Importers' & Traders' National Bank v. Lyons

Opinion by Mr. Justice Mestrezat, In an elaborate opinion refusing a new trial the learned judge of the court below has clearly and fully stated all the facts of this litigation from its inception in June, 1899, when the plaintiff obtained a judgment against J. Harry Lyons, until the entry of the order discharging the rules for a new trial in this case on the issues framed on the fourth and fifth attachment executions issued on the judgment. Five attachment executions were issued on this judgment against the same garnishees, who were Samuel Simpson individually and trading as Samuel Simpson & Company. The first attachment was issued on the date the judgment was obtained in June, 1899, and the last, on March 18,1903. The money or effects sought to be reached in the several attachments were the same, viz: the interest of J. Harry Lyons, the defendant, in the firm of Samuel Simpson & Company. The issue framed on the third attachment, issued June 13, 1900, was tried in November, 1900, before Judge Bregy. In that case it appeared that there had been no settlement of the partnership accounts of the firm of Samuel Simpson & Company, and the trial judge directed a verdict for the garnishee. From the judgment entered on that verdict, the plaintiff took an appeal which was non prossed in this court on January 6,1902. On the trial of the present issues, framed on the fourth and fifth attachments, the plaintiff attempted to retry the question raised and adjudicated against it in the action tried before Judge Bregy in November, 1900. In that case the plaintiff bank alleged that the defendant was a partner in the firm of Samuel Simpson & Company, and that an account had been stated showing an indebtedness to J. Harry Lyons by the firm. In the present case the plaintiff attempted to show the same facts by the same evidence, and further that the judgment in the third attachment case had been obtained by collusion and fraud. The court below excluded such evidence as was offered to sustain the issue disposed of on the trial of the third attachment, arid there was no sufficient evidence produced at the trial of any collusion or fraud in obtaining the former judgment. It was, therefore, clearly the duty of the trial judge to [145] direct a verdict for the garnishees. There was no offer by the plaintiff to show that any money or effects of the defendant had come into the hands of the garnishees since the entry of the judgment in the third attachment case. The plaintiff offered to show by Samuel Simpson when on the witness stand that, prior to the trial on the third attachment, the witness had prepared a statement of the partnership affairs which was made the basis of the agreement of February 9, 1900, between Mrs. Lyons, J. Harry Lyons and Samuel Simpson. This was objected to and properly excluded. In commenting upon this offer in his opinion refusing a new trial, the learned judge says: “ This was for the purpose of showing that in fact there had been a settlement of the partnership accounts between J. Harry Lyons and Samuel Simpson, the witness. . . . The agreement made was in the equity suit wherein Mrs. Lyons was plaintiff. It was not an agreement that Simpson owed J. Harry Lyons, as his partner, any stated and agreed amount. It was an admission that there were certain undisputed facts, among them, that Simpson had in his hands certain sums of money, one half of which he admitted did not belong to him. The admission was made in a suit wherein Mrs. Lyons was asserting that the one half that Simpson did not claim belonged to her. The result of that suit was a decree in her favor, an account stated by the master, revised and reduced by the Supreme Court and then the amount further modified. In no sense can the agreement be taken to be a settlement of a partnership between J. Harry Lyons and Samuel Simpson.” We are of opinion that the trial judge was right in holding that the agreement of February 9, 1900, was not a settlement of the partnership accounts and hence if J. Harry Lyons had an interest in the partnership of Samuel Simpson & Company, the agreement did not make it subject to attachment execution. The judgment in the third attachment case determined that there were no money or effects, subject to the attachment, in the hands of the garnishees on June 18, 1900, the date of the service of the writ, and that none had come into their, hands subsequent to that date and prior to November 7, 1900, the date of the trial. This was the matter in controversy between the parties, and hence the judgment determined the cause on its merits. This judgment became absolute and final when the [146] appellant bank, the attaching creditor, failed to prosecute the appeal subsequently taken by it to this court. If the trial court erred in any of its rulings or in directing a verdict for the garnishees, the plaintiff, who was the appellant there and is the appellant here, had the opportunity to have the error corrected by having the judgment reversed in this court. The judgment in that case, therefore, must be regarded as conclusive between the parties as to the merits of the cause of action involved in the case. Here, as we have observed, we have the same cause of action and the same parties, the only additional averment by the appellant being the allegation of collusion and fraud in procuring the former judgment, but which had no evidence on the trial to support it. We are of opinion that the question involved in this issue is the same as that determined by the judgment on the third attachment and is therefore res judicata. The judgment is affirmed.