Smith v. Silliman

Williams, J. It must be admitted, that the bond does not rightly describe the judgment. The costs are said to be 7 dollars, 2 cents, whereas the costs in the judgment are 17 dollars, 2 cents. The questions then arising are, 1. whether any bond was necessary in this case; and 2. whether the want of a bond is the subject of a writ of error. The last question has been the principal one discussed at the bar, and has given rise to conflicting decisions in our own and an adjoining state. But as the decision of it is not, in the view I have taken of this case, necessary, I shall waive any remarks upon this subject, hoping that if the case of Strong v. Meacham, is to be reviewed, it may be by a full court. I am of opinion, that no bond at all was necessary in this case. The original suit was a foreign attachment. The statute on that subject directs, that the attorney or agent may defend the principal; but if the defendant be not in the state, and said attorney does not appear to defend him, the suit shall be continued to the next court. Stat. 237, 8. The 12th section of the statute concerning civil actions, enacts, That if the defendant, being an inhabitant of this state, is absent at the time of commencing the suit, and does not return before the first day of the session of the court, or if he is not an inhabitant or resident, and does not appear, the suit shall be continued to the next term; and if he does not then appear and plead, judgment may be rendered against him in default of appearance; and in such cases, execution shall not issue thereon until the plaintiff shall have lodged with, the clerk of the court a bond, with one or more sufficient sureties, to the adverse party, in double the sum of such judgment, to refund, &c. Stat. 38, 9. The first statute requires a continuance, if the defendant does not appear, and is not in this state; but requires no bond. The last statute requires a continuance and a bond; but it requires them [116] only where the defendant was out of the state, at the commencement of the suit, and had not returned before the session of the court. If, then, the defendant was an absconding debtor when the writ was served, and out of the state at the commencement of the term, and no attorney appeared, the cause must be continued. And if he had* not returned to this state before the sitting of the court, and finally suffered judgment by default, a bond must be given. By the record of the county court, it is shewn, that the defendants were out of the state at the time of service ; no attorney appeared for them ; and no suggestion was made then, or is now, that at that time, they were in the state. The suit was, therefore, by the court, properly continued under the first-mentioned statute, without any regard to the other statute, and without any enquiry whether the defendant had been in the state after the service of the writ. If the facts, then, stated in this plea, are properly pleaded, it is apparent, that no bond was necessary. It is said, that the plaintiff in the county court is estopped, by the record, from averring the fact in his plea. It is believed, that it will be found, that there is no fact in the record inconsistent with the facts disclosed in the plea. The original writ describes the defendants as absconding debtors out of this state. The record shews, that at the first term, they were absconding and absent from the state, and that they did not appear at the next term. All this is perfectly consistent with the fact, that they were in the state between the time of service of the writ and the time of its return; and that is the only important fact in the plea. If it be said, that a bond was actually given, and that implies that this was a proper case for a bond ; this does not appear to have been done by order of the court. It must, therefore, be treated as the mere act of the party; and if the party did suppose, that a bond was necessary, it will not make it so, nor prevent the party from shewing the real fact. The bond itself counts upon the record, and proves no more than that does, viz. an absence out of the state, at the time of service, and at the time of the session of the court. Besides, it is claimed, that that is no bond, as it does not count upon this record correctly; and it would be too much to claim, that the bond was void, and yet that it estopped the party who executed it. An estoppel, it is well known, must be certain to every in [117] tent, Therefore, if it is not directly and precisely alleged, it shall not be an estoppel. Co. Litt. 352 b. Com. Dig. tit. Estoppel. E. 4. Bradford v. Bradford, 5 Conn. Rep. 127. 132. And it has been held, that though a record says, that a party appeared by his attorney, in a suit upon that judgment, he may shew that he did not appear by his attorney. Aldrich v. Kinney, 4 Conn. Rep. 380. 387. Hall & al. v. Williams & al. 6 Pick. 232. Considering, then, the strict construction given to estoppels, I have no hesitation in saying, that Smith is not estopped, by any thing in the record of the county court from shewing the real fact as to the return of the defendant. Had the fact stated in this plea been shewn to the county court, it would have been their duty, by the statute concerning foreign attachments, to have continued the cause. But were this otherwise, the fact of the continuance cannot furnish record evidence, that the defendants were not within the state from the time of service of the writ, to the time of the session of the court. I am, therefore, of opinion, that the plea of Smith to the writ of error was sufficient; and that there is error in the judgment of the superior court. Hosmer, Ch. J. and Peters, J. were of the same opinion. Daggett and Bissell, Js., having been of counsel in the cause, gave no opinion Judgment reversed. After the decision of the Court, a motion was made to remand the cause, which was opposed; and by the Court, the motion was Denied.