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SCOTT AND COFFY vs. COOK, PINKSTON &c.
COURT OF APPEALS OF KENTUCKY
20 Ky. 280; 1827 Ky. LEXIS 15; 4 T.B. Mon. 280
April 5, 1827, Decided
PRIOR HISTORY: [**1] Appeal from the Wayne Circuit; JOHN L. BRIDGES, Judge.
DISPOSITION: Decree affirmed with costs.
COUNSEL: Mayes, for appellant; Taul, for appellee.
JUDGES: Chief Justice BIBB.
OPINION BY: BIBB
OPINION
[*280] Chief Justice BIBB delivered the Opinion of the Court.
At July term, 1819, Scott and Coffy exhibited their bill against Enos Cook, and the assignees of a note given to Cook, by the complainants, for $ 320, to be relieved against a judgment at law, obtained by the last assignee.
The ground of relief charged in the bill is, that this note of $ 320, (with another of $ 100,) were executed to Cook, in consideration of Cook's covenant (with Wm. Hereford as his surety) to deliver to the complainants, on Cumberland river, a boat 50 feet long and 15 feet wide, by the 25th February, 1818, and two hundred barrels of corn on the Cumberland bottom, convenient to said boat, at a place designated therein, for the delivery of the boat and corn.
That afterwards, in satisfaction of Cook's covenant, then broken, they received from Cook two hundred barrels of corn, and an assignment of Enos Barnes' covenant to Cook, to deliver him a like boat and one hundred barrels of corn, at reasonable gathering time, in consideration [**2] of $ 245, to be paid by Cook.
This covenant bears date 14th October, 1817, and was assigned by Cook, on the 26th of February, 1818, to the complainants.
That at the time of the assignment, Cook assured them that the whole of Barnes' covenant was unperformed and undischarged, when in truth it had been performed to Cook himself, which Cook fraudulently concealed, and that Cook is insolvent.
That the boat was worth one hundred and fifty dollars, and the corn one hundred and fifty dollars.
For this sum of $ 300 an injunction was obtained.
[*281] On the 26th October, 1819, James Stone and Joshua Oats, two of the assignees, filed their answers in court, denying all knowledge of the equitable circumstances alleged in the bill.
On the fourth day of the same term, 28th October, 1819, Cook filed his answer; in which he denies that he represented the corn and boat as both due from Barnes, but on the contrary that the corn had been delivered by Barnes, and was a part of the two hundred barrels which the complainants had received, that the complainants were so informed at the time of the assignment, and that the covenant of Barnes for the boat only, in payment for the like boat which [**3] Cook owed complainants, was assigned and so stated and declared at the time of the assignment.
He denies his own insolvency denies that Barnes ever delivered the boat to him, and if Barnes failed to satisfy the complainants, it was their own fault, that they had not received satisfaction by compulsory means, Barnes being solvent.
At the same term, October 1819, Pinkston filed his answer denying any knowledge of the equitable circumstances alleged in the bill.
Until October term 1820, the cause was continued; at this term the cause was continued on the motion of the complainants, and for cause shown.
At the April term, 1821, the complainants again obtained a continuance until the next July term, under the special order to be prepared for trial at that term, without further indulgence.
At that term, (July 1821,) and on the third day of the term, the complainants filed exceptions to the answers of all but Cook, because they did not respond to the allegation of Cook's insolvency.
At the October term 1821, the case was continued by consent of parties--and from term to term, without any special movement in the case, it was continued until the April term, 1823, when it was heard, without [**4] any attention to the exceptions to the [*282] answers, and without any appearance of exceptions to the reading of the depositions.
The court held the case under advisement until July term 1823, when the bill was dismissed with costs: from which the complainants have appealed.
The counsel for complainants now object that the exceptions to the answers were not disposed of by the circuit court. To this objection the answer is that the complainants never brought those exceptions up for argument or decision. He filed them and abandoned them by doing nothing with them or touching them. He proceeded term after term, from July term 1821, till April 1823, as if upon replication filed, and as upon a case standing for hearing. The statute which disposes with the necessity of a replication, and makes the case stand for trial at the next term after answer filed, and which dispenses with the rules in the office, and requires all rules and proceedings to be taken in court, has so far innovated upon the ancient usage and practice in chancery, as to leave the courts in many instances without any certain guide in matters of practice. But we cannot indulge a practice of filing exceptions and never [**5] insisting on them in the court below, nor asking in any way the decision of the court upon them; and after such quiescence, permit the party to insist upon the exceptions here, as an error of the court below in not disposing of the exceptions in some way. All that the party has a right to claim in such case is, to apply the usual rule, in cases of allegations not confessed nor denied by answer, as upon replication by complainants.
The counsel for complainants likewise moves exceptions to depositions, for want of notice, and because the notices were not served in time, and because the depositions taken on behalf of the defendants, were of witnesses who had been previously examined on the part of the defendants, and no order had been obtained for re-examining those witnesses.
[*283] The depositions alluded to by the complainant, and intended to be excluded, are of
James Conn, taken on the 10th of June, 1822.
Josiah Barnes, taken at the same time.
Martin Conn, taken at the same time.
The exceptions alluded to, were endorsed upon the depositions in the clerk's office, on the 9th July, 1822, and signed by the attorney for the complainants.
But from that time, [**6] and at the hearing, nothing was done upon those exceptions. There is nothing in the record to shew that these exceptions were ever insisted on; no notice of them before the court, at any time appears, nor is there any decision of the court asked. They were read, it seems, and so the objection now made admits, and it is alleged that the court erred in permitting them to be read without disposing of the exceptions.
Exceptions so endorsed upon the depositions taken on the part of the complainants, were filed by the defendants in the clerk's office, bearing date on the 23d April, 1821, to the depositions of
Wm. Barnes, Sen., taken 20th April, 1821,
Enos Barnes, taken same time,
Wilsher Buckhannon, taken same time,
Wm. Barnes, taken at same time;
1st. Because there was no legal or sufficient notice,
2nd. Because they are not regularly certified by the justice,
3d. Because there is no leave for taking them, the same witnesses having been previously examined in the cause.
To the depositions of
Josiah Barnes, taken on the 26th of July, 1821,
James Dean, same time,
Gordon C. Stephenson, same time, and
George Berry, same time,
1st. Because [**7] there was no notice;
2dly. Because they were not legally certified.
Like the exceptions of the complainant, those of the defendant passed, sub silentio, and all the depositions were read.
[*284] No notices appear for either party; and if this court must now look to these exceptions so endorsed by the complainants, they must equally look to the exceptions so endorsed by the defendants. If the exceptions of complainant for want of notice prevail, so must the exceptions of defendant for want of notice, and all the depositions would be excluded for want of notice; this court would hear the cause upon the depositions only, which should have been read, excluding all which should not have been read. The exceptions by complainants and defendants go to all the depositions, and in such case, this cause would stand upon bill and answers, denying the equity of the bill, and so the decree would be affirmed. For the answer of Cook is full and denies every matter in the bill upon which the propriety of relief in equity depends, and against Cook, the assignor, the equity was alleged.
But it is not proper to indulge a practice of filing exceptions to depositions, for irregularities, suffering [**8] them to sleep in the court below, without calling the attention of that court to them, nor asking an adjudication, and for the first time to move such exceptions in the appellate court, by surprise, and demanding of this court a revision of what the court of original jurisdiction has neither decided nor been asked to decide.
It is the intention of the court to confine these remarks to exceptions for irregularities, and not to apply them to exceptions for interest and incompetency appearing in the cause.
It is clear in proof that the complainants had received of Cook the corn, and on the same day received of him the assignment of Barnes' obligation, that at the time of the assignment it was distinctly made known and understood that Barnes had delivered the corn, and was bound for the delivery of the boat only. And the evidence does not prove that Enos Cook had received the boat or satisfaction for it. The weight of evidence is against it and corroborates the positive denial of the answer.
The case as stated in the bill is not made out in [*285] proof. The complainant must pursue Barnes who is no party to this suit. The case alleged in the bill differs widely from that which [**9] appears in proof. As the case appears in proof, the complainants are not entitled to relief.
The decree must be affirmed with costs, &c.
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