Chaddie v. Wolfe
| Citation | 28 Ky. 668 |
| Parties | Chaddie v. Wolfe. |
| Decision Date | 23 April 1831 |
| Court | Kentucky Court of Appeals |
Practice. Motion. Notice.
ERROR TO THE BULLITT CIRCUIT; PAUL I. BOOKER, JUDGE.
Chapeze and T. T. Crittenden, for plaintiff.
Wolfe having obtained a judgment at the May term, 1823, against Chaddie, for $56 and costs of suit, sued out execution which was returned, " stayed by order of plaintiff's attorney." A second execution issued, endorsed by the clerk, " this execution is to be discharged by the payment of the costs." The third execution with the same endorsement was levied, and upon a venditioni exponas, a replevin bond taken for the costs alone. The fourth execution which issued on the replevin bond was levied, and the fourth venditioni exponas was returned that the property had not been sold for want of time. The fourth venditioni exponas bears date 16th April, 1828.
On the 20th February, 1828, the court entered an order, giving leave to Wolfe to sue out execution for the full amount of the judgment rendered in May, 1823, without quashing the replevin bond which had been take for the costs, and without paying any attention to the endorsement on the former executions that the costs only were to be collected. It does not appear that Chaddie had any notice of this proceeding, and he has prosecuted a writ of error to reverse the order of February 1828.
Whenever any order is desired by either party to any cause which may materially affect the rights of his adversary, and the propriety of making such an order, depends upon extrinsic evidence, and is not justified by the face of the record, the party against whom it is to operate, should have notice of the motion, and an opportunity should be afforded him to counteract it by proof. There should be no exception to this rule, where the parties are out of court when the motion is made, as is the case here. It might have been in the power of Chaddie to prove that all of the judgment had been paid except the costs. He might have shown that the clerk properly made the endorsement, that the costs only were to be collected. An opportunity at least should have been afforded him to prove payment, or to sustain the endorsement if he could. But again, it was obviously erroneous to give an execution for the whole amount of the judgment, leaving the replevin bond for the costs in full force. By such a course the defendant in error might obtain a double...
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