This action is based upon a judgment rendered against the defendant in the State of Kentucky. The result in the trial court was for the defendant.
The defense made at the trial was that the court in Kentucky had no jurisdiction over the person of the defendant. There was a return of process to the court in Kentucky wherein the proper officer certified, to due service on the defendant on the 12th of July, 1904. The plaintiff, in addition to claiming that there was due personal service, introduced evidence tending to show that defendant appeared to the action by attorney. The defendant denied both the service and the appearance. There was evidence tending to show that defendant was not in the State of Kentucky when the return to the summons-states that he was served, and for that reason we must hold that plaintiff’s appeal is not well taken so far as concerns that branch of the defense.
But plaintiff’s claim that defendant appeared to the action in Kentucky is not so easily disposed of. The evidence that he did so appear is strong. It seems that an attorney did appear to the action in behalf of the defendant. And the record shows, incidentally, that this attorney represented defendant in the taking of depositions in Kentucky in this action. Defendant does not deny that the attorney appeared to the action in Kentucky, but does deny that he had authority to do so. The evidence as to his authority was given in the deposition of Dr. Wood of Paris, Kentucky. He testified that defendant wrote him and authorized him to engage a lawyer, and that he did so. Defendant admitted that he wrote to Dr. Wood about the suit, but did not authorize *57him to engage a lawyer. The letter itself was not produced.
It thus appears that there was evidence directly tending to support the idea of no authority on the part of the attorney. It is a fundamental rule that, while a trial court may set aside a verdict as being against the -weight of the evidence, an appellate court has no such authority. The latter court only interferes when there is no substantial evidence. We must therefore affirm the judgment of the trial court unless there was error in the course of the trial.
Objections were made by defendant and sustained to question 13, asked in the deposition of Dr. Wood. Plaintiff contends that the objection was formal and should have been made when the deposition was taken. As to that we need not say. For it appears further on in the deposition that the witness testified to the identical fact asked about in the excluded question. We have considered plaintiff’s suggestions on this head, but find that though it should be conceded that the ruling was erroneous, the evidence sought by the excluded question was given affirmatively in answer to the second question thereafter. If we consider the answer to question 12 and question and answer 14, with question and answer 1 on cross-examination and question and answer 3 on redirect examination, we are bound to conclude that there was no possibility for harm in the action taken by the court on question 13.
We have given attention to plaintiff’s objections to the court’s action on instructions. He asked an instruction which declared that if defendant “either himself, or through another, employed counsel to represent him,” etc. The court amended this by inserting between the words “another,” and “employed,” the words “person authorized by him to do so.” The insertion of those words added nothing to the instruction. It was a harmless amendment and therefore not subject of complaint.
*58Defendant’s instruction “A” used the expression that the judgment was void “unless the defendant was served with process as contended by the plaintiff.” It is insisted that “served with' process,” is a technical phrase. It may be that in some circumstances and conditions such words should be explained. But it is manifest from the record of the trial and the issues as presented, that they were understood in this case. Besides the plaintiff used, not the same words, but similar ones in his instructions. In instruction numbered 1, for him, there are phrases, “recital in said judgment,” and “duly summoned,” and “return of the constable,” and “served with a copy of the summons issued in said suit,” etc. We have no doubt that all these expressions, as used in instructions for either party, were thoroughly understood by the jury. No one, however unlearned, could have listened to the proceedings at the trial and failed to have comprehended their meaning.
We have given the record and the points of argument presented mature consideration and find that we have no valid reason for disturbing the judgment and it is accordingly affirmed. All concur.