Lyon v. Krebs

ORMOND, J. It is very clear, that the court erred in holding, that the decision upon the previous motion to quash, was a bar to .the subsequent motion to enter satisfaction upon the execution. It further appears, that the plaintiff as ah answer to the motion, offered in evidence the proceedings and decree in a suit in Chancery between the same parties, and upon this the court in its judgment relies, as an adjudication upon the same point, between the same parties. Assuming this to be so, it was an answer to the motion, and authorized the judgment which the court rendered, and in this aspect, the error which the court had previously committed would be immaterial, as it could not prejudice the defendant, if upon the other facts shown, to the court, he was not entitled to succeed in his motion. ' The propriety of the judgment of the cotirt, evidently depends upon the facts put in issue in the Chancery cause, and the decree of the court made thereon, and it is obvious that the judgment cannot be revised without the Chancery record. This, for some cause, is not made a part of this record; and in our opinion, it brings the case within the well known rule of this court, that a party complaining of error in a judg [429] ment, must show it affirmatively upon the record, as otherwise the presumption will be, that the decision is- correct. See the authorities cited by the defendant in error. The counsel for the plaintiff in error insist, that they bring themselves within this rule, by showing an affirmative error upon the record ; and that the effect of this cannot be neutralized, by a reason assigned by the court for its judgment. This proposition is, in terms, doubtless true, but in this casé, it does appear from the bill of exceptions, that the proceedings in the Chancery suit were in evidence before the court, and to this evidence the court in its judgment refers as the basis of its decision, ascribing to it the effect of an adjudication upon the precise point again attempted to be put in litigation. If in this the court was mistaken, the proceedings in the Chancery suit should have been put upon the record, that the judgment might be revised. As the matter now stands, it is merely the assertion of counsel, against the decision of the court, and we certainly cannot be expected to take for granted, that the record of the Chancery suit is not entitled to the effect ascribed to it by the court. It is worthy of remark too, that this class of cases resemble much more a proceeding in Chancery, than a suit at law. The motion is a substitute for the audila querda, and is addressed to the equity of the court. The formal entry of judgment therefore, is entitled to more consideration, so far as it recites facts, or assigns reasons for the judgment, than the entry of a judgment in a suit at common law, which is nothing more than the conclusion of law, pronounced by the court as its minister, upon facts ascertained by the jury, or admitted by the pleadings. We must decide cases in this court, upon the record as presented to us, and from this record we are unable to say, that any error has intervened, pejudicial to the plaintiff in error, The judgment of the court must therefore be affirmed.