Demoss v. Montgomery Abstract


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Daniel Danby, assignee of James Demoss v. William Montgomery
Abstract

This case began with a promissory note. In March 1823, William Montgomery promised to pay James Demoss $400 in September. Ebenezer F. Ingram witnessed the note. Some time later, James Demoss assigned the note to Daniel Danby. In other words he relinquished all of his rights, and Danby was now entitled to payment from Montgomery. On February 16, 1824, William Pugh Jr., attorney for Danby, filed a declaration with the Arkansas County Circuit Court stating these allegation and suing Montgomery for the amount of the note plus $800 in damages. Eli J. Lewis, the clerk of the court, issued a summons, which was served by James Allbrook, Deputy Sheriff, in place of James Hamilton, Sheriff, by reading it to Montgomery in Mississippi Township. On May 4, Danby and Robert McKay made bond for $100. However, in the record of the bond, Danby's name appears spelled as "Dansby." The case was called on May 6. Thomas P. Eskridge was the presiding judge. Montgomery filed his plea, or answer, and the case was continued until the next term. In his plea, Montgomery alleged that Danby's name was really "Dansby," and asked that the suit be quashed.

On September 7, the case was next called before Judge Eskridge. Now Montgomery moved that the court dismiss the suit because Danby had not filed a bond when the suit was first filed, and that since Danby was not a resident of the territory, the law required him to do so. The judge overruled the motion, stating that Danby had a right to file a bond at any time before the commencement of a lawsuit. Montgomery asked that this ruling be made a part of the record, so that he could object to it on appeal. Danby, on the other hand, alleged that during the May term, the parties had agreed that Robert Oden, Montgomery's attorney, would file a plea within 20 days, and that the record was falsified and that Oden had really not filed the plea until September. Danby alleged that Judge Eskridge had really declined to dismiss the lawsuit because Oden had not timely filed his plea. Montgomery objected to this statement also.

The next day a bench trial was held. The court awarded Danby $417 plus costs. Oden requested leave to appeal, which the court granted. Charles Kelly and Bartley Harrington were securities on the appeal bond. The clerk certified the appeal to the Superior Court, which heard the case on Oct. 14, 1824, and affirmed the judgment of the lower court.

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