Lashley v. Ring

Worden, J.

The appellees made the following written motion in the Court below: “ Claiborn T. Wilson and William King, move the Court to order and direct Alfred Lashley to pay into the Clerk’s office of this Court, for the use of the creditors of Mary Thorpe, deceased, or to J. JB. Julian, their attorney, the sum o'f 287 dollars and 55 cents, together with the interest ■ thereon; the same being the money in Ms hands and held subject to the order of this Court, as per entry on pages 18 and 19 of order book R., in the case of Claiborne T. Wilson against said Lashley, in said Court, said entry-being dated February 21st, 1861.”

The record of the case of Wilson v. Lashley, is not before us. We have nothing hut the decree in the case, and can gather from that only an indistinct idea of the nature of the case. The decree, after setting out the various findings of the Court, directs Lashley to pay into Court certain moneys for the use of parties named, leaving in his hands, as part of the matter then in controversy, the further sum of 287 dollars and 55 cents, which last named sum was left in Ms hands subject to the future order of the Court.

The motion herein was made at the fall term, 1862.

Lashley appeared to the motion, and, without objection, evidence was heard by the Court, and it was ordered that he pay over, in accordance with the motion, the sum of 242 dol *233 lars, of the moneys thus in his hands subject to the order of the Court.

M. Wilson, for the appellant. Jacob B. and John F. Julian, for the appellees.

Afterwards, Lashley moved to vacate the order and grant a rehearing, offering to prove certain facts which he claimed exonerated him from liability to pay as moved for. This motion was overruled.

We do not think the Court erred in overruling the motion to vacate and set aside the order which it had made for the payment of the money. Lashley, as has been seen, appeared to’ the motion and the matter was heard and decided on the evidence, which is not set out; and he alleges no surprise or other ground for setting aside the order.

The ground on which the Court below placed its ruling was that Lashley was concluded by the original decree from setting up the matters which he offered to prove; and as the original complaint and pleadings are not before us, and as from the decree, we can not tell precisely what was in issue, we can by no means say that the Court erred in this respect; we must presume in favor of the ruling.

Again it is urged that there was no sufficient complaint. If this were an original suit, and a complaint therefore necessary, perhaps the written motion would be insufficient as a complaint. This was a mere motion in a cause that was not finally disposed of. No complaint, properly speaking, was necessary. As a motion, the writing filed was sufficient, especially as no objection was made to it in the Court below.

Per Curiam.

The judgment below is affirmed, with costs.