October 25, 2012

Harlin's Heirs v. Eastland, Lincoln, 1808

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Harlin's Heirs v. Eastland.

COURT OF APPEALS OF KENTUCKY

3 Ky. 318; 1808 Ky. LEXIS 59; 1 Hard. 318

March, 1808, Decided

PRIOR HISTORY:  [**1]  This was a writ of error, without a supersedeas, sued out to reverse a decree of the Lincoln circuit court dismissing the bill of the plaintiff in error. No bond was given to secure to Eastland, and the officers of court, the costs in the court below, nor in this court. An affidavit was filed, showing that the plaintiffs in error were not residents of this state; and a motion was made for a rule to show cause why the suit should not be dismissed for want of security for costs. 

COUNSEL: HARDIN for the defendant in error.--By an act of 1796, regulating civil proceedings, 2 no non-resident is permitted to commence a suit in any court of this commonwealth until he shall have given bond, to secure to the opposite party, and to the officers of the court, the costs they may become entitled to by such suit.

2 Acts of 1796-7, p. 19, sec. 8; 1 Brad. 219.

I am not aware of the question ever having been brought before this court, to determine whether this law did, or did not, extend to writs of error in this court. The few writs of error, without supersedeas, which have been prosecuted by litigants in this court, may account for it; for if a supersedeas be obtained, the bond given on [**2]  that occasson will satisfy the defendant in this court.

Writs of error in this court will come within every reason which could have induced the legislature to pass that law; and the words of it are as broad as the evil was extensive. The statute uses the expression "any suit." A writ of error in this court is certainly a suit or action. A suit or action is a proceeding in a court of justice, which calls upon the defendant to appear and answer to, or plead to, the complaint exhibited against him. A writ of error will come within this definition. The process is similar to that in many original actions; and the formal pleadings or answers in writing, of the defendant, are dispensed with by a late law, 3 but the same proceeding is had as heretofore, except that the answer of the defendant, in this court, is now, as it anciently was in original suits, ore tenus.
3 See Acts of 1799, ch. 28, sec. 6, p. 58.

The last section of this act declares that it is to govern all the courts in the commonwealth; and shows that the legislature intended that those provisions which are applicable to this court should extend to it.

Under a fair exposition of the act of assembly,  [**3]  I should contend that the court ought immediately to dismiss the suit; because the plaintiff ought to have given security, before the writ of error was sued out; and that if security for costs was tendered before the motion for dismission was decided, it might be received; but that no day ought to be given for entering security. But as the point is a new one, and has not been practiced under heretofore, I will move for a rule to show cause why the suit should not be dismissed for want of security for costs.

ALLEN, contra.--It is too late to apply to this court to compel the plaintiff to give security for costs. The motion should have been made below; and not having been made there, it can not be made here. This court, by the decision in the case of Smith v. Carr, 4 has decided that it can only entertain jurisdiction to revise the decisions of inferior courts; not to determine questions which ought to have been made below.
4 Ante, 313.

I do not admit that the act of assembly embraces courts of error. It speaks of suits, not of actions. If we resort to the origin of the word suit, it means followers, or witnesses; 5 and the act of assembly must use the term here,  [**4]  in relation to its original meaning, and will extend to all original actions in which witnesses may have to attend; but can not extend to actions where there is no suit of witnesses. Every suit may, therefore, be properly called an action; but ever action is not a suit.
5 See 3 Black. Com. 295.

The act of assembly in question, has relation, throughout, to proceedings in original suits; and the general expression at the latter part of the law, "all courts," alludes to all courts of original jurisdiction; for when that law passed, we had several courts of original jurisdiction.

Another strong objection to the present application is, that the motion is made upon a matter of fact, out of the record. And how are the court to try the question of fact?

HARDIN and CLAY, in reply.--This motion has nothing to do with the costs below. We admit that as to security for the costs below, the period has elapsed for applying for it. But this question must be considered in the same light as if the non-resident were the defendant below; in which case, no security could have been required for costs below.

The rule asked for here, is only an incidental motion, growing out [**5]  of a suit properly within the jurisdiction of the court, and could not have been made below. For, even if a bond to secure costs had been given in the court below, the officers of this court could not have the benefit of it, as the party would comply with the condition by paying the defendant below and the officers of that court their costs.

The distinction taken by Mr. Allen, between suits and actions, is unfounded. 6 And if we resort to common usage, we speak of actions at law, and suits in chancery; a very different distinction from that taken on the other side.

6 See 3 Black. Com. 116; Jacob's Law Dic., title, Action and Suit.

He is also mistaken in supposing the act regulating civil proceedings to be confined to the courts of original jurisdiction; for in it are the provisions relative to jeofails, 7 which were expressly intended to govern this court in its decisions.

7 Acts of 1796-7, p. 24, sec. 28; 1 Brad. 226.

OPINION

 [*320]  BY THE COURT.--Let the rule be entered as moved for. 1

1 Security for costs was afterward given, and the rule discharged without opposition.

 [**6] 

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