Sudduth v. Gore

4 Ky. 505, 1 Bibb 505, 1809 Ky. LEXIS 122

• Court: Court of Appeals of Kentucky
• Decided: October 14, 1809
• Status: Published

Opinion

OPINION of the Court, by

Ch. J. Bibb.

— This is a writ of error, with supersedeas ; and therefore, however erroneous the judgment may be, or however defective the declaration mav be, this court cannot examine into any error except that which the plaintiffs may have particularly assigned and filed at the issuing of the su-persedeas — Statute of 1799, 2 Litt. E. L. K. p. 310, sec. 5.

The first assignment is, that judgment is rendered for the plaintiff, when by the laws of the land it should have been rendered against hir», and in favor of the defendants.

This is a very general assignment, and cannot answer the requisition of the statute, that every person obtaining a supersedeas “ shall assign, in writing, the particular error or errors in the record on which he means to rely,” &c.

The second is, that it was erroneous to require appeal anee bail of the_ administrators. That is true, but the defendant held to bail should have taken advantage of it in the court below, by motion to be permitted to appear without bail.

The third assignment is, that judgment is entered against the defendant and appearance bail, when appearance bail was not requirable, and after the appearance bail was discharged by the entry of special bail. So far as it objects to the judgment because special bail had been previously given, it is well assigned and warranted by the record.

The fourth error is, that judgment is against the proper goods and estate of the defendants, whereas it should have been only against the assets in their hands to be administered. The proposition is plain, and the judgment is, on that account, as well as for being against the appearance bail, irregular and erroneous.

The writ of inquiry awarded upon the interlocutory judgment thus irregularly taken, must consequently be erroneous : and as the declaration is for so much Maryland currency of the value of so much Kentucky currency, a judgment cannot be rendered without a writ of inquiry ; and for that, the cause must be remanded to the court below. — Judgment reversed.