Benwood Iron-Works Co. v. Tappan

56 Miss. 659 | Miss. | 1879

Campbell, J.,

delivered the opinion of the court.

The plaintiff in error obtained a verdict against the defendant on the 14th of April, 1874, but no judgment was rendered on this verdict. There is in the record a verdict and judgment entered on the 13th of April, 1874, but marked across the face, “Error,” and thus erased by order of the court, as it appears, and the entry of the verdict spoken of in its stead. We are not informed by a bill of exceptions why the court ordered the entry of verdict and judgment to be erased, and a verdict to be entered without a judgment; but it is to be inferred, from entries on the record of the same date, that it was brought to the notice of the court that the defendant had been adjudicated a bankrupt, and that on the application of the bankrupt the cause was stayed. It must be assumed that the action of the court was correct, it not appearing upon what showing such action was had. Leave was given by the court to the defendant to file “ his plea of bankruptcy,” and on the 14th of April, 1874, he did file what is denominated in the record his “ plea in bankruptcy,” which consists of an allegation that, after the institution of this suit, he was adjudicated a bankrupt, and a copy of the adjudication was filed. Afterwards, on the 28th of March, 1876, the plaintiff moved the court to enter judgment nunc pro tunc on the verdict aforesaid, of the 14th of April, 1874. The defendant opposed said motion with a formal statement that since said verdict he had been duly discharged in bankruptcy, and set forth his discharge, and averred that the debt of plaintiff was a provable claim against the estate of the bankrupt; and urged that .a motion he had made to set aside the verdict aforesaid, in order to allow him to plead his discharge in. bankruptcy to the action, should be heard and granted. A formal motion to this effect was filed by the defendant.

The “ motion of plaintiff for judgment on -the verdict, and defendant’s motion to set aside the verdict and allow him to plead his discharge, were heard together, and both were over-’ ruled; but leave was given to the defendant to file his plea setting up his discharge in bankruptcy, and such plea was filed under this leave, on the 24th of June, 1876. On the 4th of June, 1877, the plaintiff not having taken any notice of the plea of defendant, and, being called, came not, and not prosecuting the suit, it was considered by the court that plaintiff take nothing by said suit, and that defendant recover costs.

The situation of this case is remarkable. The plaintiff has a verdict unavailing to it, because there is no judgment. It sought to obtain a judgment, and failed, because, since the verdict, defendant had been discharged in bankruptcy. The defendant objected to a judgment on the verdict, because he had been discharged from the debt sued on since the verdict, and sought to have the verdict set aside, hi order that he might plead his discharge. The court refused to render the judgment plaintiff demanded, and refused to set the verdict aside, but gave leave to the defendant to plead his' discharge, and he did so.

It is clear that the plaintiff is not entitled to judgment on the verdict, if, since its rendition, the defendant has been discharged as a bankrupt from the debt for which the verdict was given. It was proper for the court to refuse the motion of plaintiff for a judgment, and it was the duty of the court to' put it in the power of the defendant to avail himself of his discharge as a bankrupt since the date of the verdict. The proper course was, to set aside the verdict, that defendant might plead his discharge. In this way the litigation may be ended. Refusing to disturb the verdict, and entering judgment of non pros, against plaintiff for failing to reply to the defendant’s plea to the motion for judgment, or to further prosecute his suit, leaves the plaintiff with a verdict against defendant undisposed of, on which recurring motions for judgment may often be made. To set aside the verdict and allow defendant to plead, will enable the court to finally dispose of the action, and this we think the better practice. The court has power to vacate a judgment on sufficient grounds, upon audita querela, or upon motion, and it has power to vacate a verdict under such circumstances as it would vacate a judgment. We are confident that plaintiff cannot have judgment if, since the verdict, defendant has been discharged from the debt. We are at a loss to determine the correct practice in such circumstances as this case presents. Believing the better practice to be as indicated herein, we will adopt it.

We find no fault with the action of the court in setting aside the dismissal of the case.

We reverse the judgment and set aside the verdict, and allow the defendant to plead his discharge in bankruptcy, and remand the case for further proceedings.