Sneed v. Wister
ERROR to the Circuit Court of Kentucky. This was an action of debt, brought in the Circuit Court for the District of Kentucky, by the defendants in error, against the plaintiffs, upon a bond in the penalty of 4000 dollars, with condition, that the said A. Sneed should prosecute with effect his appeal from a judgment of the Franklin Circuit Court, pronounced in a suit wherein the said Wister and others were plaintiffs, and the said A. Sneed was defendant, and should well and truly pay to the said obligees all such damages and costs as should be awarded against him, in case the said judgment should be affirmed in whole or in part, or the appeal should be dismissed or discontinued.
The averments in the declaration are, that the said A. Sneed did not prosecute his said appeal with effect, but that, afterwards, at a certain term of the Court of Appeals, the said judgment was affirmed, and judgment rendered in favour of the said plaintiffs, against the said defendant, A. Sneed, for damages at the rate of ten per cent. on the amount of the said judgment, to wit, on the sum of 1895 dollars 13 1/2 cents, as by the records of the said Court of Appeals would appear. And, further, that the said judgment, rendered by the said Franklin Circuit Court, was for 1895 dollars 13 1/2 cents damages, and _____ dollars costs, as would appear by the records of the said Court. The declaration then avers, that the said A. Sneed hath not paid to the said plaintiffs the said damages and costs aforesaid, or either of them, whereby action accrued.
To this declaration, the defendants, after demanding oyer of the bond, and condition thereof, in the declaration mentioned, and also of the judgment of the Court of Appeals, therein proffered, pleads in bar of the action: 1. That by the judgment and mandate of the said Court of Appeals, the said cause was remanded to the Circuit Court of Franklin, where the judgment of the said Court of Appeals, according to the mandate, was entered up as the judgment of the said Court of Franklin; and that after the said judgment was so entered, viz. on the 19th of August, 1820, in the clerk's office of the said Court, the said A. Sneed, according to the laws of Kentucky, did replevy the said sum in the declaration mentioned, by acknowledging recognisances, called replevin bonds, before the said clerk, together with Landon Sneed, his surety in said recognisances for the said sums of money, damages and costs, in the declaration mentioned, to be paid in one year from the date thereof; the said clerk having lawful authority to take said replevin bonds, having by law the force of judgments, and then remaining in the said Court in full force, not quashed, &c. 2. The second plea is nil debet. To these pleas the plaintiffs demurred, and assigned for cause of demurrer, to the first, that it contains a prayer of oyer of records, of which profert was not made, and of which the defendants had no right to oyer; and further, that the said plea is defective, in not setting forth where the replevin bond pleaded was executed, that the Court might judge whether there was any authority to take it.
The demurrers being joined, the Court below gave judgment in favour of the plaintiffs, and awarded a writ of inquiry to assess the damages to which they were entitled. On this inquiry, the defendants' counsel moved the Court to instruct the jury, 1. That the damages of 10 per cent. on affirmance, cannot be given, because not within the breaches assigned; and, 2. That they ought not to allow interest on the damages in the original judgment, for any period before affirmance.
These instructions the Court refused to give; but did, upon the motion of the counsel for the plaintiffs, instruct the jury, that the act of Assembly of Kentucky, of the 7th of February, 1812, 'giving interest on judgments for damages in certain cases,' applies to cases depending in this Court, in actions on appeal bonds, as much as to proceedings in similar cases in the State Courts. That the party is as well entitled to interest in an action on the appeal bond, as if he were to proceed on the judgment at law; and that, by law, the plaintiff is entitled to interest on the amount of his judgment, from the time it was rendered in the Franklin Circuit Court.
Judgment being rendered in favour of the plaintiffs below, for the damages assessed by the jury, a writ of error was sued out by the defendants, and the cause brought before this Court for revision. March 7th.
The cause was argued by Mr. Talbot, for the plaintiffs in error, and by Mr. M. B. Hardin, for the defendants in error. [a]March 14th.
Mr. Justice WASHINGTON delivered the opinion of the Court; and, after stating the case, proceeded as follows:
^a The latter cited 1 Chitty's Plead. 302.