Allen v. Chadsey

Perkins, J. — Scire facias before a justice of the peace against replevin bail. Pleas, non cst factum, and nul tiel record. Judgment for the plaintiff. Appeal, and judgment for the plaintiff in the Circuit Court. New trial denied. The judgment upon which the defendant below became bail is described in the scire facias as follows: “Whereas John M. Ciiadsey, assignee of J. Haskins, on the 20th day of August, 1839, obtained judgment before Aaron Haugham, a justice of the peace of said county, against Henry S. Holland and Isaac Springstead, for the sum of, &c.; and whereas Eliphalet Allen, did then and there become replevin bail,” &c. The scire facias, it will be perceived, describes a joint judgment against two persons. The plaintiff upon the trial in the Circuit Court, gave in evidence the following transcript as showing the judgment upon which the scire facias was founded. “ John M. Ciiadsey, assignee of J. Haskins v. Henry S. Holland and Isaac Springstead. Demand — 88 dollars and 40 cents. August 20th, 1839. Summons about to issue in the above case and the defendant came and confessed the claim of the plaintiff to be just. It is therefore considered by me that the plaintiff recover of the defendant the sum of 80 dollars debt, and costs of suit, and the defendant in mercy, die. Aaron Haugham, J. P.” The plaintiff also produced Aaron Haugham, Esq., as a witness, by whom he proved that said Haugham rendered said judgment, and was at the time a justice of the peace of the county of Parke; that, after the rendition of the judgment, an execution was issued upon it describing it thus: “Whereas John M. Ciiadsey obtained judgment before me against Henry Holland and Isaac Springstead, ion; the sum,” &c. He further proved that, at [401] the time of the rendition of the judgment, but one of the defendants, viz., Henry Holland, appeared before the tice; that the other defendant, Springstead, was at the time out of the county, and that Holland did not pretend to have any authority to appear and confess only for himself; that Holland brought Allen, the defendant below, to the justice at a time when he was absent from his office, and that Allen then and there told the justice to enter him docket-bail for Holland upon the judgment of Chadsey against Holland; that there was, at the time, nothing said of Springstead; that the justice, on his return to his office, made the following entry on his docket : “ I, Eliphalet Allen, do acknowledge myself docket-bail for the stay of execution in the above case. Eliphalet Allen" E. W. McGaughey and J. Cowgill, for the plaintiff. W. D. Griswold and J. P. Usher, for the defendant. The judgment given in evidence, so far as respects Springstead, having been rendered without notice, actual or constructive, to him, was a nullity. Brown v. Trulock, 4 Blackf. 429.—Anderson v. Miller, id. 417.—Barkeloo v Randall, id. 476.—Smith v. Myers, 5 id. 223. The plaintiff, having shown that fact in attempting to prove his case, cannot object to the evidence by which it was proved. That judgment, then, was not a joint one against Holland and Springstead, and did not tend to establish the issues on the part of the plaintiff. Some other questions have been discussed in the case, but we shall intimate no opinion upon them here. Per Curiam. — The judgment is reversed with costs, &c.