Hoy v. Rogers

• Decision Date: 03 April 1827
• Citation: Hoy v. Rogers, 20 Ky. 225 (Ky. Ct. App. 1827)
• Parties: Hoy, & c. v. Rogers.
• Court: Kentucky Court of Appeals

20 Ky. 225

Hoy, & c. v. Rogers.

Court of Appeals of Kentucky.

April 3, 1827

Parties to Actions at Law. Barron and Feme. Statutary Bonds. Delivery.

ERROR TO THE MADISON CIRCUIT; GEO. SHANNON, JUDGE.

Turner for appellants.

Smith and Mayes, for appellees.

OPINION

BIBB CH. J.

Statement.

The plaintiffs sued in debt on a bond with collateral condition and assigned breaches. The defendants craved oyer, and pleaded conditions performed, with leave to give in evidence any matter which might be specially pleaded, with leave to plaintiffs to give in evidence any matter which might be replied.

Uon the plaintiff's evidence, the defendants moved for a non-suit, and took two objections.

1st. That the suit was improperly brought in the names of Sappington and Parthenia, his wife, with the other defendants. This objection was overruled.

Grounds relied on in a motion for a non suit.

2ndly. That the bond was void, as being taken by the clerk of the court without any authority of law; and because the justices who had allowed the writ of error coram vobis, with supersedeas, on condition that bond and security should be executed in the clerk's office according to law, had no jurisdiction over the subject matter, in the condition of the bond referred to. This objection was sustained; and the jury under the instruction of the court, found for the defendants.

The first objection was properly ruled by the court. The bond was executed to Dejarnett and Parthenia, his wife, with the other obligees. The declaration explained that Parthenia Sappington, the wife of John Sappington, who sued with her and the other obligees, was the same Parthenia who was called wife of Dejarnett, in the obligation. The evidence by the plaintiff proved that fact, and moreover, that Dejarnett, the former husband of Parthenia was dead, and she was married to Sappington, not only before the execution of the bond to her by the name of Parthenia, wife of Dejarnett, but also before the decree in favor of her, and the other heirs of Hoy, referred to in the writ of error and the condition of the bond. Upon the declaration and evidence, it was plainly a bond to Parthenia, and not to her deceased husband. Dejarnett, and her living husband, Sappington, properly joined her and the other obligees in the suit for a chose in action which might survive to the wife.

Action on a bond executed to a feme covert, whose husband afterwards dies, and who marries another husband, shall be in the name of them both, calling her by her latter name.

As to the second objection, the condition of the bond recited that the obligors had prayed for and obtained the writ of error and supersedeas to a decree in favor of the obligees; and was conditioned to prosecute that writ of error with effect, or on failure, to abide the judgment of the court thereon and pay all damages and costs which should accrue in consequence of the writ of error with supersedeas. The evidence showed also, that they had applied for the allowance of the writ and obtained it from the two justices, with an order to the clerk to make the writ of error about to be sued on their...