Hardee v. Stovall, Simmons & Co.

By the Court Nisbet, Judge. The defendants in error, Stovall, Simmons & Co., instituted suit in Burke Superior Court, against Enoch Byne — at the trial term, Byne confessed Judgments to the plaintiffs, and upon this confession, Judgment was duly entered up. Stovall, Simmons & Co., appealed, and at the [95] November term of tho court, 1843, with the consent of the appellee, withdrew their appeal. After the confession of Judgment to Stovall, Simmons & Co., and before the withdrawal of the appeal, Noble A. Hardee et al. plaintiffs in error obtained Judgments against Enoch Byne. Money being raised by the execution, issued on the Judgments of the plaintiffs in error, by sale of the property of Enoch'Byne, the defendant, was claimed in the hands of the Sheriff, by Stovall, Simmons & Co., and upon a motion to distribute, the court below ruled that the lien of the Judgment of Stovall, Simmons & Co., took date from the time of the confession at common law, and not from the time of the withdrawal of the appeal, as was claimed by the plaintiffs in error, and ordered the money to be paid to them. The error alleged is founded on this order, and the decision of the court as to the lien of those judgments upon which it is based. The question, therefore, for this court to determine is, whether the lien of a judgment at common law, from which an appeal has been taken by the plaintiff and withdrawn, dates from the time of the judgment at common law or not. It is the opinion of this court, that under such circumstances, the lien takes effect from tho date of the judgment at common law. In cases where the appeal is dismissed by order of the court, as, for example, want of security, or because of insufficient security, it will scarcely be questioned, but that in such cases the lien of the judgment is good from the time it was first obtained. The dismissal of the appeal is the judgment of the court, remitting all parties to the condition and rights which they occupied and held at the time tho appeal was entered ; and at that time the plaintiff had a perfect judgment, with all the liens which attach to it by law. Such, too, we think is the case when the appeal is withdrawn. The consent of the. appellee that the appellant withdraw his appeal being approved by the court, he is remitted to the condition and rights which he occupied and held at the time he entered his appeal. In the latter case the consent and withdrawal does what is effected by the court itself in the former. If in either case the judgment has not been signed, but a verdict rendered, it is our opinion that the verdict is revived, and judgment may as matter of right, upon exhibition of the record showing the dismissal or withdrawal of the appeal, be entered up, nunc pro tunc. Tho truth is, that the lien of fhe judgment at common law is not extinguished by the appeal, but suspended. It is not true, although the appeal opens all the merits of the issue, that it vacates the first judgment or verdict. This effect is worked, only when, there being a rehearing, there is a new verdict rendered, and a judgment on the appeal, and not even then, as we shall see, so as to authorize alienation of property, intervening the two judgments. The appeal is entered, and, indeed, the privilege of the appeal is given, for the benefit of the appellant. After the appeal is entered, there are cases in which the appellee acquires by that fact additional rights, but the rights of all other persons remain the same. If, then, the parties alone interested consent to a withdrawal, who is injured thereby, and who has a right to complain ? Not the defendant at common law, because he occupies no worse position than he would have held had there been no appeal — not other judgment creditors, for their rights are neither greater nor less than they would have been without [96] the appeal. The court does not see the force of the objection, that title to property which has been sold during the suspension of the lien, will be disturbed by a resale. The title of property sold under a valid subsisting judgment is good, and will be protected against any and all judgments open against the same defendant; much more conclusively is it true, that such a title will be good against a judgment, whose lien was at the time of sale suspended by the act of the plaintiff, and as to that sale extinct. It does not, however, follow that money raised from the sale of the defendant’s property may not be applied to the. revived judgment. So long as that is in the custody of the court, or its officer, it will- control its distribution and apply it to the oldest liens. — Hotchkiss, 599. By act of the Legislature, the right of an appellant to withdraw his appeal, with the consent of the appellee, is recognized ; and it may be fairly assumed that the consequences which we have held to flow legit-, imately from the withdrawal, are also thereby recognized. — Prin. Dig. 426. In the argument of this cause, it was contended that any fair construction of the act of December, 1822, defines what shall be the lien of judgments upon withdrawn appeals, and limits that lien to the date of the withdrawal. It does not seem to us that this is a fair construction of that act. That act was intended to apply to cases, upon which, on the appeal, there was a judgment rendered, and so far as such cases are concerned, fixes the date of the lien at the time of its rendition, except to prevent alienation of property between the signing of the first judgment and the signing of the judgment on the appeal. It does not apply at all to appeals withdrawn. To bring any case within the provisions of this act, there must be a rehearing and judgment on the appeal. In this case there was not, and could not be in the nature of things, a judgment on the appeal. — Prin. Dig. 45. By the second section of the same Act, it is provided that “ all judgments signed on verdicts rendered at the same Term of the court be considered, held and -taken to be of equal date, and no execution founded on said judgments, obtained at the said Term aforesaid, shall be entitled to any preference by reason of being first placed in the hands of the officer.” It is upon this section that we plant the opinion now rendered. Aside from all other reasoning, it is sufficient for us, that the Legislature has declared, that all judgments signed on verdicts rendered at the same Term, shall be of equal date, thus fixing the date of all judgments at the Term they are signed, and of consequence their lien at the same time. It is true, as urged by counsel for the plaintiffs in error, that this section was intended to repeal that provision of the Act of 1799 which gave preference to executions first in the hands of the officer. But this was not its only intention ; because it repeals the Act of 1799, as stated, it does not the less declare, “ that all judgments signed on verdicts rendered at the same Term of the court shall be considered, held and taken, to be of equal date.” > It is therefore the opinion of the court, that the judgment of the Circuit Court in this cause be affirmed.