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of the corporation, or of persons proceeded against in their official capacity, such as Audi-
tor of the State, or a Board of Election Examiners, will not abate the motion : the man-
damns will operate upon the persons in office when it is granted. 18 B. M., 13; 2 Met.,
71; 3 Bush, 235; 7 A/., 531.

•d. Notice by an execution-purchaser of land of a motion for possession.

A. B. to C. D. Notice.

You are hereby notified that I will, on the .... day of , enter a motion on the

•docket of the circuit court for a judgment for the possession of certain lands sit-
uated in said county, and State of Kentucky, which lands are described as follows, vix.:
^description), being the same lands bought by me at a sale duly held under an execution

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which issued from the office of the clerk of said court in favor of X., plaintiff, vs. Y., de-
fendant (see Execution Book A, execution No ).

Dated this .... day of A. B. {a).

{a) The foregoing form was authorized by an act of March 23, 1882 {B.& F.'s G. S.,
p. 565), which enacted that section 9, article 12, chapter 38, of the General Statutes be
amended '* by adding to said section the following words, viz.:

"The notice herein referred to shall be in substance, as follows;" and then prescribed
the Form copied above.

Under said § 9 it was held that the notice must state that the plaintiff had purchased
the land under a judgment and execution and levy against the defendant in the motion
or against his landlord ; that the defendant in the motion or his landlord had title ; that
the land had not been redeemed within the time allowed, or had not been subject to re-
demption ; and that the plaintiff had acquired a right to the possession by a conveyance
from the sheriff. 12 Bush, 1 17-18; 13 Id., 461-62; 80 Ky., 308-9.

In AfcGhee v. Sutherland, 84 Ky., 198, it was held, not only that said act of 1882 was
valid, but that a notice given pursuant to it entitled the plaintiff to a judgment by default;
which authorizes the inference that, if defence had been made, the plaintiff, in the
opinion of the court, would have been entitled to a judgment on proving the facts stated
in the notice. Without questioning the power of the legislature to prescribe such a form
of notice, I submit that it can not enable a man to recover land from another without
showing a right thereto (see note (2), ante, p. 329) ; that it was not intended by the act
of 1882 to dispense with proof, for instance, that the land had belonged to the defendant
in the execution or his tenant, and that the sheriff had conveyed it to the plaintiff in .the
motion ; and, in short, that the plaintiff, whether defence be made or not, must now prove
every fact which he was formerly required to state in his notice. The act does not amend
the former law except as to the form of the notice. That the opinion in Me Ghee v. Suther-
land was not well considered is shown, 1, by the fact that the court, with apparent uncon-
ciousness of their existence, ignored the decisions holding that there can be no judgment
by default on a notice of a motion (see note 2, ante, p. 684) ; and, 2, by the fact that the
court referred to J 120 of the Code as applying to a sheriff's conveyance of land, though it
applies only to writings which are relied on "as evidence of indebtedness."

As to the relief to which the plaintiff is entitled if it be found, on trial of the motion,
that the execution-debtor had no title to the land, or only an equitable title, or an encum-
bered legal title, see # 10 and 11 of said article 12.

But the holder of an equitable title to land who is in possession, and who, either in
writing or verbally, authorizes a sale of it by the sheriff, is estopped from denying the pur-
chaser's title. 4/. /. Af., 588; 2 B. Af., 256; 3 Met., 351.

1 50. Notices of non-statutory motions.

[1. As to remedies by motion, independently 0/ statutes, see note 2, ante, p. 327.
2. As to giving notice of such motions, and its contents.

It seems to be settled that notice of a motion to correct an error which is apparent on
the record or proceeding is unnecessary (1 /. J. Af., 13; 3 Id., 183 ; 5 Id., 669) ; at any
rate in a pending suit. 3 Dana, 76.

But when proof of extraneous facts is necessary, notice must be given {Hardin, 181;
I J. J. Af., 13; 5 Id., 669), stating the grounds of the motion arid what is demanded (2
Lift., 6 ; 6/./ Af., 7 ; 8 B. Af., 391) ; and there can be no recovery beyond the scope of
the notice {Utt. S. C, 3, 4; SB. Af., 391), though there may be of less than is demanded.
I Bibb, 268; I Litt., 198.

But certainty to a common interest is sufficient in a notice {Hardin, 188, 566 ; I Bibb,
268 ; I Lilt., 198; 6 J. J. Af., 7) ; and objections for its insufficiency are waived by an ap-
pearance and trial. 4 Bibb, 566; I Mon., 15; 6 /./. Af., 7.

3. As to the time which should be allowed for appearance to a motion, where not fixed by
statute, I have found very few decisions. In Lowry v. Jenkins, 3 Bibb, 314, the court said,
with reference to one day's notice of a motion to quash a writ of possession and award res-
titution : " What length of notice should be given in cases of this description must depend
on the circumstances of each particular case. And although in the present case the notice

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was very short, when it is considered that the grounds upon which the motion was founded
depended on a matter of record, and that those facts which the appellants desired time to
prove were admitted by the appellee, we can not say the notice was so unreasonable as to
justify a reversal of the judgment of the court below for that cause." On a surety's mo-
tion against his principal, for money paid, it was intimated, but not decided, that ten
days' notice should have been given. Bustard v. Gates, 4 Dana, 429. On a wife's mo-
tion for an allowance pending her action for alimony, eight days' notice was held to be
sufficient. 8 B. M., 130. And ten days, being the longest time required by the Code as
to notices of motions regulated thereby, would probably be regarded as long enough in
any case.

4. As to serving notices of non-statutory motions.

In view of the declaration in {624 of the Code, that "the notices mentioned in this
Code must be in writing [and] must concisely state the purpose thereof," in connection
with the provisions of that section and the seven following sections as to the service of
notices, perhaps those provisions are to be regarded as applying only to notices of motions
mentioned in the Code. If so, there is no provision in the Code nor in the General Stat-
utes as to serving notices of non-statutory motions, and the acts of 1788 and 1808 (M. cV B.,
1229, 1230) apply thereto. Under the act of 1788, " notice [of motions] on replevy bonds
and all other legal occasions wherein no particular mode is or shall be prescribed, shall be
good if given in person, or delivered in writing to any free white person above the age of
sixteen years, who shall be a member of the family of such person and shall be informed
of the purpose of such notice, or left at some public place at the dwelling-house or other
known place of residence of such person;" and under the act of 1808 "it shall be lawful
for any sheriff or constable to serve notices and make return thereof, officially, in cases
of application for obtaining and dissolving injunctions, . . . and every other notice
which is required by law to be given, and such officer shall endorse thereon the time when
any such notice was given."

In Pope v. The Commonwealth, Sneed, 120, it was held that, according to the common
law, an affidavit that a copy of a notice " had been left at the defendant's house" was suf-
ficient proof of service. Under the acts of 1808 and 1812, service of a notice by a sheriff
or constable was not necessary and might be proved by parol or other evidence than such
officer's return (4 Dana, 432) : an affidavit, however, that notice had been left at the
defendant's house, without stating that it had been delivered to any person, was held to
be insufficient (1 Bibb, 258-59) ; but the statement of a sheriff or constable, when officially
made (4 Afon., 509), that a copy of the notice had been left at the defendant's "residence,
. . . with his mother, being a member of his family, who stated that he was in the
house, but sick and not to be seen," was held to be sufficient (4 B. M., 589); and so as to
such statement that a copy had been left "at the house" of the defendant, as the officer
must be presumed to have done his duty. 1 Bibb, 574; 1 Afon., 225. And delivery of a
copy of the notice was held to be unnecessary, proof that the defendant had been per-
mitted to read it being sufficient. I Litt., 7.

5. As to docketing such motions, and the time and mode of trying them and the
county in which they should be made, see notes 5 and 6, ante, p. 684].

151. Notice by a purchaser of land, under an execution in his behalf
to quash the levy and return thereon, because the execution de-
fendant neither had nor claimed title to the land.

1 To Mr. C. D.:

The circuit court having, on the ... . day of , rendered a judgment in

my favor against you for dollars and costs, amounting to dollars; and the

sheriff of county, to whom said execution was delivered, having returned the same

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with a statement that I, at a sale under it, bad purchased a tract of land belonging to you

and bounded as follows [describe the land\ for the sum of dollars ; and you, as I

have since discovered, having neither had nor claimed to have any title to said land :
notice is hereby given to you that I shall move said court, on the .... day of its next
term, to set aside said return and award a new execution on said judgment (a).

Dated this day of A. B.

{a) In the motion-case of Bent v. Maupin, <5rV., 86 Ay., 271, the court, after referring
to Weisiger v. McClure, &*c, 5 J. J. M., 292 {erroneously naming Edrington v. Harper % 5
J, J. M., 293), as conducing to show that the court had not common law jurisdiction of
the motion, and to five other cases as conducing to show that it had such jurisdiction,
held that it had jurisdiction under -eh. 38, art 12, §§9 and 10, of the General Statutes. It
seems to me that the court had jurisdiction according to the common law but not under
the statute ; and that as to its common law jurisdiction there is no conflict between the
cases cited by the court. In addition to the cases referred to in note 2, ante, p. 327, others
might be cited in which common law motions have been maintained to correct wrongs or
mistakes of officers of the court in issuing or acting on process therefrom ; and I am not
aware of any decision that questions such common law jurisdiction, unless the motion in-
volved a question which the court' regarded as triable J>y a jury,.

Thus, on the defendant's motion for the restitution of land purchased by the plaintiff at
a sale under execution, the court said, in Morton, Gfc, v. Sanders 1 heirs, 2/./. M., 194:
"Whenever the facts necessary to authorize restitution are not apparent on the record, or
not admitted to be true, there should not be a summary restitution by order on motion.
The parties should have an opportunity to try the facts in a regular proceeding, and have
them proved and ascertained, on a full hearing, in the ordinary course of litigation. Logan
v.McNitt, 3 Bibb, 530; and McChord v.McLintock, 5 Litt., 304." And on the motion of an
execution-purchaser (who was not the execution-plaintiff) to quash a sale for defect of
title in the execution-defendant, the court said : «* If he [the execution-defendant] had no
title, that fact alone would not invalidate the sale nor the sale-bond, so as to justify a
quashal of them or either of them on motion. The title to the land can not be thus in-
cidentally tried." Weisiger v. McClure, supra.

As to the other five cases cited in Bent v. Maupin, &*c: Dewol/v. Mallett, 3 Dana, 214,
if it proves anything on this subject, proves that an execution-plain tiF can maintain a com-
mon law motion to set aside a sheriff's return of sale when it is admitted that the execution-
defendant had no title to the land sold; and according to the other cases, viz., Brummel
v. Hurt, 3 J. J. Af., 709; Sanders v. Hamilton, 3 Dana, 550; Newman v. f&zelrigg, 1
Bush, 412, and Tucker v. Bogle, 7 Id., 29b, an executjon-plaintiff can maintain a common
law motion to set aside a sheriff's return of sale whenever it has been judicially determined
that the execution-debtor had no title to the property sold.

The existence of an issue triable 'by a jury will not oust the jurisdiction of a motion if
given by a statute, expressly or by necessary implication ; but the court will order a jury-
trial as part of the proceeding. In Bent v. Maupin, &c, there was no such issue; but
the court, instead of holding that the common law gave jurisdiction, derived a statutory
jurisdiction, by implication, from the fact that \ 10 of the aforesaid article provides that,
if a purchaser's motion for possession, pursuant to } 9, fail on the ground that the execution-
debtor had no title, the court may set aside the sale and award execution as if no sale had
been made. That implication might have been necessary if § 9 had authorized motions for
possession by only execution-plaintiffs who have become purchasers; but it authorizes such
motion by any execution-purchaser, whilst \ 10 clearly refers to execution-plaintiffs who
have become purchasers and failed in motions for possession.

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692 FORMS.


152. Verification of Pleadings.

a. For forms of affidavits to pleadings, see, ante, p. 499.

b. Affidavit for personal verification of a pleading (J 1 1 7—4) .
(Caption as in Form I.)

The defendant says he believes that the plaintiff, A. B., knows that the statement in
his petition, that [recite the statement], is untrue; and that the defendant's motion to re-
quire him to verify said petition is not made for delay.

(Signature and certificate as in Form I).

153. Bonds to be executed before suing.

a. Bond of indemnity against lost instrument.

A. B. having lost a check drawn by C. D. on the Bank of , on the .... day of

for dollars, payable to the said A. B. or bearer, we agree to indemnify said

bank [or — said C. D.] against any loss or damage resulting from the payment of said money
to said A. B.

Witness our hands this .... day of A. B.

E. F., Surety (a).

(a) 1. This bond is not necessary unless the lost instrument was "transferable by de-
livery merely." Code, J 7.

a. As to bond to obtain judgment, see Form 161 b.

b. Bond for costs ($29, 616, 621).

A. B Plaintiff, \

against > Bond for costs.

CD Defendant. J

We undertake that the plaintiff, A. B., shall pay to the defendant, C. D., and to the

officers of the court, all costs that may accrue to them in this action either in the

court, or any other court to which it may be carried.

Witness our hands this day of A. B.

E. F. (<t).
(a) The plaintiff's signature to the bond is not necessary.

c. Affidavit requirable by clerk before accepting bond for costs (J? 68 J, 684).

E. F. states that he is a resident of the State of Kentucky; that he is worth

dollars beyond the amount of his debts, and has property in said State subject to execution,
of the value of dollars. E. F.

Signed and sworn to before me, , clerk of the circuit court, this

day of L. M., Clerk,

by N. O., Deputy Clerk.

154. Summonses, actual and constructive.

I. Actual Summonses.

a. Summons from circuit courts, generally, of defendants in this State ft} 40 to 44).

Circuit Court.

The Commonwealth of Kentucky to the sheriff of county :

You are commanded to summon to answer, on the first day of our next

term [naming the next term which -wilt not begin within ten days from the date of the

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summons], a petition [or — a petition in equity] filed by against him in our

circuit court, under the penalty of the petition being taken for confessed or of his

being proceeded against for contempt of court, on his failure to do so ; and to make return.
hereof on the day aforesaid.

Witness, , clerk of said court, this .... day of , ....

, Clerk,

by , D. C.

b. Summons from circuit courts in continuous session (a) of defendants in this State, 9

The Commonwealth of Kentucky to the sheriff of county ;

You are commanded to summon to answer within twenty days after sei>

vice hereof, if served in county [naming the county in which the summons issued] or

within thirty days after such service, if served elsewhere in this State (6), a petition (c) filed

by against him in our circuit court, under the penalty [&**., as im

the last foregoing Form] {d).

Witness [&c. f as in last foregoing Form],

{a) At present, such courts are those held in Campbell, Fayette, Jefferson, and Kenton

(4) See }} 20 and 21 of an act of December 30, 1892, S. A., p. 421.

(c) It seems unnecessary for the summons to show whether the petition is ordinary or
in equity, as the time for answering each is the same.

{d) See { 34 of the last named act and 1 40 of the Code.

c Summons from quarterly courts of defendants in this State, 9

Quarterly Court*

The Commonwealth of Kentucky to the sheriff [or — to the coroner — or to any constable] {a) of

county :

You are commanded to summon to answer, within days after the

service hereof (£), a petition [or— a claim] (c) filed by against him in our

quarterly court, under the penalty [<5rV., as in Form a, supra] (d).

Witness, , judge [or— clerk] of said court, this .... day of ,


[Or— Clerk] (e).

(a) It must be directed to either, according to the plaintiff's option, but may be served
44 by any officer or person who is authorized by this Code to serve a summons" (J 701) :
See 1 47 as to officers, &c, who may serve a summons.

(6) 1. An act of 1813 (J/. 6fl, 896) authorized constables to fix the day on which
the defendant should answer in a justice's court, provided the summons should be exe-
•cuted "a reasonable time before the day of trial;" and that provision became appli-
cable to quarterly courts, which were established by an act of 185 1 (I S. A., 42, 43).

It seems clear that JJ827 and 828 of the Code of 1854, which are substantially the
same as g§ 705 and 706 of the present Code, were intended to require quarterly courts
and justices' courts to fix in each summons, without reference to terms, the time when the
defendant shall answer ; not, however, in less than five days after service of the summons
when the matter in controversy does not exceed fifty dollars, or ten days when it exceeds
that sum.

Observe, however, that there is a distinction between the General Statutes and the act
of June 10, 1893, ^ *° what constitutes the matter in controversy : under the former, in an

* Forms b, c, d, and e contain no command as to the return of the summons, because \ 44 of the Code
does not apply to summonses from circuit courts in continuous session or quarterly courts or justices*
courts, nor to summonses served out of this State, and I have found no provision as to the time when
they are to be made returnable. But there seems to be no reason to doubt that it is the officer's duty, im-
plied by law, to use reasonable diligence as to serving a summons, and, when served, to return it on or be-
fore the day fixed for filing the answer ; neglect of which duty would be punishable as a contempt of
court. See note a, ante, p. 377.

Digitized by


694 FORMS.

action for money and interest thereon, the interest formed part of that matter (see note 1,
ante, p. 451) ; but under the latter it does not. S. A. % pp. 1049, 1057.

2. The General Statutes (ch. 28, art. 13, §7) required, as does an act of 1893 (*£ A *
1049), that quarterly courts throughout the State should hold four terms each year, and
continue in session as long as the business might require ; and the Code of 1876 provided
for summonses therefrom according to the foregoing Form. But there is before me a
printed form of a summons which is used in a quarterly court, and which commands the
sheriff to summon the defendant to answer "on the second day of the next term of the

quarterly court which does not commence within .... days from the service of this

summons," and to "make due return of this summons on the Saturday before the fourth
Monday in ; " said Form having been prepared, as I learn, upon the sup-
position that it is authorized by §35 of said act of 1893 (•& -^«» '050)* which, referring to
Quarterly courts generally, declares that " the judge of the quarterly court shall . . .
x a rule day for the return of executions and other process."

I concede that the word " process" embraces summonses; but I submit that the power
to fix a rule day for the return of summonses does not embrace a power to fix the command
therein as to the time of answering ; and that, if it did, the provision would be a nullity
under §59, subs. 1, of the Constitution; because, evidently, said #35 contemplates that
each quarterly court shall fix its own rules; and, if one can require the filing of answers on
the second day of a designated term, others can require it on some other day of such a
term or of some other designated term ; or within one day or a hundred days or some
other designated time after service of the summons, without any reference to terms. It
seems clear that legislative acts prescribing such different rules of practice in quarterly
courts would be void under said $ 59 ; and that the legislature can not, under the name of
fixing rules of court or by any other means, delegate to quarterly courts powers which it
does not possess. And, moreover, $ 139 of the Constitution declares that the jurisdiction
of quarterly courts "shall be uniform throughout the State, and shall be regulated by a
general law, and, until changed, shall be the same as that now vested in the quarterly
courts of this Commonwealth."

In view of those provisions of the Constitution, it seems to me that quarterly courts
can not be authorized to fix rule-days even for the return of summonses. But I concede
that both quarterly courts and justices' courts can, and should, fix, not "a rule-day," but
monthly rule-days for the return of executions, " not under thirty nor more than seventy
days from the test." G. S. t ch. 38, art. 1, §g 2 and 5, and art. 18, } 1 ; re-enacted in 1893,
S. A , 1005 and 1006.

(c) If the matter in controversy exceed $50 the plaintiff must file a written petition
ft ll $) t if it do not exceed that sum he may sue with or without such petition. $705.

(d) The return should be made to the quarterly court. See J 710 and amendment thereof
referred to at foot of page 451, ante.

(e) See J 703 of Code, and {35 of the aforesaid act of 1893, •& ^-» P- io 5°«

d. Summons from justices' courts of defendants in this State.*

Court of ,

a Justice of the Peace for county.

The Commonwealth of Kentucky to any constable of county [or — to ](<*)•

You are commanded to summon to answer, within .... days after the

service hereof (£), a petition [or — a claim] (c) filed by in our justice's court

aforesaid, under the penalty [<5rV., as in Form a, supra]; and to make due return hereof. -

Witness, , justice of the peace of county.

J. P C.

(a) See Code, ?7<>i, which requires the summons to be directed to a constable, or to a
special agent appointed by the justice upon an affidavit. As to officers or persons who
may serve it, see #f 701 and 47.

{b) As to the time to be named, see note (b) 1 to the last foregoing Form.

{c) See note (c) to the last foregoing Form.

As to the justice's district in which the summons shall be returned, see Code, H7 I0 »
711, 712.

* See the asterisk-mote on the last foregoing page .

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«e. Summons from any court of defendants out of this State (}}39» 4°» 5^).*

State of Kentucky.

Circuit Court

[Or— Quarterly Court.]

[Or—Court of ,

a Justice of the Peace for county.]

7*ke Commonwealth of Kentucky to .*

You are commanded to summon to appear and answer, within sixty days

after service hereof, the petition of filed against him in our circuit

court [or — in our quarterly court] [or — in our justice's court aforesaid], a copy of

-which is annexed hereto, under the penalty [<5rV., as in Forma, supra~\(a) ; and to deliver

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 97 of 142)