Breeding, &C. v. Stamper

• Decision Date: 01 January 1857
• Citation: 57 Ky. 175
• Court: Kentucky Court of Appeals
• Parties: Breeding, &c. <I>vs.</I> Stamper.

57 Ky. 175

Breeding, &c.vs.

Stamper.

Court of Appeals of Kentucky.

Summer Term, 1857.

APPEAL FROM LETCHER CIRCUIT.

Stamper filed his petition against Elisha E. Breeding and others, to compel a conveyance of a tract of land which had been conveyed to Breeding, alledging that he held a bond for a conveyance of the same land anterior in date to the conveyance to Breeding. Breeding resisted the conveyance on the ground that he was an innocent purchaser, without any knowledge of Stamper's pretended equity; that Stamper knew of his purchase, said nothing of his claim, but assented to his purchase, and received a part of the price which he paid for the land, and subsequently purchased a part of the same land from Breeding. The circuit court adjudged that Breeding convey the land to Stamper, and he has appealed to this court.

Ensworth for appellant —

John M. Harlan for appellee —

Judge SIMPSON delivered the opinion of the court.

The process does not appear to have been served on all the parties, and therefore the case was prematurely tried, but this, according to the provisions of the Code, was only a clerical misprision, (sec. 578,) and is not a ground for an appeal until it has been presented and acted on in the circuit court, (sec. 577;) which has not been done in this case, and consequently the judgment cannot be reversed for this error.

A deposition was excepted to on the ground that it was filed in the clerk's office by the party on whose side it had been taken. It was sealed when it was delivered to the clerk, but not having been delivered to him by the officer by whom it was taken, according to the requisitions of the Code, (sec. 646,) it was rejected by the court.

It is contended that this decision of the court was erroneous; that the provision in the Code, requiring the officer who takes a deposition to deliver it to the clerk is merely directory, and that if he fails to comply with the requisition of the law, his delinquency should not prejudice the party for whose benefit the deposition was taken, especially where, as in the present case, it has been delivered to the clerk with the seal unbroken.

The officer who takes a deposition is required to seal it up, and either deliver it or mail it to the clerk of the court. This duty is imposed upon him by law, to guard against the danger of interpolation or suppression. Its violation, without the knowledge or assent of the party at whose instance the deposition had been taken, where no...