Percy v. Foote

| Conn. | Aug 15, 1869

Hinman, C. J.

This is an action of debt on a judgment of the Superior Court. One defense to it was a former judgment for the defendants in an action upon the same judgment rendered in April, 1860. In point of fact that judgment was rendered in an action for fraud under the 370th section of the staürte in relation to civil actions, (Gen. Statutes, page 85,) in which the judgment now in suit, and the debt upon which it was founded, was set up as the matter in respect to which the plaintiffs claimed to have been defrauded. The issue in that case was upon the plea of the general issue with notice that the debts had been discharged by proceedings in insolvency. But there was no proof that there was any evidence of the discharge in insolvency produced upon that trial. Nor does it appear, except in the mere notice itself, that any such claim was made. And as it is obvious that the plaintiffs in order to recover in that action must not only have proved their debt but the fraud also, and as it is as consistent with the recovery of the defendants that the failure on the part of the plaintiffs was owing to their inability to prove the fraud as that it was in consequence of their having no debt that was the subject of fraud, that judgment upon its face can be no answer to this action. Armstrong v. Ayres, 19 Conn., 546; Betts v. Starr, 5 Conn., 550" court="Conn." date_filed="1825-06-15" href="https://app.midpage.ai/document/betts-v-starr-6573953?utm_source=webapp" opinion_id="6573953">5 Conn., 550. Indeed fraud may be said to be the gist of the action, without which it could not be sustained at all, and the proof of the debt is part of the proof necessary to establish the ■ fraud, since the fraud must have been in respect to the avoidance of the debt, and where there is no debt to avoid there can of course be no fraud. We are satisfied therefore that the judgment relied upon by the defendants is no bar to the present action.

Again, the judgment on which the suit is brought was rendered in .September, 1856. The defendants made an assignment in February, 1856, and such proceedings were had in the probate court that in February, 1857, that court decreed the discharge of the defendants from all claims against them founded on contract existing at the time of their assignment in February, 1856. The question therefore is, whether this judgment, rendered several months after the date of the assignment, was included in that discharge; and we are of opinion, that it was not, because it came into existence after the date of the assignment. This precise question was before us in the case of Waterman v. Curtiss, 30 Conn., 135" court="Conn." date_filed="1861-09-15" href="https://app.midpage.ai/document/waterman-v-curtis-6577931?utm_source=webapp" opinion_id="6577931">30 Conn., 135, and it was decided that a similar discharge from debts existing at the time of the assignment was no discharge of a judgment debt obtained after the date of the assignment. Similar decisions have been made in other states, but it is unnecessary to allude to them particularly, as a recent case of our own court should of course control our decision.

We advise judgment for the plaintiffs for the full amount of their former judgment and interest.

In this opinion the other judges concurred.