Adickes v. Allison

21 S.C. 245 | S.C. | 1884

The opinion of the court was delivered by

Mr. Justice McGowan.

[Omitting the statement of facts, which is fully given in the Circuit decision.] Exception 1 makes the point that the original judgment of H. F. Adickes against Allison & Bratton was illegal and void, for the reason that the court which rendered it did not have jurisdiction to do so. [Here follows a statement of the facts as given in the .Circuit decision, ante, p. 246.] Bid the court have jurisdiction to render the judgment at the time it was rendered? “The power to hear and determine a cause is jurisdiction; it is coram judice whenever a case is*presented which brings this power into action; but before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected.” Freem. Judg., § 118. There is no doubt here as to the subject matter and the parties being within the jurisdiction of the court or as to the alleged judgment having been rendered according to the usual practice in such cases. But the technical objection is raised that its date shows that it must have been rendered when the tribunal which undertook to do so was not in judicial harness or possessed of that peculiar virtue known as judicial power.

The Court of Common Pleas is a court of general jurisdiction, and the records of such courts are absolute verities, not to be impugned by averment or proof to the contrary. In a collateral proceeding, nothing shall be intended to be out of the jurisdiction of a superior court but that which expressly appears to be so. Freem. Judg., § 124. But it is said that the record itself here shows that the alleged judgment was rendered on February 14, 1874, which the statute shows was a time not within the regular term for York county. That is true; but the same record shows that the Circuit judge directed the court to be adjourned to another day, which he had the power to do under section 30 of the code of procedure (1870), which provided that “the judge of the Circuit Court shall have power to direct any Circuit Court in his Circuit to be adjourned over to a future day designated in a written order to the clerk of said court, whenever there is a dangerous and general disease at the place where such court is usually holden.” The judge of the Circuit Court in this instance exercised that power, and no inquiry is admissible as to whether there was or was not “a dangerous and general disease” at Yorkville at the time fixed for the regular term of the court. It was in the province of the judge to determine that matter for himself, and we are not at liberty to assume that he decided it wrong. Even if in that regard he committed error in fact, we do not see that it should follow that a judgment regularly entered at the adjourned term would for that reason necessarily be void in the absolute sense. See Freem. Judg., § 122, and notes.

Exceptions from 2 to 8, inclusive, complain of the decision of the Circuit judge adverse to the plea of payment. That was a question of fact, and this being a proceeding at law, this court has no right to review the evidence upon that subject. The decision of the Circuit Court must stand as the special verdict of a jury. It is alleged, however, that there was involved in the finding an error of law in this that the Circuit judge held in effect that consent to renew a dormant execution gave it vitality without taking out new process by the court, and that J. T. Lowry, as attorney for Bratton, had the authority to consent to the renewal of an execution against the firm of Allison & Bratton under his power, which limited his authority to the individual concerns of Brat-ton. In very general terms the facts are that certain personal-property, perishable in its nature, drugs, &c., had been levied by the sheriff under the executions of Schieffelin & Co., McGill’s administrators, and the aforesaid execution of H. E. Adickes; and on February 24, 1874, John T. Lowry, the agent of John R. Bratton, consented to an order, setting out all these executions according to their dates, reciting the levy and directing sale of said articles so levied; which sale was made and the proceeds applied to the execution of Schieffelin & Co., which was the oldest, and, as stated, had been first levied.

Under these circumstances, it was urged for the defendant Bratton, that the execution of the plaintiff Adickes (though junior in date) should have been credited with the amount of said sales, and, that not having been done by the sheriff, the said judgment to that extent must be regarded as ipso facto paid. We think that in this objection the precise point ruled by the judge is overlooked. He did not hold that the consent to the-sale in the terms of the order directing it, was intended or had the effect, without new process, actually to renew the execution of Schieffelin & Co., to which the money was applied- But as we understand it, he held, first, that the very general and comprehensive ‘terms of the power of attorney to Lowry, authorized him to consent to the sale, which under the circumstances was a virtual consent to the application of the proceeds as made; and second, that after such consent had been given and acted on by all parties, it estopped Bratton himself from afterwards objecting to it, precisely as if he in person had given that consent. Taking this view of the rulings of the Circuit judge, we cannot say that he committed error of law, either as to the right of Lowry under the power of attorney from Bratton to give his consent to the sale, or as to the effect of that consent so given and acquiesced in by all parties since 1874 — ten years ago.

Exception 9 objects that the Circuit judge committed error in not holding that the statute of limitations could be interposed as a bar. Upon this subject the decision of the Circuit judge is so full and clear that we can add nothing to it. Section 380 of the revised code (1882) provides in such case as this as follows: “Upon such summons any party summoned may answer within the time specified therein, denying the judgment, or setting up any defence thereto, which may have arisen subsequently to such judgment, and in addition thereto, if the party be proceeded against according to section" 377, he may make any defence which he might have made in the action if the summons had been served, on him at the time when the same was originally commenced, and such defence had been then interposed -to such action.” If the defence of the statute “had been then interposed,” it would not have been good, and under this section no greater effect can be given to it now, when it is a defence which has arisen since the judgment, and sufficient time has not elapsed to make it a good plea. We concur with the Circuit judge in his interpretation of this section of the code.

The last exception is: “Because the judgment rendered against the defendant is a nullity, inasmuch as it fails to specify any sum whatever to be inserted therein.” A judgment is registration of what the court decides. In order to authorize an execution, its first requisite is that it must be final. Section 266 of our code defines a judgment to be “the final determination of the rights of the parties in the action.” And in reference to what is such a final determination, Mr. Freeman, at section _ 12 of his work on judgments, says: “Any judgment or decree, leaving some further act to be done by the court before the rights of the parties are determined, is interlocutory; but if it so completely fixes the rights of the parties that the court has nothing further to do in the action, then it is final.” See Ex parte Farrars, 13 S. C., 258. Taking this as the test, it seems to us that the decision of Judge Kershaw was a final judgment. It disposed of every issue in the case, directed judgment for the amount remaining unpaid upon the first judgment of H. F. Adickes against Allison & Bratton, and ordered execution to issue. Nothing else was left for the Court to do.

But it is suggested that, although the whole case was decided, the decision was not sufficiently definite, inasmuch as it failed to name the precise amount in dollars and cents. The objection really goes to the form rather • than the substance. The decision did give judgment for a particular amount, to wit, the balance due on a record of the court, which in the summons was set out particularly. Nothing was lacking but a calculation of the interest, which was not necessary; but if so, being a mere clerical matter, it was referred to the officer of the court, whose duty it was to enter the formal judgment of the court. It is a proper case for the application of the maxim: Id'certwm est quid cerium reddi potest.

We agree that there is no longer a. pro vision of the code declaring that the decision of a referee upon the issues submitted “shall stand as the judgment of the court.” But this was not a reference of issues, as to which confirmation was necessary. On the contrary, it was a mere incident to the enforcement of the judgment already rendered; somewhat like the taxation of costs, or a reference to the clerk in our old practice under the act of 1809, to ascertain the precise amount due after order for judgment by default upon a liquidated demand, which could be done by a mere inspection of the paper. In an action at law tried by the court, we do not. understand that the decision is the formal judgment in the case under the seal of the court. . It is required to be filed and “judgment upon the decision shall be entered accordingly.”

We do not think the decision of the Circuit judge was fatally defective for want of particularity in stating the amount adjudged to the plaintiff; but we think it was error to add the interest to the principal, and thus make the interest,' at the time the absent partner, Bratton, was declared liable, an interest bearing amount. Section 377 of the code declares that the partner not served in the first instance, but summoned afterwards, “shall be bound by the (first) judgment in the same manner as if he had been originally summoned.” As this is the first case which has reached us, under sections 377 and 378 of the code, we think it may be well to settle the practice; and in order to avoid the necessity of entering-two judgments upon one joint cause of action, that the judgment against the partner not served in the first instance, should run somewhat in this form: The judgment herein of H. F. Adickes, having been recovered against the partnership of Allison & Brat-ton and also against James B. Allison, who alone was served with process, and the other partner, J. B. Bratton, now having been served and heard, it is adjudged, that the said Bratton be bound by the aforesaid judgment against the partnership of Allison & Bratton from this date; and it is further ordered that the plaintiff have leave to enter execution on said judgment against the said Bratton personally.

Taking the view that under the code the defendant Bratton was simply adjudged “to be bound by the first judgment against Allison & Bratton,” there should have been no addition of interest to the amount due at the time of the second judgment. Brat-ton was liable, but the order for the execution to issue should have been for the balance of the first judgment, viz.: $>511.58, with interest from April 3, 1877, until paid.

The judgment of this court is, that the judgment of the Circuit Court be so modified as to conform to the conclusions herein announced, and that in all other respects it be affirmed.