30 Ky. 241 | Ky. Ct. App. | 1832
delivered the opinion of the Court.
Palmateer, having succeeded in reversing h judgment which Stout’s administrator had obtained against him, moved the circuit court, after the return of the mandate to that court, for a rule against the administrator and against Thomas Out-ten, (for whose benefit the suit was alleged to have been prosecuted,) to shew cause why they should not make restitution of money made and of slaves sold by the enforcement of the-judgment prior to the reversal. The parties afterwards appeared in court, and were heard, and thereupon the court gave judgment against Outten for restitution of three several sums of money, with interest until payment.
The regularity of that proceeding, and the correctness of the judgment thus rendered, are now to fee considered.
The record certified bv the clerk does not shew what proof was presented on the hearing in the circuit court, and exhibits only two executions of fieri facias endorsed for Outten’s benefit, and a replevin bond with an endorsement purporting to be a receipt by him. According to the practice of this court, we have looked into the record in the case which the judgment was reversed. And that containsan affidavit filed by Outten, during the pendency of the suit in the circuit, court for obtaining a continuance, and in which he stated that he was entitled to the avails of the suit, and was therefore the only person engaged in the prosecution of it.
If the-record oí the suit in which the judgment t . , , , ¿ • was obtained, shew that Outten was a party, the cuit court had authority, upon motion, to order
If the declaration, or any entry made- by the court on its record, had shewn that the suit was prosecuted for Outten’s benefit, proof aliunde might not be necessary, or, perhaps, proper. But the affidavit, though a part of the record, does not shew that the judgment was obtained for his benefit; or that he was then so connected with it, as to be concluded- by it.
Wherefore,as there was no record proof that Quíten was a party to the judgment, a rule or motion was not a proper mode of compelling restitution. The endorsements (nade by the clerk on the executions do not prove that the judgment was obtained for Outten’s benefit, nor are they conclusive proof even tbat he was entitled to the benefit of the executions; and, therefore, restitution could be coerced only by scire facias or other appropriate suit.
^ Outten purchased Palmateer’s slaves, or other property, under execution, the subsequent reversal
Wherefore, for the foregoing reasons, but cially because the circuit court' had no jurisdiction of the case upon a mere motion or rule, the order for restitution is reversed and set aside.