White River Bank v. Downer

29 Vt. 332 | Vt. | 1857

The opinion of the .court was delivered by

Redfield, Ch. J.

I. In regard to payment, it seems to us the testimony did not tend to show it. It is true that the surety would, perhaps, as soon have paid it if he had not a purpose to serve by keeping the debt on foot. But the money did not go into the hands of the creditor, and there was a design that it should not, for the very purpose of preventing the payment. It was nothing more than giving security by way of collateral, and depositing money to obtain the collateral. Here is nothing done which would hinder the bank from enforcing the judgment hereafter for their own benefit if the collateral should prove unproductive. There does not appear to have been- any absolute surrender of the ultimate control of the judgment by the creditor. But the attorney consented that the party should control it, and brought this suit by his direction. The case does not seem to indicate payment any more than that of Ætna Insurance Co. v. Wires & Peck, 28 Vt. 93. And not as much, perhaps, as Low v. Blodgett, 1 Foster 121; Edgerly v. Emerson, 5 Foster 555, or McIntyre v. Miller, 19 M. & W. 724.

II. The argument that the suit was brought before the judgment became final seems to admit of many answers, but chiefly that whenever the party is entitled by law to take execution the judgment must be regarded as final for all purposes. The case of Day v. Lamb, 7 Vt. 426, goes upon this ground. The ordinary time for taking execution being the day after the rising of the court,

. this is to be reckoned the first of the eight 'years, and the day corresponding to the day preceding, as the last of the eight years of the statute of limitations. In this view, so far as this point is concerned, the amendment becomes immaterial, and so of the testimony offered to show when the writ was in fact served.

III. The plea in regard to the execution is that it was in full life and in the hands of an officer at the time of the commencement of this suit; and that both before and after the commencement of this suit the officer levied for portions of it upon the defendant’s property. But at the very time the suit was instituted the first levy was finished, and the second was made some time subsequent. So that at the time the suit was brought all that could be said to exist in regard to this was that the execution was in life and in the hands of an officer. This does not seem to be different in principle from the mere right to take execution and put it into the hands of an officer; Clark v. Goodwin, 14 Mass. 237. The effect of a judgment upon the original judgment before the levy is completed it is not necessary to consider. And the defendant has the full benefit of the levy made in defense, and of the vexatious character of the second suit in the taxation of costs. The question seems to resolve itself into the inquiry whether the judgment in that condition constituted a present indebtedness. No question arises in the present case in regard to the effect of the record showing the execution outstanding and unaccounted for, as in this case the execution is accounted for.

And if the liability to execution does not change the character of the debt in this respect, neither does the fact of an .execution being in the officer’s hands. The debt is the same, and the necessity of a suit is the same practically. But so far as the debt is actually levied at the commencement of the suit, it constitutes no such indebtedness as will lay the foundation of an action, probably, as if the whole execution had been levied upon the body or property, but no satisfaction realized at the time.

So the pending of a writ of error, even if it supersede the execution, will not hinder an action of debt on the judgment; Tit. Error Bac. Ab. 479.

IV. The substance of the last plea, undoubtedly, is that no final and conclusive judgment was made at the commencement of the action, an'd not that the county.court was then in session, which, as we have seen, is not essential to the main proposition of the finality of the judgment.

But as the officer’s return then stood the suit was brought after the court adjourned, and of course all judgments of the term had become final. And this return could not be contradicted or explained by extraneous evidence, even the copy left by the officer which is no part of the return, of which the court will judge by inspection, commonly. But a copy is extraneous and requires proof of identity, and is in no sense part of the return.

And the amendment, being made after the judgment, cannot render it erroneous. An amendment will cure error, but cannot create it.

Judgment affirmed.