October 1, 2012

Evans and Love v. Wait, Pulaski, 1830

Evans and Love vs. Wait.


28 Ky. 110; 1830 Ky. LEXIS 395; 5 J.J. Marsh. 110

December 17, 1830, Decided

PRIOR HISTORY:  [**1]  Error to the Pulaski Circuit; JOHN L. BRIDGES, Judge.

DISPOSITION: Decree affirmed.

COUNSEL: Cunningham, for plaintiff; Triplett, for defendants. 




 [*110]  Judge BUCKNER, delivered the opinion of the court.

WAIT having recovered a judgment at law, against Wilson Evans, caused several executions of fieri facias to be issued thereon, directed to the sheriff of Pulaski county, where Evans resided; the last of which was returned, by a deputy of the sheriff of that county, on the 15th of February, 1828, that he had made a portion of said execution, which is mentioned in the return, and that there was "no other property found, whereby the residue of the debt can be made, or any part thereof."

Wait thereupon filed this bill, in February, 1828, in the Pulaski circuit court, to subject to the payment of the residue of his judgment, the amount of a replevin bond, executed by Joseph Love and John Evans, his surety, for $ 96 13 cents, with interest thereon, from the 16th of June, 1825, till paid, in paper of the bank of the commonwealth of Kentucky, to G. Elliott and transferred by him to Wilson Evans and which was then, as alleged, in a train of collection, an [**2]  execution issued thereon, being then in the hands of Jasper, the deputy sheriff; and to subject also to the same demand, a debt due to the said Wilson Evans, on a judgment of the Rockcastle circuit court, by John Hughes, which had been replevied, amounting to the sum of $ 60, in specie.

Wilson Evans, John Evans, Love, Elliott, Jasper, Hughes and James Terrell, his surety, were made defendants; upon each of whom, except Terrell, process was served in the county where the suit was pending, previous to the April term of the circuit court, in the year 1828. A subpoena against Terrell was issued on the  [*111]  1st of April, 1828, directed to the sheriff of Rockcastle, requiring him to appear at the term next thereafter, which commenced on the third Monday in that month, and was returned on the 18th of February, 1829, served on Terrell, 30th of June, 1828.

At the October term, 1828, none of the defendants having answered, the circuit court proceeded to hear the cause, as to all of them, except Hughes and Terrell; and as to them, it was continued. The bill was taken as confessed; and the court entered an interlocutory decree, in which it is declared, that Wait was entitled, in part [**3]  satisfaction of his judgment to a decree for the amount due, from Love and John Evans, as charged in the bill, when reduced to its value in specie at that time. A jury was therefore ordered to be empaneled to assess the value, who returned a verdict in the following words: "we of the jury find the commonwealth's paper debt in the decree mentioned, as due from the defendants, Joseph Love and John Evans, is of the value of $ 103 75 cents, in specie." A final decree was then pronounced, that all the right, title and interest of Elliott and Wilson Evans, to the replevin bond and execution thereupon, which was in the hands of the sheriff, be transferred to, and vested in Wait; that the defendant Jasper, pay to Wait, any of the money which he might have collected on said execution; and that Wait might sue out, in the name of Elliott, execution against Love and John Evans, on the replevin bond, and receive the amount, &c. and that Wilson Evans should pay the costs of the suit.

No notice is taken, in the decree, of Hughes and Terrell; but as to them, the cause was continued, until the term next thereafter; at which time, John Evans produced his answer to the bill sworn to in court; and moved,  [**4]  that the decree be opened, and that he might be permitted to file his answer. The motion was overruled, to which he excepted, and in the bill of exceptions, the answer is incorporated. The substance of it is, that when execution first issued on the replevin bond against Love and himself, the sheriff to whom it had been delivered, levied it on property of Love, who was then very able to pay the amount, and that Wilson Evans, to whom it had been assigned released the property, under an arrangement, between him and Love, to which, he, J. Evans did not consent. That he had, before the decree  [*112]  was rendered in this case, applied to his lawyer to prepare and file his answer, but was advised by him, that Wait's bill did not call on him to answer, as to his liability on the replevy-bond; and that his remedy would be, to file a bill himself, praying for relief; and therefore, had declined to offer it.

To reverse the decree, John Evans and Love prosecute this writ of error; and assign as errors.

1st. That the circuit court improperly entertained jurisdiction of the case, and improperly granted thereon, the relief sought, against the said Evans and Love, the return of the sheriff,  [**5]  upon the execution of Wait against Wilson Evans being insufficient, to authorize the decree.

2d. That it was erroneous to try the cause and render a decree at the October term, 1828; because the Defendant Terrell was not before the court, the process not having been then returned against him.

3d. That it was erroneous to overrule the motion of John Evans, made at the April term, 1829, to open the decree of the proceeding term, and permit him to file his answer to the bill.

4th. That the decree is for a larger sum against Love and John Evans, than that, for which they were indebted to Wilson Evans, according to complainants own showing; 96 13 cents, with interest, from the 16th of June, 1825, till paid, in commonwealth's bank paper, being the alleged amount of their debt to him; and they having been decreed to pay to Wait, the sum of $ 103 75 cents in specie.
We shall notice the points, in the order they have been presented.

There is certainly no weight in the objection to the jurisdiction of the court, on account of the supposed insufficiency of the return made by the officer, upon the execution of Wait against Wilson Evans. The act of 1821, in virtue of which, this proceeding [**6]  was had, requires the execution to be returned "by the proper officer" in substance, that the defendant hath no effects in his bailiwick to satisfy the same. Surely it cannot be doubted, that a deputy sheriff is a proper officer to make such a return.

 [*113]  In the case of Greenup's representatives vs Bacon's executors, I Mon. 108, it was decided, that "not found, in my bailiwick returned by a deputy sheriff, does not import that the defendant is not found in the county, because, "bailiwick," as was decided in the case of Gully vs Sanders, Littell's select cases, 424, does not necessarily include the county; but strictly means that part which is, or may be assigned to the deputy. But in this case, the word bailiwick, upon which the case referred to turned, is not used.

The return is general, and must, therefore, be considered as applying to the whole county, as there is no expression used, or proof in the cause, which would restrict it to a more limited boundary. We will not presume, that he was the deputy in a bailiwick only, unless something appears, from which it must be inferred.

The second ground assumed as error, cannot be sustained. Cases frequently occur, in which the [**7]  court may decree, as to one defendant, and retain the cause as to others; McCoun vs. Delany, &c. II Bibb, 441; see also, Cox's heirs vs. Strode, Ibid, 273, where the doctrine is thus laid down. "Where the relative situation of defendants is such, that the complainant might or might not at his election, have made them parties, we can see no impropriety, in bringing the cause to hearing, as to some, before it may be prepared for hearing, as to the others. But where the interest of defendants are so intimately connected, that either could object to a bill, because the others were not made parties, it would seem necessarily to follow, that a decree, as to some, without having the cause heard, as to the others, would be erroneous."

Hughes and Terrell were not necessary parties, to authorize the decree in this case, nor could the plaintiffs in error have supported an objection to the bill, if they had been entirely omitted. They stand altogether disconnected in interest, from the other defendants.

The motion made by John Evans to open the decree of the preceding term and to permit him to file an answer, was properly overruled. His answer exhibits a substantial ground of equity, had [**8]  he relied upon it in time; but the decree entered, at the preceding term  [*114]  was final, and the defendant in error is not answerable for the negligence of his adversary, or the erroneous advice of his lawyer.

It would be the adoption of a most inconvenient and dangerous principle to determine, that an opinion advanced by the lawyer to his client, influencing him to pursue a course, which proved not to be the most judicious, would authorize the circuit court at a subsequent term, to open the decree and grant a re-hearing upon motion.

As to the fourth and last ground relied upon as error, an examination of the final decree will show, that it was assigned through a mistake on the part of the lawyer who assigned the errors as to the nature of the final decree, most probably, from the expressions used in the interlocutory decree.

Whether the interlocutory be correct or not, is unimportant, if the final decree is not erroneous.

The decree of the circuit court must be affirmed; but as the case has been heard upon default, on the part of the defendant in error in this court, there must be no judgment for costs.

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