84 Tenn. 355 | Tenn. | 1886
Lead Opinion
delivered the opinion of the court.
This is an original attachment bill filed against defendants, the corporation known as Youngstown Rolling Mill Company, as non-residents, and the First National Bank of Memphis, a corporation doing business in that city. The bill claims a debt of over $4,000, due by reason of a breach of contract to deliver certain hoop iron, as per contract set out. In order to get jurisdiction of defendants, the Rolling Mill, a fund of over $900 belonging to it, in the National Bank, was attached.
The Rolling Mill Company appeared and filed a
The complainants excepted to the allowance of leave to answer, insisting, the plea of defendant being found false, the complainants were entitled to a final decree, the defendant, however, insisting on the right to answer, which was sustained by the chancellor.
The defendant answered, proof was taken, and the case heard, when the chancellor decreed the complainants had failed to make out their case on the merits, and dismissed the bill, from which decree there is an appeal in error to this court.
The first question is, whether the court erred in overruling complainants ’ demand for a final decree, when the issue of fact was found in favor of complainants, and in permitting the respondent to answer, or his claim to do so?
The ruling in the Scruggs case, we take it, must be confined to the precise case in hand. In the case of Whitaker v. Whitaker, 10 Lea, 97, there was a plea to the jurisdiction of the court, which was held “insufficient to abate or bar the action,” and properly overruled. This court held, that “upon overruling a plea for insufficiency, the defendant is, of course, entitled to answer, under Code, section 4395.”
The two opinions- can only stand together when we limit the rule laid down in the first to the case before the court, of a plea of personal privilege, but as having no application to a general plea to the jurisdiction of the court, or to any other case where a plea is held insufficient by the court. The plea in the present case is a plea to the jurisdiction, as in the 10 Lea case. But, in fact, no good reason is seen for the distinction. But in neither that case or the 7 Lea case, was there a trial of the issue on the plea, and a finding the plea untrue, in fact, as in the case before us.
We propose to examine the cases in our State, on which it is assumed to be settled, that a defendant can not be allowed to answer to the merits in a court
A motion was made to strike out the plea, and on this question the opinion was delivered. The court simply decided the plea bad, as it obviously was, on the technical grounds, not having craved oyer of the instrument sued on, or its endorsements, so as to make them part of the record, and the issue tendered being to the court and not to the country. It is seen, there was no case of a trial of the plea, as to its truth, and could not- be, and so the court simply set aside the plea, and allowed defendant to plead to the merits, or, to use the language of the opinion, “in chief.”
But the reason given for the rule only applies to the case in hand or one like it, that is, where the plea is one involving a fact to be tried by a jury, a debt being admitted, credits only claimed, and the amount of these the inquiry; in other words, where the same question of fact is involved in both eases.
The case of Straus v. Weil, 5 Cold., 120, 129, was an attachment at law, and, therefore, can decide nothing as to a case in equity, even if what is said on the question had been involved in the case for decision. But, in fact, it was dictum,, and could not have been adjudged on the record in that ease. It was an attachment issued by a justice and returned to the circuit
The ingenious argument in support of the rule in that case is as strong as can be made in favor of it, that is, that a defendant knows the strength of his case, and if he chooses • to rely on a plea in
The fact is, the law gives the right to plead in abatement in certain cases. It equally gives, in all cases, the right to defend on the merits against an unfounded claim. The real question is, does it give these rights with a forfeiture of any legal right if exercised? If not, has the court the right, in a case of manifest injustice, to impose such penalty? It is clear this is the principle on which the theory rests, for if a plea in abatement is filed, and the facts averred not proven to a jury or a chancellor, however close the issue on them, the party loses his right to test the claim on its merits. If he defends to the merits at first, he must do so at the sacrifice of his right to plead in abatement or to the jurisdiction.
In cases of a trial at law by a jury, the verdict is almost conclusive of the result, even though, seen by this court to be wrong, or not such as we would have rendered, yet it must stand under our rule. So that the merits must, under such a theory, be sacrificed to the verdict of a jury on another and different question, and that where it is evident the pirty had good ground to believe he could successfully maintain the defense, and this court see he ought to have succeeded. In other words, he must submit to the jurisdiction, although he believe fraudulently obtained, or forego an investigation or hearing on the merits.
Rainey v. Henderson, 4 Hum., 447, was a case at law, where a demurrer had been properly sustained to a plea in abatement, and defendant allowed leave to plead over, and failed to do so. The court gave judgment final, because of such failure, but recognized the right to plead over.
Boone v. Ralh, 4 Heis., 15, was at law. Defendant declined to plead over, and the court said he had a right to do so, and the demurrer to the plea having been sustained below, it was reversed and remanded for trial on the plea.
Robb v. Parker, 4 Heis., 58, was a plea in abatement to an ancillary attachment, which issue the court said should have been tried, if desired by defendant, on the issue presented separately from the case on the merits, so that the question was not involved.
The case of Hendrick v. Davis, 3 Cold., 527, presented the very question. The chancellor, on the proof, decided against the truth of the plea in abatement, and ordered the property attached sold, without an answer, and for this the decree was reversed.
The case of Klippin v. Powell, 6 Heis., raised the precise' question. It was insisted, on rehearing, that the filing of an answer was a waiver of the plea in abatement. It was held the chancellor erred in overruling the plea, “ and the party could not be held to rest his case alone on the question, whether the chancellor erred in overruling his plea.” He ' was bound to answer . or .stand alone on the plea. “ The answer,” say the court, “could not be held to cure the error of the court, and overrule its decree. He was entitled to raise the question by plea, and was deprived of its benefits by the action of the court.”
Martin v. Ramsey, 7 Hum., 260, was a plea of personal privilege by witness attending court on subpoena. The plea was overruled and defendant demurred. It was held no waiver of the plea. There is probably an error jn the report saying the bill was dismissed, but this does not affect the principle decided, that answering over, after erroneous action by the chancellor on a plea in abatement, is no waiver of the plea.
This case may be considered as shaken, if not overruled, by Wilson v. Scruggs, 7 Heis., in a case of personal privilege, but in the case in 10 Lea, settles that, in other cases, he is to answer, as of course.
There is no case where the principle contended for has ever been applied in a case in chancery, and none ought to be, nor any at law, where the question was before the court for adjudication. Mere dictum is not decision or authority. It would be an adherence to an arbitrary technical rule, sustained formerly at law, in some cases, at the sacrifice of right, and based on no reason involving the right of the parties.
Why should the party in this case, or in any case, be precluded from a trial on the merits by the decision against him on a question of jurisdiction? This is always a preliminary question by its very nature. If the jurisdiction is conceded by defendant without contest, it only involves a trial of the merits. Why should a decision in favor of the jurisdiction by the chancellor, or even a jury, carry any more force? The res adjudicata only goes to the facts in issue involving this jurisdiction. To say the merits are settled by it is arbitrary assumption — not true. To treat it as true is arbitrary and contrary to the fact; to deprive the defendant of an investigation of his rights, and it may be, deprive him of a right, without even a hearing, equal to doing it without due process of law. In fact, it might be seriously questioned, whether such a practice is not a violation of this provision of our Constitution. At any rate, it is practically as effective as if the party had been permitted no defense at all, and violative of the spirit if not the letter of the Constitution. The true principle is,
The principle that underlies what we have maintained is what is laid down in our works on Equity and Pleading, and is discussed by Chancellor Walworth in Townshend v. Townshend, 2 Paige Rep., 414, 415: “That where the court decides against the validity of a plea in bar on the merits, the defendants will not be permitted to give the same facts in evidence on the trial at law on the general issue,” the practice in chancery being, as he says in the previous part of the opinion, that the same matter can not be introduced in the answer unless specially so allowed in the decree on overruling the matter of the plea. That is, the party shall not try the same question a second time, unless he is so permitted by the order of the court, naming the question. But the whole theory of the decision is, that he may answer as to all other
The true principle is, that a decision on a plea shall be held to conclude all that was in issue on that trial for all the purposes of that case, but matter not in any way put in issue, investigated or determined by that trial, shall be open for investigation, under such pleadings as the parties may present, and on such issues the court shall act, subject to revision by this court.
By section 5153, of new Code, it is provided, “If the plea be found false, the complainant shall have the same advantages as if it had been so found by a verdict at common law.” Whatever is meant by “advantages” in this, it can not fairly be strained to mean that it forbids an answer to the mei’its after such finding, and the jurisdiction is sustained. It would be a conclusion purely arbitrary to push it to such a result. Suffice it to say, the language does not require such a rule of practice, one so little in accord with the attainment of justice, and, as we think we have shown, so entirely illogical from the premise. This ease well illustrates the want of logical sequence in what is claimed. The defendant pleads the want of jurisdiction because he says his property was fraudulently brought within the jurisdiction and attached.
The Referees report that the chancellor erred in finding the plea of defendant was false in fact. To this complainant excepts and say, “ The testimony offered at. the hearing on the plea establishes that there was no fraud, misrepresentation or concealment, or suppression of fact practiced in order to induce defendant to make sale of the iron to John Monogue. The real facts and the apparent facts were the same. The defendant made sale of said iron to said Monogue, knowing at the time that plaintiffs resided in Memphis, Tennessee, and intended to bring suit against it on the claim set forth in the bill. This exception is pointed to the facts bearing on the issue made by the plea as .they appear in the proof, and raise the question whether what is shown makes out a case of fraud on the jurisdiction, so as to sustain the plea and dismiss the present bill.
The proof on this question makes out this case: The complainants, intending to attach the iron or pro
It is argued, that all the facts were known to defendants which involved the risk of an attachment, the claim of complainants, that they lived in Memphis where Monogue lived and did business, and they, with such knowledge, took the risk and have been caught. They certainly did know all the facts involving the risk except the fact that Monogue was. ordering the
Is this a case within the principle of Timmons v. Garrison, 4 Hum., 148, where a negro was decoyed into this State from Georgia, for the purpose of obtaining jurisdiction, as the basis of a suit in our courts. Judge Turley, in that case, says: “The attachment laws were made to enable our citizens, who have debts due them by non-residents, to subject the property of their debtors, which may be found in the State, to their demands', without being compelled to pursue redress in a foreign tribunal, but. it would be monstrous so to construe them as to enable a rapacious creditor to give jurisdiction to our courts against non-residents by purloining their property and bringing it into the State.”
This case was unquestionably decided rightly, the proof showing, as said by the learned judge, that complainant did entice and procure the negro to come to Tennessee for the purpose of attaching him.
Suppose, however, the creditor in this State had procured a third party to purchase the slave from his owner, at an agreed price to be paid by a draft attached to the bill of sale, this bill of sale to be
Dissenting Opinion
also dissents on the point that the plea is false, holding the facts do not make a case of fraud in obtaining jurisdiction. I very much doubt, myself, on this question.
Dissenting Opinion
dissents to the opinion on the point of allowing the respondent to answer after finding the plea untrue.