Sanford v. Huxley

18 Vt. 170 | Vt. | 1846

The opinion of the court was delivered by

Royce, J.

The right of appeal was first given to a trustee by the statute of 1842, while the right of a party appellant to tender a confession of judgment (twelve days or more previous to the term of the county court, to which his appeal was taken) had long existed. It had been conferred by a statute relating to the jurisdiction of justices of the peace, passed in 1821, and again by the 49th section of Ch. 26 of the Revised Statutes. The question is now raised, whether a trustee has succeeded to this right of tendering a judgment by confession, as an incident to his right of appeal. And before the question can be answered affirmatively, it must appear, that the judgment, when confessed, would possess the attributes ascribed to such a judgment by those previous statutes, and that it would harmonize with all the material provisions of the statute of 1842.

Now the statutes, which had authorised the confession of judgment after an appeal taken, had made such a judgment final and conclusive to as great an extent as any other judgment, and had expressly provided, that execution might issue upon it. But a judgment charging a trustee is subject to be avoided by contingencies, and is never final and conclusive, but to certain purposes. If the principal defendant satisfies or avoids the judgment against himself, that against the trustee has thereafter no legal effect. So if no judgment is obtained against the principal defendant. Judgment against the trustee does not conclude the principal defendant in regard to the sum due, as between them, nor does it protect the trustee, except for payments made under it, or such as he continues bound to make. Neither would it seem, that execution is to issue against the trustee in a case like the one here stated. The Revised Statutes do not, in terms, authorise the issuing of execution directly against the trustee in the first instance, except when he is adjudged liable upon default of appearance ; and the statute of 1843 directs, that judgment shall be rendered against him as in case of default, if he improperly refuses to disclose. Such an execution is likewise authorised by the statute of 1842, when the trustee is adjudged liable upon a cash debt to the principal defendant, which has become payable, when judgment passes against such defendant. Perhaps it is also given by implication, when the trustee is rendered liable by reason of some fraudulent contract with the principal defendant. Rev. Stat. Ch. 29, sec. 34, and Acts of 1843, p. 9. It wouldseem to be a just conclusion from the existing statutes, that, except in the cases now stated, execution is to go against the principal defendant; and if the trustee fails to make payment upon it, as contemplated by law, or to expose such defendant’s property in his hands to be taken upon it, that the creditor’s remedy is to be sought in an action on the case.

But objections even more obvious and decisive arise from the wording of the act of 1842. It should be borne in mind, that, while the rights of the principal defendant are based upon the general law regulating suits between party and party, those of the trustee are dependent upon certain statutes relating exclusively to the trustee process. The former, like other suitors, has always enjoyed the ordinary right of appeal; but the latter did not possess it, until it was given by the statute referred to. It may be farther remarked, that the right of an appellant party to confess a judgment, instead of prosecuting his appeal, is a distinct and additional right, conferred at a time comparatively recent. In its nature it is not properly a qualification, or incident, to the right of appeal. And when it is considered, that proceedings against a trustee are but slightly analogous to the course of common litigation, and rather in the nature of an inquisition to ascertain and secure the principal debtor’s property, we are not prepared to admit the trustee’s right to confess a judgment in this manner, when none of the trustee statutes have expressly given or recognized it. The statute of 1842, so far from granting such a right, prescribes the same proceedings to be had in the county court, as if the suit had been originally brought before that court. It farther provides, that, when the trustee appeals, and 'no appeal is taken by the principal defendant, the county court shall affirm the judgment of the justice against the latter without cost. And again, that, if the trustee fails to enter his appeal in the county court, the judgment of the justice against him may there be affirmed. These enactments are explicit and positive, apparently contemplating no mode of intercepting the progress of an appeal, when taken by the trustee. Much less do they confer upon the justice the new and additional power of affirming the judgment against the principal defendant. This is expressly required to be done by the county court. And since that court could not act in the matter, after the appeal had been terminated by a confession of judgment, it follows that both the confession and affirmance here relied upon were unauthorised by law.

The plea is defended on another ground. It is urged, that enough is alleged in the plea, and admitted by the demurrer, to disprove the plaintiff’s title to the note in suit, and at the same time to establish the title of Gibson. But no measure of interest in Gibson, whether regarded as a legal or merely equitable interest, could extend to the right of action upon the note. That must be in the plaintiff, because the note was made payable to him and was not negotiable. And since it is not pretended, that the present action is prosecuted without the privity of Gibson, or against his will, the plea can in no view be held to present any legal defence. It might be otherwise, had the defendant’s confession of judgment been a legal and effectual mode of terminating the trustee process against him. In that event it might be considered, that the plea disclosed an interest in Gibson, which his creditor was entitled to attach and hold by the trustee process. But as the process now pleaded did not terminate in any final and valid judgment, the note necessarily ceased to be bound by it; and the plaintiff became entitled to sustain his action upon the note, notwithstanding any property which Gibson should appear to have in it.

Judgment of county court reversed, and judgment that the plea in bar is insufficient. Cause remanded for trial upon the plea of which no disposition has yet been made.