Givens v. Bradley

• Decision Date: 16 October 1813
• Citation: 6 Ky. 192
• Parties: John and Joseph Givens <I>vs.</I> Bradley.
• Court: Kentucky Court of Appeals

6 Ky. 192

John and Joseph Givensvs.

Bradley.

Court of Appeals of Kentucky.

October 16, 1813.

Opinion of the Court by Judge OWSLEY.

THIS was an action of assault and battery, brought in the Livingston circuit court, by Bradley, against the plaintiffs in error, and James Carry, William Love and Joshua Cary. The capias was executed on the plaintiffs in error, and bail taken according to the order of a judge. The writ was afterwards, together with the two bail bonds, deposited by the clerk of Livingston with the clerk of Logan, and by him the cause was placed on the issue docket at the July term 1810; at which term the court, on the motion of the plaintiffs in error, caused the case to be stricken from the docket and ordered it to be remanded to the Livingston court, because neither the original order of the judge for a change of the venue nor a copy thereof was filed with the clerk of Logan. At a subsequent day of the same term, on the production of a certified transcript of the proceedings in the Livingston circuit court, together with the order for the change of venue, the court reinstated the cause upon the docket, and continued it until the next term. At the October term, the plaintiffs in error again moved the court to strike the cause from the docket, because, at the preceding term, it had been stricken from the docket and remanded to the Livingston circuit court: the court, however, overruled the motion.

The plaintiffs in error then filed their plea of not guilty, but objected to going to trial unless the plaintiff in that court would enter a nolle prosequi as to the other defendants, until the cause should be prepared for trial as to them. The court overruled the objection and ordered a trial on the issue joined.

In the progress of the cause the defendants below offered to prove that a quarrel had taken place on the same day, though at a different place to that where the battery for which the suit was brought against them happened, between one of them and the plaintiff in that court, at which time the then plaintiff cut the hand of one of the defendants, and that before the blood had time to cool the battery for which this action was brought happened. The admission of this evidence was opposed by the plaintiff below and rejected by the court.

The plaintiff below (now defendant in error) likewise offered evidence of his good general character as an honest, peaceable, orderly member of society, which was objected by the plaintiffs in error, but the objection overruled and the evidence admitted. Verdict and judgment were obtained against the plaintiffs in error, from which they have prosecuted this writ of error.

That the court below decided correctly in refusing at the October term to strike the cause from the docket, we have no doubt. The circumstance of the cause having been struck from the docket at the July term, when there was nothing before the court showing a change of the venue according to law, surely could furnish no cause for again remanding the cause, when it was then apparent the venue had been regularly changed to that court. The order of a judge was regularly obtained and deposited with the clerk of Livingston, ordering a change of venue to the Logan circuit court; and though the Logan court might have acted correctly in the absence of that order or a certified copy, in striking the cause from the docket in the first instance, they surely had the right, and...