Cook v. Conway

33 Ky. 454 | Ky. Ct. App. | 1835

Chief Justice Robertson

delivered the Opinion of the Court.

A joint judgment having been rendered against Conway and Payne, in favor of Coolt, the Circuit Court, at a subsequent term, set aside the judgment as to Conway, upon a writ of error, corain nobis, prosecuted by him alone, on two grounds: towit, first, that the sheriff had falsely returned the process executed on him, and second4 that he had never appeared by attorney or in proper person, although the record stated that he had.

That judgment in favor of Conway is erroneous, and must be reversed, for the following reasons.

First. Payne was a necessary party; and if it had been proper to set aside the judgment at all, the whole judgment should have been annulled as tc both defendants; for it.cannot bo proper, to set aside the joint judgment so far only as it affected one, and leave it in force against the other.

SecondThe record could not be questioned on a writ of error; and therefore the Circuit Judge had no right to decide that it was false, and that Conway had not, appeared and pleaded to the action, as by the record, it is shown that he, did.

' Third. There was an issue of fact, as to whether the .sheriff had executed the process on Conway: and therefore, the Court erred in rendering judgment for Conway, without trying that issue, or hearing proof under it— For, if Conway was not estopped by the sheriff’s return, Cook had a right to a trial of the issue on that point.

Wherefore, the judgment on the writ of error, comm nobis, must be reversed, and the case remanded, with instructions to quash the writ, and dismiss the proceeding.