Pottinger v. Mayfield , 53 Ky. 647 ( 1854 )

Judge Crenshaw

delivered the opinion of the court.

At the time judgment was rendered against Pottinger, who had been served with process in the county of Hancock. Bignold had not been served in the county of Jefferson. To authorize a judgment in this state of case, against Pottinger, it ought to have appeared that one at least of the defendants resided in the county of Jefferson, at the commencement of the action. This was not made td appear. The judgment, therefore, against Pottinger was improperly rendered — Code, section 132, 3, 4.

But by section 478, of the .Code, a misprision of a clerk is no ground for an appeal or writ of error, until it has been presented and acted on in the circuit court. And section 479 declares, that the rendering of judgment before the action stood for trial, shall be deemed á clerical misprision. The cause did not stand for trial, as it did not appear that either of the defendants resided in Jefferson at the commencement of the suit, nor that one of them had been served with process in that countj".

Pottinger should have moved the court to set aside the judgment against him before bringing the caseto this court. No appeal or writ of error lies to this court, without an effort having been made to correct the error in the court below.

Wherefore, the writ of error is dismissed.