Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-10-20
Wells srs.H.s. srimug & Co

There is no error in this Judgment
1t is an attempt on the part Of Wells, to attach
collaterally, an execution issued against him from
the Common Law Court Of Memphis
This cannot be done for mere errOrs-if they ex-
ist-in the judgment and proceeding of that Court.
1t only be by showing total want of jurisdic-
tiOn-to render the judgment upon which the exc
cutiOn issued-so as to make it void No such thing
can be shown here.
W. S. GrifHng Il Co. caused the property of one
Horsely their debtor TO be attached by proceedings
returnable TO the Common Law Court Of Memphis,
and Wells became his surety in a rsplevin bond
taken by the Sheriff and filed in the cause HORSE,
ly afterwards died and the suit was revived against
Belts, his administrator.
At the November term of 1861 of said Court, the
plaintiff received judgment in said cause against
Bettis the administrator of Horsely, and Wells the
surety in the repeYin bond: He does not appeal or
in any way complain OF the Judgment though
apprehend he had perfect right to do SO, If he had
lleemed it assaabie-but lies by until June. 1855,
when his property il levied on and he executes
delivery bond and at the July term of the Court in
1853 moves to quash the execution upon the
ground that the Judgment as to him, was yohl, and
also upon the ground that the form of the entry of
the Judgment upon the records Of the Court did not
warrant any execution against him. This motion
was overrued and he has appealed to this Court.
| A reversal is asked here upon two grounds:
Ist The record shows that the writ of attach
Iaent-afidavi;- attachment bond and the replevy
bond with the SheFifts levy We're lost or mlslald
Piled and Substituted by order of the Court, upon
the affidavit of one of the plaintiffs OF their attorney
Horne the Justice who issued the attachment, and
| of Gilmore fthe Sheriff This affidavit seems to be
regular save thatt not authenticated by the Clerk
before whom it was made But the parties. by their
counsel in a writing signed and filed in the cause,
agree that an order of Court may be made in the
suit supplying the lost papers. and that the affidavit
be taken as sufficient to authorize said order without
| more.
| UpOn this the order was made; and 1t is now said
| that this agreement being between the plaintiff and
] Horsey and not with Wells, his surety, he Is not
bound by it; and that it renders all subsequent pro
| eeedings void as to him.
! This Dosition cannot be maintained. He, as sure
~ must be held bound the result of the litlga-
ton with his principals The Court had jurisdiction
of the subject matter and the parties; and an order
supplying lost papers upon insufficient OF npfoper
! evidence, could not displace that jurisdiction II
could at most only be error. But in this case, we
! are satisfied that it was not even error. SO far
from exception being taken to II, it was agreed to-
The next objection is to the tGFm OF the judgment
II reads that the plaintiffs recover of the defend
ants and Vim. s. Wells the security on the repleElR
bond the said sum of SI4,2O 23l0O, the damages so
by the Jury aforesaid assessed and the costs Of the
| suit and that execution issue 20 be leNed OF the
proper goods and cbattes rights and credits OF the
said intestate in the hands Of the said ADMINISTERED
This is, in legal effect Judgment against Helis
in his own right and against Belts in his representa-
| tive character.
1t may not be after the most approved precedents;
and scarce nny entries of Judgment now are But
| we cannot-evel if the parties had 4pPealea-n9-
tce such an obection and surely Wells cannot col
laterally do so; Hume, 3lS, 3l5, 3ls Judgment
| affirmed. WRIGHT.
Test: NJ. D. WEIcH, Clerk.