Allen v. Adams

17 Conn. 67 | Conn. | 1845

Stores, J.

Of the competency of Harris, as a witness in this case, there is no doubt; and indeed no question has been made before us on this point. If he has any interest whatever in, the suit, it is not of that certain or direct character which disqualifies him as a witness. 2 Stark. Ev. 744. 2 Phill. Ev. (by Cowen) 92.

The refusal by the defendants, to deliver to the plaintiff the property mentioned in the contract declared on, when demanded, was clearly a breach of that contract, and entitles the plaintiff to recover, unless the proceedings on the writ of error brought on the judgment, rendered in the action on which the property was attached, constitute an objection to such recovery. . *

It appears, that, after that demand and refusal, a writ of error was brought to the supreme court of errors on that judgment; that the judgment was reversed ; and that the -action was thereupon re-entered, at the instance of the plaintiff therein, in the docket of the superior court, where it now remains open and undisposed of.

The defendants claim, that the effect of that reversal was to discharge the lien upon the property created by the attachment of it in that action ; and that, as the plaintiff, who.-was the attaching officer, is thereby exonerated from any obligation to have the property forth-coming, for the benefit of the creditor on whose behalf it was attached, the property is restored to the possession of the defendant in that action, the plaintiff cannot be rendered liable to either of them on account of it, and therefore, is not entitled to recover in the present suit; since his right of recovery depends on his eventual liability to the parties in the suit in which the property was attached. They rely on the statute, which provides, that no personal estate attached shall be held to respond the judgment obtained by the plaintiff at whose suit the same is attached, either against the debtor or any other creditor, unless such judgment creditor take out execution on such judgment, and have the same levied thereon, within sixty days after final judgment, or the removal of any prior incum-brance by attachment; (Slat. tit. Actions Civil, sect, 7. p. 44.) and they insist, that the judgment rendered in that action was the final judgment contemplated by that statute, and that therefore, the property attached could be holden only to respond that particular judgment; and that, as that judgment was reversed, and thus rendered incapable of being enforced, the property became exonerated from the attachment in that suit. Hence, it will be perceived, that the defendants’ claim rests upon the effect that is to be given to the judgment of reversal rendered by the supreme court of errors.

The judgment which was reversed, while it remained un-reversed, was, undoubtedly, what is technically termed a final judgment in the suit in which it was rendered, as con-tradistinguished from what is called an interlocutory judgment ; (3 Blk. Com. 398.) and if it had not been reversed, it would have continued to be a final judgment, because, iri the words of Blackstone’s definition of a final judgment, it would have “ put an end to the action and would, therefore, have been tire final judgment contemplated by the statute which has been mentioned. The action in which it was rendered, would have been completely and absolutely terminated thereby. If, however, in consequence of its being reversed, it did not put an end to the action, it was not, by the very terms of the definition, a final judgment. Now, it is very clear, that, when that judgment was reversed, it ceased to be a judgment of any description, because the effect of such reversal was wholly to vacate and annul it. This is plain from the nature of the proceeding and the form of the entry of a judgment of reversal. Legally speaking, therefore, the judgment so reversed faasjiow no existence. In legal contemplation, it is annihilated, and it is as if it had never been rendered. It is now, therefore, not only not technically a final judgment, but, it is no judgment at all. If an action should be brought upon it, nul del record could be successfully pleaded. It is no bar to a suit brought lor the same cause of action. The record is supposed to be obliterated and destroyed. That judgment being annulled, it did not, as such, nor in the sense in which a judgment is properly or usually said to have that effect, put an end to the action in which it was rendered ; and it, therefore, cannot be called a final judgment, unless the consequence of the reversal of it was, that no further proceedings could subsequently be had in that action; and then only in a very loose sense. The defendants claim, that such was its effect. The question then arises, whether the judgment of reversal put an end to the proceedings in that action, so that no further steps could legally be taken in it; or whether it might not afterwards be entered again in the superior court, and there proceeded with, in the same manner as in cases of judgments reversed on writ of error by that court; for it is not claimed, that there could have been any thing further done in the action in the supreme court of errors, after such reversal.

Before the recent statutes were passed, providing for the entering of actions, in certain cases, for further proceedings, in the superior court, on a reversal, by that court, of judgments on writ of error, it was, and had been, from the earliest period of which we have any information on the subject, the invariable practice, on the reversal of a judgment of the superior court, to enter the cause again in that court for a re-trial, unless it was reversed on a principle which showed that the action could not be sustained. In the first volume of Roofs . (pp. 574, 575.) it is stated, as a point or practice which had been adjudged, that when there is a reversal of a judgment by the superior court, “ the plaintiff in the original action might enter and try his cause in that court, as though it came up by appeal; and that the supreme court of errors, upon a reversal of a judgment of the superior court, do not proceed to fry or render any judgment in the original cause; but, whenever it is proper and necessary, remand the cause to the superior court, for them to render the proper judgment; and that in such cases, the parties are allowed to plead anew.” This was the course taken in Davenport v. Bradley, 4 Conn. R. 308. and was there said, by Hosrncr, Ch. J. to be “ according to the established practice of this court.” The same practice had been recognized, by this court, in Gleason v. Chester, 1 Day's R. 27. 152. This practice was undoubtedly established for the reason that this court is not a tribunal for the trial of questions of fact; and that, therefore, justice required that the cause should, whenever it was necessary, in order that the rights of tiie parties might be fully tried and determined, be remitted to the superior court, whose province it is to try such questions. We deem it to be our duty to adhere to a practice thus long since expressly' settled by this court, which has since uniformly prevailed and been recognized, and which is moreover so conducive to the purposes of justice.

It appears, by the finding in this case, that the judgment of the superior court, which we are now considering, was not reversed on a principle which showed that the action in which it was rendered could not be sustained. It was, therefore, under the practice which has been mentioned, clearly a case where it was proper that the action should be re-entered in the superior court for trial.

The defendants, however, further claim, that, if it was competent for the plaintiff to enter it there, the entry of it, in this instance, is to be deemed irregular, because it does not appear to have been made, by the direction, or with the sanction or approval, of that court.

The finding is, that the action was, at the next term of the superior court after the reversal of the judgment, entered, at the instance of the plaintiff in said action, in the docket of that court, and has ever since remained entered in said docket, and has been continued from term to term to the present, time, and now remains thereon open and undisposed of by that court. Nothing appears as to the particular manner in which such re-entry was procured or made; nor whether the attention of that court has ever been directly called to the subject, by either of the parties to the action, by motion or otherwise. Under these circumstances, we think, that for the purposes of the trial of this cause, such entry should be deemed to have been properly and regularly made, and the action legally before that court. It ought to be considered as having been entered by its permission and authority. It would be not only novel, but irregular, for that court to interfere collaterally, on the trial of the present suit, with that entry, which, it will be observed, is of another and distinct action. That entry, if wrongly made, should be vacated, and thus its effect avoided, by some direct and appropriate proceeding. Clearly this court, called on, as it is at present, merely to advise the superior court, in the cause now on trial, cannot, properly, in this collateral and indirect mode, review the correctness of the doings of that court in relation to the entry of that action. Its proceedings, in this particular, must be presumed by us to be regular, since we are not now sitting to revise any alleged errors of that tribunal.

It is further claimed, by the defendants, that the superior court had no authority to take jurisdiction of that action, after the judgment therein was reversed, because it does not appear, that there was any order of the supreme court of errors directing it to be entered in the former court. If such an order were necessary, we think, that, inasmuch as it appears, that the entry of it was allowed to be, and it was in fact, made, it is to be presumed, that it was done rightfully and in pursuance of the requisite order, at least, in the absence of any evidence to the contrary. But in our opinion( no special motion of the party, nor order of the supreme court of errors, is necessary to justify the plaintiff in entering the action in the superior court, or to warrant that court to permit such an entry, in a case where it is proper, as it was in the instance before us, that further proceedings should be there had. And it has not been the practice, in such cases* to move for, or obtain, any special order directing a re-entry. The silence of the record «f the superior court on -that subject, is, therefore, not evidence that the cause is not properly and regularly before that court.

Although it is not necessary to place our decision of this question on the ground that the case we are considering is governed by the 70th section of the act for the regulation of civil actions, (Slat. ed. 1838. p. 01.) and the act of 1830. in addition thereto, (p. 73.) providing for the entry of actions in the superior court after a reversal on writ of error, it may admit of a question whether it is not fairly embraced by them, their terms being sufficiently comprehensive ; but it is observable, that those acts do not, by their terms, require any action, by the reversing court, in order to authorize an entry of such actions in the superior court. The provision is simply, that on reversal, the defendant in error “ may enter” the action there ; thus strongly implying, that it is the right of the partv, independent of any order of the reversing court. In this respect, the phraseology is quite different from that used in the 63d section of the act, (p. 58.) providing for the remanding of actions which are not appealable, where it is expressly made the duty of the higher court to remand ; thus implying some action by that court, as an authority-for the entry of the cause in the court below.

The defendants, however, insist, that although the plaintiff may still further prosecute the action in which the property mentioned in the declaration was attached, notwithstanding the reversal of the judgment first rendered therein; yet, as that was a final judgment when rendered, and was of the character of the judgment mentioned in the statute prescribing the time within which property attached shall be levied on by execution after final judgment, it was, on a just construction of that statute, the judgment therein intended; and that, as the property cannot now be held to respond that judgment, the attachment of it is dissolved, and the lien created by it discharged. In support of this claim, they rely mainly on the cases of Butler v. Bissell, 1 Root's R. 102, and Clapp v. Bell, 4 Mass. R. 99. in the first of which It was decided, that an erroneous judgment in favour of the defendant, reversed for error, or annulled by the granting of a new trial, is to be deemed a final judgment, for the purpose of exonerating special bail; and in the other, that such a judgment, although the action is subsequently reviewed, dissolved the attachment of property in the suit. Neither of~ these cases, however, nor those which have been adduced of a similar character and resting on the same principles, have any application to the point before us. In those cases, the first judgment (which was reversed or set aside) was in fa-vour of the defendant in the suit, and they were decided on the ground that it was in favour of that particular party. In the case now before us, the judgment, and the only one rendered In the action in which the property was' attached, was in favour of the, plaintiff in that action. No judgment, therefore, has ever been rendered in that suit, which, if it had been technically and really a final judgment, would have released the property from the lien created by the attachment therein. The reasons are obvious why bail or property should be exonerated, by a judgment in favour of the defendant, although it may afterwards be set aside ; but it is difficult to perceive why a plaintiff should be held to have lost the security acquired by his attachment in a suit, merely by having a judgment rendered in his favour, and subsequently reversed, when the action may be re-tried, and on such retrial, he may succeed in obtaining another judgment which shall be valid. The legal and proper effect of the reversal of the judgment being to extinguish and annul it, and thus wholly to deprive it of any force or effect, it certainly should require some very cogent reasons to show, that it was the judgment intended by the statute relied on ; especially, as such a construction of it would strip the plaintiff in that suit, without any default on his part, and even after judgment rendered in his favour, of the security obtained by his attachment in the suit. No such reasons have been advanced. That judgment was not an effective one, because it was not available at all to the plaintiff. It was not only voidable, but actually avoided. To hold that a judgment for the plaintiff, which could not be made effectual for the purpose of appropriating the property attached for his benefit, shall be treated as the final judgment contemplated by that statute, would be a palpable perversion of its object and meaning. That statute, in its very terms, speaks of a judgment, which the property attached may be “held to respond,” and on which an execution may be issued and levied; meaning, plainly, a levy which shall be effectual to appropriate the property in payment of the judg-ment. But, by the construction claimed by the defendants, it would apply to a judgment, on which, as the case might be, no execution could ever be issued,, or where, if issued, it might be superseded, or where, if not superseded, but executed, the avails of the property could not be held by virtue of it, unless on other grounds than merely the validity of the judgment or execution.

Again ; that judgment being annulled by its reversal, and the action being entered in the superior court, and now there pending, a final judgment is to be hereafter rendered in it. That judgment, if in favour of the plaintiff, will, at least equally with that which was reversed, and in reality exclusively, answer the description of that mentioned in the statute. Since, then, it is embraced by its terms, what reason is there for saying, that the first judgment was intended in preference to it, and that the property attached should not be held to respond it, if execution should be issued thereon, and levied within the time prescribed 1 None, certainly, unless it is, that it was intended that a valid and invalid judgment should be equally fruitless.

The superior court is, therefore, advised to render judgment for the plaintiff, for the value of the property mentioned in the contract declared on, or for the amount which may have been recovered in the original action in which it was attached, if less than such value.

In this opinion the other Judges concurred.

Judgment for plaintiff.