statutes Kentucky. Laws.

Civil and Criminal codes of practice of Kentucky online

. (page 7 of 142)
Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 7 of 142)
Font size
QR-code for this ebook


take depositions, not, however, exceeding three, without leave of the
court.

4 [64]. The court shall allow to the guardian ad litem a reasonable fee
for his services, to be paid by the plaintiff and taxed in the costs (e).
The affidavit of such guardian, or of another person, or other com-
petent evidence, is admissible to prove the services rendered, but not to
prove their value. The court must decide concerning such value, with-
out reference to the opinions of parties or other witnesses.

(a) 1. §56 of the Code of 1854 declared that the appointment of a guardian ad litem
can not be made until after the service of summons in the action. It was held, however,
that an infant who filed a petition to be made a defendant need not be summoned. 16
B. M., 491.

2. But an order of court, by consent of counsel, that infants be made parties, is insuf-
ficient to authorize proceedings against them. 18 B. M., 558.

(1) As to affidavit^ see McMakin v. Stratton, cited in the next following note.

i c ) § 55 of the Code of 1854 declared that "the defence of an infant must be by his
"regular guardian, or by a guardian appointed to defend for him, where no regular
"guardian appears, or where the court directs a defence by a guardian appointed for that
" purpose; " and in Walker v. Smyser, 80 Ky., 633 (which was decided under the Code of
1854), it was held that, " if the regular guardian appears, .there should be a valid reason
" for denying him the conduct of the defence, such as [that] his interests are opposed to
" those of his ward ; as the Code does not provide expressly, or by necessary implication,
"for the appointment of a guardian ad litem, except where the regular guardian fails to
"appear or undertake the defence of the suit."

In McMakin \. Stratton, 82 Ky., 226 (which was decided under the present Code), it
was held that the prime object in requiring the affidavit mentioned in J 38-1 is, to notify
the court of the existence of a statutory guardian, if there be one; and that, if the court
be so notified by tne return of a summons, the appointment of a guardian ad litem, with
proper exercise of the discretionary power given by § 38-2, is not erroneous.

(d) In Reed, 6rV., v. Louisville Bridge Co., 8 Bush, 69, a judgment against infants was
reversed upon an appeal taken by their guardian ad litem: but no question seems to have
been made as to his right to prosecute the appeal.

(e) See 1 Met, 303.



Digitized by



Google



Digitized by



Google



Digitized by



Google



Digitized by



Google



Digitized by



Google



CHAP. I.] MANNER OF COMMENCING AN ACTION. 37

TITLE IV.

COMMENCEMENT OF A CIVIL ACTION.

Chap. i. Manner of commencing an action.
il 2. Service of summons.

CHAPTER I.

MANNER OF COMMENCING AN ACTION.

\ 39. How action is commenced.

\ 40. Summons, form and requisites of.

\ 41. may be issued to any county.

$ 42. copy of, for each defendant.

{ 43. time fixed in for answer.

} 44. when to be returnable.

\ 45. to whom to be delivered.

J 46. attendance of sheriff to receive.

§ 39 [65]. How action is commenced. — An action is commenced by
filing in the office of the clerk of the proper court a petition stating
the plaintiff's cause of action ; or, in cases wherein written pleadings
are not required, by filing in such court the account, or the written
contract, or a short written statement of the facts on which the action
is founded ; and, in either case, by causing a summons to be issued, or
a warning order to be made, thereon.

An action docs not create, a lis pendens so as to affect any subsequent bona fide pur*
chaser, lessee, or incumbrancer of real estate until the provisions of the act of March 17,
1896, page 14, regarding the filing of a notice in the county clerk's office are complied
with. (See copy of act in Appendix, infra^

Limitation runs until the summons is issued or warning-order made (I Bush, 129; 5
Id., 435; 83 Ky. % 404) ; even under the act of 1856, which requires the petition to be filed
within six months after conveyance by the debtor, without saying anything about the sum*
mons. 10 Busk, 96; 83 A>., 149.

§ 40 [66], Form and requisites of summons. — The summons (a) shall
command the officer to whom it is directed (b) to summon the defendant
named therein (c), to answer the petition (d) filed by the plaintiff, giving
his name, at a time stated therein, under the penalty of the petition
being taken for confessed, or of the defendant being proceeded against
for contempt of court on his failure to do so. The summons shall be
dated the day it is issued (e) and be signed by the clerk.

{a) Article 4, } 5, of the Constitution declares that "the style of all process shall be
the Commonwealth of Kentucky;" and an order of attachment which was not so styled
was held to be void (78 Ky. 9 278). But said provision does not apply to proceedings for
violations of municipal ordinances (4 B. Af. t 146) ; nor to a rule against a person for a
contempt of court. 80 A>., 300.



Digitized by



Google



38 COMMENCEMENT OF A CIVIL ACTION. TITLE IV.

(b) As to officers or other persons to whom summons shall or may be directed, see
JJ 667 and 668, and notes.

(e) A summons directing the officer to summon "the unknown children" of A and B
is ft nullity. /Cellar v. Stanley, 86 A>., 248.

(d) No summons is required upon a set-off or counter-claim against a plaintiff ($ 97) ;
nor upon an amended petition, unless it state a new cause of action; see notes to § 132.

(e) Such abbreviation of date as «« Sept. 8, '76" is not to be encouraged. 78 Ky., 281.

§ 41 \6j\ Summons may be issued to any county \ &c. — A summons
shall be issued at any time, to any county, against any defendant, at the
plaintiff's request. But a summons not served shall not be taxed in
the costs unless otherwise ordered by the court.

§ 42 [68]. Copy of summons for each defendant — With every sum-
mons the clerk shall issue a copy thereof for each defendant named
therein unless otherwise ordered by the plaintiff.

§ 43 [69]* Time fixed in summons for answer. — The time fixed in
the summons for the defendant to answer shall be the day the summons
is returnable.

This section has been superseded as to circuit courts having continuous session by the
act of December 30, 1892, page 419, which provides :

"{ 20. The time fixed in the summons for the defendant to answer shall be twenty
days after the service thereof, if in the county where such courts sit, and [and] thirty days
if elsewhere in the State. 11

§ 44 [70 1. When summons to be returnable. — The summons shall be
returnable to the first day of the next term of the court which does
not begin within ten days from the date of the summons.

For circuit courts of continuous session there is no express provision as to when the
summons shall be returnable, though by analogy it may be, and in practice is, considered
as sixty days from the date of the summons.

Sundays are included. 79 Jfy. t 202.

§ 45 [71]. To whom summons to be delivered. — The summons and
copies shall be delivered to the sheriff or other officer authorized to
execute it.

§ 46 [72]. Attendance of s/teriff to receive summons. — It shall be the
duty of the sheriff, or of one of his deputies, to attend at the clerk's
office daily — Sundays excepted — to receive .any process that may be
issued, and the clerk shall deliver to him any process remaining in his
office.



Digitized by



Google



CHAP. II.] ACTUAL SERVICE OF SUMMONS. 39



CHAPTER II.

SERVICE OF SUMMONS.

Art. i. Actual service.
4 ' 2. Constructive service.

ARTICLE I.

ACTUAL SERVICE.

{ 47. Service of summons, who to make.
§ 48. how to be made.

1 49. statement of in return.
£ 50. acknowledgment of.

g 51. on counties and corporations.

2 52. infants under 14.

{ 53. persons of unsound mind.

\ 54. prisoners,

g 55. community of Shakers.

\ 56. persons out of Kentucky.

§ 47 [73]- Who to serve summons. — The summons may be served —

1. By the officer to whom it is directed, or any officer to whom it
might have been directed (a), and his return thereon shall be proof of
the time and manner of service (b).

2. By any person appointed by the officer to whom it is directed,
by an indorsement on the summons (c) ; and the affidavit of such person
indorsed thereon shall be proof of the time and manner of service.

(a) I. This does not apply to an attachment, which must be served by the officer to
-whom it is directed. 79 Ky., 510.

2. As to officers and other persons to whom a summons may be directed, see JJ 667
and 668.

(6) 1. The officer's return should be signed by him; and the defect is not cured by a
recital in the judgment that the summons had been served. 6 Bush, 394.

2. The court will presume that service by an officer was made properly, unless his
return show otherwise. Thus, an officer's return of " executed on defendant" is presump-
tively sufficient, without showing how the service was made (1 Met., 18 and 145) ; and so
as to a return of service on John Long, without calling him defendant (4 Bush, 353 ; and see
2 B. M., 253) ; but a return, "executed by reading the within to" the defendant, is in-
sufficient (I Met., 145); and, in an action against persons under disability, an officer's
return that he executed the summons, by delivering a copy to each person named in it,
rebuts the presumption that he delivered a copy to any one else. 1 Duv., 251.

3. The presumption in favor of a sworn officer's return does not arise, perhaps, as to
acts of his bailiff. 14 B. M., 535 ; 1 Met., 18.

(c) The appointment of a bailiff by a deputy sheriff was held to be valid, without the
use of the sheriff's name; although the court said that "it would have been more exactly
conformable to law had the deputy signed his principal's name also with his own." 6
Bush, 497.



Digitized by



Google



#



40 COMMENCEMENT OF A CIVIL ACTION. TITLE IT.

§ 48 [74]. Now service of summons to be made. — Unless otherwise
provided (a) the summons shall be served by delivering, or if acceptance
be refused, by offering to deliver, a copy of it to the person to be sum-
moned.

(a) As to serving a summons otherwise than by delivering, or offering to deliver, a
copy to the person to be summoned, see J§ 51 to 56.

§ 49 [75]. The return or affidavit mentioned in section 47 must state
when and how the summons was served (a), and, if erroneous, may,
with leave of the court, be amended according to the truth (6). An
officer who makes such erroneous return may be fined by the court not
exceeding ten dollars, and shall be liable to the person aggrieved for
any injury caused by the error.

(a) See note (6) to \ 47 and £ 48.

(b) A sheriff may, with leave of court, amend his return, after the expiration of his
term, with the same effect as if it had been made during his term. Newton v. PratAer y
I Duv., 100.

§ 5° [76]. Acknowledgment of service. — Service may be acknowl-
edged by the person to be summoned by arupidorsement upon the
summons, signed and dated by him, and attested by a witness. The
affidavit of the witness shall be proof of the service.

§ 5 1 [jy to 80]. Service on counties, corporations, and common carriers.
I. In an action against a county the summons must be served on the
presiding judge of the county court, or, if j^be absent from the
county, upon its attorney. ^^

2. In an action against a municipal corporation the summons must
be served upon its mayor, or the chairman of its board of trustees ; or,
if he be absent from the county, upon the defendant's official attorney,
if it have one ; or, if it have no such attorney, upon its marshal.

3. In an action against a private corporation the summons may be
" served, in any county, upon the defendant's chief officer, or agent,

who may be found in this State ; or it may be served in the county
wherein the action is brought upon the defendant's chief officer or
agent who may be found therein. [Or if the defendant operate a rail-
road, it may be served upon the defendant's passenger or freight agent
stationed at or nearest to the county seat of the county in which the
action is brought. (Act 1893, p. 588.)]

4. [In every action (Act 1893, p. 1207) against a common carrier,
the summons may be served, in any county, upon the defendant's chief
officer or agent ; or it may be served, in the county wherein the action
is brought, upon the defendant's chief office/ or agent who resides
therein (a) ; or, if the defendant operate a railroad, it may be served



Digitized by



Google



CHAP. H. J ACTUAL SERVICE OF SUMMONS. 4 1



upon defendant's passenger or freight agent stationed at, or nearest to,
the county seat of the county in which the action is brought.]

5. [Where the defendant corporation is the owner or the lessee of a
railway in this State, or the builder or constructor of a railway in this
State, and can not be served with summons under existing laws, then
the person or corporation controlling or operating the railway so owned
or built or constructed shall be treated as the representative of the de-
fendant, and service of summons upon such of the officers or agents of
the persons or corporation operating or controlling the railway as would
be required if such controller or operator were the party sued, shall be
a sufficient service of summons upon the defendant to the action ; but
such service must be twenty days before the commencement of the
term, and the facts authorizing the same must be made to appear by
the return of the officer or the affidavit of some person other than the
plaintiff in the action, and the appearance of the defendant to move for

m the quashal of the service of the summons shall operate as an appear-
ance for all the purposes of the action, and the same shall stand for
trial at the succeeding term of the court, in case the motion to quash
shall prevail. (Act of May 10, 1890.)]

6. [In actions against an individual residing in another State, or a
partnership, association, or joint stock company, the members of which

r > , reside in another State, engaged in business in this State, the summons
may be served on the manager, or agent of, or person in charge of
such business in this State in the county where the business is carried
on, or in the county where the cause of action occurred. (Act 1893,
page 91 1.)]

{a) Sec 78 A>., 136.

§ 5 2 ft**]- Service on infants under fourteen. — If the defendant be
under the age of fourteen years the summons must be served on his
father; or, if he have no father, on his guardian; or, if he have no
guardian, on his mother; or, if he have no mother, on the person
having charge of him.

[If any of the parties upon whom summons is directed to be served
by § 52 of the Civil Code is a plaintiff, then it shall be served on the
person who stands first in the order named in said section, and who is
not a plaintiff; and if all such persons are plaintiffs, it shall, on the
affidavit of one or more of them showing that fact, be the duty of the
clerk of the court to appoint a guardian ad litem for the infant, and the
summons shall be served on such guardian. (Act January 16, 1882.)]

For decisions under Code of 1854, see 14 B. Jlf., 543; I Met., 18; I Duv. t 251; 80
*>.,64.



Digitized by



Google



42 COMMENCEMENT OF A CIVIL ACTION. [TTTUtlT.

1. That an officer's return of a summons against infant defendants, that he executed
it by delivering a copy to each person named in it, negatived the presumption that he
delivered a copy to any one else ; and that such of the defendants as were not over four-
teen years old were not legally before the court. Beverly v. Perkins, I Dtev., 251.

2. That when the father of defendants, under fourteen, was a defendant in the action,
the summons on him as defendant, of a single copy of the summons, in which they were
named with him as defendants, was sufficient. Cheatham v. Whitman, 86 Ky., 614.

3. The Code of 1854 expressly declared that service on an infant over fourteen should
be sufficient — a declaration omitted from the present Code as being unnecessary.

§ 53 [82]. Service on persons of unsound mind. — If the defendant be
of unsound mind the summons must be served on him and on one of
the following named persons, if residing in the county, viz. : on his
committee; or, if he have no committee, on his father; or, if he have
no father, on his guardian ; or, if he have no guardian, on his wife ; or,
if he have no wife, on the person having charge of him ; or, if the
defendant be a married woman of unsound mind, and her husband be
plaintiff in the action, the summons must be -served on her and her
committee ; or, if her husband be not plaintiff in the action, upon her
and her committee, if she have one; or, if she have no committee,
upon her and her husband: Provided, That the summons shall not be
served upon a person of unsound mind, if he be under charge or treat-
ment of a physician who certifies that, in his opinion, the service would
be injurious to such person. Such certificate shall be returned with the
summons.

[Service of a summons by delivering a copy of it to the physician
having change [charge] of a person of unsound mind shall have the
same effect as a service on the person of unsound mind, if such physi-
cian gives a certificate, attested by the officer delivering him the copy,
that a personal service would, in his opinion, be injurious to such person
of unsound mind. — Act January 16, 1882.]

§ 54 [83]- Service on prisoners. — If the defendant be a prisoner a
copy of the petition must accompany the summons, and the service
must be upon the keeper of the penitentiary, who shall deliver the
copies of the petition and summons to the prisoner. And a copy of
the summons must also be delivered to the curator of the defendant,
if he have one; or, if he have no curator, to his wife, if he have one;
or, if he have no wife, it shall be left at the place, if known, where he
resided, or claimed to reside, prior to his confinement, with some per-
son of the age of sixteen years.

§ 55 [84]- Service on community of Shakers. — If the defendant be a
community of Shakers, holding property in common, the service must be
made by posting a copy of the summons at the door of its meeting-house,
and by delivering a copy thereof to some member of the community.



Digitized by



Google



CHAP. II.] CONSTRUCTIVE SERVICE OF SUMMONS. 43

§ 56 [86], Service on persons out of Kentucky. — Excepting infants [un-
der the age of fourteen years (Act of April J 8, 1890)], other than married
women, and persons of unsound mind and prisoners, if a defendant be out
of this State the plaintiff may take a copy of the petition, certified by the
clerk, with a summons annexed thereto, warning him to appear and an-
swer the petition within sixty days after the same shall have been served
on him, and may cause a copy thereof to be delivered to such defendant
by a person to whom he is personally known. Proof of the delivery
shall be made by the affidavit of the person making it, indorsed on or an-
nexed to the certified copy and summons, in which the time and place of
the delivery, and the fact that the defendant was personally known to the
affiant, shall be stated. The officer before whom the affidavit is made shall
certify that the affiant is personally known by him to be worthy of credit.

Sec Youngs Trustee v. Bullm, 19 A>. Law Rep., 1561, 1563.

1 419 forbids a personal judgment against the defendant upon inch service of summons.

ARTICLE II.

CONSTRUCTIVE SERVICE.

\ 57» 58- When constructive service is allowed, -and how made.
\ 59. Appointment, duties, &c, of attorney for defendant.

\ 60. When defendant deemed to be constructively summoned.
\ 61. Actual after constructive service.

§ 57 [88 to 90]. If the defendant be—

1. A corporation having no agent in this State, known to the plain-
tiff, upon whom a summons can be lawfully served ; or,

2. A non-resident of this State and believed to be absent there-
from (a) ; or,

3. Have departed therefrom with intent to delay or defraud his
creditors; or,

4. Have been absent therefrom for four months (6) ; or,

5. Have left the county of his residence to avoid the service of a
summons; or,

6. So conceal himself that a summons can not be served upon
him (c) ; or,

7. If his name and place of residence be unknown to the plain-
tiff^), the clerk shall, subject to the provisions of § 58, make upon
the petition an order warning the defendant to defend the action on the
first day of the next term of the court, which does not commence
within sixty days after the making of the order (c).

{a) 1. Ncn-residence of defendant is ground for attaching his property, though he be
in the State (J 194, subs. I; 13 B. M. t 231) ; aliter, as to warning-order (78 A>., 138.)
2. At to actions for divorce.
(I) If husband and wife reside in Kentucky, and he become a non-resident, leaving her



Digitized by



Google



44 COMMENCEMENT OF A CIVIL ACTION. [TITLE IV.

here, she may proceed against him by warning-order, in an action for divorce; but the
action must be brought in the county of her residence (7 Bush, 316). . As to the venue of
such actions, see fui ther, \ 76, and notes thereto.

(2) A husband, residing in Kentucky, sent his insane wife to Massachusetts, where he
caused her to be confined in a lunatic asylum; and afterward obtained a divorce, pro-
ceeding against her as a non-resident: held, that the judgment was void. 13 Bush, 544.

(3) In Meyar v. Meyar, 3 Met., 302, the court suggested a doubt as to the right of a
husband, in any case, to maintain an action for divorce against his wife as a non-resident.
I perceive no reason for holding that he can not ; for it is settled that, though the husband's
domicile is that of his wife, she may acquire separate residence without his consent. 7 Dana,
184; 5 Bu**f 670; 7 M. % 135; 12 Id., 487.

(b) If a person leave his home, intending to leave the State, and consummates his pur-
pose, absence from his home during four months must be regarded as absence from the
State, though some unlooked-for casualty may have prevented him, for a few days, from
leaving the State. 4 Met,, 285.

(c) 1. An affidavit that the defendant "has left the county of his residence to avoid
the service of a summons, or so conceals himself that a summons can not be served upon
him," would be insufficient according to the decisions in Shipp v. Davis, Hardin, 65, and
Davis v. Edwards, Id., 342. But see 2 Bush, 197 ; 4 Id., 644.

2. Proceedings upon warning-order seem to be authorized if defendant conceal himself
at home, or secretly depart to some other place in or out of county. 1 Duv., 342.

(d) 1. Observe that the name of the defendant must be unknown, to the plaintiff, the
fact that the defendant is unknown to him being insufficient. 4 Litt., 284.

2. The obtaining of a decree against heirs as unknown, when they reside in an adjoin-
ing county, was held to be fraudulent per se. 7 Dana, 89.

(e) I. If defendant be warned to appear at a term commencing within sixty days, the
proceedings are void (7 Bush, 505) ; and, a fortiori, they are void if there be no warning-order.

In Jackson v. Speed, 2 Duv., 428, the court expressed a doubt whether, if a warning-
order, in itself correct, be founded on a defective affidavit, the proceedings would be void
or merely erroneous. According to the decision in Hynes v. Oidham, 3 Mon., 266, such
proceedings would not be void, even if there were no affidavits. And see 13 Bush, 562.

2. In courts of continuous session the "warning-order shall warn the defendant to ap-
pear and defend the action within sixty days after the making of the warning-order, and the
defendant shall be considered as constructively summoned in thirty days after the making
of such warning-order." (Act Dec. 30, 1892, p. 419, jai.)

3. See \ 60, and notes thereto.

§ 58 [89]. 1. The clerk shall not make such warning-order upon
any of the grounds mentioned in subsections 1, 2, 3, 4, and 7, of § 57,
except upon an affidavit of the plaintiff (a) ; or of his agent or attorney,
if he be absent from the* county; or of his guardian, curator, com-
mittee, or next friend, if he be under disability ; or of the attorney of
either of them, if absent from the county, stating the ground of the
application for such order.

2. Nor shall the clerk make such order dn any of the grounds
mentioned in subsections 1, 2, and 4 of § 57, unless the affidavit also
state in what country the defendant, or, if the defendant be a cor-
poration, in what country its chief officer or agent resides or may be



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 7 of 142)