J. S. Smith, Jr., & Co. v. Bowden, 23 Fla. 150

J. S. Smith, Jr., & Co. v. Bowden

23 Fla. 150 | Fla. | 1887

Mr. Justice Raney

delivered the opinion of the court..

This is a controversy as to the manner in which the-proceeds of personal property, levied upon under several writs of attachment against the partnership effects of Dowling & Coxe, should be applied to the payment of judgments recovered against such partners.

The attachment writ in the suit of the plaintiffs in error issued from Duval Circuit Court at noon of August 8 thy *1561883, and was levied on certain articles immediately before 2 o’clock P. M. of the same day, it being ancillary to an action of assumpsit in which the summons ad respondendum was issued and served the same day. On the same day but afterwards the Sheriff received another writ of attachment at the suit of Thurber & Co., and on the 9th, one at the ■suit of Chas. E. Powers, and on the 11th one at the suit of Reedy & Son, and one in favor of Williams & Co., and another in favor of McAlpin & Co., and on the 18th one in favor of Allen & Co., and on the 21st one in favor of Kerr <& Co., as well as one in favor of Paret & Co., and one at suit of Meinhardt Bros. & Co., and on the 23d another in -favor of Powers, as well as one in favor of Einstein & Sons, and on the 24th day of the same month one at the suit of Wood, Rittenhouse & Bro, and on August 9th one in favor ■of Wightman & Christopher. All these writs issued from Duval Circuit Court, and each was executed; on the ■day of its issue by levying on the same property which -that in favor of the plaintiffs in error had been levied on, as well as upon other property of the defendants, Dowling A Coxe. The levy of the writ of the plaintiffs in error was afterwards extended to the property which it did not .-at first cover.

On the 29th of August orders for the sale of the goods .■as perishable property were made on application of each ■of the following plaintiffs in their respective suits, viz: Smith, J r., & Co., Thurber & Co., Powers, Williams, Paret ■& Co., Meinhardt Bros. & Co., and Einstein & Sons. The goods were sold accordingly, in September, and those first levied on at the suit of Smith, Jr., & Co., produced $380, ■ and all the goods, including those first referred to, brought .$2,572.04, the expenses being $273.85, and leaving a balance of $2,299.19.

Plaintiffs in error entered a default and final judgment *157for $371.19 and costs, against Dowling & Coxe, on 0 ctober 1st of the same year (it being a rule day) in the Circuit Court Clerk’s office, and on the same day several judgments were entered against Dowling & Coxe in other of the attachment suits for sums which in the aggregate,, largely exceed the amount realized from the sale of the property attached. On the 11th day of October execution issued to the Sheriff in the above judgment, the Sheriff being then instructed to levy it on the proceeds of the sale then in his possession, and on the 12th of same month execution in the suit of Kerr & Co. was received by the Sheriff.

The plaintiff in error claimed that his execution should be satisfied in full as having priority over the other judgment or execution creditors. "Whereas the latter contend that as their judgments were rendered on the" same rule day,, the moneys held by the Sheriff should be applied pro rata, to the several judgments so entered.

Upon a rule against the Sheriff, Judge Foster of the 7th Circuit acting in the place of Judge Baker of the 4th Circuit, ordered that the moneys, less expenses and com-' missions, be applied pro rata to the “judgments obtained at the same term of the court,” and plaintiffs in error being-dissatisfied have brought the case here for our decision.

Under the decision of Post vs. Carpenter et al., 3 Fla., 1, there can be no doubt that the moneys in question should be applied pro rata to the judgments in question had they been rendered at any ordinary term (whether regular or special) of the Circuit Court. The fact that the attachment in the case of the plaintiffs in error or in any of the actions, was ancillary to an ordinary suit begun by writ ad respondendum, makes no difference. Though the language of the act is “ that a judgment in a suit commenced by attachment shall be satisfied in the same manner as other judgments obtained at the same term of the court are, or *158•shall be satisfied out of the lauds and tenements, goods and •chattels generally of the defendant in attachment,” we do not think it was the purpose of the law makers to provide that a judgment in an action in which there was also a •service of summons ad respondendum should not be subject to the same rule of satisfaction as one in which there was none. The service of a summons should have such effect ■no more than a voluntary appearance or a plea to the declaration. “We think,” says the opinion in Post vs. Carpenter, “it was the intention of the Legislature to place judgments obtained at the same term, whether the suits 'in which they were obtained were instituted by attachment •or ordinary summons, upon the same footing.” It was certainly the intention that at least the property attached in ■different suits should be applied pro rata to the judgments rendered in such suits at the same term, whether or not there was service of an ordinary summons .in any or all of them. The provision of the statute quoted steps in and regulates the satisfaction of such judgments, thus qualifying the effect of the provision that the service of the writ shall bind the property attached, which provision, but for the one quoted, would give a plaintiff a lien from the date -of the levy, and consequently one of priority over others subsequently levied, regardless of the date of the rendition ■of the judgment. The provision quoted, we may also remark, anticipates where it applies any contests for priority of lien on the ground of priority in the issue of executions, if this can be at any time a serious question. Zinn, Aldrich & Co. vs. Dzialynski, 14 Fla., 187.

Prior to the practice act of 1873, (chapter 1938, approved Feb’y 24th,) common law writs issuing from the Circuit Courts were returnable to regular terms of the court and judgments could be rendered in such actions only in term.. By such act, however, the first Monday in each month is *159made or designated a rule day, and “on such first Monday of each month the Circuit Court shall be deemed to be opened and in session at each of the Clerk’s offices for the return of writs and process; for the entrj7 of such judgments by default as are provided for by this act, or the rules of the court now existing or which may hereafter be adopted,” and also for disposing of all matters, rules, orders and interlocutory proceedings which parties may apply for, and which by the practice of the court may be entered of course, or which are granted without the special -order of the Judge. All writs are by it made returnable to a rule day, and it declares in what cases defaults and final judgments consequent thereon may be entered, and regulates the entry of the same and provides that writs of execution upon judgments so issued may issue “ after the lapse of ten days from entering the same unless otherwise ordered by the court or the Judge thereof.”

The case of Burrows vs. Mickler, 22 Fla., and Stribling vs. Hart, 20 Fla., 235, are of some interest as to the effect or nature of judgments under this act, or decrees rendered in vacation. .

Though there are incidents and characteristics belonging to an ordinary term, whether general or special, which do not attach to a “ session ” of the court when “ opened ” under the above statute, yet in so far as the effect or efficiency of a judgment rendered at such a “ session ” upon the defendants’ property, or in so far as the provisions of the attachment statutes in question, as to the satisfaction of judgments rendered at the same term, we can perceive no difference between such a “ session ” and an ordinary term of the court. At a term of a court the court is “ opened and in session these words, in so far as the power involved is concerned, mean no more nor any less than the words “in term ” would mean if they had been used at the same place *160in the same statute. The real purpose of the attachment acts was that judgments rendered at the same session of the court should be satisfied in the same manner, and those rendered on a rule day are as much within this purpose as those rendered at a session which we usually call a regular or special term.

The construction which we place upon the words “ same term” used in the order of Judge Foster, is “same rule day,” and as no judgment was rendered at any other term, no other construction is tenable. So construing' his language, the order should be affirmed, and it will be so ordered.