Marr v. Hanna

• Decision Date: 02 November 1832
• Parties: Marr v. Hanna.
• Court: Kentucky Court of Appeals

30 Ky. 642

Marr v. Hanna.

Court of Appeals of Kentucky.

November 2, 1832

Writ of Error. Privies. Nominal and beneficiary plaintiff.

ERROR TO THE HICKMAN COURT; SHACKLEFORD, JUDGE.

Brown for plaintiff.

Crittenden for defendants.

OPINION

UNDERWOOD JUDGE:

In October, 1829. D. Drieblebiss instituted an action or debt in the Hickman circuit court, against Hanna for the sum of $1,454 84 cents. At the April term, 1830, the defendant Hanna, produced to the court an instrument of writing bearing date the 18th of January, 1830, in which it is acknowledged by Drieblebiss that he had received payment in full from Hanna, and requesting that the court would dismiss the suit. Having proved the execution of this instrument by the subscribing witness Hanna thereupon moved the court to dismiss the suit. Marr, the plaintiff in error, appeared and opposed the dismissal. He exhibited and proved the execution of an instrument of writing by Drieblebiss, bearing date the 2nd of January, 1830, by which the benefit of the suit was transferred to him. He also proved, that Hanna acknowledged, in the preceding fall, that the money, which he owned Drieblebiss was going to Marr. It appeared in proof, that Drieblebiss owed Marr a sum about equal to that which Hanna owed him. Upon the foregoing evidence, the circuit court, dismissed the action Marr filed exceptions, and now prosecutes this writ of error.

The first question for consideration is--can Marr maintain a writ of error in his own name? It is laid down as the general rule, in Tidd's Practice, Title, Error, 1189, " that no person can bring a writ of error to reverse a judgment, who was not party or privy to the record, or prejudiced by the judgment, and, therefore, to receive advantage by the reversal of it." It would seem from the rule, that privies, or those who might be prejudiced by the judgment, may maintain a writ of error as well as parties. In respect to privies, there can be no doubt that they may. It is every day's practice to permit privies in blood, as the heir, and privies in representation, as the executor or administrator, to maintain writs of error in their names to reverse judgments rendered against the ancestor or testator or intestate. We perceive no reason why the rule should not hold in every other case of privity. Privies, according to the definition given by Jacob's Law Dictionary, are " those who are partakers or have an interest in any action or thing, or any relation to another." Now, Marr has clearly shown, that he had an interest in the debt for which the action was pending. His interest was of such a character as gave him the right to use the name of Drieblebiss in prosecuting. It was an interest which the court was bound to protect according to repeated decisions of this court by allowing him to use the name of Drieblebiss. Indeed, he was so far a party in interest as that a plea of set off might have been successfully pleaded against him. Ward vs. Martin, III Mon. 19; Carlisle vs. Long, I Mar. 486.

General rule is that no person can maintain a writ of error who is not a party or privy to the record, or prejudiced by the judgment.

No perceptible reason why all other privies, as well as those by blood or representation, can not maintain a writ of error.

Privy in interest may maintain a writ of error.

If, after nominal plaintiff has assigned to another the benefit of the suit, the court err in dismissal of it on the order of the nominal plaintiff, the beneficiary may maintain a writ of error.

But whether Marr be, strictly speaking, privy or not, the judgment rendered in the present case directly operates to his prejudice. Drieblebiss had...