Middleton, &c., vs. Hoge, &c. dred and twenty-eight barrels, and if thrown in with. part of the shuck on, close snapped, it will hold one fourth or one third less. Steiner, a witness for appellant, proves he helped gather the corn, and it was all put in the crib half shucked, except about one fifth, which was left standing out. The master, in his last report, fixed the quantity at seventy barrels, and the price at four dollars per barrel, making two hundred and eighty dollars for the corn ; and the judgment fixed the value at that sum. seems to me, from the repeated affirmations of the plaintiff below to that effect, the corn should have been valued at seven hundred and fifty dollars, and for that alone the judgment should be reversed as to the corn; the difference of value fixed in the petition of appellee, and the amount the judgment was rendered for by the court below. Dyas vs. Lindsey. CASE 40-PETITION ORDINARY-JULY 7. Dyas vs. Lindsey. APPEAL FROM GRANT CIRCUIT COURT. 1. Service of process in another county.-The defendant was sued in Grant and served with process in Harrison county. Evidence that he lived in Grant when the action was commenced, and still lived there, did not authorize a judgment against him by default in Grant county; but if he had removed from Grant county after the commencement of the action, the judgment would have been authorized by evidence of that fact. (Civil Code, secs. 106, 107, 108, 110.) Two defendants served out of the county.-As neither had been served in the county in which the action was brought, and neither had removed from that county after its commencement, a judgment against either by default would be unauthorized, unless he appeared and failed to object to the insufficiency of the service. 2. Dyas vs. Lindsey. CHIEF JUSTICE WILLIAMS DELIVERED THE OPINION OF THE COURT: Dyas lived in Grant and was served with process in Harrison county. The judgment was rendered in Grant county by default, on evidence that he lived in the latter county when the suit was brought, and still lived there. By section 106, Civil Code, "every other action (than the previously named ones) may be brought in any county in which the defendant, or one of several defendants, resides or is summoned." By section 107, "where any action, embraced in the last section, is against a single defendant, the plaintiff shall not be entitled to judgment against him, on the service of summons in any other county than that in which the action is brought, unless he resided in that county at the commencement of the action, or unless, having appeared therein, he fails to object, before the trial, to its proceeding against him." By section 108, "where any action is embraced in section 106, is against several defendants, the plaintiff shall not be entitled to judgment against any of them, on the service of summons in any other county than that in which the action is brought, where no one defendant is summoned in that county," &c. By section 110, "if, after the commencement of the action in the county of the defendant's residence, he removes therefrom, the service of summons upon him in any other county shall have the same effect as if it had been made in the county from which he removed." When all these sections are properly analyzed, they mean that the action must be brought in the county where the defendant, or some one of the defendants, resided or is summoned; and the process must be served on the defendant, or some one of the defendants, in the county where action is brought, unless he has removed City of Lexington vs. Headley, &c. therefrom after the action was begun, or unless he has appeared and failed to object, by reason thereof. So that, notwithstanding there was in this suit another defendant, who resided and was served with process in Harrison county, yet as neither defendant was summoned with process in Grant county, and neither had removed from said county after the action was commenced, the service of process in Harrison county did not authorize a judgment by default in Grant county. Wherefore, the judgment is reversed, with directions for service of process in the county where the action may be pending, unless the defendant shall have, since its commencement, removed therefrom. CASE 41-PETITION EQUITY-JULY 7. City of Lexington vs. Headley, &c. APPEAL FROM FAYETTE CIRCUIT COURT. 1. Section 10 of the charter of the city of Lexington requires that ordinances providing for the improvement of streets, at the cost of adjacent property owners, &c., shall be passed with the unanimous consent of the mayor and councilmen in council. The charter does not require that the assent should appear by a vote. According to section 60 of said charter, the mayor is not entitled to a vote on a proposition which receives the unanimous vote of the council. Held-That such an ordinance, unanimously passed by the board of councilmen, the mayor presiding, purporting to be an ordinance passed by the mayor and councilmen, should be presumed to have been passed in the mode prescribed by the charter; and especially so, as there is nothing in the record contradicting this presumption. Ex City of Lexington vs. Headley, &c. trinsic proof of the consent of the mayor is not admissible. The record containing the ordinance was signed by the mayor. 2. Where unanimity is indispensable to the legal authority to make an order on the books of a corporation, and such order was entered of record, it should be presumed to have been made with the unanimity required, although that fact does not appear in the record. HUSTON & MULLIGAN and BUCKNER & J. D. HUNT, CITED For Appellants, 9 Dana, 514; City of Lexington vs. McQuillan's heirs. 1 Met., 298; City of Covington vs. Ludlow. M. C. JOHNSON and FRANK WATERS, CITED For Appellees, 1 Met., 298; City of Covington vs. Ludlow. 2 B. Mon., 180; City of Louisville vs. Hyatt, &c. 13 B. Mon., 459; Kaye vs. Hall. Printed Ordinances of City of Lexington, p. 67, art. 324. JUDGE HARDIN DELIVERED THE OPINION OF THE COURT, IN WHICH JUDGE PETERS DID NOT CONCUR: On the 7th day of May, 1867, an ordinance was unanimously passed by the board of councilmen of the city of Lexington, the mayor presiding, providing for the grading and macadamizing of certain streets in said city, at the cost of the owners of property fronting thereon; and the mayor having, by authority of the ordinance, caused a large portion of said improvements to be made, the appellees, the owners of property on said streets, brought |