2 Ala. 209 | Ala. | 1841
— The plaintiffs in error, insist. 1st. That their demurrer to the bill should have been sustained; 2nd, that the decree is irregular in perpetuating the injunction, without having first required an answer, or on failure to answer, to have taken the bill pro confesso.
First — Our statutes, in regard to delivery bonds, declare that, upon the bond being returned forfeited, to the proper office, it shall have the force and effect of a judgment, and an execution shall issue against “ all the obligors therein.” [Aik. Dig. 171.] And where a bond is given for the prosecution of a writ of error, upon an affirmance, a judgment is rendered not only against the plaintiff in error, but all who are obligors in the bond. Such being the character of the several bonds, against which relief is sought, it follows that the defendant in error, has had no opportunity of making a defence at law.
The practice heretofore prevaling in this State, has been adverse to the right, of the judge of a Court .from which an execution issues to supersede it in vacation; unless it be for an irregularity, apparent upon the record. In Fryer v. Austill, 2 Stewart’s Rep. 119, it appeared that an execution had issued against a principal and his surety, and that a part of the money had been made by a levy on, and sale of the principal’s effects; but the sheriff returned “ no money madewhereupon an alias execution, issued against the surety, for the collection, of the full amount of the judgment. The sheriff having absconded, it was held, that a Court of law could not afford relief, but the remedy of the surety was in equity alone. This decision was made on the ground that, the proceedings having the appearance of fairness and regularity on their face, it was incompetent for the judge of the Court to supercede it by an order in vacation. In the case at law, there is no pretence, that the delivery bond on which the execution issued, does not •in all respects conform to form, and consequently the case cited is directly in point.
The object of the bill then, is not to set aside the execution Tor errors apparent in the judgment of affirmance, or on an inspection of the delivery bonds, but, for the forgery of the defendant’s name to all the bonds. In this view of the case, it may be assimilated to a judgment obtained by fraud, without, any fault on the part of the defendant; which forms a substantive ground for the interposition of equity. [Shottenkirk
But it is argued for the plaintiffs in error, that the case stated in the bill does not authorize the interference of equity; that no fraud being imputed to Martin Brooks, nor the solvency of Sterling E. Harrison denied, the complainant must pay the execution, and reimburse himself by suit at law, against the party committing the forgeries, or the officers by whose neglect it was permitted. To sustain this argument, the case of Denton, et al. v. Noyes, 6 Johns. Rep. 296, has been cited. That was a motion to set aside a judgment, and all subsequent proceedings in a cause, for irregularity; the motion was supported by an affidavit, stating that a fieri facias had been issued on the judgment, which was levied on the property of the defendant; that the defendant was never sued by .the plaintiffs for any demand; that he had never authorized them or any one else, to appear for him to a writ, or to confess a judgment for him. The Court held that, as it appeared the judgment was confessed by an attorney of the Court, it was regular ; that an appearance by an attorney without a warrant or other authority, was good as to the Court, and that the defendant was entitled to an action against the attorney. If there was any fraud or collusion between the respective attorneys for the plaintiff and defendant; or if the attorney for the defendant was not responsible or perfectly competent to answer to his assumed client, they would relieve the party against the judgment, otherwise a defendant might be undone. The Court said further, that though they would let the judgment stand, in order to protect the plaintiff from a loss by the act of
It is an acknowledged principle of law, as well as of natural justice, that no person can be bound by the act of a stranger, in whom he has vested no authority, nor reposed any confidence, and over whom he can exercise no control. True, the prima facie intendment always is, that public officers have discharged their duty according to law; yet this presumption will not bar a direct proceeding, which assumes that they have been guilty of a nonfeasance or misfeasance. In the case before us, the complainant confided nothing to.the clerk of the County Court, or either of the sheriffs, who received the bonds. It was their duty to have required the signature or ac
Second: but although the bill is not wanting in equity, we think it shews on its face, that the individual who was clerk of the County Court, at the time the writ of error bond was executed, was a material party, and that, consequently, the failure to join him was good cause of demurrer. If the forgery of that bond, so far as the complainant is concerned, is established, then a right of action arises in favor of Brooks against the clerk; and that he might shew, that the name of the complainant was used by his authority, the clerk should have been made a defendant.
The object of a Court of equity, is to do complete justice, and to settle the controversy forever; by binding all the parties interested in it, that this may be done, it is necessary that they should all be bro rght before it, for its decree only binds those who were parties to the litigation. Caldwell v. Taggart, 4 Porter’s Rep. 190; Lube’ Eq. 22, note 1; Story’s Eq. Plead 74. et. post; West v. Randall, 2 Mason’s Rep. 181; Trescot v. Smith, 1 McCord’s Ch. Rep. 301; Duncan v. Mizner, 4 J. J. Marsh’s Rep. 447; Clark v. Long, 4 Rand Reports, 451; Crocker v. Higgins, 7 Conn. Rep. 342; Allen v. Hall, 1 Marshall’s Rep. 527; Whelan v. Whelan, 3 Cow. Rep. 538; Colt v. Lasnier, ibid. 320; a decree in the present case in favor of the complainant, does not conclude the rights of all parties. The genuineness of the writ of error bond, might be shewn by the clerk in his defence, to an action by Brooks against him; and it would, also be an open question, as between the complainant and the clerk. The demurrer then, was well taken for a non-joinder of parties.