Amyx v. Smith's Administratrix
Court of Appeals of Kentucky
CASE 36 AHPEAI, FROM MORGAN CIRCUIT COURT. The facts appear in the opinion of the court. The action was not revived as required by the Civil Code. The judgment is therefore void, and the execution and replevin bond should have been quashed. 1. Where an order of revivor is made by consent, no service is necessary. (Civil Code, section 562.) The order can be made at the instance of either party.
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CASE 36 AHPEAI, FROM MORGAN CIRCUIT COURT. The facts appear in the opinion of the court. The action was not revived as required by the Civil Code. The judgment is therefore void, and the execution and replevin bond should have been quashed. 1. Where an order of revivor is made by consent, no service is necessary. (Civil Code, section 562.) The order can be made at the instance of either party. (Ib., section 561.) As the record does not show on whose motion the order was made, or that there was any objection to it or reason shown against the revivor, the presumption should be indulged which…
1Opinion of the Court
JUDGE DUVALL
delivered the opinion oe the court:
Smith instituted an action against Amyx, the object of which was to rescind a contract for the purchase of a small tract of land, and to recover of Amyx fifty dollars which Smith had paid him for the land.
Pending the action Smith died, and at a subsequent term there was an order reviving the suit in the name of his admin-istratrix and heirs. There appears to have been no service of the order of revivor upon the defendant. At the succeeding term of the court, a judgment by default was rendered against him for the fifty dollars claimed in the…
2Cases cited1 opinion
- Raymon v. ReedCourt of Appeals of Kentucky · 1855
3Cited by1 opinion
- Bryant v. WadeCourt of Appeals of Kentucky · 1869