Epstein & Bro. v. M. Ferst & Co.

Liddon, J.: Appellants filed their bill of complaint in the Circuit Court against the appellees. The respective firms of complainants alleged that they were judgment and execution creditors of the defendant F. R. Sweat, and The purpose of the bill was to set aside, as fraudulent .against creditors, a mortgage upon a stock of merchandise made by said Sweat to his co-defendants Ferst & Co. The defendant T. T. Ellison was made a party because he had been appointed a receiver in proceedings by Ferst & Co. to foreclose the said mortgage, and had, by virtue of an order of the court, taken possession of the mortgaged property. The complainants in the present case upon their own application had been made parties defendants in the foreclosure proceedings of Ferst Co. against Sweat, and had sought as prior lienors and judgment creditors to defeat the mortgage upon substantially the same allegations of fraud as are contained in their bill of complaint in the present case. In such proceedings they had filed an answer and a cross-bill. Their answer, being considered as a demurrer, was overruled, and on demurrer thereto, the cross-bill was dismissed. This order of dismissal was general, but the said defendants (complainants in the present case), upon notice, afterward obtained a modification of the decree, wherein it was decreed “that the — 509 — decree of this court, * * whereby the demurrer of the defendants I. Epstein & Bro. and G. Eckstein & Co. to the bill of complaint was overruled, and the demurrer of the complainants to the cross-bill of the' defendants I. Epstein & Bro. and G. Eckstein & Co. was sustained and cross-bill dismissed, be and the* same is hereby modified so that the same shall be-without prejudice to the rights of the defendants I. Epstein & Bro. and G. Eckstein & Co. to take such other proceedings as they may be advised is necessary to assert their rights.” The defendant answered the bill of complaint, ancL the first matter of defense urged in the answer is, that the matters thereof had already, in the proceedings of Ferst & Co. vs. Sweat et al., been adjudicated in defendants’ favor. Various other matters were alleged in the pleadings, and testimony was taken by the* respective parties. Such portions of the pleadings and proof as are necessary to the proper understanding of the points-decided in this opinion will be hereafter referred to.. The bill of complaint on final hearing was dismissed,, and from this decree an appeal is taken. First, as to the defense of res adjudícala: The present complainants were parties, upon their own motion, to the proceedings in which the mortgage now sought, to be attacked was foreclosed. It is useless to discuss, whether in such proceedings their rights in the matter were or could have been properly adjudicated. By the-practically unanimous agreement of the authorities, a decree of a court of chancery, especially one dismissing a bill of complaint, and stated to be without prejudice to a party, is, as to such party, the same as no-decree, and will not support a plea of res adjxcdicata. The very same matters in issue in the original suit can. — 510 — be again heard and determined. 2 Daniell's Chancery Pleadings and Practice (6th ed.), 994; 2 Beach’s Modern Equity Practice, § 644. In a late decision in Rhode Island (Reynolds vs. Hennessy, 17 R. I. 169, text 175, 20 Atl. Rep. 307, 28 Atl. Rep. 639) we find the following: “The court dismissed the bill without prejudice to the right of the complainant to prosecute the present action at law, which had then been brought. The intention and effect of such a reservation in a decree are, by express terms, to prevent it from operating as .a bar to another suit. A dismissal ‘without prejudice’ leaves the parties as if no action had been instituted. Magill vs. Mercantile Trust Co., 81 Ky. 129; Lang’s Heirs vs. Waring, 35 Ala. 625, S. C. 60 Am. Dec. 533; Durant vs. Essex Company, 7 Wall. 107, 109; Ballentine vs. Ballentine (Pa.), 15 Atl. Rep. 859. It has been held that such a reservation prevents the bar, even though it has been erroneously incorporated in the decree. Wanzer vs. Self, 30 Ohio St. 378; Gunn vs. Peakes, 36 Minn. 177, 30 N. W. Rep. 466.” Reynolds vs. Hennessy, 17 R. I. 169, text 175, 20 Atl. Rep. 307, 23 Atl. Rep. 639. See also Northern Pacific R. R. Co. vs. Paul, M. & M. Ry. Co., 47 Fed. Rep. 536; County of Mobile vs. Kimball, 102 U. S. 691, text 695; Mobile & Ohio R. R. Co. vs. Davis, 62 Miss. 271; Ragsdale vs. Vicksburg & Meridian R. R. Co., Ibid, 480; 2 Black on Judgments, § 721. The complainants in the suit of Ferst & Co. vs. Sweat et al. prosecuted their bill for foreclosure to final decree. This final decree is not in the record. We can not tell whether complainants in the present case were or were not named as parties defendant in said decree, or whether the case was treated as dismissed as against said defendants. The burden of proving this defense rested upon the defendants, and in the absence of the — 511 — final decree from the record we can not say the present complainants were parties defendants to it. From such of the record as is before the court, they seem to have been eliminated from the case. From what has been said, it follows that there was no efficacy in the defense of a former adjudication. . The complainants claim to be judgment creditors of the defendant Sweat. It is conceded that it is necessary that they should be such judgment creditors before they can maintain their present suit. The defendants, Ferst & Co., in effect, deny that the complainants are such judgment creditors — alleging in their answer that as to the judgments and executions upon which the complainants base their claims, defendants are informed and believe that the same are illegal and void, and deny that the same were properly obtained. The judgments in favor of the two complainants severally were practically in the same form (a slight difference between them being hereinafter noted). The declaration in either case contained only common counts, but contained all the usual common counts known to the law. No bill of particulars was attached to either declaration, and both were filed November 2d, 1885. On the same day, in the case of Eckstein against the defendant Sweat, was filed a paper in the following words and figures: “In the Circuit Court, Madison County, Fla. Gustave Eckstein, doing business under the name and style of Gustave Eckstein & Co. vs. Farley R. Sweat. And now comes Farley R. Sweat, defendant in this cause, and waiving process of summons, or other notice, and says that he acknowledges that he is indebted to the plaintiff, Gustave Eckstein, doing business under the name and style of Gustave Eckstein & Co., in the sum of five hundred and twenty-three 09-100 — 512 — dollars, with interest at seven per eentxom per annumfrom the first day of October, A. D. 1885, as alleged in his declaration; that he consents that the plaintiff have judgment for said sum, to be entered on the first-Monday in November, A. D. 1885. F. R. Sweat. Oct. 31st, 1885. Attest: J. N. Stripling.” A similar paper, except that the signature of Sweat' was not attested, and the amount of indebtedness mentioned was $769.48, was filed in the case of Epstein & Bro. vs. Sweat. Judgment in the same form was entered in each case. The Eckstein judgment was as-follows: “In the Circuit Court, Third Judicial Circuit of Florida, Madison County. Gfustave Eckstein, merchant doing business under the-firm name of Gustave Eckstein & Co., vs. Farley R. Sweat. And now, this the 2d day of November, A. D. 1885, comes the plaintiff, by his attorney W. R. Boyd, and moves for a final judgment; and the defendant Farley R. Sweat having waived process of summons and further notice, and consenting to a judgment for the-amount specified in the plaintiffs’ declaration, with interest at 7 per cent, from the first day of October, 1885; and the damages having been assessed by the-clerk at five hundred and twenty-six dollars and fourteen cents ($526.14) principal and interest: Therefore it is considered by the court that the plaintiff Grustave-Eckstein do recover of and from the defendant Farley R. Sweat the sum of five hundred and twenty-six 14-100 ($526.14) dollars, together with their costs, now taxed at one 43.100 ($1.43) dollars, and that the said, plaintiff have execution therefor. * * ” — 513 — It does not appear that there was- any process, or prsecipe for same in the case. The question arises, what is the force and effect of such a judgment? Cam a clerk of the Circuit Court, who is purely a ministerial officer with only statutory powers, enter a valid judgment in a proceeding of this kind? Admitting such, a paper to be a confession of judgment, had the clerk, the authority to enter a judgment upon such a confession made without service of process, when no suit was pending, and without any appearance by the defendant or any proof that he executed such a confession. Clearly there is no statutory authority for such action in this State. The only statute at that time upon our statute books providing for judgments by confession were expressly limited to the courts of justices of the peace. McClellan’s Digest, sec. 63, p. 642, sec. 71, p. 643, and subdivision 7 of sec. 6, p. 630. The only circumstances in which the clerk could enter a judgment in an ordinary action at law are set forth in the statute (sec. 36, p. 82 McClellan’s Digest). Judgment upon confession before suit brought is not included in the act. We think the judgment void for want of any power or jurisdiction to enter it. The paper purporting to be a confession of judgment did not specially authorize the clerk to enter it. Admitting, for the sake of the argument, that the clerk might, under any circumstances, enter a judgment upon a confession of judgment before suit brought, he could not do so under the circumstances of the present case. We think the judgment void not only Tor want of jurisdiction over the subject-matter, but for want of jurisdiction over the person of the defendant. It is not shown that the defendant appeared in the case. There was no proof before the clerk that the defendant signed the paper upon — 514 — which, judgment was entered. All that can be said of it is, that it purported to be signed by the defendant. It would be a most dangerous doctrine to permit clerks to enter judgments upon papers of this character without any proof that they are genuine. Even in those States which permita judgment to be taken upon a power of attorney given for that purpose, it is held that judgments entered upon such powers of attorney without proof of their execution, are void for want of Jurisdiction obtained of the defendant. Gardner vs. Bunn, 132 Ill. 403, 23 N. E. Rep. 1072, 7 L. R. A. 1729. Prom what has been said it follows that the complainants (appellants here) are not judgment creditors, •and are not in a situation to attack the fraudulent conveyance by their debtor. This being the situation, all that part of the record alleging, and tending to prove, a fraudulent conveyance is excluded from the consideration of the case. There is no error in the record, and the decree of the «Circuit Court is affirmed.