Gaynor v. Blewett

85 Wis. 155 | Wis. | 1893

Pinney, J.

If the complaint of James Gaynor, the judgment debtor in the original action, showed upon its face that he wished to pay the judgment, and, owing to a dispute between the judgment creditors, Blewett and Patrick Gaynor, he was ignorant to whom to make payment, there would be some plausible reason, perhaps, for claiming that the present action, which is a secondary or supplemental one upon the foot of the judgment, is an action of inter-pleader ; but it is doubtful whether the action could even then be maintained, within the rule in McDonald v. Allen, 37 Wis. 108, as James Gaynor could safely pay the money into court upon notice to the claimants, or make payment to the sheriff on execution, which would fully protect him as against the respective claims of the parties. The complaint shows very plainly that James Gaynor is not desirous of paying any money into court for any purpose, but that Re is probably acting in collusion with Patrick Gaynor, who is one of the judgment creditors and under his control, as was said to be the case by this court in the original suit, and has instituted this proceeding to avoid paying as much of the judgment as possible, as he has an undoubted right to do if he has any legal or equitable right to have the judgment limited or reduced or declared satisfied. He has procured, without paying anything for it, from Patrick Gaynor a discharge of the entire judgment, and not merely a release of the interest of Patrick Gaynor in it, and he now contends that as between Blewett and Patrick Gaynor there was nothing due to Blewett on the judgment, and that the discharge ought to be held to be a legal and equitable extinguishment of the entire judgment. Beyond doubt, Patrick Gaynor had a right to give to James Gaynor all his right, title, and interest in and to the judgment, as he has done already, and James Gaynor's rights thus acquired are entitled to be respected and enforced as fully and completely as if he had paid full value in money for whatever right or interest, if any, Patrick Gaynor had in the judgment. And James Gaynor is entitled to have the original judgment reduced and limited, and the rights of the parties thereto declared accordingly, just as clearly as if James Gcvynor had made a corresponding payment upon it with property or money. His right to come into court by supplemental complaint, petition, or motion, is complete and absolute, and, so far as the mere trial and determination of this claim is concerned, the court cannot impose terms upon the exercise of that right, any more than in any ordinary suit of legal or equitable cognizance. Whatever rights James Gaynor has by reason of the premises have been acquired by him since the rendition of the judgment, and he has the same rights in respect thereto as Patrick Gaynor had as against his copartner Blewett,, namely, to have their respective rights and interests in and to the judgment

declared and adjudicated. It is plain that Patrick Gaynor might have prosecuted his claim in this respect as against Blewett without the payment of money into court or giving any security for the payment of any, and in this regard James Gaynor has succeeded to all his rights. Should he apply for any order, injunctional or otherwise, restraining proceedings to collect the judgment, the court, in its discretion, would no doubt require of him, as a condition of granting such order, that he give security in the manner and form and to the effect ordinarily required upon granting injunctions against the collection of judgments at law. But as yet Blewetfs right to proceed to collect the judgment has not been interfered with. There is nothing to show that the discharge of the judgment, which has been filed and is claimed to be collusive and fraudulent, has been entered of record, and, if it has been, there is a plain remedy to get rid of it. As the case now stands, James Gay-nor and Blewett are the real parties in interest in this litigation, and Patrick Gaynor a mere formal party, whose rights and interests, if any, have been extinguished for the benefit and.in the interest of James Gaynor. The exercise of this jurisdiction to limit or reduce a judgment at law upon equitable grounds is an ancient one, and was formerly exercised by writ of audita querela/ and in modern practice it may be by motion or by petition or complaint in the nature of a supplemental pleading, upon which an issue may be'joined, and a trial had, and proper judgment given. 1 Am. & Eng. Ency. of Law, 1003; McDonald v. Falvey, 18 Wis. 599. Where relief is sought by motion, the court may in its discretion direct an issue to be tried by the jury. .The jurisdiction and practice in cases such as this has been examined and explained in many cases, particularly in Cooley v. Gregory, 16 Wis. 305; Hooper v. Smith, 74 Wis. 530, 534; Williams v. Troop, 17 Wis. 463; and McDonald v. Falvey, supra: and must now he .considered as well settled. We hold, therefore, that the present proceeding is a supplemental one, and merely a graft on the original action to control and limit the judgment rendered in it, and not an action of interpleader, and that, as all the necessary parties are before the court, an original action, as an action of interpleader would be, in the same or another court, cannot be maintained. The cases on this point are' cited in the recent case of Stein v. Benedict, 83 Wis. 603, in which this subject was fully considered. For these reasons we hold that the demurrer of the defendant Blewett is not well taken? and that it was improperly sustained.

By the Court.— The order of the circuit court is reversed, and the case is remanded for further proceedings according to law.