Bickford v. Flannery , 70 Me. 106 ( 1879 )

Barrows, J.

The respondent was duly summoned as the trustee of William and Isaac Flannery in the plaintiff’s suit against them, and made his disclosure in that suit and was adjudged trustee. The principal defendants had personal notice and were defaulted. Execution was issued and placed in the hands of an officer, who, within thirty days after the judgment, demanded of the respondent the goods, effects or credits of the principal defendants in his hands, and the respondent refused to pay over or deliver the same, and the officer, after holding the execution until a few days beyond its expiration, returned it in no part satisfied, and the plaintiff sued out this writ of scire facias returnable at the next term of court.

Respondent pleads that there is no such record as the plaintiff has set out in his writ, and that the judgment set forth in the plaintiff’s writ is not sufficiently definite and certain to render him liable, and adds, by way of brief statement, a denial that the execution was seasonably returned to the clerk’s office. He does not claim that he did not have goods, effects or credits of the principal defendants in the original suit in his hands, but relies upon certain alleged defects and errors in the records and proceedings in that suit. His technical defense, in order to prevail, must be technically made out. He presents the badly written and badly spelled note on which that judgment was rendered and claims that we should find what the presiding justice apparently declined to do, that it was misdescribed in the original writ, — --that it was for forty instead of fifty dollars, and dated June 9 instead of January 9, and so not due when the original action was brought, and cannot be the foundation of a valid judgment. How much of the apparent discrepancy is due to bad penmanship, careless copying, careless printing and proof reading, and general remissness and want of proper attention to the making up of the case, we need not trouble ourselves to inquire; for it has often been decided that “ the notes or other proof used as evidence in ascertaining damages constitute no part of the record and cannot be regarded in case error should be brought to reverse the judgment in which they were offered.” Buckfield Branch R. R. Co. v. Benson, 43 Maine, 374. Came v. Brigham, 39 Maine, 38. Storer v. White, 7 Mass. 448. Peirce v. Adams, 8 Mass. 383. See, also, Paul v. Hussey, 35 Maine, 97. Starbird v. Eaton, 42 Maine, 569.

The respondent cannot be heard to impeach and contradict the record in this way. His plea is that there is no such record.

It seems, also, that the fact that the return of nulla bona on the execution is made after the return day of the execution does not affect the liability of the trustee on scire facias. Woods v. Cooke, 61 Maine, 215.

But the defendant objects further that the judgment is invalid by reason of not being sufficiently definite and certain. The record is of a declaration upon a promissory note dated January 9, 1875, payable to plaintiff or bearer, for fifty dollars, with interest, in one year from date. The judgment was at the February term, 1878, for fifty-three dollars and seventy cents debt or damage, and the respondent was charged as trustee upon his disclosure “ for the amount due on the note less his costs.” The declaration exhibits n'o claim but the note. The respondent bases his argument that the trustee was charged for an uncertain and indefinite sum upon his previous claim that the note was for forty dollars, dated June 9, 1875. But the amount due from the principal defendants in that suit to the plaintiff was a matter to be definitely settled then and there, and was determined by the judgment to be fifty-three dollars seventy cents.

The general rule is that nothing can be pleaded in bar of the scire facias which might have been pleaded in the original suit; (Smith v. Eaton, 36 Maine, 303), and though there is an exception recognized in Cota v. Ross, 66 Maine, 161, and cases there cited, which allows the trustee upon scire facias to object that the judgment in the original suit is void for want of jurisdiction obtained by legal service upon the principal defendant, such matters as the amount due from the principal defendants to the plaintiff we must, assume were correctly settled in the original suit. The .defendants there knew whether they gave the plaintiff a note for fifty dollars dated January 9, 1875, and if they chose to be defaulted after being properly served with notice to appear, it is not for their trustee to controvert their admissions to that effect. That is certain which can be demonstrated; and the order charging the trustee is equivalent to an order that he stand charged for fifty-three dollars seventy cents, and be allowed his taxable costs to be deducted therefrom. The phraseology of the order might be improved. We do not commend it as a precedent. But its intent is sufficiently apparent, and it is a common mode of indicating that from the particular sum with which the trustee stands charged he may deduct, when called upon by the officer, the amount of his taxable costs, which, being fixed by law, it is presumed he knows. It would be well for the clerk to minute the amount upon the margin of the execution. The adjudication, however, was in substantial compliance with R. S., c. 86, § 65.

Thus far it would seem that the trustee would have no difficulty in understanding and obeying the order of the court by reason of any indefiniteness of the terms in which he was charged ; for the means of ascertaining the precise amount were before him ; and if this were the only trouble with the record, defendant’s objections could not be sustained.

But the record, after stating correctly the adjudication of the court with respect to the trustee, exhibits a supplementary judgment, inconsistent with the first, that “ the plaintiff recover from the defendants and said trustee, Thomas Flannery, $53.70 debt or damage, and $14.45 costs;” and upon a judgment thus erroneously entered up, an execution was issued in which it is recited that “ execution was likewise awarded for the same sums (erroneously aggregated at $62.21) against the goods, effects and credits of said debtor in the hands and possession of Thomas Flannery, trustee,” etc., and the officer’s precept calls finally for sixty-eight dollars and fifteen cents in the possession of the trustee in pursuance of this erroneous record. If a plaintiff desires to realize the fruits of his judgment he must see that it is made up at least with such an approximation to correctness that those who desire to understand and obey it should not be misled nor called on to pay more than is due. A certain amount of carelessness has been engendered, perhaps, by the facility with which our statutes of jeofails and amendments enable parties frequently to avoid what would seem to be the legitimate results of the want of diligent exactness. It is an unfortunate delusion of the times, a delusion doomed to end in disappointment, to suppose that we can dispense with faithful work and prudent care by legislation, or by common consent, without losing the advantages which they alone can yield.

We think a trustee might well suppose there was something wrong about a judgment thus inconsistent in itself, and that he is not chargeable out of his own goods and estate for failing to respond to its uncertain mandate. If it could be successfully argued that this was but a clerical error which might be amended, no motion was ever made to amend it. The plaintiff commenced this proceeding claiming the additional sum to which he was not, in any view that could be taken, entitled.

Moreover, the record in the original suit shows that the nonpayment of the note was “ to the damage of the plaintiff (as he says) of $-.”

In McLellan v. Crofton, 6 Maine, 307, it was said that the total omission or smallness of the ad damnum in a writ, though amendable if seasonably attended to, cannot properly be considered as merely a circumstantial error after the rendition of judgment.

Exceptions sustained.

Appleton, C. J., Walton, Daneorth, Peters and Libbey, J J., concurred.