Bank of Missouri v. Franciscus

15 Mo. 303 | Mo. | 1851

Scott, J.,

delivered the opinion of the court.

This action is evidently founded upon a misconception of a principle of law. That principle is thus stated in 7 Comyn’s Dig. 499: “If a man has color of an authority, and afterwards it is vacated and declared to be null, he will be a tresspasser ab initio; as if a man obtains judgment irregularly, and afterwards takes out execution, the. party (though not the officer) will be a trespasser if the judgment be vacated.” It may be remarked, that the term “irregular,” as used in the old books, is synonymous with the word void. Parsons vs. Loyd, 3 Wel. 341. The principle, as stated, is not controverted, and is abundantly sustained by the references. If we are not mistaken, the rule will be found applicable to those cases only, in which the cause for vacating the judgment exists at the time of its rendition. Certainly there is nothing in the cases cited, and they have all been examined, which will warrant the inference, that if a judgment is valid at the date of its rendition, and proceedings have been taken under it, and it should be afterwards set aside, that the avoidance by relation will affect those proceedings. We do not conceive that a judgment, once regular, can be vacated; it máy be satisfied or extinguished, but we cannot see the end to be obtained by its vacation. If, through inadvertence, an order should be made, vacating such a judgment, on no principle can that act have any retrospective effect. It will not be maintained, that a judgment against a bankrupt, merely because he is such, is even erroneous, much less void. If a bankrupt has obtained his discharge and certificate, and is sued for a debt contracted before his bankruptcy, and he fails to plead his discharge in bar, the judgment obtained against him, under such circumstances, will be as valid as any ever pronounced in a court of record. This court, in an opinion which was amply sustained by authority assented to the doctrine, that an action of trespass cannot be maintained against a sheriff for arresting the body of a certificated bankrupt. The only reason for interfering with the judgment and the proceedings thereon, in which this action originated, was, because the plaintiff, Franciscas, had not obtained his certificate at the date of the judgment. He had instituted proceeding to obtain the benefit of the bankrupt act, and it was held, that the decree in bankruptcy related back to the time of filing his petition, protecting his after acquired property. A debt due by a bankrupt, contracted before his bankruptcy, is like any other debt against which he has a valid defence. If sued for it, and he fails to plead his certificate, he is in the same situation as all others who have neglected to plead their defence to an action prosecuted against them. 7'hat he had not obtained his discharge, so that it might have been pleaded in bar, during the pendency of the suit, does not affect the validity of the judgment. When the judgment was rendered, it was not known that the certificate would ever be obtained, and if obtained that it might be avoided for fraud, or by showing that the debt was of a character that" could not be discharged by the bankrupt act. In such a state of things, a court of equity, or the court in which the judgment was rendered, would stay the proceedings, but surely would never vacate the judgment until the creditor had been afforded an opportunity of contesting the validity of the discharge; and if, through inadvertence, such an order should be made, it could have no retrospective effect.

The demurrer to the replication should have been sustained. The other judges concurring, the judgment will be reversed.