Mays v. Compton

13 Ga. 269 | Ga. | 1853

By the Court.

Lumpkin, J.

delivering the opinion.

We think this a clear case for the defendant in error.

[1.] At March Term, 1840, of the Superior Court of Butts County, Robert C. Mays obtained judgment against Pleasant M. Compton and Thomas C. Taylor, for the sum of $846.61, on a note made by Isaac Low, Pleasant M. Compton, and Thomas C. Taylor securities. Execution was issued in favor of Mays, and he collected one-half of the amount from Compton, and attempted to enforce the fi. fa. against Taylor for the other half. This was resisted by Taylor, on account of certain equities existing between Mays and himself. And although ho was compelled to advance his moiety of the debt, which he did on the first of November, '1842, yet Mays was finally decreed to refund the amount so paid by Taylor.

. Mays now proposes, in 1851, when more than seven years have elapsed, to levy his execution upon Compton’s property; and that too under the pretended authority of a decree, rendered in Pike County, in the ‘ Chancery proceeding, between Taylor and himself, and to which Compton was no party. And upon Compton’s claiming the protection of the Dormant Judgment Act, he is met with this response, “It is true, that so far as you are concerned, no effort has been made to collect this debt; but the case has been in litigation in the Courts, and that will prevent the bar of the Dormant Judgment Act from intervening for your benefit.”

To all of which the obvious reply, on the part of Compton, is, “ The diligence to which you refer, was a matter not only wholly between yourselves, but was adverse to my rights and interest. Taylor and myself, when the. original judgment was rendered in your behalf, against us’ jointly, interpleaded one another, as the record shows, and by a collateral issue then formally filed and regularly tried, it .was solemnly settled, and found that it was not true, as Taylor subsequently set forth in his bill, that he was security for the as well as for Low; and further, that it was not true, as he therein and thereby represented, that before the rendition of the said judgment in your favor, or even the commencement of the suit, that I had received from Low, the principal, a large amount of assets sufficient to satisfy your demand. Our relation to this contract, as between us, was thenceforth no longer an open question. It was to all intents and purposes, and for all coming time, res adjudieata. We were joint securities. All this too, you knew. For you were party plaintiff to the record. You stood by, heard the proof, witnessed the trial, and entered up your judgment, in accordance with the finding of the Jury. And yet, upon the back of all this, to evade the illegal agreement which you made at the same time with Taylor, without my knowledge, to prevent' him from pleading usury, which he swears in his bill he was prepared to do and prove, and thus defeat any recovery in your behalf against either of us, the usurious interest, as he claimed, being sufficient to cover the whole amount of your judgment; in my absence, and in a proceeding to which I vías no party, you come, relying on a decree awarded by a Court which it is acknowledged had no jurisdiction over me, to the effect that your execution is to be opened against me, and its payment pressed, until all my means are exhausted!

I deny the validity of your decree so far as I am concerned, and plant myself upon the time honored-maxim, res inter aolis acta alteri nocere non debet. A transaction between two parties ought not to operate to the prejudice of-a third.”

[2.] We hold that this plea is unanswerable, and unhesitatingly sustain it. The Judges in the Duchess of Kingston’s Case, (11 Howell’s State Trials, 261,) say, “ It is certainly true, as a general principle, that a transaction between two parties injudicial proceedings, ought not to be binding upon a third party. For, it would be unjust to bind a person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment which ho might think erroneous, and therefore the deposition of witnesses in another cause in proof of a fact, the verdict of a Jury finding the fact, and the judgment of the Court upon facts found, although evidence against the parties and all claiming under them, are not to be used to the prejudice of others.”

What is the situation of this case, then ? The execution is dormant, unless kept alive by this Chancery proceeding between Taylor and Mays, and .the decree against Compton. But he cannot be affected by either, because he was not actually nor in consideration of law, party or privy. And the same were prejudical to his interest. He is consequently entitled to stand upon all his legal rights.

If it be true, as alleged in Taylor’s bill, but which statement was negatived by the verdict of the Jury upon the collateral issue, that Compton has received assets from Low, sufficient to pay Mays’ debt, and for that purpose, then Equity would treat him as a trustee for the creditor. And as intimatecl by my brother Warner, (in 7 Geo. Rep. 238,) Mays would be entitled, upon the establishment of this fact, in a proceeding instituted by him against Compton, directly for this purpose, to obtain a decree for the'balance of his debt, provided other obstacles be not interposed to defeat his recovery. What they are, or may be, it is not for me to suggest, lest it be invoked as instructions to control the judgment of the Court in a suit not yet brought, and which soon may 'be.

Judgment affirmed.