Powers v. Browder ex rel. O'Bryan

Napton, J., delivered the opinion of the court. This was an action of debt commenced in the Benton circuit court, by the administrator of Heath against Powers and Ashly upon a bond for the payment of one thousand dollars. The case was removed to the circuit court of Polk county, and was there tried upon the issue of non est factum, and a verdict and jugment given for the plaintiff. The change of venue had been ordered in 1846, and at the April term of the Polk circuit court, 1848, the defendant moved to suppress the deposition of Richard B. Heath, because it had not been certified or authenticated as the law required. This motion was overruled. At the same term, the death of O’Bryan, to whose use the suit was brought, was suggested by the defendant, and the court directed security for costs to be given to indemnify the nominal plaintiff. At the April term, 1849, the defendant, Powers, (the suit having been previously dismissed as to Ashley,) moved to dismiss the suit upon the following grounds. 1, Want of due diligence in its prosecution. 2. No renewal of the suit since the death of O’Bryan. 3. The failure to give bond by the cestuys que use. This motion was overruled and an exception taken. At the October term of the same year a motion was made to strike the cause from the docket, because of some informality in the change of venue ; the defendant insisting that the Polk circuit court, had no juris [156] diction. This motion was overruled. In support of the motion, it appeared the application for a change of yenue was signed by the attornies of the nominal plaintiff; and the affidavit was made by one Th. B. Smith who professed to be interested in the suit. On the trial of the cause at that terna, the plaintiff offered in evidence an obligation conforming in substance to the one declared on, except that the money was to be paid “without defalcation or discount.35 An objection was made on account of variance, but the objection was overruled. The declaration averred that the defendants, on &c., at &c., by their, certain writing obligatory, sealed with their seals &c , obligated themselves to pay, on or before the 26th day of Depember, 1842, to one Richard B. Heath, for value received, the sum of o.ne thousand dollars., and then and there delivered the said bond, See. The first error alleged is the affidavit for a change o.f venue* With7 out passing any opinion upon the formality of the affidavit, we consider the objection as coming too late The venue had been changed, and the parties taken several steps in the cause, prior to the motion to dismiss the case for want of jurisdiction. That the circuit court of Polk county, had jurisdiction of the subject matter of this suit, is beyond dispute. The voluntary appearance of the defendants during the progress o.f the cause, subsequent to its removal to Polk county, gave the court of that county, jurisdiction over their, persons, and any informalities in the application for a change of venue, were thereby waived. We are not of opinion that there was any material variance between the bond offered in evidence, and that described in the declaration. The declaration did not profess to set out the bond in so many words, but pierely described its substance. The bond produced, contained every thing which the declaration described it as containing. The words of the bond, omitted to be stated in the declaration, ‘¿without defalcation or discount,” were inserted for the benefit of the plaintiffs. Their omission could not possibly prejudice the defendants. The objection to the deposition of Heath is not an available one here, even if the facts were as suggested. It, does not appear from the record that the deposition was read on the trial. Judgment affirmed.