Terry v. Johnson

109 Ky. 589 | Ky. Ct. App. | 1901

Opinion op the court et

JUDGE HOBSON

Reversing

On March 6,1889, appellant, Isaac Terry, instituted suit against the defendant Calloway Johnson for the recovery of a lot of saw logs which Johnson had cut and carried away from certain land» claimed by him, and obtained a writ of delivery, under which the constable of Breathitt county took possession of the logs. Within two days: Johnson, with appellee Breck Herald and Richard Herald, executed a bond to the constable to the effect that he would perform the judgment of the court in the action. The case was subsequently tried in the Breathitt Circuit Court, and resulted in a judgment in favor of appellant at the November term, 1895, of that court. Execution having issued, and been returned, “No property found,” on this judgment against appellee, Johnson, and the judgment remaining unsatisfied, on May 13, 1896, appellant filed this suit against appellees to recover on the bond above referred to. The court below sustained a demurrer to the petition, and dismissed the action.

It is insisted for appellees that the petition is not- sufficient, because it fails to state that the writ of delivery was directed to the constable, who executed it at the instance of the plaintiff. The allegation of the petition is in these words; “That in said suit he obtained a writ of delivery, which was directed to any constable of Breathitt county, and which he placed in the hands of Seb-urn Combs, who was at that time constable of Breathitt county; that the said Combs took possession of said logs' under said writ of delivery, and within two days after taking possession of .same the defendant, Calloway Johnson, in order to retain the possession of said logs, executed, signed, and delivered to the said Combs a bond, with the defendants, Breck Herald and Richard Herald, as his sureties thereon, who also signed and delivered the said bkond to said Combs, the constable aforesaid, who accepted and approved the same, by the terms of which bond the defendants herein covenanted to and with the plaintiff, Isaac Terry, that they would perform the judgment of the court in said action.”

If the writ was directed to the constable, he had authority to execute it. His authority depends upon his writ, and, if that is good upon its face-, his acts under it are valid. Appellees can not raise the question whether the writ was directed to the constable at the request of appellant.

The bond sued on is given under section 188 of the Civil Code of Practice, which allows the defendant in the writ to execute such bond and keep possession of the property. Section 184 of the Code requires the officer, before executing the writ, to take bond from the plaintiff, and it is insisted that the petition is defective because it does not show that the constable had taken a bond before executing this writ. The law presumes that the constable had done his duty. He had taken possession of the property, and appellees, to get it from; him, executed the bond sued on. They are bound on their bond as a common-law obligation, whether the constable had taken bond of the plaintiff under section 184 or not. Cook v. Boyd, 16 B. Mon., 559; Prather v. Harlan, 6 Bush, 185.

It was no ground of demurrer to the petition that the bond or an official copy of it was not filed with the pleadings. The allegation of the petition is sufficient to show that the bond was given in the presence of the officer. The fact that it was not signed in his> presence and was not attested by him would not invalidate it. Sanders v. Buck, 2 J. J. Marsh., 478; Cook v. Boyd, 16 B. Mon., 556.

It is alleged in the petition that the judgment was rendered in the Breathitt Circuit Court, and it was unnecessary to further allege that the judgment was duly rendered, as provided in section 122 of the Code. In Newman, PL, page 586, the law is1 thus stated: “This provision of the Code is not obligatory, and the party may still set out the facts as formerly. ... If the court be one of special and limited jurisdiction, and the party pleading does not adopt the language of the Code, but pursues the former practice, he must state all the facts with particularity showing the jurisdiction; but, if the court be one of general jurisdiction, it will be presumed that it had jurisdiction of the particular case, unless the contrary appear from the amount recovered or some other fact showing the want of jurisdiction.” See, also, to same effect, 11 Enc. PI. & Prac., 1130, and Freem. Judgm., section 452, and cases cited. This rule has- been several times followed by this court, as before the adoption of the Code it was only required to allege the rendition of the judgment of a superior court, and the purpose of section 122 was to simplify pleadings. It is presumed that judgments of superior courts are duly rendered, and by section 119 presumptions of law are not to be stated in a pleading.

The allegation of the petition that the judgment remains in full force and effect, and is wholly unpaid, is sufficient to show a breach of the bond. In Staples v. Bank, 98 Ky., 451, (33 S. W., 403), it was held that one who signs his name to an obligation as surety by making his mark i& bound thereby, even though there be no attesting witness. This rule applies to all writings, except those that are required to be executed under the provisions of the Code of Practice. Meazels v. Martin, 93 Ky., 50; (18 S. W., 1028); Maupin v. Berkley, 3 Ky. Law Rep., 617. Subsection 7, section 732, Code Civ..Prac., provides: “The words ‘signature,’ ‘subscription’ and words of like import include a mark by or for a person who can not write, if his name be subscribed to an instrument and witnessed by a person who near thereto writes his own name as a witness.” It appears from the record that the sureties in the bond signed it by making their mark, and that this was attested by J. T. Chadwell. This is a literal compliance with the provision of the Code. Whether the bond would be good as a common-law obligation, if not signed as required by the Code, we need not determine. For the reasons indicated, we are of opinion that the petition states a good cause of action, and that the demurrer thereto should have been overruled. Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.