Field v. Armstrong

SPEER, Justice. Joseph Willingham, a judgment creditor, brought his rule in Gordon superior court at the February term, 1875, against Roff, sheriff, to answer as to the amount of a fund in his handsarising from the sale of certain lands of James M. Field, and to show cause why out of said fund there should not be paid to movant the amount due him ona certain fi. fa. which he controlled as assignee vs. James M. Field. To this rule the sheriff answered, “admitting — 175 — he had sold, said .lands, and after paying all expenses there was a balance of said sale of $16,764.50 left for distribution, when the same was paid in. That there were placed in his hands certain fi.fas. claiming said funds, and he prayed these contesting claimants might litigate with each other as to their priorities, etc., and that the court should direct how said fund should be distributed.”. Elias Field, one of the claimants, moved to continue said case as far as the claim of Willingham was concerned, to which claim he, E. E. Field, and also the defendant in fi.fa., James M. Field, had filed an issue, which continuance was allowed. Counsel for Armstrong, a judgment creditor and claimant, also then moved to proceed with his claim against said fund. To this E. E. Field objected for the reasons shown by the continuance of the Willingham claim, and for the additional reason that Lewis Tumlin, in his life,.was one of the claimants on said fund. That Tumlin had died pending the litigation, and his administrator, Gray, had been made a party. That lately Gray had been removed and enjoined from meddling with said estate. A receiver on said estate had been appointed, and counsel did not represent said receiver. On inquiry by the court, it was stated that no issue had been made on the fi. fa. of Armstrong, and they knew of no reason why it was not a valid and subsisting lien; on this response, the court overruled the motion to continue the Armstrong case, and plaintiff in error excepted. It was then agreed to submit both the law and facts to the Hon. J. W. H., Underwood, presiding, with right to either party to except. In the trial had, the court, passing both upon the law and facts, awarded that there should be paid out of said fund arising from the sale of the lands, the amount of the fi. fa. of Armstrong vs. Field, principal with interest to that date. Upon this finding and judgment of the court, plaintiff in error made, his motion for a new trial, on various grounds which were overruled, and plaintiff excepted. The grounds of the. motion were : — 176 — (x.) That the court erred in refusing to continue said case on the motion made. (2.) That the court erred in admitting in evidence over objection the proceedings and record thereof of an issue made up between Willingham and Lewis Tumlin and the judgment of the court rendered thereon, which proceedings and judgment arose out of a claim and issue to distribute the same fund. (3.) That the court erred in admitting in evidence similar proceedings and record thereof and judgment thereon on an issue between Willingham and E. E. Field involving the distribution of said fund. (4.) Further, that the court erred in admitting in evidence a certain agreement in writing, signed by various counsel representing creditors and claimants of said fund touching the distribution of said fund, which agreement was of record and filed with the papers on both of the the issues above referred to. (5.) There was error also assigned as to the finding by the court of a judgment in favor of Armstrong, under the law of facts. Certain questions arising upon issues to distribute this fund have been twice before this court, and are reported in 59 Ga., 858; 65 Ga., 444. It is true, the amount in controversy is large, the creditors numerous, and the contest accordingly is keen and vigorous to share the wreck of what once was a good estate. Nearly eight years has this rule to distribute this fund been pending in the court below, and it is full time some results were reached looking to its division among these creditors. Death has begun its inroad among these litigants; and under the policy insisted upon by.plaintiff in error on his motion to continue, if recognized and approved by this court, it will be many years before the end is reached. In the meantime, what mutations may attend the security and safety of this fund no human wisdom can foresee. 1. In this case, when Armstrong moved to have a por — 177 — tion of this fund'applied to his fi.fa., E. E. Field objected, because Tumlin’s estate, another claimant, was not represented before the court. How did this concern him ? He was a claimant on his own liens, and not on Tumlin’s. The question Armstrong makes is with him, not with Tumlin. If he can claim at all against Armstrong, it is under his own liens and none other. It was conceded that Armstrong’s fi. fa. was valid and subsisting ; he presented it for payment; Field objected. Why? It could only be because he had superior or prior liens ; and this issue could be determined as well in Tumlin’s absence as though he were present. Tumlin had filed no issue against Armstrong’s lien, and none was threatened. Why then await for this, when the opportunity of filing such issue by Tumlin and his administrator had been offered during the long years this litigation has been pending? We see no error in the court refusing to continue this issue upon the grounds taken. 2. Was there error in the admission in evidence of the record of the issue and judgment thereon theretofore had in the case of Willingham vs. Tumlin, because the movant, Armstrong, was not a party to said judgment? The question presented is, in a case where all the judgment creditors are in court claiming a fund by lodging their liens with the sheriff, how far they are parties, and whether judgments rendered between certain of those claimants who tender and join issue are admissible for others who are not technically parties to such issue. In the case of Foster vs. Rutherford, 20 Ga., 670, Judge Lumpkin says: “The better practice in all such cases, and the one we propose to establish, is this: The rule against the sheriff at the instance of any creditor makes the case. Let all other parties at interest who have a claim upon the fund be notified in writing by the sheriff or by the pro-movant of the pendency of the rule if taken, or let the creditor give like notice of his intention to apply, if it be not done ; and thus all persons in interest thus notified may or may not, at their option, come in ; — 178 — whether they do or not, they will in such case be bound by the judgment.” Here all the creditors of Field had come in and filed their liens with the sheriff, and he so reported to the court. They were thus of their own act and answer of the sheriff made parties to any litigation springing from the distribution of said fund, and they must take notice of all that transpires in the cause thereafter, and whenever their interest may be affected they are bound, whether they actually take part or not. They have a right to be heard, to cross-examine witnesses and to introduce evidence. Why then should not a judgment rendered on an issue tendered by one of these litigants at least be prima facie against all the claimants of the fund? And in this record of the judgment between Willingham vs. Tumlin, in which it was determined Tumlin’s lien, for causes affecting it, was to be postponed to Willing-ham’s, which was the junior, the same'reasons for this postponment would operate in favor of the judgment of Armstrong, for Armstrong’s lien is admitted to be valid and legal and of older date than Willingham's. Surely if Willingham’s judgment of younger date has priority over Tumlin’s, for causes affecting the lien of the latter, much more would Armstrong’s have priority, it being a prior lien to Willingham’s. Tumlin had his hearing in full as against Willingham, and we see no reason, either in logic or law, why he is not bound by the judgment and the legal results thereof. So we also reason as to the record admitted in the case of the issue tendered by Willingham against the mortgages on the property owned and controlled by E. E. Field and of judgment thereon. All these creditors had notice presumptively, and declared by their written agreement they would be bound by the verdict, and this was made a part of the record in said case, and the agreement was directed to be filed with the papers. The cases under which this agreement was made were in the caption recited in the record as the case of Field and Gray, ad — 179 — ministrator, vs. Willingham and Armstrong, and the case of Willingham vs. Roff, sheriff, and E. E. Field. Here we find a written agreement, not, it is true, signed by E. E. Field, but taken in a case to which he was a party and made a part of the record thereof. Is he not. presumed to have acquiesced therein and consented thereto, and does such an agreement not bind him as well as those who signed the same ? That it was taken in a case in which he was a party certainly affects him with notice and of presumptive assent thereto. In Atkins vs. Baker, 7 Ga., 56, it was held, “ Judgment creditors claiming a participation in a common fund have such an interest in the order of the circuit court for its distribution as entitles them to carry up the same by writ of error. A judge sitting to distribute a fund sits as a chancellor, and distributes in equity. 37 Ga., 604; 24 Id., 146; 15 Id., 557; 8 Id., 174; 7 Id., 52. In 8 Ga., 358, Judge Lump-kin says as to the admissibility of a judgment res inter alios acta, “ Judgments and decrees are not only evidence of the fact of their rendition, but of all the legal consequences resulting from that fact, whosoever maybe parties to the suit in which it is offered as evidence. ' 3. As to the exception taken in argument here, but not appearing as a ground of error in the record, “that the court erred in allowing to the defendant in error interest on his judgment up to the date of the trial then had, we can only say the allowance of interest was a .matter in the discretion of the court under the facts of this case. Here this property was bought by the plaintiff in error and Lewis Tumlin in 1875, and for nearly eight years they have enjoyed it, and have never paid into the hands of the sheriff the purchase money thereof. They-have been active parties to this long litigation claiming to have preferred liens, which have thus far been adjudged'against them. No rule has been allowed against the sheriff as he has none of the funds in hand, but they still are in the hands of the purchasers. If the chancellor decided in — 180 — view of these facts, and in view of the further fact that the defendant in error will probably have to institute further procéedings to secure payment from this fund, we cannot say he abused his discretion in allowing interest on the fi. fa. claiming. 1 Kelly, 38. In reviewing this whole record, we may well conclude, in the language of the able judge who pronounced upon one branch of it when before this court, and reported in 39 Ga., 858, “ In this case, though it involved law and fact, the court acted as judge and jury, and the law and facts are thus blended in one mass before us, and both as to law and facts we must give him the benefit of every presumption on both branches of the case, and in so doing we cannot pronounce with due legal certainty that he erred.” Judgment affirmed.