4 Rand. 336 | Va. Ct. App. | 1826
Goodrich obtained a judgment against Harrison, and issued his execution. It went into the hands of Wallace, a Deputy Sheriff, in September, 1814, (as we see by his endorsement,) and was returnable to the 4th Monday in November. He returned it to the clerk’s office, (at what time, we do not know,) without any other endorsement than that marking the time when it came to hand. The plaintiff died. JR. Goodrich, his administratrix, sued out a Scire Facias, obtained judgment, and issued execution. Harrison then filed his bill to injoin. He states, that the original judgment was obtained in 1815; the execution put into- the hands of Wallace, the deputy; and that he paid the full amount thereof, to him, as will appear by a receipt filed. On this receipt, the bill rests the whole equity of the case. As a reason why he did not avail himself of this receipt on the trial of the Scire Facias, the plaintiff states, that he told Chapman, the agent of the administratrix, of the- receipt, and referred him to his attorney who had it; and that Chapman said, it was Wallace’s handwriting, and he was satisfied; which prevented his attending to his defence, as he expected to hear nothing more of the affair; and his attorney, who had the receipts, supposing that the proceeding, in which they were to be used, was a motion, did not attend to the Scire Facias. The administratrix and Chapman as her agent, are made defendants; and he is called on specially to state, whether he did not say he was satisfied, on examining the receipt, and that it did cover the execution. In his answer, Chapman, directly responding to the interrogatory, avers, that he said no such thing: that on the contrary, he was dissatisfied after examining the receipt: that the plaintiff ought
The rule on this subject, as settled by many cases in this Court, I understand to be this: That a party having a good legal defence, shall not, after judgment at law, bring the case into equity upon the legal matter, without alleging and proving a good excuse for not using it at law. The bill in this case did allege a sufficient excuse. If Chapman had told the plaintiff, that the receipt was Wallace's hand-writing; that it did-cover the execution, and that he was satisfied; and having thus ,lulled him into security, had gone on, and taken a judgment against him, without defence, equity would have considered it a fraud, and would so far have relieved against it, as to give him the benefit of that defence, whatever it might be. But Chapman denies that he ever told him any such thing; denies that he had any excuse for not making his defence at law. It devolved on the plaintiff, then, to prove the excuse he had alleged. He should have examined evidence to establish the conversation, and also to prove the mistake of his counsel.. Having failed to do this, we are bound by the settled rules of evidence to say, that he stands without excuse for not making defence at law; and of consequence, that equity has no jurisdiction of the case. Upon this ground, I think the Court below erred in not dismissing the bill.
Another palpable error was, perpetuating the injunction against the administratrix, without having her before the Court. The record states her to be a non-resident. Publication is ordered, but no evidence that it was ever made.
If it were proper to examine the case upon its merits, after deciding against the jurisdiction, I would say that in my opinion, the defence set up ought not to avail the party before any tribunal. The receipt is long after the return
An injunction was awarded to judgments upon Scire Facias to revive other judgments, upon the allegation that the debtor had paid the full amount of the executions upon the original judgments, to the Deputy Sheriff, in whose hands those executions were. To prove this allegation, the receipts of the Sheriff, dated April 25th, 1815, are produced. One of the executions was returnable to the fourth Monday in November, 1S14; the other, to the fourth Monday in January, 1815. The defendant relies that the payment to the Sheriff was after the executions were returnable, and they not having been levied, the payment does not bind him, and was no satisfaction of the judgments; especially as the Sheriff has returned the executions, without any endorsement of what was done under them. The plaintiff has offered proof by parol, for the purpose of shewing, that notwithstanding the date of the receipts, the payments were made before their dates, and whilst the Sheriff was authorised to receive the money. It is not suggested that the executions were ever levied. This proof is extremely loose
Both decrees should be reversed, the injunction dissolved, and the bill dismissed.
On the first view of this case, I would have been satisfied to have reversed the decree for the error assigned in relation to Ehoda Goodrich, a judgment in whose favour has been injoined when she was not before the Court. It is often proper to dissolve an injunction, and even dismiss a bill, before all the parties interested are before the Court; as in cases where it is apparent that the plaintiff has made out no case as to any one, and has sought no discovery, and could have no decree, except for an injunction against those not before the Court. There is nothing to prevent the dismission of a bill in such a case. But, it does not follow that the party, whose bill may be dismissed because he has failed to shew his equity, shall have a decision in his favour upon that equity, against one who is not before the Court.
The question then is, whether the appellee has shewn sufficient grounds why his bill ought not at present to be dismissed P
As to the first. I am fully satisfied that whilst the executions were in the hands of the Deputy Sheriff, an arrangement was made with him, by which he was to receive the benefit of other executions then in force, in favor of the appellee, and who, in consequence thereof, had agreed not to proceed to levy the executions on the property of the appellee; and I am also satisfied, that he did receive the avails of those' executions, either to the full amount of the executions against the appellee, or that the appellee, in some other way, paid up the balance, as he believed, in full discharge of those executions; and that the Deputy Sheriff is the party who really ought to pay the amount of the judgments sought to be injoined. From the delay in suing out the Scire Facias in this case, I have also little doubt, but that the creditor or his representative had reason to believe,' that the appellee was discharged, and that their recourse was against-the Deputy Sheriff. No return has ever yet been made on the executions, although they are in the clerk’s office, the Deputy Sheriff having merely endorsed when they came to hand, but not what he did with them. It may be, that the creditor, having for several years endeavoured in vain to get the money from him, was better satisfied with no return, although he could have forced one, than with a return of the truth of the case; or it may be that Wallace is dead, and that the executions have been found among his papers, and returned by his executor or administrator to the clerk’s office. It may be too, that funds enough were placed in his hands by the appellee, when the execution was in full force, to discharge
I think it highly probable too, that those funds may not have been instantly available to the Deputy Sheriff, though agreed to be received by him in discharge of the executions, or so far as they would go; and if not enough, that the balance was finally to be made up on a settlement: that such settlement took place in a short time after the return day, and most probably when the executions were yet in the hands of the Deputy Sheriff, and the receipts given; and that the Deputy Sheriff ought, in justice, to have returned the executions satisfied. All this might probably have appeared more fully, had the Deputy Sheriff been made a party to the suit, and had the appellee taken the trouble to develope more fully the nature of these transactions.
I was therefore, at first, disposed simply to reverse the decree, and send the cause back; for, had the executions been thus fully and legally discharged, though the Sheriff failed to return them satisfied, and did not give receipts for the money until after the return day, such payment before the return day, was a complete defence at law, and under the circumstances of this case, ought to be equally available in equity. On more full examination, however, the fact that the executions were calculated up to the date of the receipts, throws more doubt upon the subject, as to the time when these transactions took place, and as to the real nature of them when they did take place; and as the appellee has been indulged with a hearing in equity, after a failure to defend himself at law, he ought, and that promptly, to have made out a clear case there. He ought to have shewn clearly, that he could have availed himself of this defence at law, had it been made there; but, not having shewn this, with sufficient certainty, it is perhaps most proper no longer to delay the case for further explanations on his part, but to dismiss the bill.
The plaintiff, in the bill, avers on oath, that he did understand that the defendant was satisfied. How does the
Both decrees must be reversed, and the bill dismissed.
The President and Judge Cad eh. absent.