2 Va. 56 | Va. | 1843
This is an attempt, by motion, to defeat a judgment, for matter of abatement which occurred prior to the judgment. The defendants in the action resist the process of execution, chiefly on the ground that the charter by which the plaintiffs were incorporated expired at a certain period ; and that, period, it appears by their own shewing, was antecedent
Matter of abatement either shews the action to be abatable, or that it is de facto abated. The former usually exists at the time of the suit; the latter for the most part occurs during its progress. The first must be pleaded in technical form, and at a proper stage of the cause. The last may be, but need not be, pleaded ; and when apparent or made known to the court, will be declared by its order at any time, in any stage of the suit. A few examples will illustrate this distinction, and serve to throw light upon the question before us.
Misnomer of the plaintiff or defendant in the writ and declaration must be pleaded in abatement; and if not so taken advantage of, the cause proceeds to judgment and execution, according to the erroneous designation of the party. The execution must strictly pursue the judgment, and be warranted by it; and therefore if a defendant be sued by a wrong name, and omit to take advantage of the misnomer, he may be arrested on a ca. sa. by such wrong name. 1 Archb. Pract. 304. Crawford v. Satchwell, 2 Str. 1218. The plaintiff in' that case brought trespass and false imprisonment by the Christian name of Archibald; the defendant justified under a capias ad satisfaciendum upon a judgment against Arthur, and averred that the plaintiff in the then action was the same person who was sued in the former by the name of Arthur: and on demurrer the court held it a good plea, the defendant having missed his time for taking advantage of the misnomer, which should have been by pleading it in the first action. And the court said that in the case of a bond given in a wrong name, the obligor must be sued by that wrong name, and the execution must pursue it.
And to come nearer the present case, if the plaintiff be dead at the time of action brought, this can only be alleged by plea in abatement, and a judgment, if recovered against the defendant, is in the name of the dead plaintiff; and process of execution may be sued out and acted upon in his name.
In these and other instances that might be given of matter for which the writ is merely abatable, the defendant is liable to an estoppel not only by force of the judgment, but also by reason of his failure to object the false designation, or the disability, or the nonexistence of the plaintiff at the time of action brought; which omission is considered a waiver of the objection on his part. It is this latter consideration which prevents the judgment from being erroneous; for the court is consequently not bound judicially to know the fact: and
On the other hand an abatement de facto, for matter of abatement occurring after the commencement of the suit, rests on a somewhat different principle. I need only notice the case of death of the plaintiff or defendant after action brought. In such case the action, though well brought, cannot properly proceed when one of the parties has become extinct. The objection may come from either side, at any stage of the cause, and need not be pleaded in any shape or form. It is equally incumbent on both sides to give information of the fact to the court; and it is at their peril that those who conduct the demand or the defence take judgment for or against the dead party. To give effect, however, to the abatement, it must be declared by the act of the court; for though, in the language of the books, the cause is abated de facto, yet the abatement must be judicially pronounced. But whether so pronounced or not, it is equally error to render judgment for or against a dead man. If the death appears upori the face of the record, it is error in law ; if it does not so appear, it is error in fact: and in either case the judgment may be reversed by writ of error; in the former, by a writ of error in an appellate court; in the latter, by a writ of error coram nobis in the same court.
Such is the uniform rule of the common law in abatements de facto by the death of a party pending the action, at any time before final judgment. It applies to all cases, whether before or after a decision upon the merits, whether the cause of action does or does not survive to the representatives of the deceased party, and whether the death be that of a sole plaintiff or defendant, or of one of several joint plaintiffs or defendants. In these respects the rule has been modified
But though it is error to render judgment for or against a party who has died pending the action, it by no means follows that the judgment is void. On the contrary, it is valid and effectual to all intents and purposes until reversed by a writ of error, and can be in no wise impeached or impaired in any supplemental or collateral proceeding. In Jourden v. Denny, 2 Bulstrode 241. in which such a judgment was reversed, Coke said, “If judgment be given against a dead person, this is not void, but to be reversed by a writ of error, for there ought to be a court, a plaintiff, and a defendant; nominatim,, that it is not to be avoided by averment, but by a writ of error.” The estoppel is not so extensive as in the case of death before action brought; for there, as already stated, even a writ of error is precluded. But it repels all averment or evidence (except by writ of error) of an essential fact, virtually affirmed by the judgment; to wit, the continued existence, at the time, of the party for or against whom the judgment was rendered. The estoppel, however, is only in support of the judgment, and does not obstruct its most convenient and beneficial execution. The judgment may therefore be revived for or against the representative of the deceased party, by a scire facias suggesting the death subsequently to the judgment; which suggestion the estoppel prevents from being traversed, for that would be equivalent to an averment that it occurred before. But a.scire facias is not at all essential, and execution, if in due time, may be sued out in the names of the parties on the record.
That there can be no averment or evidence of the death before judgment of a party for or against whom it was rendered, in any supplemental or collateral proceeding, whether it be a new action, or a scire facias to obtain execution, or consequently in avoidance of execution, is very clear upon authority. In 1 Rolle’s Abr. 742. the following strong cases are put: “ If the tenant in a cui in vita dies seized pending the writ; and, after, judgment is given against him, which is erroneous; and, after, the recoveror sues execution against the heir, and he brings an assize; he shall not avoid this judgment against his father, by saying that his father died pending the writ; for the judgment is not void, but only voidable.”—“ If a man recover in an ejectione firmce, and then his executor sue execution per scire facias against the recoveree, the recoveree cannot avoid the judgment, nor stay execution, by sa}ring that the testator died between verdict and judgment, or the like, but is put to his writ of error : and by the claries, such pleas have been divers times disallowed.”—“ So if a man recover land in any real action, and then sue execution against the heir of the recover ee per scire facias, it is no plea for the heir to say that his father died pending the writ, but he is put to his writ of error.”—“If a man recover against the principal, and sue a scire facias against the bail, they cannot say that the principal died before judgment, for that is to avoid the judgment by plea which is contrary to the record.” It is correctly stated in 1 Rob. Pract. 585. (in conformity with the decision in M’Farland v. Irwin, 8 Johns. R. 78.) as a settled rule, that the defendant cannot plead any matter to a scire facias on a judgment, which he might
Thus it will be seen that according to the principles of the common law, a disability of the plaintiff to prosecute his action, whether occurring before or after its commencement, cannot be relied upon after judgment as a defence against the process of execution. It is in vain to argue that the disability is a general one embracing all process whether before or after the judgment, and that it is no good objection to the evidence that it proves a continued disability, extending before as well as after. The answer is that the disability is not a substantive fact, but a consequence of the fact of death, natural or legal, which must have occurred at a precise period of time; that the estoppel excludes proof of its having occurred at a date prior to the judgment; and that its occurrence since is in the very teeth of the evidence. The argument was overruled in Lambert v. Cameret, coram Holt, C. J. at nisi prius, Comberbach’s R. 446. In that case, it is true, the death occurred before action brought; but the principle is the same where it occurs pending the action ; the only difference, as already shewn, being, that in the former the estoppel is
These principles of the common law must govern the case before us. The charter of the bank expired pending the action, and before the rendition of the judgment upon which the process in question issued. The extinction of a corporation by efHux of time cannot be distinguished, as regards disability, from that of an individual by death. Both are placed upon the same
The circumstance that the expiration of the charter was between the verdict and the final judgment cannot influence this question ; for the statute of 17 Car. 2. ch. 8. § 1. already noticed, has no bearing upon the present case. By that statute (1 Bac. Abr. 12. title Abatement, letter F.) it is enacted, “ that in all actions., personal, real or mixed, the death of either of the parties between verdict and judgment shall not be alleged for error;” and by ours, in accordance with it, (1 Rev. Code 498.) “ in all actions, real, personal or mixed, if either party should die between verdict and judgment, such death shall not be pleaded in abatement, but judgment shall be entered as if both parties were living.” The terms of this statutory provision, it will be seen, are only applicable to the natural death of an individual, and do not embrace the expiration of an incorporated company. There is no construction according to the spirit or equity of the statute, which would extend it to the present case. The spirit of the statute was to prevent the action from being defeated after a decision upon the merits, even in cases where the right of action dies with the person ; and this was accomplished by making a death between verdict and judgment, in point of law, and against the fact, a death after judgment, so as there
The cause of the defendants is not at all aided by the proceedings which were had on the supersedeas to the original judgment in their favour upon the special verdict. The effect of those proceedings was to suspend and reverse that judgment, and produce a judgment de novo in favour of the plaintiffs. The original judgment was rendered in October 1831: the bank obtained a supersedeas thereto in June 1832: the charter expired in January 1835: the supersedeas was heard in April 1837; when this court reversed the judgment, and proceeding to give such judgment as the circuit court ought to have rendered, gave judgment for the plaintiffs for the debt demanded &c. which judgment was entered in the circuit court in May 1837. This
That the final judgment thus recovered by the plaintiff is not liable to contradiction, either directly or indirectly, nor to reversal by a writ of error, having been rendered by the highest judicial tribunal, is not a subject for regret, as it works no injustice. If the defendants are without remedy, it is because they have sustained no wrong. This alone would be a sufficient answer to the ancient writ of audita querela, which is an equitable action to be relieved from some oppression or injustice in the proceedings, where the party has had no day in court, nor can have a writ of error. 2 Wms. Saund. 148 a. b. c. 3 Bac. Abr. 56. Error. A. 1 Id. 424. Much less can the party avail himself of the modern substitute by motion, where the execution is in due time, is in conformity with the judgment, and there has been no abuse of that process, nor release or discharge of the demand. If the court, under such circumstances, could have the power to quash on motion, it would assuredly be merely discretionary; and it would be a strange exercise of discretion to sustain the motion in a case like this. Even before judgment the court, after a decision upon the merits, may refuse to arrest the proceedings on the ground of a supervening disability, upon the authority of Vanbrynen & others v. Wilson, 9 East 321. in which case the plaintiffs had become
The obstacles suggested in argument to suing out the process of execution, for want of the agency of some one authorized to act for the plaintiffs, seem to me merely imaginary. The authority of the attorney at law recovering the judgment is not extinguished by the demise of his client: the assignee entitled to the money has a right to issue and control the execution : and after the execution has issued, as in the present case, it is surely not competent for the defendants to allege that it was not issued by the plaintiffs.
I am wholly at a loss to perceive how, in a case like this, the regularity of the execution can be impeached, without impeaching the validity of the judgment, at
If the doctrine of the appellants be correct, it is very remarkable that no case has been produced by their learned counsel, and I presume none can be found, in which an execution has been quashed on the ground of the demise of the plaintiff before judgment, or in which an audita querela was sued out to prevent or set aside an execution on that ground; and that the writ of error should in such cases be the habitual and only recognized remedy. . To tolerate such á practice would, I apprehend, impair much the force and dignity of judgments, and not unfrequently lead to the renewal of controversies already had in the action, or a reservation of them till after an unsuccessful trial upon the merits; controversies which might sometimes involve questions of law and fact extremely troublesome and perplexing, occasioning great delay (as in the present case) in what ought to be the final administration of justice, and wholly unfit for the informal and summary remedy by motion. On the other hand, I cannot perceive any inconvenience in repelling such tardy efforts in abatement, or that doing so could occasion injustice in any imaginable case.
It will be seen that the whole argument against the regularity of the execution, in whatever form or shape presented, turns upon the assumption of the expiration of the charter more than two years before the rendition of the judgment; and if I have succeeded in shewing that evidence of the fact is inadmissible, or if admitted avails nothing, against the effect and operation of the judgment, then there is, as I conceive, an end of the
Thus, according to my view of the subject, where an execution is in due time and conforms to the judgment, it cannot be abated for any matter which occurred before. That the judgment of this court for the plaintiffs upon the special verdict was the final judgment in the cause, I think there can be no room to question. The writ of error, it is true, is a new action; but it is brought to have the proper judgment. “ Where a judgment is given for the plaintiff, and the defendant brings error, there shall only be judgment to reverse the former judgment; for the suit is only to be eased and discharged of that judgment: but where the plaintiff brings error, the judgment shall not only be a reversal, but the court shall also give such judgment as the court below should have given ; for his writ of error is to revive the first cause of action, and to recover what he ought to have recovered by the first suit, wherein erroneous judgment was given.” Parker v. Harris, 1 Salk. 262. And where the judgment of the court below is against the plaintiff on a special verdict by which the debt or damages are ascertained, (as in this case,) the appellate court, in case of reversal, gives a new and complete judgment for the plaintiff to recover the debt or damages. 2 Wms. Saund. 101 x. Where the damages are not assessed, the judgment is of course in
The judgment of this court was not the less final, because the charter of the bank expired pending the writ of error. If, for that or any other reason, this court had abated the appellate suit, such abatement would not have extended to the original action, which was determined by the judgment therein; and the only effect of the abatement would have been to extinguish the supersedeas, leaving the judgment to which the writ of error had been granted in full force. But the appellate cause was not abated, and could not be, however strong-the reason, without the order of this court. This court, instead of directing an abatement, proceeded to hear and decide the cause; reversed the judgment of the court below; and gave a new and complete judgment for the plaintiffs. That judgment has the same effect and op
But I cannot doubt that the course of this court in declining or omitting to abate the writ of error, and proceeding, after reversing the judgment for the defendants, to final judgment for the plaintiffs, was perfectly correct; nor can I conceive how it can be regarded otherwise, without repudiating the principles recognized in the case of The Bank of Alexandria v. Patton &c. above cited. In that case a bill in equity was filed by the bank, to set aside a voluntary conveyance made by its debtor, and subject the property conveyed to the satisfaction of its demand. The chancellor, upon a hearing of the merits, dismissed the bill of the plaintiffs, who appealed, to this court. Pending the appeal, the charter of the bank expired, and the appellees moved the court, on that ground, to abate the appeal. But it being conceded that the bank, pending the original suit, and before the expiration of the charter, had made an assignment of its claim, this court refused to abate the appeal, and proceeded to hear and decide the cause. The decree of the chancellor was affirmed; but if it had been reversed, then this court, in its discretion, would have given the proper relief upon the merits, or
I will not say that where a party dies pending an appeal, in a case capable of revival, and the cause not
The view of the subject thus presented renders it unnecessary to consider the objections taken by the appellee’s counsel to the mode of presenting and reserv
My opinion is that there is no error in the judgment of the circuit court, overruling the motion to quash the first execution and the forthcoming bond, and awarding execution upon the bond.
The authorities bearing on the questions presented by this case have been fully reviewed by judge Baldwin. They clearly establish, that where matter in abatement existed prior to the suit, advantage must be taken of it by plea in proper time, and that after judgment the party is estopped, and cannot avail himself of it by a writ of error: and that where such matter occurs pending the suit, if not suggested or brought to the notice of the court before judgment, though a writ of error coram nobis in some cases may be prosecuted, the judgment until reversed estops the party from alleging the fact. And as a consequence from these principles, in all proceedings based upon the judgment and tending to enforce it, the party is concluded from availing himself of this error in the judgment. Thus the scire facias to revive is a mere continuance of the proceedings, and it is not competent for the heir or personal representative of the original defendant to set up his death before judgment, in
It is argued, that to impeach the regularity of the execution, in a case like this, is to impeach- the judgment for the purpose of execution; and that as there can be no revival, if it be not good for that purpose, it is good for nothing in the cause. This might be con
At common law, the death of a sole plaintiff or defendant abated the suit. 2 Tidd’s Pract. 1168. The statute of 17 Car. 2. ch. 8. provided that the death of either party between verdict and judgment should not be alleged for error. Under this statute, judgment is entered for or against the party as though he were alive. Weston v. James, 1 Salk. 42. But there must be a scire facias to revive it before execution. Earl v. Brown, 1 Wilson 302. In the case just cited, the plaintiff died after verdict and before judgment: judgment was entered and execution taken out, without any scire facias sued out by the plaintiff’s representative: and the whole court held, that though by the 17 Car. 2. ch. 8. the judgment was regularly entered, yet the fi. fa. is
If then there is no authority for the position assumed, that in case of death before judgment, a scire facias was not essential, and execution might be sued out in the names of the parties on the record ; but on the contrary the common law did, whenever there was such change of parties, require a scire facias; the whole argument derived from the doctrine of estoppel and the adjudication of the fact, falls to the ground. The estoppel applies only where the attempt is made to impeach the validity of the judgment for that cause. In such case the party is precluded by the judgment from
The case of The Bank of Alexandria v. Patton &c. 1 Rob. 499. is supposed to have some bearing on this question. In that decision I concurred, for the reasons assigned in the opinion delivered, and also because I felt satisfied that in this court there was no necessity for a revivor in any case; that though it might be convenient, when a death occurred, to apprize the parties
The argument pressed upon us as to the merits of the case, and the inconvenience, is not entitled to much weight if the law is obligatory. But in truth, where is the inconvenience or hardship complained of ? If the corporation had expired by efflux of time after judgment, I presume there could be no pretence that an execution could issue in its name; for in that case, this technical doctrine of estoppel would not apply. There would be no judgment determining, against the fact, that that was existing which had ceased to exist. Yet in such case the judgment would remain, as in this, entitled to all the respect of a judgment, whenever enforced in a proper way by the party entitled to enforce it. But on the other hand, serious inconvenience, if
It seems to me that the court should have overruled the motion for a judgment on the forthcoming bond, and quashed the execution.
It is not questioned that if a corporation becomes extinct by the expiration of the term of its corporate existence, pending a suit at law for a corporate demand, and that fact be brought regularly
Assuming the foregoing propositions as unquestioned or unquestionable, the enquiry is, by which of them should the case in judgment be ruled ? The case that the record presents is that of a corporation plaintiff existing at the time of the original judgment in the court below, and at that time, according to the judgment of the court of appeals, entitled to judgment against the
The principle on which the second proposition rests is, that the expiration of the charter before original judgment was a fact on which the defendant might have protected himself from the judgment, and if properly brought to the judicial cognizance of the court, would have denied to the court judicial capacity not only to render the judgment, but to proceed in the cause; and the legal intendment is, that the fact of the continued existence of the corporation was conceded or proved. Is such the predicament of the case in error ? Does the judgment in error necessarily import that the parties are existing at the time of its rendition, so as to create an estoppel to the denial of that fact, in proceedings in execution of the judgment? This enquiry must be answered in the negative. It has been the constant practice of this court, where natural persons are the litigant parties, to proceed to judgment as though such persons were living, if the death occurs between the argument of the case and the judgment, though the judgmenl be rendered months or even years after the death: and on the return of such a judgment
The evidence that was offered to shew that the corporation had ceased to exist at the time the execution issued in its name, was, I think, prima facie proof thereof, and, uncontrolled by other proof, ascertained-that fact: and that being ascertained, it established that the execution on which the forthcoming bond was taken issued irregularly, and the court ought to have overruled the motion for award of execution on the forthcoming bond, and to have sustained the motion to quash that execution and the bond taken under it. This would have left the judgment rendered by this court to the fate to which the extinction of the corporation consigned it. If any party, by virtue of a transfer from the corporation during its existence, was beneficially entitled to the avails of the judgment or the subject involved in the controversy, though that party could not have a legal remedy by suing out execution in the name of a nonentity, an expired corporation, I do not doubt that his equitable title would be protected by a court of equity, and his claim to the avails of the judgment enforced in that forum against the party chargeable.
I think the case of Rider v. The Union Factory, 7 Leigh 154. ought to govern this case, as I thought it ought to have governed the case of The Bank of Alexandria v. Patton &c. 1 Rob. 499. I differed from the rest of the court in the last mentioned case, because I could not see that an ex parte exhibition of a deed of assignment by the bank before the expiration of its charter, (not to be found in the record, and not noticed in the pleadings) could be made the ground
Judgment reversed, and execution and forthcoming bond quashed.
Note by the reporter. The ease of Agnew v. The Bank of Gettysburg, 2 Harr. & Gill 478. shews the necessity of bringing the fact before the court in a regular way. This was an action of assumpsit brought the 30th of July 1824 by the bank against Agnew, and the plea was the general issue. At the trial on the 15th of February 1826, the plaintiffs, to shew that when the suit was commenced they had a right to sue, gave in evidence letters patent whereby it appeared that at the time the suit was brought they were an existing corporation. But the same letters patent shewed that the charter was limited to the first day of April 3825, and so had expired between the time of bringing the suit and the time of trial. The defendant prayed the court to instruct the jury that from the evidence the plaintiffs were not entitled to recover. This instruction the court refused to give; and verdict and judg