Owens v. Bartley

Decided April 17, 1871

Court of Appeals of Kentucky · decided 1871-04-17

Non-Resident — Summons—Constructive Service — Bond—Judgment. It is erroneous to render judgment against a non-resident, defendant, constructively summoned, until the plaintiff has executed the bond required by section 441, Civil Code. Same — Appeal—Appearance. An absent defendant enters his appearance to the suit by an appeal from a judgment rendered against him.

Decided 1871-04-17

¶1Opinion oe the Court by

Judge Peters:

¶2Under sub-section 2, section of Givil Gode, it was erroneous to render judgment for appellee against the absent defendant, Owens, until he had executed a bond with sufficient surety conditioned that he would restore to appellant the property taken by the judgment in the action, provided he appeared within the time prescribed by law, and a restoration of the same should be adjudged. This requisition of the Code seems not to have been complied with, and for that reason the judgment was erroneous. The petition we regard as sufficient. The averments are not as *266direct, and positive as they might be, but if they be true the debt was due and unpaid. But as the absent defendant prosecuting this appeal, has entered his appearance, that will dispense with the bond.

Radliffe, for appellant.

¶3But for the error indicated the judgment 'must be reversed and the cause remanded for further proceedings consistent herewith.