Ware & Miller v. Pennington

Mr. Justice Soott delivered tbe opinion of tbe Court.- At tbe January term, 1851, tbe judgment before rendered in tbe Circuit Oourt was here reversed, and tbis cause remanded. (6 Eng. R. 745.) Upon its return into tbe Circuit Court, tbe demurrer to tbe second plea therein was confessed, and by leave of tbe Court tbe defendant filed four pleas. 1st. Nil debet. 2d. That the plaintiff, on the 26th of April, 1841, in Bradley Circuit Court,- recovered, against Denarbus W. Pennington, a judgment for $204 82, and costs, and their agent, "W. "W. Dorris, agreed with defendant, I. IT. Pennington, that if he would execute to plaintiff the instrument sued on, and procure security thereon, he, Dorris, as such agent, would in writing transfer and assign the judgment to said I. H. Pennington, and that neither said plaintiffs, nor their agent, did so assign the judgment, in consequence of which said I. H. never realized anything from the said judgment, and the same is now worthless, and defendants say the eontrraet and agreement aforesaid was the whole and only consideration, for which the wilting sued on was given; and that, therefore, the consideration has wholly failed. 3d. That the only consideration for the instrument sued on, was an agreement of Dorris, as the agent of the plaintiff, to assign to said Isaac JT. a certain supposed judgment, rendered in Bradley Circuit Court, on the 26th of April, 1841, in favor of plaintiffs, against Denarbus W. Pennington, in the words and figures following, to wit: then is copied the style of the case referred to, in the form of the usual entry of judgment on record, stating the appearance of the parties, the empanelling and swearing a jury, their verdict for plaintiffs for $204 82, and the judgment of the Court thereon, in these words: “It is therefore ordered, adjudged and decreed by the Court, that the said plaintiff have and recover of and from the said defendants the sum of two hundred and four dollars and eighty-two cents, together with all the costs in and about this suit in this behalf expended.” The plea then proceeds to say, “Said supposed judgment is a nullity, is no judgment at all, and not recoverable by law, and, therefore, the defendants say that the writing upon which this suit is founded, was executed by them without any consideration whatever. 4th. The general plea of no consideration. The first of these four pleas was stricken out on motion of the plaintiff, because issue was already formed on one identical with it, and issue was taken on the fourth. To the second and third, demurrers were interposed. Tbe causes of demurrer to tbe second, were: 1st. It did not sbow a failure of consideration. 2d. No demand was alleged for tbe assignment. Tbe causes of demurrer to tbe third plea, were: 1st. It is contradictory and inconsistent. 2d. It shows a good consideration. 3d. It does not allege ignorance of tbe form or nature of tbe judgment, or that they were deceived or imposed upon. 4th It was in other respects informal and insufficient. Tbe Court below sustained tbe demurrer to tbe second plea, but overruled that to the third, and tbe plaintiffs declining to reply further, and electing to rest on their demurrer, final judgment was rendered against them, to reverse which, this writ of error was sued out. Tbe overruling of this demurrer, and tbe subsequent judgment against tbe plaintiffs, upon their declining to reply further, are tbe errors complained of. To support tbe action of tbe Court in tbe premises, it is insisted that tbe judgment, set out in tbe plea, is a nullity, and to sustain this proposition, tbe case of Baker vs. The State of Arkansas, reported in 3 Ark. Rep. 491, and,a citation to Blackstone’s Commentaries, are relied upon. That was a criminal case, and tbe defendant, Baker, was under sentence of imprisonment in the State penitentiary for five years. It is true, however, that there are no indications in tbe report of tbe case that these circumstances either bad any controlling influence in moulding tbe opinion of tbe Court, or that tbe doctrine it established was to be confined to criminal cases alone of such grade. Tbe expressions used are general and sufficiently broad to embrace civil, as well as criminal, judgments. Tbe case was, that in tbe recording of tbe sentence of tbe law against Baker, in pursuance of tbe verdict of tbe jury, the terms “ordered by tbe Court,” were used. Tbe ruling was that these were insufficient to express a judgment, and that tbe words “ it is considered by tbe Court,” were necessary, for tbe reason, as given, that a judgment is tbe sentence of tbe law pronounced by tbe judges, as tbe organ of tbe law, and is not tbe Court’s own judgment. So subtle and purely technical is tbis distinction, it is fair to presume, if tbe opinion is to be interpreted strictly, that tbe Court never designed it to apply to cases beyond those like that before them, and tbis is the more probable, because in tbe subsequent case of Dooley el al. vs. Watkins, (5 Ark. Rep. 705,) where tbe case of Baker vs. The State, was cited as authority, it was not noticed in the opinion of the Court delivered, nor its doctrine applied in that case to a judg*. ment 'in tbe Probate Court. But, howsoever tbis may be, tbis case does not decide tbe question made in tbe case before us; that was a direct proceeding for reversal, and tbe Court, finding no final judgment from which an appeal would lie, awarded a writ of procedendo, that one might be entered up; and, it seems from a further report of tbe same case, in 4 Ark. R. 57, tbis was after' wards done secundum a/rtem, and tbe defendant ultimately sentenced in pursuance of tbe original verdict. Had tbe question been brought up in a collateral proceeding, as upon habeas corpus, to deliver tbe defendant, Baker, from imprisonment in the penitentiary, instead of in a direct one, "as it was, and in such a proceeding tbe supposed judgment bad been held a nullity, it would have been a direct authority upon tbe question involved; provided it should be taken, that in Baker vs. The State, tbe Court meant to decide that no other words could be substituted for “ oonsideratum est per cwrim%T Tbis latter conclusion, however, could not be fairly arrived at from any expression in tbe opinion, or from' tbe generality of tbe expressions, when considered in reference to tbe precise facts of that case. In tbe judgment entry, pronounced by tbe Court, tbe word “ordered,” alone, was used, which might well have been regarded as not of equivalent import to “ considered,” and as no such word was used, there was no 'occasion to call forth tbe expression of any opinion, whether or not tbe use of such words would not have sufficed in lieu of tbe word “ considered,” so long established in tbe precedents. Thus tbe judgment entry copied in tbe.plea differs materially from that in-the case of the State vs. Baker; since the terms here used are, “ It is therefore ordered, adjudged and decreed, by the Court,” &c., which we think of fully equivalent import to “ considered.” In no view, then, does the case of the State vs. Baker, supported by the citation from Blackstone, decide the question at issue; since the proceedings in that case, although imperfect, were not held void' — -on the contrary, were ordered to be perfected— and the facts are essentially different, not only in the terms used in the judgment entries respectively, but in the character of the proceedings. Although the established precedents are to be regarded witli^ the highest respect, and should not be departed from without caution, because like pleadings they are a safe-guard to justice in another sense, to hold as a nullity a mere formal departure when the substance is preserved, would be to turn the guns of the outworks upon the citadel of justice. When this point is thus settled, it is clear enough that the plea in question was no answer to the declaration; since, in its terms, it presents a valuable security as the consideration for the instrument sued upon, and not a mere nullity, as was supposed. The Court, therefore, erred in overruling the demurrer in question and in the final judgment rendered. Reversed.