October 1, 2012

Brown v. M'Kee's Representatives, Pulaski, 1829



24 Ky. 471; 1829 Ky. LEXIS 318; 1 J.J. Marsh. 471

June 11, 1829, Decided

PRIOR HISTORY:  [**1]  Error to the Pulaski Circuit--Christopher Tompkins, Judge.

DISPOSITION: Decree reversed, with directions.

COUNSEL: Mills and Brown for plaintiff; Owsley for defendant. 





In May, 1806, M'Kee, in his lifetime, filed a bill in the Pulaski circuit court against Brown,  [*472]  charging him with fraud in a contract, relative to a tract of land lying on Cumberland river, and praying for relief. A subpoena issued on the 2nd day of June, directed to the sheriff of Franklin county, which was executed on the 20th of the same month, returnable to the July term of said court.
At the July rules (for at that period the laws regulating proceedings upon the rule docket were in full force,) the complainant by his counsel, gave a rule for answer. At the August rules the cause was continued until the next rule day for answer. At the September rules, the bill was taken pro confesso.
At the October term of the court, Brown, by his counsel, moved to set aside the rules taken in the clerk's office, and for leave to file his answer, which was refused by the court, and to this he excepted. At the same term, the cause was [**2]  taken up for trial, and argued by counsel on both sides.

The court took time, and at the April term, 1807, entered an interlocutory decree. The cause was continued under the interlocutory decree, in order to execute a writ of inquiry directed by it, until the July term, 1812, when the inquiry was had, and final decree rendered.

To reverse this decree, Brown sued out a writ of error on the 27th May, 1814, returnable to the 50th day of the then sitting April court.

It is now moved to quash the writ of error. First, Because it does not identify the record and case to be brought up to this court. Second, Because it is returnable to a day previous to its date. And Third, Because it is wholly void on its face.

The writ of error describes the record and proceedings, which the clerk of the Pulaski circuit court is commanded to send up, as "a certain action in chancery, between Samuel M'Kee, complainant, and John Brown, defendant, pending before the judges of said court, and in which a decree was pronounced at the July term, 1812, to the damage of the said Brown." The record brought up, corresponds with this description, as to the nature of the action, the  [*473]  parties [**3]  to it, the court in which it was decided, and the term when the decree was rendered. I am of opinion that more need not be done, by way of description in a writ of error. If there are two suits between the same parties, which equally suit the description given in the writ, the defendants in error can easily learn when the record is filed in this court, which is intended to be revised. They are brought before this court by summons, and when in court, they should not be permitted to evade a trial, upon the merits of a cause, upon the ground, merely, that such description was not given in the writ of error, (which is not served on them,) as would identify the record, brought up in such manner, so that the idea should be excluded, that there could be any other record like it. Indeed, such a description might be impossible. Good sense does not require it. There is no variance between the writ of error and the record. They correspond as far as the writ goes, and I think it goes far enough.

This court commenced its April term, 1814, on the 4th day of the month. The writ of error is returnable to the 50th day of the court. In making the calculation, to ascertain whether the 50th day of the [**4]  court came before or after the 27th of May, the date of the writ, Sundays are to be excluded. No other than juridical days are to be taken into the computation; for if we were to include Sunday, and count it for any purpose, as a day in court, we should not reject it on any occasion, for the sake of consistency; and thus Sunday, in our circuit courts, would, when they sit more than one week, be the seventh day of the term. A notice to appear on the seventh day, if literally complied with, would, therefore, require the party to attend on Sunday, at the court house, which would be absurd, as he would then find no court in session. To avoid things so ridiculous, when reduced to practice, we enumerate days in court, beginning with the commencement of the term, and going on regularly to its end, taking no account of Sundays. By this rule, the 50th day of the court was after the 27th of May, and the writ of error ought not to be quashed, for the second reason assigned. There is nothing in the third reason.  [*474]  I am, therefore, of opinion, that the motion to quash the writ of error ought not to prevail. It is overruled.

Considering the cause as properly before this court for adjudication,  [**5]  the first error assigned, which I shall notice, is that which questions the jurisdiction of the Pulaski circuit court. The cases of Dunn & Wife v. M'Millin, 1 Bibb 409; and Cave v. Trabue, 2 Bibb 444, are expositions of the seventh section of the act, creating circuit courts, in regard to their jurisdiction; and from these the rule is clearly established, that the thing to be affected by the judicial proceeding, or which gives locality to the action, must lie within the circuit, or that the person of the defendant must be within the circuit, in order to give jurisdiction.

It is true, that process, both at law and in chancery, may issue from the circuit in which the suit is instituted, to other counties; but in these cases, the action must be local, a proceeding in rem; or part of the defendants must be in the circuit, where the suit is brought. In the last description of case it is well settled, that if a decree or judgment is not rendered against the parties found in the county, or one of them, no judgment or decree can be rendered against those defendants living out of the county. In such case, it is the duty of the court, ex officio [**6], to dismiss the action as to the defendants out of the county. See Majors v. Gunnell, 4 Monroe 450; Austin's Heirs v. Bodley, 4 Monroe 437.

M'Kee's bill does not allege that the land in relation to which the fraud was practiced, lies in Pulaski. It does not state that the suits brought against him, upon the notes given for the land, were instituted in the Pulaski circuit court, and which suits, by the prayer of the bill, the court is asked to suspend by injunction, which does not appear to have been granted. The bill is not filed to have a conveyance, or any act done in relation to the land. The sole object of the bill is, to compel Brown to refund part of the purchase money paid him, and to surrender the notes for the residue. It is, therefore, clear that M'Kee's cause of action was transitory, and that the Pulaski circuit court had no  [*475]  jurisdiction of it, by bringing the defendant before the court, with process, directed to the sheriff of Franklin.

It is contended, however, that if it be clear, that the court had no jurisdiction in the first instance, that under the circumstances of this case, Brown can not now avail himself of it. It appears from the [**7]  record, that Brown, by his counsel, made many motions, and gave consent to continuances of the inquiry, directed from term to term, but in all motions made in his behalf, he was overruled. His first motion was, to get clear of the rules entered against him, by which the bill had been taken for confessed, and failing, the cause was heard, and at a subsequent term, decreed against him. It is true, that argument was made for him, but what the nature of the argument was, can not be told. If it had been insisted, that the court should dismiss the bill, for want of jurisdiction, that argument should have prevailed. So far as the record speaks in the first stages of the cause, Brown was desirous to make defense, by filing an answer, and although it does not appear what would have been the nature of that answer, I can not presume that it was an acknowledgment of the allegations of the bill. If it had been, surely the complainant would not have objected to his filing it, especially as the court considered the case of such difficulty, after argument, as to require time for advisement. Every step taken by Brown, indicates an opposition to a decree against him, and hence no presumption can be [**8]  indulged in, that he favored and consented to the steps taken by the complainant against him. Besides, if he did so acquiesce, it was a tacit acknowledgment of the improper conduct charged upon him in the bill. The case should be clear, before we come to the conclusion, that any man has consented to his own degradation. I can not admit, therefore, that Brown has done any act which amounts to a waiver of his right, to object to the jurisdiction of the Pulaski circuit court. I am not prepared to say that he was bound to put in a plea to the jurisdiction, until the rule taking the bill for confessed, was set set aside. The term at which he made the motion to set aside that rule, was the first after the rule was made; and as his motion was overruled, he never did appear  [*476]  to the suit as a defendant, upon the merits. The court would not permit him to appear in that character, and make defense. If the court had permitted him, and he had gone on and defended, upon the merits, I am willing to concede that such a course on his part, might have amounted to a waiver of all objections, to the jurisdiction of the court; in as much, as the subject matter of the bill was such, that the [**9]  court could legally take cognizance of it, in like cases, when proper parties were subject to its jurisdiction. But when the complainant objected to granting Brown permission to defend, by filing his answer, and the court sustained the complainant, I am of opinion, that it would be unjust, to give to an appearance, entered for the purpose of asking the court for leave to defend an operation, by construction, so as to make Brown sanction an ex parte proceeding against him. Express consent can not give jurisdiction where the court has not, by law, cognizance over the subject matter; where the court has such cognizance, the consent may. Here there is no express consent, and I can not infer it from any thing apparent upon the record. I am therefore, of opinion, that the Pulaski circuit court should ex officio, have dismissed the bill of the complainant for want of jurisdiction. Having reached this conclusion, it is unnecessary to notice any other error assigned, and it would be premature to express any opinion on the merits of the controversy.

The decree of the circuit court is reversed, with directions to dismiss the bill without prejudice, because that court had no jurisdiction [**10]  of the case. No decree for costs can be rendered against the present defendants, they being the representatives of M'Kee, and suit being prosecuted against them in that character only.

The counsel for the plaintiff in error, presented the following written suggestion.

That costs were always recoverable against executors defendants, from a very early date in England. See 2 Bacon, Ab. 46, and the reason there given. These decisions possibly apply only to costs below, and the  [*477]  question may still arise whether the statutes of Gloucester, etc., included costs on a writ of error.

The act of 1796, 1 Digest 343, says, that in appeals and writs of error, the following rules shall be observed: "If the judgment or decree shall be reversed in the whole, the appellee shall pay to the appellant such costs as the court in their discretion may award." It must have been on the construction of this section that our court of appeals have in such numerous cases decreed costs against executors, defendants in error. The only change which our statutes have made in favor of executors, is that which has been derived from the construction given to the act of 1811, which the court have construed [**11]  to extend to costs also, making them recoverable de bonis testatoris and not de bonis propriis. The above mentioned act of 1796, makes no exception in favor of executors, and is, therefore, applicable to them equally with other defendants in error. The present case is somewhat peculiar. The writ of error was sued out and pending for twelve or fifteen years, during the lifetime of the testator, during all of which period, costs had accrued against the plaintiff in error. It was but recently revived against his executors, and if costs were ever discretionary in such cases, it is conceived that they should be awarded in this; at all events, the costs which accrued during the life of the testator.

Upon which the judge made the following modification of the mandate and decree.

Upon the suggestion of counsel, I deem it proper to modify the above, so far as to decree costs against the defendant, to be levied de bonis testatoris, for all costs incurred previous to the revival of the suit against the defendants. The clerk will enter a decree accordingly.

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