15 N.J.L. 373 | N.J. | 1836
One judgment creditor, has no right,, simply because he is such, to inquire into the regularity of another man’s judgment. He cannot, even upon the ground of fraud, impeach a prior judgment against his debtor, unless he can show a want of assets to satisfy his own. Here was no allegation of fraud, nor any evidence that the plaintiff’s execution stood in the way of Gray and Morton’s. The court below, simply upon the ground of irregularity, set aside a judgment at the instance of third persons, who for ought that appears, had no interest in the matter. But granting that it stood in the way of their execution, they could not bring error upon that judgment. So we decided in the case of Black v. Kirgan, at-May term 1835, ante 45 ; and for the same reason they could not, on motion, inquire into the regularity of the judgment. The doctrine upon this subject, is fully and lucidly stated by Justice Ford, in Scudder v. Coryell, 5 Halst. 346. The practice off permitting subsequent judgment creditors to come in upon-motion and set aside judgments by confession, is based upon other principles: such applications are addressed to the equitable powers which courts exercise over such judgments, and are founded on facts disclosed to the court, showing that justice-requires its interference. But an irregularity in the entry of the first judgment, creates no equity in favour of the second* Justice does, not require that it should be set aside on that ■ground, for, though irregular inform, it maybe the most honest,
The late Chief Justice of this court, in the case of Latham v. Lawrence, 6 Halst. R. 322, correctly stated the design of our statute which requires an affidavit. It was to prevent the signing of fraudulent judgments, by an appeal to the conscience of the plaintiff, as to the fairness of the transaction. It was only to interpose an additional guard against fraud, and was never intended as a criterion by which the fraud, or the bona fides, of a judgment, was to be tested. Nor was it designed to introduce a new rule of law, admitting third persons to take advantage of errors or irregularities in prior judgments. On the contrary, if the proceedings are regular, and the affidavit full and complete, yet, if the judgment is fraudulent, it is void as against purchasers and judgment creditors : on the other hand, if honest, though irregular, it is binding against every body, but the defendant. A different rule would introduce a flood of litigation, between struggling judgment creditors; the result of which would often be, that the honest creditor who had made some mistake in his proceedings, would be defeated; while the fraudulent and more practised one, with his regular judgment, studiously prepared for the occasion, would be preferred. Such was never the design of the statute, nor does the case of Latham v. Lawrence, establish any such doctrine. Neither do the cases of Wood v. Hopkins, Penn. R. 689, and Milnor v. Milnor, 4 Halst. R. 93, give any support to the position, that a third person may take advantage of an error, or irregularity in a prior judgment against his debtor. In both of those cases, the judgments had been signed after the death of the respective defendants, though as of terms antecedent to those events. In the former case, the judgment was set aside at the instance of the administrator of the defendant, expressly on the ground,
The decision of this court in the case already mentioned, of Latham v. Lawrence, 6 Halst. R. 322, settles nothing, except that the affidavit in that particular case, was insufficient. It no more sustains the right of a third person to impeach the regularity of a judgment, than it does the propriety of a writ of error in this case: and I admit it does neither. Those questions were expressly waived by agreement of the parties, and the sufficiency of the affidavit alone, discussed and submitted to the consideration of the court. I am therefore of opinion, that the Court of Common Pleas committed an error in entertaining a motion in behalf of third persons, to set aside the judgment for irregularity.
. But, 2dly, as to the affidavit itself, I am of opinion, it is sufficient. The plaintiff has made oath, that the true consideration of the bond, on which the judgment was entered, was two promissory notes made by .the defendant, of which the copies annexed to the affidavit were true copies, and which notes had been duly assigned to him for a valuable consideration. The affidavit further.states, to whom the notes had be.en given and by whom assigned to him, and the true considerations upon which they had been severally made, according to the plaintiff’s belief; and that the debt is justly due and owing to him, &c. ill the words of the act. The objection tp this affidavit is, that the plaintiff has not sworn positively to the consideration of
3dly. That the Court of Common Pleas committed an error, there can be no doubt: but still the question recurs, can it be corrected in this court, upon a writ of error ?
It is conceded that error will not lie on a decision made in the exercise of a legal discretion : that is, in a matter properly addressing itself to the sound discretion, or the equitable powers of the court. This is a principle fully sustained by Chancellor Kext, in his very able argument delivered in the Court of Errors of the State of New York, in Clason v. Shotwell, 12 Johns. R. 31, and clearly established by various decisions. Wright v. Hollingshead, 1 Peters’ U. S. R. 168; McCourry v. Suydam, 5 Halst. R. 248; Shortz v. Quigly, 1 Binn. R. 222.
If then the court below, entertained the motion of persons* not rectus in curia, or decided that the judgment was erroneous, when it was not so, (and I think they did both), they committed an error in law; and this court in the exercise of its supervisory jurisdiction, is bound, in some way to correct that error.
Again, this was not an interlocutory, but a final decision, terminating the suit, and denying the plaintiff’s right of recovery in that action. .The judgment was in effect reversed; not
It is true, this court, in the case of Kline v. Pemberton, 2 Halst. 438, in the year 1803, dismissed a writ of error, brought on an order of the Court of Common Pleas, setting aside an amercement; but the reporter does not inform us, upon what ground, the amercement had been set aside. It was no doubt, at the instance of the defendant himself, and probably upon some matter, proper for the equitable consideration of the court. ■ If however, the decision in that case, was made under the influence of the rule, that error will only lie upon proceedings that are according to the course of the common law, we .are not now bound by it, since that rule may be fairly considered, as abrogated in this State, by the decisions I have referred ■to in our Court of Appeals. Another objection urged by the
The cases of Field v. Weatherwax, 2 Johns, cas. 215, and Horne v. Barney, 19 Johns. R. 247, were cited to show, that error will not lie, on an arrest of judgment. If by this is meant, that error will not lie, 011 the opinion of the court, that judgment ought to be arrested, the position is conceded ; but if it is supposed, that the decision itself, cannot be reviewed, it is manifestly a mistake. Time, until final judgment is rendered against the plaintiff, there is no judgment to be affirmed or reversed in error. But, as is expressly stated by the court, in the latter case, (Horne v. Barney), if the defendant neglects to pray for final judgment, and the court refuse to grant it, on the plaintiff's own motion, a mandamus will be awarded, to the end, that the plaintiff may have the benefit of a writ of error.
In Lawrence v. Dickey, 7 Halst. R. 368, this court held, that an order of the Court of Common Pleas, directing satisfaction to be entered of record, of a judgment in that court, was
Ryerson, J. concurred.
Ford, J. A judgment was signed and recorded the 10th of ■ February 1834, in Hunterdon Common Pleas, in favour of Samuel Evans against Elisha B. Adams, for four hundred and eighty-five dollars, eight cents of debt, and four dollars cost, on confession by warrant of attorney, accompanied by an affidavit. During the next ensuing term, other creditors of Adams obtained against him judgments and executions, and then obtained from the court a rule upon this plaintiff to show cause, why his judgment and execution should not be set aside, for alleged defects in his affidavit, and for its not being produced at the time judgment was confessed. Counsel were heard on the matter in February term Í835, when the rule was made absolute and entered in the minutes of the court, that the plaintiff’s judgment and execution he set aside, made void, and for nothing holden. Thereupon the plaintiff brings a writ of error, to which the judges make a return qf what had been a judgment and execution in their court, but was no longer so, together with copies of their rules, taken from the minutes of the court. Though the plaintiff had alleged that there were errors in the judgment and process, and that allegation was recited in the body of the wúfe as the only grptm.d upon which
1. A writ of error does not lie to reverse a rule of court, on any known principle of the common law. Co. Litt. 288, b, is very express, “ That without a judgment, or an award in nature of a judgment, no writ of error lieth.” Now what is a judgment? By the common law, it is a final decision, entered of record, on a parchment roll, called the judgment roll, under the signature of a Judge of the court. Our legislature have wisely abolished the parchment roll, by substituting in its place a book; so that under our statute, a judgment is a final decision, entered of record, in the book of judgments, under the signature of a Judge; and an award cannot be in the nature of a judgment, unless it be a part of the record in the book of judgments, under like signature ; such as the award of oyer, a venire, writ of inquiry, execution, &c. which are all of record. Now, is a rule of court a judgment? No book, no principle of law, no established precedent, ever so considered it; for a rule is no record, it is never entered in the book of judgments, nor under the signature of a Judge ; and there can be no judgment without a record. The venerable sages, from Loud Coke down to Blackstone, when treating of records, speak of an imparlance roll, a plea roll, an issue roll and a judgment roll; but who ever heard of a rule-roll ? The place for a rule, and it is the only place, is in the minutes of the court; but the minutes are no record, nor are they ever signed by a Judge ; they are side memorandums, entirely extraneous to the record. If we allow a writ of error for reversing the minutes of a court, a new writ should be devised applicable to the innovation. The
2d. There is no judgment now in being, which this court can judicially reverse, or affirm. We are officially informed by the court below, in their return to the writ of error, that they have set their judgment aside ; that it is vacated, and disclaimed as a judgment of theirs. Now every court of common law jurisdiction is invested with a discretion to set aside its own judgment, when it considers it to be erroneous; and it not only is essential to the administration of justice, that they should possess such a discretion; but the exercise of it, is as ancient as Edward I. His tyranny, at one time, gave a timidity to the courts; but it was temporary and could not last; for as Blackstone truly observes, it produced a narrowness of-thinking that obstructed public justice, and became ruinous to suitors. This court almost daily, exercises this very discretion, of setting aside its own judgment, whenever it deems one to be improperly rendered, and it immediately ceases to be a judgment. _ If we strip the Common Pleas of this discretion, we must strip this court of it also ; for they stand on one principle. If this be so, then there is no judgment now in being, and if we make one, it will be an original judgment of this court; and in our execution we cannot recite it, with truth, to be a judgment of the Common Pleas, affirmed here, for we have the highest judicial evidence, that there is no such judgment below.
3. An error in matter of discretion, is not examinable in this court, either by certiorari, or on writ of error. This was so settled, in Wright v. Green, 6 Halst. 334, by all the Justices of this court, in the time of Ewing, C. J. who adopted the words of Yates, J. that “ error will not lie, on every opinion, delivered by the court. The law, confides many matters to
Judgment reversed, and plaintiff to be restored in all things, ¿-o.
Cited in Norcross v. Boulton, 1 Harr. 313 ; Brewer v. Ware, 3 Harr. 372; Den, Rutherford v. Fen, 1 Zab. 703 ; Reading v. Reading, 4 Zab. 362-365 ; Ely v. Parkhurst, 1 Dutch. 194; Clapp v. Ely, 3 Dutch. 569-587-590-598.