Sallee v. Hays

• Decision Date: 30 April 1832
• Citation: 3 Mo. 116
• Parties: SALLEE v. HAYS ET AL.
• Court: Missouri Supreme Court

3 Mo. 116

SALLEE

v.HAYS ET AL.

Supreme Court of Missouri.

April Term, 1832.

ERROR FROM THE CALLAWAY CIRCUIT COURT

WASH, J.

Sallee brought an action of debt against the defendants on a decree in chancery, rendered against them in the State of Kentucky. The declaration contains four counts. The first count set out that the decree was made in the Circuit Court for Montgomery county, in the State of Kentucky, against the defendants, as heirs of one William Hays, deceased, for the nonperformance of covenants entered into by their said ancestor, &c. That the same was directed to be levied of the assets real, which had descended to them from their said ancestor, averring that according to the laws of Kentucky, the decree bore interest, &c. and that assets real, more than sufficient to pay and satisfy the decree, had come by descent to the hands of the defendants. The second count contains the same averments, with an additional one, that by the laws of Kentucky, in force at the time the decree was rendered and ever since, the same was conclusive upon the defendants, &c. The third count is precisely like the second, except in averring that by the laws of Kentucky, the decree was prima facie evidence of debt against the defendants.

The fourth count contains the further averments that the suit was commenced in the Montgomery Circuit Court against the defendants, who were then nonresidents of the State of Kentucky, together with other defendants who were residents of the county, upon a covenant of the defendants' ancestor, touching the title to a tract of land which was lying in said county, and within the jurisdiction of the Montgomery Circuit Court; that orders of publication were duly made and proved against said defendants according to the laws of Kentucky; that according to those laws the decree thus made and obtained, was prima facie evidence of debt due from the defendants to the plaintiff; and that said defendants had no assets real by descent in Kentucky, but had in the State of Missouri, more than sufficient to pay and satisfy the decree, &c. The defendants pleaded, First. Nul tiel record. Second. Nil debet. Third. That they were not residents of the State of Kentucky at the commencement or any time during the pendency of the suit in chancery; that they had no legal notice served on or given to them to appear and defend said suit; that they never waived notice or submitted themselves to the jurisdiction of said Montgomery Circuit Court, &c.

The fourth plea averred that the said Chancery Court in Kentucky, had no power or jurisdiction to bind them by their judgment and decree declared on, &c. Issue was joined on the first, second and fourth pleas, and the court sitting as a jury, found...