Smith v. Keen , 26 Me. 411 ( 1847 )

The opinion of the court, WhitmaN C. J. dissenting, on the ground, that an attachment made on a writ containing only the general money counts, although made prior to the st. ] 838, c. 344, could not be valid, was drawn up by

Shepuey J.

The demandant caused an attachment of the premises demanded, to be made on a writ in his favor against Benjamin Dillingham, on November 29, 1837 ; obtained judgment, and within thirty days thereafter caused an execution issued thereon to be levied on the premises on November 14, 1840.

The tenant claims the premises by virtue of a conveyance thereof made by Benjamin Dillingham to him, on January 10, 1838. He introduced also a mortgage of the premises made by Benjamin to Thomas Dillingham on February 27,1828. It, appeared from testimony introduced by the tenant, that Thomas Dillingham died intestate soon after that mortgage deed was executed : that no letters of administration upon his estate had been granted ; that he left surviving children some of whom were under age; that no guardian had been appointed for them ; that there remained due upon that mortgage, on April 16, 1838, about one hundred dollars, which was then paid by the tenant to Ajalon Dillingham, who received it for the heirs at law of Thomas Dillingham, and paid it to them, and who assumed to act as guardian for those under age and to make an assignment or conveyance of their interest in the premises to the tenant. This conveyance so made without authority was properly rejected. The tenant also introduced a deed from Jonathan Chandler et al. to himself, bearing date on November 16, 1844, but it does not appear in the case, that the grantors had any title to the premises demanded.

Upon this exhibition of title the demandant was entitled to recover, unless there was some fatal defect in his proceedings. 'The counsel for the tenant contended, that there were several fatal irregularities or defects in them, and requested, that instructions to that effect might be given to the jury.

1. The Court was requested, and refused, to instruct the jury that the “ levy was invalid against the tenant, because there was a general count in said writ and no bill of particulars.”

It appeared from testimony introduced by the tenant, that the writ was made at the request of Joseph Smith, who presented to the attorneys two promissory notes, made by Benjamin Dillingham payable to himself or order, and that he endorsed them in their office and directed a suit to be commenced upon them in the name of the demandant; and that the same notes were filed and were the only evidence introduced to obtain the judgment. The identity of the demands, upon which the suit was commenced, and of those, upon which the judgment was rendered, being thus established by the testimony of the tenant, the attachment cannot be considered as vacated by the introduction of any new or different demand. It was valid, unless originally void, simply, because the declaration contained only one general count for money had and received. Such a count is sufficient to enable a plaintiff by the common law to prove under it negotiable promissory notes made by the defendant and held by the plaintiff as endorsee. The statutes of this State, existing before the act of March 23,1838, was approved, did not prescribe any particular form of declaration to be used In writs, upon which attachments of real estate were authorized to be made. The plaintiff was entitled to frame his declaration in any legal form. Of this right he could be deprived «only by some statute provision. Having caused his writ and -declaration to be made in a legal form, and an attachment to be made, and having recovered a judgment thereon in a legal manner, a creditor would be entitled to obtain payment from the estate so attached. No creditor or grantee of his debtor •could defeat a prior right, thus secured to him, by alleging that to be irregular or invalid, which was in strict accordance with the rules of law then existing. Nor would any judicial tribunal from a consideration, that such a declaration might be used to carry into effect unjust or fraudulent designs, be authorized to declare, that an attachment so made was invalid. The act of March 23,1838, made an important change in the existing law respecting the form of the declaration in a writ to be used for the attachment of real estate. The first section-provided, that the officer, who made an attachment of real estate, should file an attested copy of his return with the register of deeds, with the names of the parties, the date of the writ, the sums sued for, and the court, to which the writ was returnable. The fourth section provided, that the plaintiff should set out in his writ specifically the demand or claim, on which his action was founded, and that no other claim should be proved under the general counts. It is contended, that this provision was applicable to suits then pending. Such a construction cannot be admitted. The provisions of the first section are limited by the words used to cases in which real estate “shall hereafter be attached.” The provisions of the fourth section are made applicable only to the attachments named in the first section by these words, it shall be “ necessary to the validity of the attachment made as aforesaid.” The inference from this language is clear, that it was not deemed necessary to the validity of attachments not made as aforesaid, that the plaintiff should set out in his writ specifically the demand, on which his action was founded. The case of Fairfield v. Baldwin, 12 Pick. 388, has been referred to as deciding, that an attachment made upon a writ containing only the general money counts would not be valid. The case does not appear to authorize such a conclusion. The writ, which occasioned that decision, as first framed, contained two counts only, one for $10,000 money had and received, the other for $5,000 for goods sold and delivered. The plaintiff, under leave to amend, filed nine new counts declaring particularly on notes, checks, and a balance of account, and obtained judgment on them. Among other facts it was proved, “ that some of the notes and checks declared on in the new counts, and which were antedated, were given, after the commencement of the suit of Joseph King, in exchange for notes and checks previously due to Joseph King and his partner, E. Davenport.” When the remarks made in the opinion are considered with reference to the question then under consideration, as all general remarks should be, there does not appear to be any sufficient reason to conclude, that the court considered the attachment made on the writ in favor of Joseph King to be void ah initio, because the declaration contained only those general counts. The opinion commences with the observations. “ If the prior attachment which was made by the defendant upon the writ of Joseph King against' Cyrus King were vacated, the plaintiff’s attachment would be the only one upon the' property. Was the prior attachment vacated by the amendment introducing the new counts ?” The question for decision is thus clearly stated. No language is found in the opinion declaring, that the attachment was void ah initio, or that such a question was considered or decided. On the contrary the opinion explicitly s.tates what was decided by the court, by the use of the following language. “We are all clearly of opinion, that for the reasons before stated, the attachment, which was made for Joseph King prior to that, which was made for the plaintiff, was vacated.” After such a declaration it is difficult to perceive the ground, upon which it can be contended, that the attachment was held to be originally void.

2. The Court was requested, and refused to instruct the jury, that the levy was invalid, because judgment was rendered for an amount larger than the sum named in the ad-damnum, clause of the writ.

The judgment may for that cause be liable, upon error brought by the party against whom it was rendered, to be reversed in whole or in part. Grosvenor v. Danforth, 16 Mass. R. 74. It is a valid judgment until reversed. A stranger to it can neither sustain a writ of error nor take advantage of the irregularity.

3. The next request refused was, that the levy was invalid, because the execution did not correspond with the judgment, and did not appear to have been issued upon it. The judgment was rendered for the sum of $4174,37, damage, and for $31,87 costs. The execution recited the recovery of a judgment between the same parties, at the same term of the same Court, for the sum of $4774,37, damage, and for $37,87, costs. It also commanded the officer to cause to be satisfied “ the aforesaid sums, being four thousand two hundred and six dollars and twenty-four cents.” This last amount exactly corresponded to the amount of the judgment recovered for damages and costs : and the true sums so recovered were also stated in figures upon the margin of the execution. It was very apparent, that there was a clerical error in reciting the amount of the judgment recovered. Such an error is amendable. Atkins v. Sawyer, 1 Pick. 351. Courts will not reverse judgments upon error brought for such clerical errors, but will allow or direct an amendment. Moore v. Tracy, 7 Wend. 229.

4. A request was made for instructions, that the debtor was not duly notified to choose an appraiser. The officer in his return states, “ the debtor within named having been duly notified to choose one, but having neglected and refused to choose,” It has been decided, that an officer’s return, stating that the debtor neglected to choose an appraiser, was sufficient, there being a necessary implication, that he was notified. Bugnon v. Howes, 13 Maine R. 154. In this case the officer states that, which has been uniformly regarded as sufficient.

5. A request was made for instructions, that the appraisers did not appear to have been legally sworn. The documents exhibited a certificate made on the back of the execution by Thomas B. Little, justice of the peace, that he had administered the proper oath to the appraisers, who in their return upon the execution refer to it as “ having been sworn as above.” The officer in his return names the appraisers and states, that he caused them “ to be chosen and sworn” “ faithfully and impartially to appraise the estate above described.” He does not refer to the certificate made by the justice, or to the return made by the appraisers. In the case of Chamberlain v. Doty, 18 Pick. 495, relied upon by the counsel for the tenant, there was no certificate of the magistrate indorsed upon the. execution, showing that the appraisers had been sworn, and there was no reference to one in the return signed by the officer, or by the appraisers. Those returns only stated that the appraisers had been duly sworn. While the Court decided, that such returns were insufficient, it remarked, that Courts had gone very far in considering the certificates of magistrates and of appraisers indorsed upon the execution, in connexion with officer’s returns, as aiding any defects in the returns themselves. In the case of Williams v. Amory, 14 Mass. R. 20, the return of an officer stating “ they being duly sworn faithfully and impartially to appraise the same” was held sufficient. In the case of Bamford v. Melvin, 7 Greenl. 14, the exact language used by the officer is not stated. The opinion of the Court only states, that the officer certified that they were sworn, and that was held sufficient. In the present case the certificate of the magistrate and the returns being made upon the back of the execution show, that the appraisers were legally sworn.

6. The bill of exceptions states, that there was no proof, that the execution had been returned to the clerk’s office, after the levy was made, except what appeared from the papers themselves ; that this objection was not taken, until after the arguments and the charge to the jury; and that it was overruled. If objections might be first interposed' and points be first made at such a stage of the proceedings, the opposite counsel would be deprived of an opportunity to obviate or to comment upon them ; and the Court, after its duties were closed, would be required to open the proceedings again for the consideration and presentation of new matter. Such a practice, depriving one party of his right to be heard in argument to the jury upon every question made in the cause, and introducing great irregularities ill suited to an impartial and fair administration of justice, is inadmissible; and the objection first made at that time was properly disregarded.

7. The tenant contended, that there was nothing due from Benjamin Dillingham to the demandant; and he was permitted to introduce Dillingham as a witness to prove the circumstances, under which that judgment was recovered against Mm. The jury were instructed, that he could not in this action <! go into the inquiry of what amount was really due, or whether any thing or not, unless that judgment was col-lusively obtained.” Collusion implies fraud. The recovery of judgment against Dillingham was a fact to be proved by the demandant to establish his title. The proof was to be made by a duly authenticated copy of it. If a stranger to that judgment might destroy a title derived under it, by the introduction of evidence proving, that the debtor did not owe the creditor, the result might be, that after a creditor by severe litigation had obtained a judgment against his debtor, he could not rest upon that judgment as conclusive, but must be prepared to enter into the same litigation anew, with any third person having no other interest in the question, than a claim of title to the estate levied upon to satisfy that judgment. And if. the course pursued in this case were to be justified, he must do so with the great disadvantage of having his debtor become a witness against him to destroy the effect of that judgment. It requires no argument to prove, that such a, course would be alike erroneous in principle and mischievous in practice. This Court has decided, that a judgment cannot be thus impeached collaterally, unless collu-sively or fraudulently obtained. Banister v. Higginson, 15 Maine R. 73 ; Granger v. Clark, 22 Maine R. 128.

The grounds, upon which a judgment might become inoperative against one interested in the title to land levied upon, were stated in the case of Miller v. Miller, 23 Maine R. 22. They were, that “ the grantee might be allowed to show, that it was obtained by fraud, or that the cause of action accrued under circumstances, which would not give the creditor a right to impeach the conveyance.”

The case of Downs v. Fuller, 2 Metc. 135, states that a judgment recovered by fraud or collusion may be impeached by a stranger to it; and it decides, that “ where a judgment is recovered contrary to law and prejudicial to a third party, he should have a right to avoid, it.” The attempt in this case was not to show, that the judgment was illegally recovered, but to show, that a judgment was legally recovered upon demands, which were not justly due. That was a matter to be finally settled between the creditor and debtor.

Exceptions overruled.