Terry v. Dickinson

75 Va. 475 | Va. | 1881

Staples, J.,

delivered the opinion of the court.

This case is governed in its main points by the principles laid down in Neale v. Utz et als.—just decided. In that case, it will be remembered, the judgment assailed was recovered against a penitentiary convict. In this case it was recovered against a debtor in the military service of the Confederate States upon process issued whilst the defendant was in such service. From what has already been said, such a judgment cannot be successfully assailed in any collateral proceeding. The present bill was not filed by the debtor himself, but by his assignee in bankruptcy, more than twelve years after the judgment was recovered.

In addition to the ground that the judgment is null and void, because recovered against a defendant in'.the military service, it is insisted that no declaration was ever filed in the case, and the proceedings were in other respects irregular. It has been seen, however, that such irregularities do not render the judgment void, although they may furnish .ground for a reversal by proper proceedings taken in due season in the court which rendered the judgment. These proceedings were taken in April, 1874, by the assignee in bankruptcy—a motion was then made by him in the county court to set aside the judgment upon the identical obligations of irregularity contained in the present bill, and that motion was sustained by the court and the judgment vacated. Upon a writ of error to the circuit court, however, the judgment of the court was reversed, and the assignee’s motion dismissed with the costs. From that decision no appeal was ever taken. Upon the most familiar principles a judgment of the circuit court upon a matter within its jurisdiction, so long as it is unreversed, is as binding and conclusive as a judgment of this court. It will be forever conclusive upon all concerned unless reversed within the prescribed period by the court which rendered the judgment, or by some appellate tribunal clothed with the necessary supervisory control and jurisdiction. (3 Peters, 193.) The judgment of the appellee cannot then be called in question upon either of the grounds suggested.

It only remains to consider the charge of usury made in the bill. In doing so, it is not necessary to discuss the question of jurisdiction. Conceding that the jurisdiction exists, the appellant has not made a case for relief in a court of equity. The bill contains a vague and general charge ofgusury. It enters into no explanation; it gives no information on the subject. So far from calling for a discoveryjfrom the appellee, it avers that the appellant desires none, and that he can prove that the bond was executed for a usurious consideration. The charge is positively denied in the answer. Two witnesses are introduced by the appellant, one of whom, Leftwich, the principal obligor, says that he traded the bond to the appellee at a discount exceeding six per cent. And this is all we have from this wit-. ness. Calloway, who is the surety for the debt, says he advised Mr. Leftwich at the time not to give the bond, because the appellee was charging him too much interest. And this is all he tells on the subject. Whether the witness acquired Ms information from Leftwich or from the appellee, we are left to conjecture. It cannot, therefore, be affirmed that there are two witnesses in support of the bill; and if this difficulty were removed, it is impossible to ascertain what was the usurious premium, or to what extent the bond is infected with it. If the court is to grant relief upon the terms usually imposed by courts of equity in this class of cases, what is to be the extent of the relief when neither parties nor witnesses can or will say, how much usurious interest was charged. Surely it will not be contended that now, after a lapse of eighteen years, this court, upon such testimony, is to set aside the judgment and grant a new trial, especially when no circumstances of fraud or surprise or undue advantage are proved or suggested.

There is nothing in the appellant’s case to commend it to the favorable consideration of a court of equity, and all of us are of opiMon to affirm the decree of the court below.

Decree affirmed.