Gallagher ex rel. Guss v. Kenedy

The opinion of the court was delivered by Smith, J. — Debt, by George Gallagher, for the use of Henry Guss, plaintiff below,.and plaintiff in error, against Joseph H. Kenedy and Samuel Ross, on an insolvent bond, taken in pursuance [164] of the act of assembly of the 28th of March, 1820. The pleas were, payment, and performance of the conditions of the bond. Replication, non solvit, and non-performance, and issues. Trial, and verdict for Samuel Ross, and against Joseph H. Kenedy, and judgment. On the trial, the plaintiff gave in evidence the above stated bond, dated the 4th of February, 1825, which had been approved by Judge Anderson, on the 5th oí February, 1825, and informally assigned to Henry Guss, on the 12th of September following. The defendants, on their part, gave in evidence the petition of Joseph H Kenedy, filed on the 7th of April, 1825, praying the Court of Common Pleas of Perry county, to extend to him the benefit of the insolvent laws, together with the proceedings thereon, that is to say, the order of the court appointing the 1st day of August, 1825, to hear the petitioner and his creditors; and further, directing fifteen days’ notice to be given to them, before the day of hearing; the continuance on the said 1st day of August, of the proceedings, on motion, until next term, and an order directing notice to the creditors, to be given in the Perry Forrester, more than fifteen days before the said term; motion of Samuel Ross, the bail oí Joseph Kenedy, on the 7th of November, 1825, (being the first day of the then next term,) requiring, that the petitioner, Joseph H Kenedy, shaiuld be surrendered in discharge of his bail, he, being then actu- ' ally in jail, and in the custody of the sheriff; and, the order of the court, thereupon, directing that he should be surrendered to the custody of the sheriff, and be held and kept by him in pursuance of this order, according to law, and until he should be legally discharged; to which order Henry Guss objected at the time. The plaintiff’s counsel then offered to show to the court, the grounds of the continuance of the petition of Kenedy, by the court, on the 1st day of August, 1825, and that it was on account of the sickness of the petitioner’s family, and the omission occasioned by it, to serve his notices legally on his creditors. This evidence was objected to, and overruled by the court, whereupon the plaintiff’s counsel excepted. The decision of the court below upon this offer, is the first error assigned by the plaintiff, in this court. The evidence was here closed, and the eoprt charged the jury as follows:— “ We think, the court had a right to continue the hearing of a case of an insolvent debtor, from term to term, upon ground laid. In this case it was so done, and the principal surrendered by the bail in discharge of his liability on the bond. We are of opinion, the surrender discharged the bail; but, a recovery may be had, if the plaintiff wishes it, against Kenedy, the principal.” To this direction the pláintiff excepted,- and has also assigned it for error. As to the first exception, the court below, believing that parol -evidence was incompetent to show the grounds of an order, or decree oí a court, rejected the evidence offered, and very correctly. It [165] has been repeatedly ruled, that an order, decree, or judgment of a court, having competent jurisdiction over the subjéct-matter, is conclusive and final; ;and cannot be examined again, collaterally, in another action. It was so decided by this court in Sheetz v. Hawk, et al., 14 Serg. & Rawle, 173, where the record of the discharge of an insolvent debtor was declared to be conclusive, as to facts appearing-in it, and that it cannot consist with the general analogy of the law, that, in a collateral action, there can be any inquiry on .the facts,which they have decided. The sanie reasoning applies with equal forcé against the attempt to inquire into the grounds of the decision'of a-court. The principle is the same, and I cannot disco-' ver any,difference. We must presume, that the court-, in giving its decrees, has done its duty. To examine into the grounds or reasons of their decisions,' in a collateral suit, would lead to endless inquiries, and would not comport wi,ththe welfare and peace of'the public.- . Some of these principles have been recognised at this term, in the case of Asper v. Lease et al. In fact, I believe no case can be found, in which parol evidence, respecting the grounds of the judgment of a court, has been, admitted. See Leg v. Leg, 8 Mass. Rep. 99. The court was, undoubtedly, correct in refusing evidence calculated to show the grounds on which it had decided, and made a decree in another proceeding. ’ ' ' As to the objections made to the charge of the court, they are equally clear of difficulty. Why, I would ask, should not courts of justice, upon proper and legal grounds shown to them, have a right to continue from term to term, the trial of a cause? -Has this discretion ever been denied to,a-court.? Is It not constantly, nay, daily, exercised by all courts, justices of the peace, referees, arbitrators, and every other tribunal of justice? In the case of Sheetz v. Hawk, it appeared, that the hearing of the insolvent .debtor, was .continued from day to day, by the court, it being.the practice óf that court. When the case,came, before the Supreme Court, they said, the court below had authority so to do. The power of the court, to continue the hearing of a cause, is necessary to the due administration of justice; for many accidents may occur, to render it the absolute duty of a court to continue and postpone the hearing, some of-which-are enumerated by Justice ’Duncan, in fhfe case just referred to. I, therefore, can perceive no error in this- part of the charge. . , , , But it is further* insisted, that the. court below also erred, in stating to the jury, that the surrender of the principal to' the custody of the sheriff, discharged the bail from his liability,on the bond. The bond was conditioned, for Kenedy, to appear at court, i there to remain, and abide the final order of the court, and- to comply with all things required by law to procure his discharge under the insolvent laws, &c. For the performance of this condition by Kenedy, Ross become bound. I assume it; as a well established principle, that a surety is not answerable beyond‘the scope of his [166] engagement. It is very evident, that in this case, Ross engaged that Kenedy should appear at, and abide the final order of the court, which final order was, that he should be surrendered to the custody of the sheriff in discharge of his surety. He was so surrendered. This surrender, then, must leave the bail in the same situation as if Kenedy had been actually discharged; and it is only when the petitioner is neither discharged, nor surrendered on the day on which he was to be discharged, that the condition of the bond becomes forfeited, and the bail of course liable, which is not the case here. The charge of the court in this, was also correct, and the judgment must, therefore, be affirmed. Judgment affirmed.