Chichester v. Cande — 3 Cow. 39

Majority

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Chichester and Van Wyck against Cande, impleaded with Lasher.

Headnote

Seven judgments had been obtained in the Onondaga Common Pleas, against Lasher alone, to the amount of

a£v A against B, but by accident the record was not filed ; then judgment and execution in favour of C against B Both executions being levied on the same personal property, which was «old and the avails naid over, by order of this court, in certain portions, to A and C, before the latter discovered that Adjudgment was imperfect. Then C, on discovering this, applies for a pre.erenee as to the whole of the money. This was denied, and on A's application he was allowed to file his record nunc pro tunc, it appearing that his execution was first.levied, and C having full notice of A’s judgment, before his (C’s) judgment was obtained.

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$2725,19, a fi. fa. on each of which was delivered to the-Sheriff of Onondaga on the 24th September, 1821. The following judgments were obtained in this Court, viz. one in favour of Chichester & Van Wyck, for $959,28, against Lasher & Cande, partners, on which a. fi.fa. was delivered to the Sheriff of Onondaga, Sept, nth, 1821—a judgment in favour of Tredwell et al. against Cande impleaded with Lasher, for $784,09—and another judgment in favour of Humphrey against Cande impleaded with Lasher, for $942.53. The two last judgments were also against the defendants as partners, and the fi.fa. in each was delivered to the Sheriff of Onondaga, Oct. nth, 1821. On these executions the Sheriff levied on partnership property, and on his application to this Court for direction, in January term, 1822, he was ordered to sell the goods and bring the money into Court, which he did, to the amount of $1764,50. At May term, 1822, this Court directed that the execution in favour of Chichester- & Van Wyck, be first satisfied, secondly the other two judgments in this Court, which had .been assigned to Russ, and that the Common Pleas executions be postponed to these. The Sheriff accordingly paid to Chichester & Van Wyclc $986,34, and $776,78 to Russ. Russ, on the last application to the Supreme Court, sought to obtain preference over C. dr V. on the ground that their execution was returnable at the wrong place, bad issued contrary to stipulation, and was sealed with an old seal, before used ; but he failed in all these grounds. The fi.fa. was amended as to the place of return, and the stipulation and seal, being before used, were denied.

In November last, Russ discovered, for the first time, that no record of any judgment in favour of C: fy V. had ever been filed. Application was accordingly made by Russ, at the last February term, to vacate the former proceedings, •set aside the execution of C. $■. V. as having issued without any judgment to support it, and that the moneys paid to them be paid over to Russ, on his judgments. On account of a mistake in the title of the papers, the motion was then-denied, but renewed again at the last May term, whence it,

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ivas postponed to the present term, for the purpose of producing additional affidavits.

The attorney of C. V. swore, that he had enclosed a - record in their cause, duly signed, with the warrant of altorney to confess judgment, and directed them, by- mail, to the Clerk’s office of this Court, at Utica, 'm season for their arrival, in the ordinary course of the mail, so as to warrant the fi.fa. which he issued$ and he supposed that they had been regularly filed till January, 1823, when they were returned to him from the General Post-Office, as a dead letter ; which fact he concealed till the present motion was noticed.

A motion was also made and continued as above, on the part of C. $• V., to amend, by filing the warrant of attorney and record nunc pro tunc.

S. L. Edwards fy H. Bleecker,

in support of the motion to vacate the former proceedings, and set aside the execution of Chichester & Van Wyck, &c. and against the motion to amend.

The money was ordered to C. V. on the ground that they were judgment creditors. It turns out, in fact, that there was no such ground. The whole was a mere fabrication ; and, we believe, the Court have never gone so far as to give the party a judgment nunc pro tunc, where he never liad one, and not a paper ever reached the proper office. .Russ, the assignee of the other judgment, would have received the money, if the truth had been known. Saying the least, the whole proceeding was founded in mistake. Russ was always legally entitled to this money, and shall C. fy V, profit by the concealment ? An execution iss'ued before the judgment record is filed, is a nullity. (Barrie v. Dana, 20 John. 307 . Vin. Ab. Judgment, A. 1, K. a.) There can be no doubt that the Court has power to order what we ask under these circumstances. They may order the money re? funded, as if the judgment had been reversed by them on error. (2 Salk. 587, 588.)

A. Spencer, contra.

It is said here was no judgment. That we deny. True there was no judgment docketed, but the record was signed upon a regular bond and warrant of

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attorney. Filing and docketing does not give the record its validity- This is derived from the act of signing. Full notice of this judgment is not denied on the part of Russ. I do not question the physical power of the Court to vacate * all these proceedings, but I do deny that it would be a discreet exercise of power, and there is little doubt of the Court’s power to amend. The cases I cite to this point are, Jackson v. Hammond, ( 1 Caines’ Rep. 496 ) Seaman v. Drake, (id. 9) People v. Burdock, (3 id. 104) White v. Lovejoy, ( 3 John. Rep. 448 ) Close v. Gillespy, (id. 536.) The language of the Court in Barrie v. Dana, to be sure, is pretty strong in relation to that case ; but it should be confined to the case, which was a ca. sa. issued before the record filed, oh which the defendant had been imprisoned. There is a difference, in this respect, between execution against the body, and the mere goods and chattels. Courts will go very far in amending proceedings which are defective through mistake. In Hart v. Reynolds, (not reported) the defendant’s real name, in the bond and warrant of attorney, was John Reynolds, hut all the proceedings, from the cognovit to the docket, inclusive, were in the name of Elisha Reynolds, There was, then, no judgment against John Reynolds upon the docket, or even in the record, yet a subsequent judgment obtained by Doe was denied a preference, on f he ground that, when he obtained his judgment he had notice of Ha--Js, as a judgment against the real defendant; and HarZ’s judgment was amended throughout, saving the rights of purchasers who had not notice. This, too, was a proceeding in relation to real estate,^[1]

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Sleecker. in reply.

None of the cases cited, obviate the objection against an amendment here. The rights of a Creditor are in question, who had a regular judgment. None of the cases cited present the question as to creditors, except

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that of Hart v. Reynolds, and there the rights of creditors were saved. The question between these parties depends on their respective diligence. There is no natural equity in the case. There is no difference between the case of real and personal estate, which can affect this question. The

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judgment is a lien on the realty, and the execution tin the personalty; but neither can operate if they áre void. No execution can issue without a jüdgment, and the decision in Barrie v. Dana would have been the same in relation to a fi. fa. ás it was in relation to the ca. sa. The latter may or

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may not affect the party more severely than a Ji. fa. and, ig the judgment of the Court to be controlled by such a considoration ? The gentleman opposed to me, (then Ch. Justice) c’10wn the rule generally and unqualifiedly in Barrie v. Dana, that the record must be filed before execution can go?

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and declares that such has been the practice for 30 years. There is no difference between the different kinds of execution," either in law or common sense.

Suppose a cap. ad. resp. sent to a Sheriff, who never receives it, or a letter directing a rule for judgment, to be en

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tered, which miscarries, and a thousand other cases arising *n our complex system of practice, by which another obtains preference : will the Court relieve against such mistakes ? Will they take away a preference, because accident was against (he party who moved first ? Is it enough that a judgment is planned without being perfected ? Where is the

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discretion' of this Court, arising upon questions of diligence, to end 1 We have gained a legal preference, and are entitied to retain i.t.

delivered the opinion of the Court. He went much at large into the facts of the case, which were

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scattered through a great variety of papers, and gave the opinion of the Court on several minor points, which I have not deemed it material to notice. -He then spoke to the principal points nearly as follows:

We have considered this case as deliberately and fully as we think its importancé and novelty require ; and we.are

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satisfied that the respective applications of these parties are addressed to the sound discretion of the Court. We do not forget that we ase bound by decisions, as far as they can be made to apply to such a case ; but we do not find ourselves tied down by these to any particular course of proceeding. The whole tenor and scope of the cases appear to call for a

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very extensive exercise of discretion in (he amendmení of proceedings conducted in good faith, by filling the chas me which may have intervened through accident or mistake ; especially in a case where (he person whose rights are to be affected has had full information that the proceedings are perfect, and has gone on under the idea that they were so.

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Wé feel less delicacy in going for this purpose to the utmost limit of our power, when it is plain that no one can suffer from its exercise. The amendment of proceedings must, in a great measure, rest upon this consideration.

Here is not a struggle in relation to the avails of a freehold estate, the disposition of which might be controlled by

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the priority of the judgments, which are in themselves lieiisi upon that kind of property ; but it relates to the personalty, which is bound by an execution alone. A knowledge that there was or was not a judgment in existence, could in no way be material to Russ, or the creditor who assigned to him, for the reason that ajudgment, se, could not affect their rights.The important facts in relation to this case were perfectly understood by all the- parties in jnterest, as early as May term, 1822, when, the subject was before this Conrt upon a-disclosure of those- facts. The money now in question was

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ra warded to Chichester & Van Wyck. and the rights of the parties fully setiled. Now here is nothing in fieri. The various executions were levied—a sale made under the direction -of the Court—the avails paid into Court, to abide our order, which awarded the money to Chichester & Van Wyck—and that money has been actually paid. The order of the Court has been executed. It is, at least, doubtful, on this ground alone, whether we have power to disturb the dispositions which have been made—whether this money has not passed beyond the bounds of our summary jurisdiction. It is true that a matter once passed upon, in this way, is not deemed technically res judicata. It may be opened. We will hear it again, upon good cause being shewn ; but where the order made has been carried into full execution, and the party has gone off with the avails in his pocket, it is deserving of great consideration, at least, whether we can bring him back into Court upon motion, and dictate the course he shall take, whatever additional light may be thrown around the subject; and this, in a special manner, where all has gone forward in good faith. Take the case of a motion to enter satisfaction upon the judgment roll, on the ground that the money has been paid : the defendant swears to the payment, which the plaintiff as solemnly denies : the case being balanced, the motion is denied. At another term, the defendant renews his application, upon the ground that he has since discovered a release, or receipt of the plaintiff, acknowledging that he had received the money. We might hear the application, and grant the necessary relief, provided the judgment yet remained in fieri; but suppose, in the mean time, that the money had been paid to. and pocketed by the plaintiff, I should doubt the power of the Court to afford redress in this manner. The suit is at an end, and the whole becomes a matter in pais. So of a motion for a new trial, on the ground that undiscovered evidence was behind, which is refused; and the judgment perfected and execution had ; a second application would hardly be received, under such circumstances, however strong the appeal. There is a point at which these summary applications should cease, like every other litigation, for the sake of certainty and social quie.L.

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But there is a precedent which is very direct to bear us out in amending this proceeding on the part of Chichester & Van Wyck, even were the money now in the hands of the Clerk. I allude to the case of Close v. Gillespy, ( 3 John, Rep. 526 .) A judgment had been signed and docketed upon a warrant of attorney; but, through mistake, the name of the defendant’s attorney was neither subscribed to the cognovit nor inserted in the roll. Mancius, having obtained a subset quent judgment against the defendant, a motion was made by the plaintiff to amend the proceedings nunc pro tunc. Now that record was invalid. Both parties considered it so; and the application was opposed because the rights of Mancius Were to be affected by the amendment. Executions on both judgments had been delivered to the Sheriff, the execution of Close being first delivered, and both he aná Mancius claim-: <ed a preference ; yet Close was allowed to amend, though both executions were levied on the same property. The Judge who gave the opinion of the Court, declares broadly, (and in this he is sustained by all the authorities) “ I cannot perceive that our right to amend, in case of the mistake of one of our officers, is to be controlled by the effect which is to be produced in another case. All amendments affect, more or less, third persons.” That ¡rase is much in point; and, indeed, appears to me precisely parallel in principle with the one before us, the application for an amendment in which comes strongly commended to us by the principles of justice. Chichester & Van Wyck had a judgment and execution, perfect in every particular, as it respects personal property, except in the mere formality of filing in the Clerk’s office. Instead of being answered by a constructive docket-notice, which was deemed sufficient for the junior creditor in Close v. Gillespy, Russ had actual notice, in the most explicit manner, by an execution and levy. We leave h;m in possession of all the rights upon which he could ever calculate, in legal propriety, without granting his motion. This must be denied ; and Chichester & Van Wyck must take the effect of their motion to amend.

It is, perhaps, proper to add, that in forming the opinion which has been delivered, we must not

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be understood as questioning the case of Barrie v. Dana, or as doubting that, in aii cases, the roll should be filed before execution can issue. We have been governed much by the peculiar circumstances attending this particular case. The subsequent creditor knew of the judgment, and relied solely on technical ground to defeat it. We hear no complaints from the party defendant.

Rule accordingly.