Wood & Oliver v. Ellis

Scott, J., delivered the opinion of the Court. James D. Glenn and Wm. S. Pemberton, who were indebted by note to Wood & Oliver, executed a power of attorney to U. Wright, S. T. Glover, and J. D. Dryden, or either of them, to confess a judgment in their stead in favor of the said Wood & Oliver, in the Lewis Circuit Court, at the March term thereof, in 1841. This power of attorney was executed both by Glenn and Pemberton, the name of Glenn alone was inserted in [384] the body of the instrument, it reading thus: “Know all men by the presents, that I, James Glenn, do hereby constitute and appoint,” &c., omitting the name of Pemberton, which was subscribed to the instrument as a party thereto. Judgment was accordingly confessed, and Pemberton afterwards died, and the judgment was revived against John W. Forman, his administrator, who was served, with process. • Wm. Ellis was afterwards appointed administrator, de bonis non, of the estate of Pemberton. Afterwards, in May, 1846, a motion is made to set aside the judgment against Pemberton, on the ground that his name not being inserted in the body of the power, whilst that of Glenn was, it was only the act of Glenn, and that as to Pemberton, although he executed it, it was a nullity. This motion was sustained, and the judgment vacated. Admitting the rule as stated in the books to be that if there are several obligors, they ought all to be named in the bond, for if a bond be in these words, “We, A. and B., bind ourselves,” &c., be also sealed by C., it is not C.’s bond. So a bond in these words, “I, A. 33., am bound to C.,” although it be signed by IX, is not D.’s bond, 1 Tuck. Com. 2X5, yet it will not follow that the Court did right in vacating the judgment. Motions of the character of that made in this cause, have been substituted for the ancient writ of audita querula, which is an equitable action, which lies for a person who is either in execution or in danger of being so upon a judgment, when he has matter to show that such execution ought not to have issued against him, and is of a most remedial nature, and seems to have been invented lest in any case there would be an oppressive defect of justice, when the party has a good defence, but had nor has any other means totake advantage of it. 3 Black. Com. 405. It doesnotlie where there is any other remedy at law by plea or otherwise. And, therefore,, where the party had time to take advantage of the matter which he has in discharge of himself, and neglected it, he cannot afterwards be relieved by audita querula, as where the plaintiff having obtained judgment against the defendant, and afterwards releases it, and after bringing sci. fa. upon the judgment, and the sheriff returns scire feci, and the defendant does not appear, and there is a judgment upon it, he' cannot have an audita querula, for he had time to plead the release upon the scire facias, and having neglected it, the law will not relieve him. Fitz. N. B. 104; 1 Sal. 264. So if on a scire facias on a recognizance, the party is returned warned, and makes default, he cannot avoid it by audita querula, upon the ground that the recognizance was upon condition, which he has performed, or other matter, because he had a day to answer it. Ibid. [385] ‘To a scire facias to revive a judgment, the defendant may plead nul tiel record. Tidd 1184. If the judgment against Pemberton had been a nullity, nul tiel record would have been a proper plea to it. The judgment In this ease might have been set aside, on motion before the scire facias to revive the judgment, but after a judgment on that writ against a party; >it would seem according to the principles above stated, that he would come too late with a defence that might previously have been made. These motions, it has been seen, are substituted for the writ of audita querida, which is an equitable proceeding. It is not pretended but that Pemberton owed the debt, for which the judgment was confessed, nor is ’it denied but that he executed the power of attorney. There was a for,mal defect in .that instrument, which might have enabled him to have avoided it. But that defect did not render the judgment void. His objection is a dry technical point, against which Courts of equity have .relieved, though it may prevail at law. Berry vs. Radcliff, 6 John. C.; 1 Equity Cases Abridged 188. In exercising the power of vacating judgments, the Courts will do it on terms, and take care that justice be done between the parties. The other Judges concurring, the judgment will be reversed.