Kelsey & Halstead v. L. M. Wyley, Parish & Co.

By the Court. Warner, J. delivering the opinion. — 376 — [1.] The main question made in this case is, whether the Court below erred in directing that the points made at the last term of that Court, for its decision and judgment were the same which had been made before it at a previous term, and brought before this Court on a writ of error, in the case of Wiley, Parish & Co. vs. Kelseys & Halstead et al. 9 Geo. R. 117. The Court below was of the opinion, that the questions made at the last term of that Court, were evidentially the same as those adjudicated by this Court between the same parties, in the case above referred to, and so ruled — holding that that Court, to use its own language, was “in mncidis” with regard to the questions then made before it by the plaintiffs in error. To determine this question, we must examine the facts, as the same appeared in the record before us at Decatur, August Term, 1850, and as the same appear in the record now before us. The facts of the case, as the same appeared in the record before us on the former occasion were, that at the October Term of Houston Superior Court, in the year 1846, a judgment was rendered by that Court, in which it was “ ordered and adjudged by the Court, upon the evidence of the plaintiff’s counsel and an inspection of the record, that the Clerk had issued an execution upon a judgment rendered in favor of L.M. Wiley, Parish & Co. vs. T. & S Williams, through mistake, for the sum of $753 95, instead of the sum of $1753 95 : and it is further ordered and adjudged by the Court, that the execution so erroneously issued be, and the same is hereby cancelled and annulled, and that the Clerk forthwith issue a fi. fa. for the correct amount of the judgment, nunc pro tunc; and also, that the late Sheriff, George M. Duncan, do enter upon said fi. fa. so to be issued, any levy or payment which may have been made or received upon the execution erroneously issued, as aforesaid.” ,In pursuance of this judgment of the Court, it appeared that the new fi. fa. issued, and that George M. Duncan, the then late Sheriff, made several entries thereon, which had previously been made on the fi. fa. erroneously issued, so as to make the entries on the new fi. fa. correspond with those made on the fi. fa. which had been issued through mistake for the wrong amount, the last of which is dated January, 1840. It also appeared} that this new — 377 — fi. fa. had been .proceeding to collect money out of the defendants for some years after it had issued, and had once been before this Court, when it was held not to have been a dormant ft- f«- This judgment of the Court upon which this new fi. fia. was based, remained in full force, unreversed and unimpeached, when at April Term, 1850, of Houston Superior Court, a motion was made to set aside this new fi. fa. issued under the authority of that judgment, upon the following grounds: “ 1st. Because said fi. fa. bears date the 28th day of October, 1846, more than seven years after the signing of the judgment from which it issued; that it is attested by Angus M. D. King, as Judge, who was not at that time Judge, and signed by J. Jordan, as Clerk, who was not at that time Clerk of this Court.” “ 2d. Because said fi. fa. is not an alias fi. fa. and contains entries prior to its date — the original fi. fa. having been by order of Court set aside, cancelled and annulled, by order of this Court.” “ 3d. Because the judgment from which said fi. fa. purports to have issued, was dormant, said fi. fa. not having issued within seven years from the time of signing said judgment.” “ 4th. Because the judgment from which said fi. fa. was issued, is, and was dormant before the said fi. fa. was issued— the original fi. fa. issued therefrom, not having any entry made thereon by the proper officer for more than seven years from the time it was issued.” “5th. Because the said original fi. fa. was not erroneously issued, but was correctly issued, and that the said original was dormant, and the said established fi. fia. was erroneously established, and contained entries which were not on the original fit. fa. and said entries were erroneously placed on the said established fi. fa.” It also appeared, that the Court below sustained the motion to set aside the new fi. fa. issued under the authority of the judgment rendered in October, 1846, upon the grounds above stated, and declared the same to be absolutely null and void. This judgment of the Court below having been — 378 — brought before this Court on a writ of error, it was reversed, on the ground that the judgment of the Supreme Court which authorized the new fi. fa. to issue, was unreversed and could not be attacked or set aside, in the collatteral manner proposed. Now, by an examination of the first, second, third, fourth and fifth grounds taken to set aside the new fi. fa. it will be discovered that not one word is said about attacking the judgment of 1846, for firaud. Every ground taken in support of the motion is an attack upon the fi.fa. issued under the authority of the judgment of October, 1846. The motion on the trial of that case in the Court below, was not to set aside the judgment of the Court rendered in October, 1846, but the motion was to set aside the fi. fa. based upon, and supported by that judgment, which this Court ruled could not be done, so long as the judgment remained unreversed and unimpeached, for the reason stated. To have set aside the ñ. fa. which was based upon and issued under the authority of the judgment of October, 1846, upon the grounds taken for that purpose, would have been in effect, to have declared that judgment void and a nullity, without any attempt ever having been made to reverse it for error, or to impeach it for fraud. So long as the judgment maintains its ground as a valid subsisting judgment, the process which was issued in pursuance of its authority will be maintained, notwithstanding such judgment may have been erroneous. 6 Peters’ R. 8. The attempt made on the former trial in the Court below (as the grounds taken clearly show) was, to attack the fi. fa. and in that collateral manner, to destroy the legal effect and operation of the judgment rendered by the Court, in 1846. There was no attempt made then to attack the judgment of the Court rendered in 1846, for fraud; there was no such ground taken or' assumed in the record. The fifth ground assumes, that the newfi. fa. was erroneously established, but it is nowhere alleged that the judgment establishing it was fraudulent. We have now seen what were the facts contained in the record, which was before this Court at its -August Term, 1850, as well as the judgment of this Court upon those facts. Now let us — 379 — proceed to examine the fads contained in the record now before us, as transmitted from the Court below. It appears from the record now before us, that the junior judgment creditors of T. & S. Williams, (to wit:) C. & G. H. Kelsey & Halstead et al. tendered an issue upon the Sheriff’s return, by which they traversed and contested the right of L. M. Wiley, Parish & Co. to have the money in the hands of the Sheriff, raised from the sale of the defendant’s property, applied to the payment of their fi. fa. and moved the Court to set said fi. fa. aside, and the order and judgment of the Court, passed at the October Term, 1846, authorizing said fi. fa. to be issued, and cancelling and annulling the original fi. fa. which was issued from the judgment between said parties, at the April Term, 1839, of said Superior Court, upon the following grounds: “ 1st. Because said order and judgment, passed in October, 1846, authorizing said fi. fa. to be issued, was fraudulently obtained, and that the Court was fraudulently deceived, and induced to pass said judgment by false representations by the parties thereto; that the original execution which was issued from the judgment between the parties in 1839, was issued by mistake, for $753 96 cts. principal, called for by said judgment, and also, that the said original fi. fa. contained entries by the proper officer, whereby it was saved from the operation of the Dormant Judgment Act, and that the same, together with the judgment from which it issued, was not dormant, when in fact, said original was correctly issued for the sum of $1753 96 cts. principal, as called for by said judgment, and the said original fi. fa. did not contain entries by the proper officer, as required by the Dormant Judgment Act; and the same, together -with the judgment from which it issued, was dormant at that time. By means of which fraudulent and false representations and pretences, said Court was deceived and induced to pass said judgment prejudicial to the rights of said C. & G. H. Kelsey & Plalstead, and the other junior creditors aforesaid.” - “ 2d. Because the parties plaintiff and defendant to said judgment, passed in 1846, in fraud of the rights of the said C. & G. H. Kelsey & Halstead, and the other junior judgment creditors, — 380 — colluded together for the defendants to consent that said order should be passed by the Court, knowing that said original fi. fa. was correctly issued, and did not contain entries by the proper officers, but was dormant, and that said junior creditors were entitled to a legal preference.” There are other allegations and specifications taken in the motion to set aside the judgment, but being embraced in such a multitude of words, we have omitted them. We have, however, extracted enough from the record, to demon strate that the motion made in the Court below, was not only to set aside the fi. fa. but to set aside the judgment of the Court upon which it is founded, on the ground of the several allegations and specifications of fraud, mentioned in the issue tendered for that purpose. In Williams vs. Martin, (7 Geo. R. 381,) this Court held, that when a judgment, in an issue formed, comes in conflict with the rights or interests of third persons, not parties, or previous to such judgment, they may aver against it, may impeach it for fraud, and prove the fraud. The parties representing the junior judgment creditors, offered to prove the several allegations of fraud made in the issue tendered, in regard to the judgment obtained in October, 1846, but the Court rejected the evidence, on the ground that it was “in vinculisf that the judgment of this Court rendered at Decatur, in August, 1850, bound that Court to reject the evidence of the alleged fraud, in obtaining the judgment of 1846. The Court below, in alluding to the judgment of this Court on the former occasion, touching this question held, “ that the judgment of the Supreme Court overrules the present mode of attack, for if the judgment was then assailed collaterally, this is also a collateral attack; the modes of assault then, and now, are the same.” We have been unable to discover the binding force of the judgment of this Court in that case, as applicable to the state of facts in this case. We have shown by the record of the case before us on the former occasion, that there was no motion made to1 set aside the judgment of October, 1846, or to impeach it in any way whatever for fraud, or other thing — that the attempt then made, was to set aside they?, fa. issuing upon that judgment, and thus indirectly, or collaterally, destroy its legal effect and operation, which we then held, and — 381 — now hold, could not be done. But is the mode of attack on the judgment of 1846 now made, the same as made on tire former trial ? The junior creditors now make a direct attack upon that judgment, and move the Court to set it aside for fraud, and tender an issue in which the several allegations of fraud are specified. If the junior creditors desire to get the fi. fa. issued in pursuance of the judgment of 1846, out of their way, they must first remove the foundation upon which it rests, which they are now attempting for the first time to do. On the former occasion, they made an attack on the fi. fa. but did not attack the judgment. On the former trial, the junior creditors attempted to set aside the fi. fá. issued in pursuance of the judgment of the Court, in October, 1846, on motion, and in that indirect or collateral manner, sought to attack and destroy the legal force and effect of that judgment; for, if that judgment was good for anything, it was good and effectual to maintain the validity of the fi. fa. which had been issuedin pursuance of it. If it could not do that, then, for all legal purposes, it was a nullity, and to have set aside the fi. fa. on motion, would have been in effect, so to have declared, without any direct proceeding whatever, to impeach or set aside such judgment. The facts as contained in the record on the former trial, most clearly show, in our judgment, that then there was an attempt on the part of the junior creditors to set aside the fi. fa. issued in pursuance of the judgment of 1846, and in that indirect and collateral manner, destroy the legal force and effect of that judgment; whereas, the facts, as contained in the record now hffore us, conclusively show that the junior creditors, instead of attempting to set aside the fi. fa. alone, made a motion to set aside the judgment of 1846 for fraud, and make a direct attack upon it, by tendering an issue for that purpose. On the former trial, the junior creditors attacked the judgment of 1846 indirectly and collaterally, by attacking the fi. fa. which issued in pursuance of it. On the last trial, they attacked the judgment of 1846, directly, by alleging it was fraudulently obtained, and offered to prove it; and that constitutes the difference between — 382 — the two eases. In the one case we held, it was not competent for the junior creditors to attack the judgment of 1846 collaterally, by attacking the fi. fa. which issued in pursuance of it. In the other, we hold, that it is competent for the junior creditors to attack the judgment of 1846 directly for fraud in obtaining it, as alleged in the issue tendered, and to prove the fraud, if they can do so, on the trial of the issue. [2.] The Court below appears to have been impressed with the idea, that that Court in 1846 had no jurisdiction to adjudicate the question in regard to the entries directed to be made by the then late Sheriff, George M. Duncan, on the new fi. fa. directed to be issued by the judgment rendered in 1846. The Superior Court is a Court of general jurisdiction, and the rule is, as stated by this Court in Grier vs. McLendon, (7 Geo. R. 364,) that nothing shall be intended to be out of the jurisdiction of a Superior Court of general jurisdiction, but that which specially appears to be so. Had notthe Superior Court in 1846, jurisdiction of the subject matter of the judgment ? Most clearly so, in our judgment. What is the fair and reasonable interpretation to be given to that judgment, according to the rule above stated, in respect to the entries directed to be made on the new fi. fa. ? The Court by its judgment, ordered a new fi. fa. to issue in the place of an old one which had been issued for the wrong amount, nunc pro tunc, and'also directed, “that the late Sheriff, George M. Duncan, do enter upon said fi. fa. so to be issued, any levy or payment which may have been made or rec eived upon the execution, erroneously issued as aforesaid.” Now, we are bound to presume that the Court in 1846, did not act in reference to the questions then before it, without evidence; but on the contrary, we are bound to presume in favor of the judgment, that there was evidence before the Court that there were entries made on the old fi. fa. by George M. Duncan, the then late Sheriff; and for the purpose of having the same entries made on the new fi. fa. which were made on the old one, the testimony of George M. Duncan was resorted to, for the purpose of ascertaining the true state of the facts, inasmuch as the law requires Sheriffs to keep an execution docket. We are bound to — 383 — presume, in support of the judgment, that the Court was satisfied, from the evidence before it, that entries had been made on the old fi. fa. by the then late Sheriff, George M. Duncan, because the Court orders the same entries to be made on the new fi. fa. not by George M. Duncan as Sheriff at that time, but for him to make just such entries on the new fi. fa. as hehadmade on the old one, while he was Sheriff, nunc pro tunc; the Court first being satisfied from the evidence before it, that the entries ordered to be made by Duncan, were the proper entries, ascertained by reference to his execution docket, or to his entries on the original fi. fa. That we cannot presume that the Superior Court in 1846, awarded a judgment in reference to the entries to be made on the new fi. fa. without satisfactory evidence before it, we think is very clear. It having been established, then, to the satisfaction of the Court in 1846, (as we are bound to presume,) that there had been levies and other entries made on the original fi. fa. previous to that time, by George M. Duncan, while acting as Sheriff, the Court orders that the same entries shall be made by him on the new fi. fa. then ordered to be issued, as had been made by him while Sheriff, on the old fi. fa. nunc pro tunc. The entries on the new fi. fa. derive all their legal force and effect from the judgment of the Court, ordering the new fi. fa. to be issued — not from the fact that George M. Duncan, the late Sheriff, made the entries thereon in 1846; for he was only the instrument, acting under the authority of the Court. If the Court had selected any other individual to have made the entries on the new fi. fa. which had been proved to have been made on the old one by George M. Duncan, as Sheriff, while acting in that capacity, the entries would have been of equal validity. The fair and reasonable presumption in favor of the action of the Court in 1846 then, is, that George M. Duncan, having been Sheriff at the time the entries were made on the old fi. fa. he was called as a witness to prove what those entries were, either from his execution docket, or from the old fi. fa. as it then appeared in the Court, or from his best recollection ; and the Court being satisfied with his evidence in regard to that point, ordered him to make the same entries on the new fi. — 384 — fa. as had. been made by him on the old one, nunc pro tunc. The Superior Court, in 1846, not only had jurisdiction of the question then before it, but we are bound to presume, and do presume, that it exercised its jurisdiction in awarding the judgment in relation to the new fi. fa. and the entries thereon, upon sufficient evidence to have authorized that judgment; and until it shall be reversed, or impeached for fraud, it is conclusive as to the subject matter which it purports to decide. Let the judgment of the Court below be reversed.