12 Ky. 370 | Ky. Ct. App. | 1822
THIS is an appeal from a judgment of the court be. low, dismissing a writ of error, coram vobis., sued put to quash an execution and replevin bond, with damages and costs.
A bill of exceptions was taken to the decision, sta. ting that tfie court below did not travel into the merits, but quashed and dismissed the writ of error, because the notice was insufficient, in not accurately describing the replevin hood which was to be superseded. The notice is not made part of the exceptions*, and we cannot, therefore., determine whether it was sufficient or not. It is true, there is a notice copied by the clerk In the record, which he states was filed with the petition and order of the judge. But this filing it made no part of the record ; and it was improperly copied, as it was not made part of the exception; probably either through ignorance of what composed the record, or to swell the fees of the' clerk, of which we are furnished with too many instances in our numerous records.
Besides, the Judge of the court below, added to the. exception, before he signed it, that “ there were objections to the petition, notice, &c. besides those alleged in the exception.” What these are, we are left to conjecture. They might have totally denied the genuineness of the notice. His addition destroys the effect of the exception. It was incumbent on the party excepting, to state the whole case; and having failed so to do, the court destroyed its effect, by stating it to be incomplete. On a partial statement, we cannot reverse the judgment, but must presume that the court below did right, on account of facts not shown by the complaining party.
The judgment must be affirmed with damages on the damages given by the court below*
