Monroe v. Monroe

Mr. Justice Paxson delivered the opinion of the court, May 3d 1880. There are five assignments of error in this case. We will consider them in their order. 1. The record discloses no request to the court to give a binding [525] instruction to the jury to find a verdict for the plaintiff. And had such request been made it would have been the duty of the court to decline it. The facts were for the jury. 2 and 3. These errors are not properly assigned. The points referred to are not set forth as required by the rules of court. We might well decline to discuss them for this reason. The record show's, however, that they were read to the jury and affirmed. That they were not further referred to by the court in the general charge is not material. 4. This portion of the charge, standing alone, looks like error, but an examination of the whole charge as applied to the facts of the ease, shows that it was not. The defendant, an ignorant man and unable to read, had signed a judgment note in favor of plaintiff for an alleged indebtebness to William Koons, dated March 2d 1863, for $501.75. The note contained a waiver of inquisition and all exemption laws, as well as the declaration that it was “for debt before the 4th day of July 1849.” There was evidence to go to the jury that the note was obtained by fraud ; that at most it was hut a cautionary note ; that the amount due, if anything, was subsequently to be settled by an examination of William Koons’s books, the defendant having kept no account except in his head, and that Koons (the real plaintiff) in reading it to the defendant had suppressed a material part. The judgment entered on this note was revived by amicable scire facias, signed by the defendant in 1868, and again in 1873. After the second revival upon the application of the defendant, the original judgment was opened, and he was let into a defence. The question now under discussion relates to the effect of the revivals upon the original judgments. As to the first revival, the learned judge instructed the jury in his general charge, as follows: “ Again, if after the judgment had been thus given, say for five years, as is alleged on the part of the defendant, and then a renewal was taken by Mr. Koons, or by some one for him, to Henderson Monroe, and the latter signed it, as he said he did, upon the distinct understanding that the books were to be examined and the basis of the actual indebtedness ascertained, then the revival could not have given additional validity to the original debt.” This instruction vras not complained of, and it is referred to now only as it bears upon the charge in relation to the second revival, and which forms the subject of the 4th assignment. The portion of the charge referred to is as follows : “ If at the time the second revival was taken, Mr. Monroe was induced to sign it, as he says, that he might get a statement out of Mr. Koons, the fact that he executed the second revival gives no additional validity to the original judgment.” If the original judgment was obtained by fraud and misrepresentation, and the subsequent revivals were hut a continuation of such fraud and misrepresentations, it is difficult to see how such revivals could add any [526] thing to the validity of the original judgment. The mere feet of the revivals might have been a circumstance entitled to some consideration with the jury in deciding as to how much weight should be attached to the defendant’s testimony, but no such point is involved in this assignment. If the defendant’s story is believed the revivals could not add to the validity of the original judgment for the reason that they were obtained by fraud, and fraud vitiates everything it touches. 5. The portion of the charge embraced in this assignment is not error when read in its connection with the general charge. The remark of the court had reference only to the contradictory statements of William Koons on the one side, and Henderson Monroe on the other. As between them it was, as the court stated, purely a question of credibility. Judgment affirmed.