| 21 Ky.L.Rptr. 1398 |
|---|
| Court of Appeals of Kentucky. |
| LITTLE v. FERGUSON et ux. |
| Feb. 24, 1900. |
| ACTION: Reversed |
PAYNTER, J. The appellant, Little, instituted this action to enforce a mortgage upon a certain boundary of land. The mortgage purports to have been executed by Robert Ferguson and Narcissus Ferguson. At the December term, 1895, a personal judgment was rendered in favor of the appellant against the appellee, Robert Ferguson, for the sum of $150, with interest, subject to certain credits, and to satisfy which the land described in the mortgage was ordered to be sold. Afterwards the appellees, Ferguson and wife, gave notice that they would move the court, at the April term, 1896, to set aside the judgment, because neither of them was before the court in the action. The court entered an order setting the judgment aside, from which order this appeal is prosecuted. The court was under the impression that Ferguson and wife had not been served with process, but the summons which issued upon the petition as amended appears to have been duly served upon them; therefore they were before the court when the judgment was rendered, and the court erred in setting aside the judgment. It was not a void judgment. As to what effect the judgment may have upon the right of Ferguson to a homestead in the land it is not now necessary or proper for us to determine. It will be time to do that when the issue is raised in the court below, there tried, and an appeal from the judgment is prosecuted. The judgment is reversed for proceedings consistent with this opinion. |
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