONS. 447



lie court-house door, and at two other places in the city of Henderson, which

inty of Henderson. This, although a literal compliance with the directions to

ioner, is not a compliance with their spirit and meaning. 2 Met., 552.

e of land in gross after notice that it would be sold in parcels, or a sale of it

ter notice that it would be sold in gross, should be set aside if objected to by

at. 4 Busk, 75.

le advertised to take place at one o'clock was set aside because it was made

hour, it appearing that the property was sold for less than one-fourth of its

,nd that other persons attended at or near the appointed time for the purpose

I Bush, 628.
igh the order of sale failed to direct the commissioner to sell subject to the
right of dower of the defendant's wife, the commissioner acted properly in

II Bush, 177.
commissioner may employ an auctioneer to cry the sale, but it must be made
ice and under the direction of the commissioner. 12 Bush, 427.
confirmation of sales, see §394 and note (b).
r and obligations of bidders before and after confirmation,

bid be rejected without fault on the part of the bidder, he may be allowed
ompensation for his outlays and trouble attending the transaction ( Gaihright
7 B. M., 557) ; including the fee of an attorney employed by him to resist

reject his bid. Egard v. Chearnly, &c., 1 Bush, 12.

rding to Cooper v. Baker, 2 Bush, 244, a bidder for land can, after confirmation
mce of the land to him, by motion against the tenant of the land, recover
ng after his purchase ;" and that seems to be right, if, as seems inferable from

in Vance y s adm'r v. Foster 6* Ray, 9 Bush, 389, a bidder for a house and lot
►el led to comply with his bid though the house be accidentally burnt before
1. But, according to Ball v. First National Bank of Covington, 80 Ay., 501,
;r is only entitled to rent from the time of confirmation.
igh, in general, if a sale be set aside, the purchaser is entitled to a lien on the

purchase-money paid by him, as against the parties who procured the sale
mn, I Bush, 311) ; it is otherwise if the order of sale be void. 14 Bush,

Ider who wrongfully refuses compliance with the terms of sale is liable for the
jtween the amount of his bid and the smaller sum for which the property is
Id. 2 Duv., 332.
laser's right to object to confirmation, on account of by-bidding, is waived by

1 of sale-bonds after ascertaining all the facts relied on. 11 Bush, 175-76.
rchaser's discovery of liens on the property, after the term at which the
lfirmcd, does not entitle him to credit on his bonds: he must look to the
hose duty it was to discharge the liens. Farmers' Bank v. Peter, 13 Bush, 591.
►very, after the term at which a decretal sale has been confirmed, of a mistake
intity of land sold, may be corrected in a new action, in the same manner as if
been made by private contract. Miller v. Craig, 83 Ky., 623, and cases cited,
ote (b) to? 394.

Bonds of purchasers. — 1. The purchaser of property sold
order of court shall give bond for the price, with good surety
by the officer (a) making the sale, payable to him or to the
titled to receive the money, as the court may direct; or, if the
:e no order on the subject, they shall be made payable to the

29



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448 MISCELLANEOUS PROVISIONS. [T



2. They shall bear interest from date at the rate the judgment

3. They shall have the force of judgments; and on exe<
issued upon them no replevy shall be allowed, and sales shall
cash.

(a) If the officer accept and attest a bond, with surety, he can not afterward
additional surety, but must report the sale : and it is for the court to decide, if
firmation be objected to for insufficiency of security or other reason, whether or
bid shall be accepted. Reamer v. Judah, 13 Busk, 206.

§ 698. When purchaser entitled to possession of personalty. — Th
chaser of personal property sold under an order of court sh
entitled to it, upon complying with the terms of sale.

A bidder for personal property was required to give bonds for the purchase
though the property, before delivery to him, was accidentally destroyed by fire.
adm'r v. Foster 6r* Ray t 9 Bush, 389.

§ 699. Lien on real property for purchase-money. — A lien shall e:
real property sold under an order of court, as security for the pu
money ; and, upon payment thereof, the clerk shall release the 1
the margin of the record of the deed in the office of the clerk
county court.



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INFERIOR COURTS — MODE OF PROCEEDING IN.



TITLE XVI.

ERLY COURTS, POLICE COURTS, CITY COURTS, MAYORS'
AND COURTS OF JUSTICES OF THE PEACE.

Chap. i. Mode of proceeding in.

" ' 2. Appeals from their judgments.



CHAPTER I.

MODE OF PROCEEDING IN.

Code applies to quarterly courts, justices' courts, &c.

To whom process shall be directed.

Duties and powers of judge or justice as clerk.

Clerks of quarterly courts.

Quarterly courts, justices' courts, &c, docket of.

when pleadings in to be oral
07. time of trial in.

testimony in, in equitable ac
service of subpoena from.
II. district in which summons

defendants to be returned
district in which summons
defendant to be returned,
jury trial in.
new trial in.
record book of.
interrogatories in, to adverse
time of ar
provisions as to appeals fron
judgment of, upon lost recor
judgment of, upon set-off c
claim exceeding jurisdicti
provisional remedies in, w

disposed of.
land not to be sold under
from,
how to be sold under
of.

00 [822]. Code applies to justices' courts > &c. — The provi

)de shall regulate the proceedings in civil actions in <

county courts, police courts, city courts, mayors' coi

of justices of the peace, except as is provided in this eh

on 266, concerning appeals in attachment-cases, applies to the judg
sustaining an attachment. 10 Bush, 624.

o\ [823]. To whom process shall be directed. — A summoi
>rovisional remedy, and other process, from quarterly c



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450 INFERIOR COURTS* [titl

county courts, shall be directed to the sheriff, coroner, or a const
at the option of the plaintiff; those from police, city, and ma
courts, shall be directed to the marshal or a constable ; and those
courts of justices of the peace shall be directed to a constable; or
special agent appointed by the justice, by an indorsement on the
cess, upon an affidavit of the plaintiff or his agent being filed b<
the justice, to the effect that the process can not be executed, accoi
to the belief of the affiant, unless such special agent be appointed ;
such process may be served by any officer or person who is autho
by this Code to serve a summons.

An attachment from a justice's court maybe served by a sheriff. Turner v. Ho

2 DUV. 9 112.

§ 702 [824]. Duties and powers of judge or justice a±clerk. — The d
and powers enjoined and conferred by this Code upon ^clerks
devolve on the judges or justices who are by law required to a<
clerks of their courts.

§ 7°3 [825]. Clerks of quarterly courts, — 1. The presiding judg<
the quarterly court shall be the clerk of such court.

2. The county judge may, by an order entered of record in
quarterly court, empower the county clerk to act as clerk of
quarterly court ; and, upon such order being entered, the clerk sha
authorized to issue any process of the quarterly court, as fully a
judge might do, acting as clerk of such court. And the county <
issuing such process shall be entitled to the same fees, and subje
the same responsibilities, as the judge would have been.

3. Such order shall not prevent the judge from acting as clerk o
quarterly court in any case in which he may choose so to act.

4. If no such order be made, the county clerk shall, in the abs
of the county judge from his office, act as clerk of the quarterly c<
in the same manner as- if such order had been made.

5. The county clerk shall, at the commencement of each ten
the quarterly court, deliver to the presiding judge all process of
court returned to him, and all papers filed with him relating to ac
pending in such court.

§ 704 [826]. Dockets of quarterly courts, justices' courts, &c. — <
one docket is required to be kept — on which shall be entered all
actions and motions as they shall be returned.

§ 7°5 [827]. Wlten pleadings may be oral. — If the matter in -co
versy do not exceed fifty dollars, the pleadings in the action may be
and without verification. But before the summons is issued the pla:
shall file in the court the account, or the written contract, or a i
written statement of the facts, on which the action is founded.



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I.] MODE OF PROCEEDING IN. 4$ I



[n an action for money and interest, the interest due at the commencement of the
is part of the "matter in controversy" (18 B. M. t 224; 2 Met., 40 and 462); and*
>rincipal and interest exceed $50, the pleadings should be in writing. Code, {115;

*» 153.

Hie plaintiff filed in a justice's court, not a petition, but a statement in writing which
ted to set forth the facts on which the action was founded, and at the conclusion of
was a prayer for four hogs, which had been previously mentioned, said to be of the
>f $25, and for #35 for the taking and detention of the same, upon which a warrant
ued for #25 ; and it was held that the statement of facts mentioned in § 705 need not
1 a statement of the sum demanded, that such statement is surplusage, and that the
in controversy in that case was $25. Burbage v. Squires y 3 Afet., 77.

706 [828]. Time of trial. — In the actions named in the last section,
ervice of the summons five days before the time of trial shall
rize a trial and judgment. If the matter in controversy exceed
lollars, the service of the summons ten days before its return day
authorize a trial and judgment, whether the proceedings are
iry or equitable.

707 [829]. Upon the calling of an action for trial, if the sum-
have been served in due time, the parties must proceed forthwith
m an issue and try the case, unless the court give further time, or
a continuance.

708 [830]. Testimony in equitable actions. — In equitable actions, the
s may either take the depositions of witnesses, or examine them

in court.

jog [831]. Service of subpoenas. — A subpoena may be served by
ng it to the witness and informing him of the substance of it,
ut delivering to him a copy or ticket.

710 [832]. District in which summons of resident defendants to be re-
I — If the defendant reside in the county in which the summons is is-
it shall be returned for trial in the district of his residence, unless he
wise consent in writing, signed by him and indorsed on the sum-
; or, unless the justices in such district be interested or refuse to
i which case it shall be returned in an adjoining district. If it be is-
by the judge of the quarterly court, it shall be returned before him
>s the defendant, or defendants, all reside in one district and there
acting justice of the peace and an acting constable in such district].

ITie bracketed words were repealed in 1882; re-enacted in 1884, and repealed by
May 3, 1890.

rhe provision for returning the summons for trial to the district of the defendant's
ce has probably been repealed by new Constitution, \ 142.

7 11 [833]- If there be two or more defendants residing in the
y, but in different districts, the summons shall be returnable in
• district.



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452 INFERIOR COURTS. [title

§ 712 [834]. District in which summons of transient defendant tt
returned. — If a defendant transiently in a county be served with a si
mons issuing in said county, it shall be returned in the district in wl
he is served, unless he otherwise consent in writing signed by him.

§ 713 [835]. Jury-trials. — The parties shall not be entitled to a 1
by jury, unless the matter in controversy exceed in value twenty doll;
Upon a jury-trial being claimed, if it be allowable, the presiding ju
or justice shall order a jury to be forthwith empanneled to try
action. The jurors shall be qualified as is required in the circuit cou

As to number of jurors, see \ 248 of new Constitution.

§ 7 14 [836J. New trials. — A new trial may be granted in the quart<
courts or courts of justices of the peace, upon' motion made within
days after a judgment has been rendered, of which motion reasons
notice shall be given to the adverse party.

§ 715 [837]. Record-books. — Each presiding judge and justice of
peace shall, in a book provided for that purpose, keep a full and
record of judicial proceedings in his court; and keep a good cross-in<
of the names of the litigants, referring to the pages of the book
every entry in each case.

§ 716 [839]. Interrogatories to adverse patty. — Either party may
wfth the judge, justice, or clerk of the court in which the case is tc
tried, written interrogatories, to be answered by an adverse party \
resides out of the county where the court sits, or who is unablt
attend court on account of infirmity or imprisonment, or who i
female ; and may cause a certified copy of such interrogatories to
delivered to the party who is required to answer them ; and such ps
shall file with the clerk, on or before the day of trial, a plain and dii
response to the interrogatories, sworn to by him. Such response r
be read as a deposition by either party.

§ 717 [840]. Time of answering interrogatories — The court s
render judgment against the party who refuses to attend and be
amined when summoned, as is authorized by this Code, two days bei
the trial; or to make proper responses to interrogatories, a copy
which shall have been delivered to him three days before the trial, il
reside within fifty miles of the place of trial, and one additional day
every additional thirty miles he may reside therefrom : but the cc
may grant further time for attending or answering.

§ 718 [841]. Provisions as to appeals. — The last two sections s
apply to appeals from judgments of quarterly, justices', city, pol
and mayors' courts.

§ 719 [842]. Judgment on lost record of. — If the record of a ju



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MODE OF PROCEEDING IN. 453

a quarterly, city, police, mayor's, or justice's court be lost or
i, such court may, on motion of the plaintiff, made within five
er the rendition of the judgment, and after five days' notice,
new judgment for what may remain due thereon.
[843J. Judgment on set-off or counter claim. — A set-off or coun-
, though exceeding, in amount, the jurisdiction of the court,
used to bar and extinguish the demand of the plaintiff; but no
t shall be rendered in favor of the defendant for the excess, un-
t excess be within the limits of the court's jurisdiction as to
The judgment shall ascertain the amount due to the plaintiff
him a credit therefor on the claim used as a set-off or counter-
Provided, That when the amount of the counter-claim or set-off
the jurisdiction of the court trying the cause, the court shall,
n of either party to the action, or by their attorneys, transfer
\ to the court having jurisdiction. (Act 1893, p. 448..)]
[844]. When provisional remedies to be disposed of. — If an order
visional remedy, made by a judge or justice, in an action within
liction of his court, be served or levied, the trial of the action
>sition of the order may take place at any time after five days'
ven to the defendant by the officer who serves or levies such
r after five days' notice given by the defendant to the plaintiff,
rounter affidavit filed by the defendant; and, if the judge or
•efore whom the trial should regularly be had, be absent or
:> act, the officer may return the case for trial before the most
nt justice.

[845]. Subjection of land, &c, after returns of no property found
ions from justices' courts, &c. — Land shall not be sold nor levied
execution from a quarterly or justice's court, or any court of
irisdiction.

urts do not have jurisdiction of an attachment of land or of an action to enforce
ien thereon. Easterling v. CkiUs, *SrV., Co., 93 Ky., 315, 317.

[846]. When an execution upon a judgment of a court men-
§ 722 is returned by a proper officer, in whole or in part, in
?, no property found to satisfy it, the judge or justice of the
ill, upon application of the plaintiff or his attorney, furnish a
copy of the judgment, execution, arid return; which, on being
le office of the clerk of the circuit court of the county in which .
nent was rendered, shall be recorded by him in a book kept
>urpose ; and, thereupon, the plaintiff shall be entitled to the
ledies for the amount of his judgment and costs, including the
said copy and of recording it, as if the judgment had been
in the circuit court.



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4S4 INFERIOR COURTS. [TITL

i. See 32 439 to 443 and notes, as to actions on returns of "no property found
} 70 and notes, as to the courts in which such actions may be brought.



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 60 of 142)