Hughes' Adm'r v. Hardesty

• Decision Date: 11 October 1877
• Citation: 76 Ky. 364
• Parties: Hughes's Adm'r v. Hardesty.
• Court: Kentucky Court of Appeals

76 Ky. 364

Hughes's Adm'r v. Hardesty.

Court of Appeals of Kentucky.

October 11, 1877

APPEAL FROM HENRY CIRCUIT COURT.

WM CARROLL FOR APPELLANT.

First. This court has decided that a replevin bond in which all the defendants in the execution did not join should be quashed on the motion of the execution plaintiff in the following cases: Skinner v. Robinson, Hardin, 4; 5 Mon. 404-5; 1 J. J. Mar. 491; 2 J. J. Mar. 137; 1 B. Mon. 238; 2 B. Mon. 304; 4 B. Mon. 305; 1 Duvall, 291.)

Second. So much of the Act of Feb. 13, 1874, as authorized appeals from the court of a justice of the peace in certain counties to the circuit court, having been held to be unconstitutional, in Jones v. Thompson (12 Bush, 394), the circuit court erred in not dismissing the appeal in this case.

Appellant did not waive his right to raise this question in this court by failing to move to dismiss the appeal in the circuit court. Objection to the jurisdiction of the court is always available. (Civil Code, sec. 123; Hughey v. Sidwell, 18 B. Mon. 259.)

JOSEPH BARBOUR AND WM. P. THORNE FOR APPELLEE.

First. By the execution of the replevin bond with the knowledge and consent of the execution plaintiff, the judgment was merged, and the appellee, being a surety in the original debt, was released from all liability upon the judgment. (Hoskins v. Parsons, 1 Met. 253; Kouns v. Bank of Kentucky, 2 B. Mon. 303; Havens v. Foudry, 4 Met. 250; Newman's Pl. & Pr., p. 154; Hammock v. Baker, 3 Bush, 208; Gray v. Merrill, 11 Bush, 633.)

Second. By consenting to the execution of the bond without appellee joining therein, and also by causing two executions to be issued thereon, and also by staying the same after they were levied, the execution plaintiff accepted the bond as executed, and waived his right to move to quash it; and thereby released appellee from all liability on the judgment. (Martin v. Taylor, 8 Bush, 384; Miller v. Dyer, 1 Duvall, 263.)

Third. An execution defendant, who is a surety, who does not join in a bond replevying the execution, is released, unless the plaintiff moves to quash the bond within proper time, so as to leave the judgment in full force against him. (Gray v. Merrill, 11 Bush, 633; Blackburn v. Bilbo, Hardin, 516; Coyle v. Porter, 2 Mar. 361; Byrne v. Caldwell, 2 Littell, 126; Hopkins v. Chambers, 7 Mon. 260; Prather v. Harlan, 6 Bush, 185.)

Fourth. Appellant waived his right to object to the jurisdiction of the circuit court in this case by not objecting and by trying his case in that court, and he is thereby estopped from raising any question as to the jurisdiction of the circuit court to render the judgment appealed from.

OPINION

COFER JUDGE:

The appellant recovered a judgment in a justice's court against L. J. Maddox and Jacob Hardesty, in December, 1874, for the sum of $50. An execution issued on the judgment, which was replevied by Maddox with Pollard as his surety. Hardesty was only surety, and refused to join in the replevin bond. The bond bore date May 8, 1875, and in August of that year a fi. fa. was issued thereon, and on the appellant's order was held up by the officer in whose hands it was placed for one month, and then returned to the office whence it issued. Another fi. fa. was subsequently issued, and levied on enough of the property of Pollard to satisfy the debt. The appellant, four days before the property levied on was to have been sold, ordered the execution to be returned, and in December, 1875, on his motion the replevin bond was quashed by the justice's court.

The appellee prosecuted an appeal to the circuit court, where, by consent, the cause was heard, and the order quashing the bond reversed; and from that judgment the appellant prosecutes this appeal.

1. It is contended that the act of the General Assembly under which the appeal was prosecuted directly to the circuit court, having been held to be unconstitutional (Jones v. Thompson, 12 Bush, 394), the circuit court had no jurisdiction to reverse the order of the justice's court quashing the bond.

The appellant did not move to dismiss the appeal, or otherwise object to the jurisdiction of the court, but consented to a submission and trial of the case. The case was one of the subject-matter of which the circuit court had jurisdiction, and the objection to the jurisdiction, because the case had been brought directly from the justice's court to the circuit court, instead of being brought there through the quarterly court, was waived by the failure to move to dismiss and the consent of appellant to a trial in the circuit court.

2. It is next contended that the circuit court erred in its decision on the merits.

There is no doubt but the plaintiff in a judgment against two or more persons, only a part of whom have united in replevying it, may, on motion made in proper time, have the replevin bond quashed.

The reason for the rule is obvious. A replevin bond is a satisfaction of the judgment as to all the defendants, whether they unite in the bond or not, and the plaintiff can not thus be deprived, without his consent, of the right to look to all the defendants for the satisfaction of his judgment. (5 Mon. 404; 1 J. J. Mar. 496; 2 Ibid. 137; 1 B. Mon. 238; 2 B. Mon. 304; 1 Duv. 292.)

But he may consent to accept a bond in which only a part of the defendants have united; and if he does so, he has no right afterward to recant his election and quash the bond, and thereby revive the liability of those who did not sign it, and who, so long as he chose to recognize the bond as valid, were discharged from liability, and deprived of all right to seek indemnity against loss by compelling the payment of the debt by those who, as between the several defendants, are ultimately liable, or by paying it off, and taking control of the judgment for his own benefit.

The appellee was only the surety of Maddox for the debt. If it had not been replevied, the money might have been coerced from Maddox in the first instance; or, if not, the appellee might have paid it, and by taking an assignment have secured himself against loss.

The execution of the replevin bond,...