Biggs v. Garrard

45 Ky. 484, 6 B. Mon. 484, 1846 Ky. LEXIS 41

• Court: Court of Appeals of Kentucky
• Decided: June 15, 1846
• Status: Published

Opinion

Chief Justice Ewiss

delivered the opinion of the Court.

Garrard, upon bill filed against Biggs, Nelson and others, procured the order of the Chancellor for an attachment, commanding the Sheriff to attach and take into-his possession three named slaves, and hold them subject to the further order of the Court, unless bond was executed to have them forthcoming, &c. The slaves being seized and in the custody of the officer, Biggs and Nelson each sued out writs of replevin against the officer, claiming distinct interests in the slaves, directed to the Coroner, by which the three slaves were wrested from the Sheriff, and delivered to Biggs and Nelson. Garrard not being informed of the proceedings, judgment by default was rendered against the Sheriff. A few days afterwards, and during the term, Garrard filed his affidavit setting forth'the facts stated, and fnoved the Court to set aside the judgment and quash the writs, and restore the slaves. The Judge, who was also the Chancellor who bad .ordered the attachment, and before whom the proceedings in chancery were pending, upon a full hearing, set aside the judgments and quashed the writs of replevin, and ordered an alias chancery attachment, commanding the Sheriff to seize and keep the slaves in his possession, &c., and Biggs and Nelson have appealed to this Court,

It is a contempt of the authority of the Chancellor for either party to the chancery suit to wrest from the officers of the Court, property attached, and in the custody of the law even by common law process, and the Chancellor has the power, and ■will order its immediate restoration. upon motion. .

This record exhibits a novel proceeding, and a strange comminglement of the powers of a Court of Law with those of the Chancellor. It also exhibits an ignorant or perverse effort on the part of the plaintiffs in error, under bad counsel; to wrest from the custody of the Chancellor, under color of law, the slaves previously seized by his order, and to transfer to a law tribunal, the trial of rights over which jurisdiction had previously attached in chancery. But notwithstanding the informality and irregularity of the proceedings, upon the motion, enough is found in the record to justify the orders of the Court.

We have no doubt that the seizure and removal of the slaves from the custody of the Sheriff, was a contempt of the authority of the Chancellor, and that the writs of replevin were an abuse of the process of the Court, and formed no justification or color of excuse for the act. We are further satisfied that upon affidavit and proof of the fact of seizure and removal, on motion before the Chancellor, that he would not only have had the right to order the immediate restoration of the slaves to the custody'of his officer, notwithstanding the judgments in replevin, but also to fine and imprison all persons concerned in their removal. And this would have been the appropriate course of proceeding on the part of Garrard, the complainant.

The common law Judge being the same individual may properly on motion set aside a judgment obtained in Replevin for property so situated, by a party to the chancery suit at the same term it was rendered.

Cates Lindseij for appellants : B. fy A. Monroe for appellee.

We-have, also, no doubt that the common law tribunal should so far respect the proceedings in chancery, as to correct any abuse of the process of his Court, by which property in custody, and under the control of the Chancellor, is interfered with, or a conflict in jurisdiction produced.

Regarding, therefore, the ordér setting aside the judgment and quashing the writs, as the action of the common law Court, and the order directing the.alias attachment as the action of the Chancellor,' which we may do from the fact that the Judge who presided, was the Judge of both Courts, and the cases 'in both Courts were then pending before him, the entire order as made, may be sustained. The first part of it may be sustained as the rightful action of the common law Judge, in the correction of irregular and unauthorized proceedings in his Court, and the abuse of its process; and the second part as the rightful order of the Chancellor, which he might have made more positive and direct than the one that was made, and have enforced by attachment, fine and imprisonment.

The orders of both Courts are, therefore, affirmed with costs,.