L. M. Wiley, Parish & Co. v. Kelsey

By the Court. Warner, J. delivering the opinion. [1.] This is the fourth time the alias fi. fia. established by the judgment of the Superior Court of Houston County in 1846, has been before this Court. In Wiley et al. vs. Kelsey et al. (3 Kelly, 274,) it was held, that the execution was not dormant. In Wiley et al. vs. Kelsey et al. (9 Ga. R. 117,) it Ayas held, that the judgment of the Court rendered in 1846, establishing the alias fi. fa. in lieu of the original fi. fa. recited in such judgment to have been erroneously issued through mistake for the sum of $753 96, instead of the sum of $1753 96, as it appeared to the Court, by the statement of the plaintiff’s counsel, and on inspection of the record, Avas conclusive as to the facts which it purported to decide, until reversed or set aside, and that such judgment could not be collaterally impeached, or set aside by evidence Avhich that judgment declared to have been cancelled and annulled, to Avit: the original fi. fa. which had been produced, and offered in evidence for that purpose. In Kelsey et al. vs. Wiley et al. (10 Ga. R. 371,) it was held, that the judgment rendered in 1846 might be directly attacked for fraud and collusion, upon a direct issue made and tendered for that purpose. Such an issue having been made and tendered by the parties interested in the fund raised by the sale of the property of the defendants in execution, at the December adjourned Term of the Court, 1852, the question of fraud, by consent of the parties in interest, Avas submitted to the decision of Judge — 230 — Irwin, who, according to the agreement of the parties, was to pass his judgment upon all the matters of fact, as well as of lato. After hearing the argument of counsel, Judge Irwin decided, that the alias execution which issued under the authority of the judgment of 1846, should beset aside, on the ground that the judgment so rendered was fraudulently obtained. To which judgment, the plaintiffs in error excepted, and now assign the same for error here. We distinctly recognize the position assumed by the defendants in error, that the Court is bound to indulge the same presumption in regard to the facts, as it regards granting a new trial in this case, as if it had been submitted to a Jury for their decision and verdict. If the record discloses evidence of fraud and collusion, in obtaining the judgment, or discloses such facts from which a Jury would have been authorized to have found by their verdict that the judgment of 1846 was fraudlently obtained; or if the evidence is in conflict in regard to that point, then a new trial ought not to be granted. But if, on an inspection of all the evidence contained in the record, there is no evidence of fraud and collusion, and no evidence from which fraud could have been fairly inf erred by a Jury, in regard to obtaining the judgment in 1846, then a new trial should be granted. After the most careful examination of all the evidence contained in the record before us, we have not been able to find any evidence whatever which would authorize a Jury to have set aside and vacated the judgment of the Court rendered in 1846, for fraud', but on the contrary, the view which we take of the evidence submitted for that purpose, rebuts all presumption of fraud, in the rendition of that judgment. In the first place, we start with the legal proposition, that every thing is to be presumed in favor of the regularity and good faith with which this judgment of a Court of general jurisdiction was rendered. The only evidence offered to impeach it, is that of George M. Duncan, and the old ji. fa. which was cancelled by the judgment. Before we proceed to examine the evidence of — 231 — Duncan in detail, we will first recur to the judgment of 1846; for if the Court and the parties acted in good faith from the evidence before them, at the time the judgment was rendered, the subsequent development of new and additional facts, of which they were wholly ignorant, going to show that there was no mistake in the face of the old fi. fa., such new facts cannot be considered as an element of fraud, which will contaminate and avoid a judgment rendered upon evidence which was believed to have been true. There is not one tittle of evidence in the record, that any body had knoivledge, at the time of the rendition of the judgment establishing the alias fi. fa. that the original had issued for the correct amount on its face, when it was hacked only for the sum of $753 96. The judgment recites, “ that it appearing to the Coiu-t, by the statement of the plaintiff’s counsel and an inspection of the record, that the Clerk of this Court, by mistake, issued execution upon the above stated judgment, for $753 96, instead of $1753 96, called for by said judgment, itis ordered, &c.” The statement of the plaintiff’s counsel was doubtless made to the Court as one of the officers thereof, on his professional oath, and the record which was inspected, it may fairly be presumed, was the execution docket, on which the Clerks most usually enter the amount of the principal, interest and costs, of the executions issued by them, from the amount which is entered'on the back thereof. As wo have already stated, there is not one particle of evidence that any human being knew at the time the judgment was rendered, that the old fi. fa. on its face, had been issued for the correct amount; but when we come to look into Duncan’s testimony, it is made quite apparent, that all parties acted on the idea, that it had issued for the wrong amount, according to the indorsement on the back of it by the Clerk. After the alias fi. fa. has been issued several years under the judgment, and performing its appropriate functions, it is discovered that the old fi. fa. issued for the correct amount on its face, and that no entries had, in fact, ever been made upon it by the Sheriff. - This old fi. fa. is attached to interrogatories, to be exhibited to Duncan, the — 232 — former Sheriff, who swears “ that he was Sheriff of Houston County for the years 1834-’ 5-’ 8 — ’9, 1842-3, and Deputy Sheriff, for the years 1836-7, 1840-’l. He identifies the Ji. fa. as the genuine, original Ji. fa.; that it was in his hands while Sheriff and Deputy Sheriff. There never was any other fi. fa. in his hands from the same judgment, previous to October, 1846, and did not know of any other ji. fa. issuing from the same judgment previous to that time ; ho never made any entries, either of levy or payment, on said fi. fa. On cross-examination he states, that he does not recollect to have had the fi-. fa. in his hands since January, 1840 ; they?, fa. was backed for $753 96, when the face of it called for $1753 96. As Sheriff and Deputy Sheriff, he did receive money on said fi. ja. previous to a distribution in January, 1840, which money, he paid to Edward D. Tracy, plaintiff’s attorney, in January, 1850 ; heard nothing more of the fi. fa. until October, 1846. Witness did not pay to said fi; fa. all the money to which it was entitled, owing to an error made by the auditor, Charles H. Rice, to whom was referred the calculation upon the distribution of the funds on hand, among the several fi. fas., which error grew out of the error in baolcing the execution. He did place certain entries on the alias fi. fa. issued in October, 1846, which entries were then signed by him in obedience to an order of the Court passed at that time. Said entries were not made upon the same information I now possess. I then sup>posed said entries were on the annexed original fi. ja. it not being before me, and supposed to be lost. I had this fi. fa. in my hands at the time of the advertisement shown me in the Telegraph. Here the newspaper containing the advertisement of witness’ Sheriff’s sale for October, 1839, was exhibited to him. The advertisement recites that, on the first Tuesday in October, 1839, the property of the defendants in execution, T. & S. Williams, would be offered for sale, consisting of a stock of dry goods, ond other property, levied on to satisfy a fi. fa. in favor of George P. Cooper, and sundry other fi. fas. against T. & S. Williams. Witness says this old fi. fa. was one of the y?, fas. alluded to in the advertisement, and — 233 — was considered as levied, though the entry was not made on it. When the money was brought into Court, there were a great many fi. fas. seven or eight, claiming the money, and the Court referred the whole matter to Charles H. Reid, as auditor, to distribute it; he reported / about twenty-two cents in the dollar coming to each, and this among them, and I paid to Judge Tracy under that report, the amount entered on it. This Ji. fa. would have received more, but' was backed for $753.96, when it should have been $1753.96. I kept an execution docket part of the time, while Sheriff, but never entered his levies in it.” The substance of the testimony is, that there was no entry made on the old fi. fa. by the Sheriff, prior to October, 1846; that it was in his hands to be levied on the defendants’ property in time for the October sale in 1839, and was considered as levied thereon by him, though the entry of the levy was not made on the fi. fa.; that when the money arising from the sale of the defendants’ property advertised to be sold, and which was sold on the first Tuesday.in October, 1839, to satisfy sundry fi. fas. this one included among them, was distributed, this Ji. fa. received its pro rata share, considering the true amount of the fi. fa. only $753.96, which amount only, was paid.over to the plaintiffs’ attorney; that he made the entries on the alias Ji. fa. under the order of the Court in 1846, but said entries were not made upon the same information he now has, for he then-supposed said entries were on the -original fi. fa. which was not before him, and supposed to have been lost. - When the Court, in 1846, ordered the alias fi. fa. ,to be "issued for the correct amount, it also ordered, “that George M. Duncan,'late Sheriff, do enter upon said fi. fa. any levy, or payment, which may- have been made or received on the execution erroneously issued as aforesaid;” that is to say, the Court, after hearing the evidence of Duncan, as to what entries had been made on the old Ji. fa. by him, he ivas directed to make the same on the alias ji. fa. which he says he did, but the' same weie not made on the same information he now — 234 — has, in regard to the old fi. fa.; at that time, he supposed the proper entries had been made on the old A- fa. and did, as we are bound to presume from the judgment of the Court, so testify before the Court in 1846. There can be no doubt, we think, that the Court in 1846, decided right, according to the evidence then before it, in regard to the issuing the alias fi. fa. and the entries which were directed to be made thereon; but if the judgment of the Court had been erroneous, the effect thereof would have been the same, until reversed or set aside. Rut it is said that it now appears, that judgment was rendered upon a statement of facts which were false; that the execution issued for the correct amount, and that there were no entries made on the old fi. fa. by the Sheriff. The conclusive answer to this argument is, that if the judgment has been obtained by the false testimony of a witness, the 8th section of the 8th division of the Penal Code points out the remedy. Prince, 638. When the witness upon whose false testimony the judgment was obtained, shall be prosecuted and convicted of perjury, then the judgment may be set aside on that ground. There is no evidence in this record, that the Court, or the parties, knew that the testimony was false, before or at the time the judgment was rendered; that the Court, and the parties, and Duncan, were mistaken as to the amount specified in the face of the old execution, is quite certain, but it was an innocent mistake, arising from the fact that the Clerk had backed the execution for the wrong amount. * The best evidence that the plaintiffs in the old fi. fa. were innocently and honestly mistaken, arises from the fact that they received less than one-half of their pro rata share of the money, in the distribution of the proceeds of the sale of the defendant’s property; instead of receiving their pro rata share of $1753.96, they only received their pro rata share of $753. 96. What motive had they to make a fraudulent representation to the Court for the purpose of having the old execution set aside, and a new one issued, unless they believed it had issued for the wrong amount ? That they did 'so believe, is — 235 — most clearly manifested by the fact of their receiving less than half of the money which they were entitled to receive, had they known the execution had issued for the correct amount. We think it is also equally clear, that Duncan, the Sheriff, was honestly mistaken when he stated to the Court, that certain entries had been made on the old fi. fa. by him. When that statement was made by him in 1846, the old execution was not before him, and was supposed to be lost; he knew that he had levied on the defendants’ property in time for October sale in 1839; he knew 'that this execution was in his hands — that it was considered as levied on the defendants’ property, and that it had drawn its pro rata share of the money arising from the sale thereof according to the amount indorsed on its back by the Clerk, and that he paid the same over to the plaintiffs’ attorney. Knowing all these facts to be true, he supposed he had done his duty by making an entry of his levy on the execution, and then accounting for that levy, as he ought to have done, in accordance with the truth of the facts, as he details them in his evidence. The fi. fa. of George P. Cooper, which is in this record, and under which, as well as the sundry other fi. fas. mentioned in the Sheriff’s advertisement, the defendants’ property was levied on, to be sold on the first Tuesday in October, 1839, has no levy entered on it by the Sheriff; and yet there cam be no doubt that it was in fact levied, as well as the other sundry fi. fas. in his hands at that time, for the reason that the defendants’ property was advertised to be sold under said fi. fas. and was sold under them; but the Sheriff failed to make an entry of what he had done, on fhe executions. When we examine the entries made on the alias fi. fa. in 1846, we find them to correspond substantially with the statements now made by him in regard to what was done with the oldj?. fa. In August, 1839, the levy on the defendants’ property is entered thereon ; then there is an entry stating that on the first Tuesday in October, 1839, the house and lot was sold to Thomson for $1000.00, and the stock of goods sold from month to month until the first Tuesday in January, 1840; then follows an entry shewing the ap — 236 — plication of the money arising from the sale of the property, crediting that fi. fa. with $184.00, on the 25th January, 1840. Now, if the oldjfi.fa. had been before the Court in Oct. 1846, and it had appeared to the Court from its face, to have issued for the correct amount, and with the same statement of facts which Duncan now makes, the Court ought, and no doubt would, have ordered the same entries to have been made on that old J?. fa. which it ordered to be made on the alias fi. fa. for the simple reason, such entries correspond with the truth of the facts in the case. The fact of the levy of the oldfi.fa. in 1839, in time for October sale, is established by the testimony of Duncan, but the levy was not entered on the fi. fa. by him, at the time it was made. The fact of the advertisement and sale of defendants’ property, to satisfy this old fi. fa. as well as others, is established by him, and the additional fact that this old fi.fa. received its pro rata share of the proceeds of the sale, according to the amount indorsed on its back, is also established by .him; so that, according to the facts proved, the old fi. fa. was not dormant, but was active and busy, in the hands of the proper officer, in search of its legal rights, but unfortunately received less than one-half thereof, in the distribution of the money. There has been no fraud practised, that we can discover, upon anybody, nor any harm done to anybody by the judgment of the Court in 1846, establishing the alias fi.fa. and the entries thereon. The entries on the alias fi. fa. are precisely such as should have been made on the original, according to the true state of the facts, as disclosed by Duncan’s testimony. The whole difficulty has grown out of the .clerical error of the Clerk in backing the execution, and the omission of the Sheriff to make his entries thereon, according to the facts, as the same actually transpired, and not the improper conduct of the plaintiffs in they?, fa. for they appear to have beep diligent in the prosecution of their legal rights under their execution. The judgment of the Court in 1846, was rendered on evidence which the Court and the parties believed at that time to have been true, as is clearly apparent from all the testimony — 237 — iii the record, and there is no evidence whatever, going to show that the Court, the. parties, or any one else, knew anything to the contrary, in October, 1846. The argument is, but for the entries made on the alias fi. fa. by the judgment of the Court in 1846, that fi. fa. would be dormant under the Statute; and inasmuch as there were no such entries on the original fi. fa. which would have taken it out of the operation of the Dormant Judgment Act, therefore, the judgment of 1846, was fraudulently obtained as against the defendants in error, who are junior judgment creditors. The ansiver to this argument is, that the old y?, fa. would not have been dormant, according to the evidence of Duncan, and the judgment of this Court, (in 3 Kelly 274,) and had it been before the Court in 1846, in the exact condition it now is, the Court would, as it ought to have done, (according to the truth of the facts, as now stated by Duncan,) ordered the same entries to have been made on the old fi. fa. which it ordered to be made on the alias fi. fa., so that the junior creditors are in no worse condition than they would have been, according to the true statement of the facts of the case, if the judgment of the Court in 1846, establishing the alias fi. fa. and the entries thereon, in lieu of the original, had never been rendered. The alias fi. fa. and the entries thereon exhibit the truth of the facts as the same transpired, according to the testimony of Duncan, as to what was done under the old fi.fa. and nothing else but the truth, and consequently, there was no fraud, either in law or fact, in obtaining the judgment of 1846, apparent on the face of this record. - Let the judgment of the Court below be reversed.