State v. Thompson 2 Heisk. 147, 49 Tenn. 147

State of Tennessee v. Joseph H. Thompson, et als.

1. Pleading. Non est factum. A plea to a bond, that the defendant “did not undertake and covenant,” is in substance non est factum, and must be sworn to.

2. Same. Judgments in County Court. A plea'of a recovery in the County Court of judgments to the amount of -the penalty of a bond, which fails to show the nature of the proceedings pending in the County Court, by which it acquired jurisdiction to render judgment, is bad.

3. Same. Same. Such a plea must set out the names of the parties to the judgments or decrees, and conclude with a verification by the record.

PROM BEDFORD.

. This was a proceeding by motion in the Circuit Court of Bedford County, before JOHN W. Phillips, J., against Thompson, as Clerk of the County Court of said county, and the other defendants as his securities upon his bond, “in all things faithfully to discharge the duties” of his office, on account of the failure of Thompson to make Revenue statements, and to pay over the revenue collected.

To this motion the defendants jointly pleaded:

1st. That they did not undertake and covenant, as the plaintiff in his motion hath alleged.

2d. That by the said bond, they nowhere undertook that the defendant, Thompson, would render a statement of the revenue that came into his hands, or ought to have come into his hands, to the Comptroller, or would pay over the revenue.

3rd. That the full amount of the penalty of the bond *148was recovered by decree of the County Court of Bedford county, August 4,1868, by Bosannah C. Hardin and others, in the case of Harrison & Woods, administrators, and others, against Bosannah Hardin, and others, for $9,156.50; and by D. P. Searcy, adm’r, for $843.50, in the case of said Searcy against E. B. M. Norville, and others, said “Court having competent jurisdiction to render the same,” having full jurisdiction of the subject matter, * * * as well as of the persons of the defendants; that they were rendered upon the identical bond and the only one on which these securities are liable, &c. That said decrees are in full force, etc., and are being enforced by execution, and concluding with these words: “and that no other judgments can be rendered against them on said bond.”

4th. The same more briefly, and in general terms.

A motion was made to strike out these pleas, and a special demurrer filed, both of which were overruled. Issue was then taken on the pleas, and the case being tried, the motion was dismissed, and the District Attorney for the State appealed.

Attorney General Heiskell, for the State, insisted that the first plea denying liability on the bond in general terms, was in substance non est factum, and must be sworn to, and is reached by the motion to strike out.

That the second plea is bad.

That the third and fourth pleas aver jurisdiction in the County Court, but do not state the facts. The County Court could only have jurisdiction by motion, to render judgment upon this bond; and in favor of private parties, could only render such judgment against the Clerk as a *149Commissioner to sell land. The only mode possible being by motion, a plea must show the validity of such judgment by averring every fact necessary to give the Court jurisdiction, and by showing that the record showed every such fact; for failure of the facts, or failure to state the facts in the record, either would make the judgment void.

This plea says the recovery was by decree. Certainly no decree can be rendered in a County Court against its Clerk, except in cases of sale of lands or slaves, and as Commissioner, not as Clerk. Such decree is rendered' on motion, and subject to the rules as to motions: Ruoher v. Moore, 1 Heis., 726. But such judgment only lies upon this bond, in the event there was no special bond as Commissioner, Code, 329, 761, and that fact must appear by the record, else the decree is void. There is an averment that this is the only bond on which these sureties are bound, but that is a negative pregnant as to the Clerk himself. An averment that the special bond did not exist, would not show a good judgment, unless it also averred that the non-existence of the bond appeared by averment in the judgment. The non-existence of the special bond is the fact upon which the jurisdiction of these sureties depends.

Possibly the want of the allegation of the specific facts might be dispensed with, if the plea averred that the matters stated in the ease appeared by the record of the County Court; but this averment, which is of substance in a case where the record must state every fact, is not in this plea. The plea avers that the Court had jurisdiction, but it does not aver that the record shows *150it even by the general averment prout paid per re-eordum.

If this plea is good as to the securities, it is bad as to the Clerk; for he is liable for his own default beyond the penalty of the bond. The bond, as to him, is only evidence of his holding the office and being subject to the motion. As to the sureties, it is the only obligation, and the penalty is the limit. The plea is bad as to him; but being joint, if bad as to him, it is bad as to all. 1 Ch. PL, 464, 481. So held in N. Car., 3 Dev. & Bat-., 70.

There is no averment that these sureties have paid anything. If the Clerk pays the penalty, that would not release them. It is admitted that the authorities are in conflict on this point, but reason is on this side. The Code does not affect this. It is negative, that one recovery shall not bar until the penalty is exhausted. It does not say how it shall be exhausted.

Ed. Coopee, for defendants,

insisted that the third plea did sufficiently aver the mode in which jurisdiction was acquired by the County Court; that the objection, that the plea did not aver the non-existence of the special bond, was not well taken; that the judgment being of a competent Court, having jurisdiction of the parties and the cause, it could not be collaterally attacked, and that the averment in the plea, that the judgment is in full force, is an express allegation of its validity; that the plea does not show that this judgment was by motion, but by decree. It avers jurisdiction by the Court *151of tbe person. No intendment can be made against it on demurrer. It follows, that tbe County Court were satisfied of tbe liability, and rendered the judgment, and tbe judgment exhausts tbe bond. If so, no recovery can be bad on it, and tbe plea is good.

That the plea is good as to Thompson, as well as the sureties in answer to a joint motion against all. A separate motion would lie against Thompson alone, for amounts beyond tbe penalty of the bond; but judgment could not be rendered in this joint proceeding, and this judgment could not be pleaded in bar of a separate motion.

W. H. Wisenee & SON, with him.