268 F. 177 | 8th Cir. | 1920
Lead Opinion
This is an appeal from an order made by the court below March 22, 1919, denying the petition of appellant, filed January 9, 1919, which prayed that appellee be enjoined from taking any proceedings to' satisfy a judgment rendered by said court on October 3, 1918; for the .sum of $167,225.88, in an action wherein appellee was plaintiff and Porto Rico Mining Company, Barnett Mining Company, J. W. Ground, and appellant were deféndants. A motion is made to dismiss the appeal, for the reason that the order denying the petition of plaintiff was not a final order and involved the exercise of discretion.
A word in regard to prior proceedings. An appeal was taken to this court from the judgment rendered October 3, 1918, on March 22, 1919. On the argument of said appeal at the September, 1919, term of this court, it was sought by counsel for appellants, against the objection of counsel for appellee, to have the court review the action of the trial court in making the order now- sought to be reviewed on this appeal. After the appeal from the judgment had been argued and the case submitted, the present appeal was taken, and a stipulation by counsel was filed in this court, wherein counsel agreed that the court might consider the present appeal in connection with the appeal from the judgment. This court being of the opinion that the order of March 22, 1919, could not be reviewed on the appeal from the judgment alone, and not wishing to take jurisdiction of á case argued before it was appealed, let the present appeal follow the usual course.
Boyle v. Zacharie was a writ of error to revise the decision of the Circuit Court in refusing to quash a writ of venditioni exponas issued for the sale of the ship, General Smith, which was seized upon- a fieri facias issued on a judgment against Boyle. Counsel for Boyle made a motion to quash the venditioni exponas, upon the ground, among others, that an appeal had been taken from the judgment, and an injunction and bond given in pursuance thereof, which it was claimed acted as a supersedeas. The provisions of Acts Md. 1799, c. 79, and Acts Md. 1723, c. 8, were also relied upon. It thus appears that the motion to quash merely attacked the regularity of the issuance of the execution and did not attack the integrity in any way of the judgment. It was decided that the denial of the motion to quash was not a final judgment; one of the reasons given being that the same court that issued the injunction, issued the execution, and therefore had control of both writs, and in its discretion could determine which should stand.
In Evans v. Gee a judgment had been rendered against Evans by the Circuit Court at the May term, 1836. No execution, so far as the record showed, had been issued until March 16, 1838, when one was taken out, bearing teste the second Monday of October, 1837, returnable the second Monday of April, 1838. The execution was levied on sundry slaves, and a bond given for their delivery. The bond recited that the execution in virtue of which the levy was made bore teste of the May term, 1836. One of' the sons of Thomas Evans made an affidavit stating that his father died on September 12, 1837, and on this affidavit a motion to quash the execution and delivery bond was founded. The motion was refused, but the reason therefor does not appear. The Supreme Court decided that the reason was immaterial, as the refusal to quash the execution was not a final judgment. It therefore appears from the report of this case that the motion to quash was founded upon an irregularity in the issuance of the execution. - The point made against the execution was that it was issued against a dead man.
In Loeber v. Schroeder, supra, the Supreme Court said:
“The motion to quash the fi. fa. in this case on the grounds that the order of the Court of Appeals, which directed it to he issued, was void for the reasons assigned, stood upon no better footing than a petition for rehearing would have done, and suggested federal questions for the first time, which, if they existed at all, should have been set up and interposed when the decree of the Court of Appeals was rendered on January 28, 1892.”
Of course the ruling on a motion for rehearing or new trial is addressed to the discretion of the court, and not reviewable at all in the f ederal courts.
In McCargo v. Chapman, supra, a motion to quash an execution issued therein was made upon two grounds:
“(1) Because the same issued more than seven years after a prior execution. (2) Because the same issued more than seven years after the return of the last preceding execution.”
Carroll et al. v. Davidson, 152 Fed. 424, 81 C. C. A. 566, was a case in admiralty, where the court denied a motion to set aside a decree previously entered. This, of course, was not a final decision. Noojin v. U. S., supra, simply followed the general rule that a mere motion to quash an execution is not a final judgment.
We have no doubt but that the order in this case Was final as to the matters alleged in the petition, and was appealable. The action in which the judgment in favor of appellee was rendered was an action brought by him against appellant and the other defendants for fraud and deceit in the sale of certain mining property situated in Jasper county, Mo. The court, after a trial of the cause, adjudged that the contract of sale should be rescinded, canceled, and set aside. It also adjudged the title of the property to be in the defendants, and rendered'a money judgment against them for the amount of money paid for the property in the sum above stated as damages. On the 11th day of March, 1919; the following compromise agreement between J. W. Ground, one of the defendants in the original action, and appellee, was filed in the court below. This agreement, in words and figures following, was the basis upon which appellant rested his prayer for relief in the present proceeding:
“Wliereas, Roland R. Conklin, tlie above-named plaintiff, did on or about October 3, 1918, recover a judgment in tbe above-entitled cause for $167,225.88, and costs of suit, against tbe above-named defendants, and each of them; and
“Whereas, J. W. Ground, one of tbe above-named- defendants, desires to settle, compromise, and adjust the ■ above-mentioned judgment, in so far as same affects bim, by tbe payment of a portion thereof; and
“Whereas, Roland R. Conklin, tbe above-named plaintiff, is willing and has agreed to accept tbe amount hereinafter mentioned as a partial payment on said judgment:
“Now, therefore, in consideration of tbe payment by J. W. Ground to Roland R. Conklin of the sum of $25,000 cash in band, tbe receipt of which is hereby acknowledged, and the execution and delivery by said J. W. Ground of his promissory note, .payable to tbe order of Roland R. Conklin on or before thirty (30) days after date, with interest at six per cent. (6%) per annum from date, and bis two other like promissory notes, for $25,000 each, due and payable on or before six and twelve months, respectively, after date, and each bearing interest at tbe rate of six per cent. (6%) per annum from date, tbe payment of the last two mentioned notes to be secured by the assignment and delivery' to Roland R. Conklin, as collateral to said notes, of $200,000 par value of tbe stock of the Joplin-Pittsburg Railway Company, it is agreed as follows:
“First. That said Roland R. Conklin does hereby acknowledge payment by said J. W. Ground of the sum of $100,000 on said judgment, and discharges and releases alí lands, tenements', chattels, goods, wares, merchandise, and property of every kind and description now owned by said J. W. Ground, or which may be hereafter acquired by him, from any and all liens and effects of said judgment, and shall not pursue tbe said J. W. Ground individually or as a stockholder in the Barnett Mining Company or Porto Rico Mining Company further as to the collection of the balance of said judgment, or enforce tbe payment of said balance out of any property of said J. W. Ground by any*181 process whatsoever in said, canse, or by any supplementary or independent action or proceeding.
“Second. That the said Roland R. Conklin hereby specifically retains and reserves unto himself, his heirs, administrators, executors, or assigns, each, all, and every right, privilege, or remedy given him by law or equity to pursue, enforce, and collect the balance of said judgment against and from the other defendants in said cause, and this compromise, settlement, and agreement shall not be taken, held, or construed in any manner whatsoever as a release or discharge of said other defendants from the force, effect, and lien of said judgment.
“Third. That it is the intention of the parties hereto that said payment, of 8100,000 made by said <T. W. Ground shall constitute a partial payment only on said judgment, and be held, construed, and taken as a mere credit thereon for that amount, and not as a release, discharge, or satisfaction thereof, or of the cause of action upon which said judgment is based, as to said other defendants.
“Fourth. This agreement shall become effective and binding upon the parties hereto on and from the date of the notes above mentioned.
“In witness whereof, the parties have hereunto set their hands, at Joplin, Jasper county, Mo., on the day and date above mentioned.”
Upon the facts stated in the agreement and other facts appearing in the record, counsel for appellant contends: (1) That the judgment in favor of appellee in the original action was rendered in an action sounding in tort. (2) That the stipulation above set forth constituted a satisfaction of the judgment as to J. W. Ground. (3) This being so, the judgment was also satisfied as to all of the defendants.
“At common law a release of one or two or more joint debtors, or joint and several debtors, releases all, because the debt is entire, and, when once released, can no longer be enforced against any party to it.” 34 Gyc. p. 1081. and cases cited.
Again at common law:
“A release given to one of several joint judgment debtors on his paying his proportionate share of the judgment or on other consideration releases the judgment as to ail, unless the creditor expressly reserves the right to enforce the judgment as to the others.” 23 Gyc. p. 1477.
The judgment rendered in favor of appellee in the original action was joint and several, or at least joint. So far as the common law is concerned, the release of J. W. Ground, without more, would release
Counsel for appellant cites Dulaney v. Buffum, 173 Mo. 1, 73 S. W. 125, in support of the proposition that the reservation in the stipulation of the right of appellant to pursue the other defendants is void because repugnant to the release given to J. W. Ground. In the case cited the release was given in an action sounding in tort before judgment, and was given so far as two of the defendants in the action were concerned. The 'court followed the case of Ruble v. Turner, 2 Hen. & M. (Va.) 38. Other cases are cited to the same effect. We are of the opinion, however, that the true rule is stated by this court in Carey v. Bilby, supra, as follows:
“The law favors compromises generally, and it is not perceived that an arrangement of the kind last mentioned should be regarded with disfavor. The release which was read in evidence in the ease at bar plainly shows that the sum paid by Hysham was not accepted by the plaintiffs as full compensation for the injury which they had sustained, that it was not in fact full compensation for the injury, and that they had no intention of releasing their cause of action as against Carey. Why, then, should it be given an effect contrary to the intent of the one who executed it? We perceive no adequate reason for giving it such effect, and accordingly agree with the lower court that it did not release Carey.”
We are .of the opinion that it is not permissible at this date in the progress of the law to construe the stipulation between appellee and J. W. Ground by striking out of it the stipulation that appellee did not intend to release the other defendants, and then, when so emasculated, to decide that it was a release of the other defendants, but that
In 1855 (Rev. St. 1855, c. 51, § 8) the following statute was passed:
“Defendants in a judgment founded on an action for tbe redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same maimer and to the same extent as defendants in a judgment in an action founded on contract.”
This statute simply related to the right of contribution. In 1915 (Raws 1915, p. 268) the statute was amended to read as follows:
“Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. It shall be lawful for all persons having a claim or cause of action against two or more joint tort-feasors or wrongdoers to compound, settle with, and discharge any and every one or more of said joint tort-feasors or wrongdoers for such sum as such person or persons may see fit, and to release him or them from all further liability to such person or persons for such tort or wrong, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the other joint tort-feasors or wrongdoers against whom such person or persons has such claim or cause of action, and not so released.” Section 5431, R. S. 1909.
We are of the opinion the statute is not relevant to the question involved in the present case, except that it shows the intent of the Legislature of Missouri to give persons, having a claim or cause of action against two or more joint tort-feasors or wrongdoers, the right to compound, settle with, and discharge any and every one or more of said joint tort-feasors or wrongdoers for such sum as such person or persons may see fit, and to release him or them from all further liability to such person or persons from such tort or wrong, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the other joint tort-feasors or wrongdoers. This statute, so far as we know, has not been construed by the Supreme Court of Missouri; but we are
Affirmed.
Rehearing
On Petition for Rehearing.
First, that we do not hold, as seems to be inferred, that the character of a judgment is not determined by the character of the cause of action. We recognize as well established the rule that, wherever it is necessary to ascertain whether the judgment is for tort or is on contract a court may go back of the judgment itself and examine into the character of the cause of action.
Second, the judgment obtained by Conklin against Barnett and Ground for $167,225.88 was for tort. The written instrument pursuant to which Ground paid or agreed to pay $100,000 for his release from the judgment was not a satisfaction of it. The character of the transaction and the intention of the parties is definitely stated in the third paragraph of the instrument, wherein it is said that the intention is that the payment of $100,000 by Ground “shall constitute a partial payment only on said judgment, and be held, construed, and taken as a mere credit thereon for that amount, -and not as a release, discharge, or satisfaction thereof, or of the cause of action upon which said judgment is based, as to said other defendants.” What we hold is that the payment by Ground under such circumstances did not release Barnett from his liability for the balance of the judgment for the tort.
Petition -denied.
