Coleman v. Edwards

7 Ky. 347 | Ky. Ct. App. | 1816

OPINION of the Court, by

Judge Owseet.

-There is a material \ ariance between the judgment recited in the scire facias sued out by Coleman in the court below, and that contained in the record produced by him in that court ⅛ support the issue on his part joined to the pipa of nul tiel record. The scire facías alleges the judgment to have beep rendered by a court holdeh for th& district of Pgris ; and the record produced in evidence contains a judgment of the district court hoiden in Paris, com. posed of the emmties of Bourbon, Harrison and Nicholas,

The variance between the judgment recited in the scire facias and that contained in the record produced in evidence, must, according to the settled doctrine of the 'law upon that subject, be held fatal to Coleman’s right to recover in the present case, To maintain the issue on his part, it was not enough to produce the record of a judgment between the same parties, and corresponding in amount with that recited in the Scire facias, but it should also appear to be a judgment of the same court..

It has ever been held that a variance in the ñamé of any party, or his abode, or addition, is fatal. — 1 Roll. 754, cited 6 Com. Dig. 173. So where the judgment was alleged to be of Hilary Term, and the record proved a judgment of Easter Term, the variance was held fatal. —Com. Dig. 173, So of a variance in the number of parties. — Ibid.

These authorities, whilst they shew the strictness adhered to by courts in the trial of issues like that between the present parties, are conclusive to shew that the court below decided correctly in holding the variance between the judgment recited in the scire facias, and that proven by the record, fatal,

The judgment must be affirmed, with costs.