35 Conn. 97 | Conn. | 1868
This is a writ of scire facias, signed by a justice of the peace, and not, as it should have been, by the clerk of the Superior Court. On account of this irregularity the Superior Court, on the defendant’s motion, made several terms after the case had been pending in court, and had been regularly answered to by the defendant without any objection to the regularity of the process, ordered the case to be erased from its docket. But the Court of Errors held this erasure thus ordered to be erroneous, on the ground that the defendant, by not taking advantage of the irregularity earlier, had waived it, and thereupon reversed the order erasing the case from its docket. See 34 Conn. R., 181. The cause was restored to the docket of the Superior Court at its September term, 1867; and on a trial at that term the issue was found for the plaintiffs and judgment rendered in their favor; and from this judgment the defendant now brings before this court his motion in error, and also a motion for a new trial;
The erasure from the docket was the act of the Superior Court, and not the act of the party, and this court has held it to be an erroneous and wrongful act. But it was not a judgment in the ordinary sense of that word. The rights of the parties in respect to the subject matter of the claim were not fixed by it, and no costs were recoverable as in the case of an ordinary judgment. But as, unreversed, it put an end to the proceeding, we held the order to be a final judgment within the meaning of the statute authorizing writs and motions in error to be brought, since otherwise the plaintiffs would have been wholly remediless. Yet in a legal sense it was rather a refusal to try and determine, and thereupon render a judgment in the cause, than any judgment whatever. The effect, therefore, of the reversal of the order was to leave the cause as if it had never been made. The order ceased any longer to have any effect whatever, or properly any existence ; and being rendered wholly void, it was effectually destroyed and removed out of the way by the reversal of it. It appears to us, then, that it was rather the duty of the clerk, when knowledge of the reversal of the order was communicated to him, without any motion to or action by the court, to re-enter the case upon the docket. He would most clearly have- been justified in so doing without any action of the court directing it' to be done. It was unlike the ordinary reversal of a judgment of the Superior Court. In that case it does not ordinarily appear from the face of the judgment reversed, or of the judgment of reversal, or of both, of them together, that further proceedings in the cause will be neces
But again,it is said that, however this maybe, the re-entry can be made only at the first term of the Superior Court next succeeding the term of the Supreme Court of Errors at which the order of erasure was reversed. That this is the practice in the ordinary case of the reversal of a judgment of the Superior Court on a ground which shows that the action can still be maintained, there can be no doubt. But in a case of this sort, where it was the duty of the clerk to make the reentry without any formal remanding of the case to that court by the Court of Errors, the Superior Court on discovering or being informed that the clerk had not re-entered the cause, might and ordinarily would order the clerk to re-enter it for trial. As a matter of practice in the Superior Court no doubt this ought generally to be done at the first term of that court next after the reversal. But we have no doubt that circumstances may justify a departure from this general practice. And as in this case the plaintiffs had reason to suppose that the re-entry would be made without any suggestion from them, we can not say that the Superior Court acted improperly in holding that the plaintiffs were not chargeable with laches in not seeing that it was done at an earlier day. Besides, it being the duty of the clerk to make the entry, we are of opinion that in point of law it may well be deemed to have been done at the time it ought to have been, and may therefore be treated as if in fact it had been done at that time. And unless the delay of the plaintiffs’ counsel is so great, in a case like this, in examining the docket and calling the attention of the court to his case, as justly to be deemed a waiver of the
The same questions which we have considered on the motion in error are again raised upon the motion for a new trial, and need not again be discussed.
The defendant also insists that he should not have been charged with interest on the money in his hands. But the finding shows that the defendant,'when he received this money, mingled it with his own funds in one common mass, from which he withdrew so much as he had occasion to use from time to time as he saw fit; and at times he did not have on hand an amount of cash equal to the amount for which this suit was instituted. As, therefore, he actually had the use of a part of this fund, and as he treated it all as if it was his own, and as he did not keep it by itself, or so keep if that he could pay it over to the rightful owner when called on for that purpose, he clearly ought to pay interest.
It is, however, claimed that the defendant is not liable for interest to the plaintiffs, even if he would have been liable therefor to the original debtors for whom he collected the money, because the interest, it is said, is not due by reason of any contract, but only as damages for the detention of the money, and damages it is claimed can not be attached. But we can not recognize the principle that should allow the plaintiffs to recover the debt and not allow them to recover the interest which is the mere incident to the debt arising from the defendant’s use of it. In Adams v. Cordis, 8 Pick., 260, it was held that where a debtor was summoned on the trustee process, and he continued to use the money, he was chargeable with interest up to the time when the money was demanded on the execution; but that where interest was recoverable by the principal defendant only as damages for breach of contract, it will not accrue during the pendency of the trustee process. But we think this last proposition inconsistent with the theory of our process of garnishment, in which the factorizing creditor is entitled to claim all that the debtor could claim of his debtor. And this court has carried out this principle to an extent that seems to us to be decisive of this ques
We are therefore of opinion that there is no error in the judgment complained of, and a new trial is not advised.
In this opinion the other judges concurred.
