Castleman v. Homes

| Ky. Ct. App. | Oct 16, 1828

Judge Mills

delivered the Opinion of the Court.

The Fayette Paper Manufacturing company was incorporated by act of assembly, and a clause inserted in the charter, that all stockholders at the date when a debt was contracted, should be bound individually for the debts, in case the company failed.

The company became insolvent, and Samuel Farrar, Joseph Nichols, Elizabeth Cox and Robert Holmes, each having obtained judgments at law, in which unsuccessful executions were prosecuted, brought their several bills in equity against the stockholders, and obtained their several decrees for the proportion of their debts against each stockholder, and a joint decree against all for costs.

To reverse each of these decrees, David Castle-man, one of the stockholders, issued, his several writs of error against the respective complainants, and William S. Dallam also issued his four several writs against the same parties.

Casses transüv' nmcoiirt to thi-, hytiie act of Jan’y, 1827, have applied^™ °S thom here, as though they e<linYhis'1'11' court. Id case of a decree in one suit, against defendants, directing them severalcortain^siim each, and ordering them j the costs thewriiofer- ¡•or must be defend* ants ^ono' cannot maintain it. Writs of or-amended* b-adding or striking out (íéfrndantiT.But Whore the thocounbelow have sued out their oVwroV'and •tho causes have been hrardjthe of the defect, andinv-te dismiss the other, but both va-UsSS

Each of these writs however, if writs they can he called, were issued, not from the Court of ApPeais> but from the tribunal which was erected by the act of assembly, styled the reorganizing act, usually called the new court. On the demolition of that tribunal, these records were brought into this court, and placed on this docket by act of assembly (4 Monroe IV) to be tried as other cases brought here, and we conceive that it is not competent for either Dallam or Castleman, to prosecute several writs of error, to reverse these decrees.

Without leaving it to be inferred that we admit that either of these writs in their origin were of any validity, we suppose the correct meaning of tlvc act oi assembly which brought the causes here, to be, that they should stand in the same situation, and ]lave f|le sam8 rules applied to them, as would be ’applied if they had been originally brought here, by writs of,erfor precisely similar to the process by which they were brought in the New Court. So that although the causes are brought here by act of assembiy,and not by writ from this court, they should be heard or disposed of exactly as if there were Slich wr*ts- Any rule, therefore, which would p re-vent the causes being heard on the merits, if these were valid writs of error, ought to prevent us from trying them as they stand.

The decree for costs in each of these cases is joint, alK^ this recluires a joint writ of error, even if the other parts of the decrees were several, which is not admitted. But such writs ought to be quashed un*ess ^ieY can he amended. It is true, the law as it stood when these suits began in the new court, did allow, as it yet does, amendments in writs of error, ¡,y inserting either plaintiffs or defendants. But who ó' this case shall amend? Shall it be Castleman, or Dallam? It might be a dispute between them, not easily settled, which should dismiss and pay costs, an(l which should save his suits by amendment, But suppose that these two plaintiff? in error could adjust that matter, we do not conceive ourselves bound to propose to them the negotiation. Moreover ought they tobe allowed to make such a treaty without making the defendants in error a thereto? Have they notas good a right to elect which writ should stand, and which be dismissed, as their interest are affected by either, as the opposite party? Or rather, as both writs are wrong, and each would have an equal right to amend, and both cannot amend, we conceive that the defendants have the right to insist upon the disposition of both writs without waiting for terms to be made between the two plaintiffs, or being bound to look for the costs to which ever of them these terms should point out. Each suit of the whole eight, as they are not brought in away in which the merits can be tried, must therefore be dismissed, by separate orders, with costs.

Wickliffe for plaintiffs; Chinn for defendants.