Chichester v. Cande

Woodworth, J. delivered the opinion of the Court. He went much at large into the facts of the case, which were — 50 — scattered through a great variety of papers, and gave the opinion of the Court on several minor points, which I have not deemed it material to notice. -He then spoke to the principal points nearly as follows: We have considered this case as deliberately and fully as we think its importancé and novelty require ; and we.are — 51 — satisfied that the respective applications of these parties are addressed to the sound discretion of the Court. We do not forget that we ase bound by decisions, as far as they can be made to apply to such a case ; but we do not find ourselves tied down by these to any particular course of proceeding. The whole tenor and scope of the cases appear to call for a — 52 — very extensive exercise of discretion in (he amendmení of proceedings conducted in good faith, by filling the chas me which may have intervened through accident or mistake ; especially in a case where (he person whose rights are to be affected has had full information that the proceedings are perfect, and has gone on under the idea that they were so. — 53 — Wé feel less delicacy in going for this purpose to the utmost limit of our power, when it is plain that no one can suffer from its exercise. The amendment of proceedings must, in a great measure, rest upon this consideration. Here is not a struggle in relation to the avails of a freehold estate, the disposition of which might be controlled by — 54 — the priority of the judgments, which are in themselves lieiisi upon that kind of property ; but it relates to the personalty, which is bound by an execution alone. A knowledge that there was or was not a judgment in existence, could in no way be material to Russ, or the creditor who assigned to him, for the reason that ajudgment, se, could not affect their rights.The important facts in relation to this case were perfectly understood by all the- parties in jnterest, as early as May term, 1822, when, the subject was before this Conrt upon a-disclosure of those- facts. The money now in question was — 55 — ra warded to Chichester & Van Wyck. and the rights of the parties fully setiled. Now here is nothing in fieri. The various executions were levied—a sale made under the direction -of the Court—the avails paid into Court, to abide our order, which awarded the money to Chichester & Van Wyck—and that money has been actually paid. The order of the Court has been executed. It is, at least, doubtful, on this ground alone, whether we have power to disturb the dispositions which have been made—whether this money has not passed beyond the bounds of our summary jurisdiction. It is true that a matter once passed upon, in this way, is not deemed technically res judicata. It may be opened. We will hear it again, upon good cause being shewn ; but where the order made has been carried into full execution, and the party has gone off with the avails in his pocket, it is deserving of great consideration, at least, whether we can bring him back into Court upon motion, and dictate the course he shall take, whatever additional light may be thrown around the subject; and this, in a special manner, where all has gone forward in good faith. Take the case of a motion to enter satisfaction upon the judgment roll, on the ground that the money has been paid : the defendant swears to the payment, which the plaintiff as solemnly denies : the case being balanced, the motion is denied. At another term, the defendant renews his application, upon the ground that he has since discovered a release, or receipt of the plaintiff, acknowledging that he had received the money. We might hear the application, and grant the necessary relief, provided the judgment yet remained in fieri; but suppose, in the mean time, that the money had been paid to. and pocketed by the plaintiff, I should doubt the power of the Court to afford redress in this manner. The suit is at an end, and the whole becomes a matter in pais. So of a motion for a new trial, on the ground that undiscovered evidence was behind, which is refused; and the judgment perfected and execution had ; a second application would hardly be received, under such circumstances, however strong the appeal. There is a point at which these summary applications should cease, like every other litigation, for the sake of certainty and social quie.L. — 56 — But there is a precedent which is very direct to bear us out in amending this proceeding on the part of Chichester & Van Wyck, even were the money now in the hands of the Clerk. I allude to the case of Close v. Gillespy, (3 John, Rep. 526.) A judgment had been signed and docketed upon a warrant of attorney; but, through mistake, the name of the defendant’s attorney was neither subscribed to the cognovit nor inserted in the roll. Mancius, having obtained a subset quent judgment against the defendant, a motion was made by the plaintiff to amend the proceedings nunc pro tunc. Now that record was invalid. Both parties considered it so; and the application was opposed because the rights of Mancius Were to be affected by the amendment. Executions on both judgments had been delivered to the Sheriff, the execution of Close being first delivered, and both he aná Mancius claim-: <ed a preference ; yet Close was allowed to amend, though both executions were levied on the same property. The Judge who gave the opinion of the Court, declares broadly, (and in this he is sustained by all the authorities) “ I cannot perceive that our right to amend, in case of the mistake of one of our officers, is to be controlled by the effect which is to be produced in another case. All amendments affect, more or less, third persons.” That ¡rase is much in point; and, indeed, appears to me precisely parallel in principle with the one before us, the application for an amendment in which comes strongly commended to us by the principles of justice. Chichester & Van Wyck had a judgment and execution, perfect in every particular, as it respects personal property, except in the mere formality of filing in the Clerk’s office. Instead of being answered by a constructive docket-notice, which was deemed sufficient for the junior creditor in Close v. Gillespy, Russ had actual notice, in the most explicit manner, by an execution and levy. We leave h;m in possession of all the rights upon which he could ever calculate, in legal propriety, without granting his motion. This must be denied ; and Chichester & Van Wyck must take the effect of their motion to amend. Sutherland, J. It is, perhaps, proper to add, that in forming the opinion which has been delivered, we must not — 57 — be understood as questioning the case of Barrie v. Dana, or as doubting that, in aii cases, the roll should be filed before execution can issue. We have been governed much by the peculiar circumstances attending this particular case. The subsequent creditor knew of the judgment, and relied solely on technical ground to defeat it. We hear no complaints from the party defendant. Rule accordingly.