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Lansdale v. Findley.
COURT OF APPEALS OF KENTUCKY
3 Ky. 158; 1807 Ky. LEXIS 37; 1 Hard. 158
September, 1807, Decided
PRIOR HISTORY: [**1] Findley obtained a judgment in the Lincoln circuit court against Lansdale and others. Execution issued on that judgment, and Lansdale replevied it. On the expiration of the replevy, another execution issued against Lansdale and his security in the replevy bond. On this the sheriff returned "executed on a negro woman, but not time to sell." After which, and after a term of that court had intervened, a venditioni exponas issued, which was returned "executed on a negro girl, which was claimed by John Caldwell; a jury being summoned to try the right, brought in a verdict in favor of Caldwell, as per verdict filed." The finding of the jury was annexed to the return. After which, and after the intervention of another term of that court, an alias fieri facias was awarded on the replevy bond. Lansdale then obtained a writ of error coram vobis.
The first, second, and fifth errors assigned on the writ of error coram vobis, were for variances alleged between the replevy bond and the execution by virtue of which it was taken. The third and fourth were as follows:
Third. An execution is sued subsequent to the issuing of the venditioni exponas, and before such venditioni exponas had been [**2] quashed or set aside.
Fourth. The execution issued after issuing of a venditioni exponas, and before it appeared by a legal return of the venditioni exponas, that the property against which it issued was unequal to the satisfaction of the judgment upon which the same issued, or was by other means exonerated.
Findley, by his counsel, demurred to the errors assigned, and judgment was entered for him, quashing the writ of error coram vobis, and judgment entered for him for ten per cent. on the amount of the replevy bond.
From this judgment Lansdale appealed. It was assigned for error, first, that the court below erred in not setting aside the proceedings, for the errors assigned at the August term of the Lincoln circuit court, 1805. (1)
The second and third error took specific exceptions to the impaneling and finding of the jury, and to the sheriff's return on the venditioni exponas.
Fourth. The defendant in error, upon the writ of error coram vobis, illegally demurred; he ought to have plead no error.
Fifth. The court below erred in giving ten per cent. damages upon [**3] the amount of the replevy bond; the law does not authorize it.
The arguments of the counsel having been principally on points which the court afterward determined were not open to exception from the course of proceedings below, they are omitted, except as to the last error assigned in this court.
COUNSEL: LITTELL and HARDIN for the appellant.--The act giving ten per cent. damages, is, so far as it gives damages, penal, and must receive a rigid construction. It gives ten per cent. wherever a writ of error is sued out from an inferior or superior court to reverse a judgment, if that judgment be affirmed, or the writ of error dismissed. (1) The expressions of the act do not extend it to cases where the writ of error is sued out to correct proceedings subsequent to judgment; and this court ought not to extend penal laws farther than the letter. The expression "inferior court," in that statute, must have been inserted to embrace cases where writs of error coram vobis were sued out to reverse judgments for errors in fact; as for the infancy of one of the parties. This construction has been put upon the law in question by the decisions of this court, and appears to have [**4] been reviewed in the case of Ambrose v. Weller, (2) and still adhered to. Since that decision the point has been at rest.
TALBOT for the appellee.--The act in question is remedial. It was enacted to prevent the delays occasioned by supersedeas, and should receive a construction to meet the mischiefs. The decision of Ambrose v. Weller is directly against the letter and intent of the act. For a replevy bond is by law declared to have the force of a judgment. It is considered as a judgment to most if not to every purpose. And whenever a writ of error is sued out for defects alleged in the replevy bond, it is an attempt to reverse it as a judgment. The consequence to the person having the right to execution is the same, and he should have equal justice if it is improperly sued out.
JUDGES: EDWARDS, Ch. J.
OPINION BY: EDWARDS
OPINION
[*160] EDWARDS, Ch. J., now delivered the opinion of the court.
The-first, second, and fifth assignment of errors in the writ of error coram vobis, were properly disregarded by the court below, because the party did not attempt to avail himself of them in proper time, as directed by the [**5] act of assembly, passed in 1802. (3)
The third assignment states that an execution issued subsequent to the venditioni exponas, before it had been quashed or set aside. [*161] But it surely can not be laid down as a general rule that a venditioni exponas must be quashed or set aside before any execution can issue on the judgment. As this assignment only states a general proposition, without making out a particular case, the general rule being against it, the court very properly overruled it.
The fourth assignment of error is so vague and general that no definite idea can be drawn from it. It makes out no particular case or point to which the defendant could answer, and was therefore properly disregarded. These being all the errors assigned in the writ of error coram vobis, this court is of opinion there is no error in the judgment of the court below upon the merits.
As to the second and third assignments of error in this court, it will be sufficient to observe that the [**6] matter thereof could only be properly assigned in the court below, on the writ of error coram vobis, and that not having been done, no notice can be taken of them in this court.
It is also assigned as an error, that the defendant, in the writ of error coram vobis, demurred, when he ought to have plead, no error. There is no substantial difference, in reason, between a demurrer and the plea of "in nullo est erratum." Both admit the facts alleged, and put only the law of the case in issue. Besides, by the law and practice of this country, no plea was necessary, unless some error in matter of fact had been alleged, upon which the defendant could have made up an issue of fact if he had been disposed to do so. No such error having been assigned in this case, the demurrer must be considered as surplusage and can not vitiate.
It is also assigned for error, that the court below gave ten per cent. damages on the amount of the replevy bond. On this point the case of Ambrose v. Weller has been cited. This court, upon a mature consideration of the act of 1802, (4) relating to writs of error coram vobis, are of opinion that the ten per cent. damages is given in [**7] such cases, not only by the true spirit and meaning, but also by the letter of the act, wherever the replevy bond has by law the force of a judgment; for the reversal of which judgment on replevy bond, the writ of error, with supersedeas, is sued out.
Judgment affirmed. (5)
(1) Acts of 1802, ch. 72, sec. 6, p. 174.
(2) April, 1805.
(3) On sec. 4, 5, p. 174.(4) Ch. 72, 172.
(5) See another branch of this cause, post.
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