Brewster v. Riley

McAllister, J. The first question is whether the ruling of the court was correct in excluding the offer on the part of Barm to prove that the judgment in favor of Bose Biley, entered upon confession, was not based upon a Iona fide claim, but was fraudulent. Section 39 of the Attachment Act says: “ The court may, at any time before the proceeds of any attached property have been paid over to the judgment creditors, order the whole, or any part thereof, to be paid into court, and may malte any and all such, orders concerning the same as it shall deem just.” Section 41 declares: “This act shall be construed in all courts in the most liberal manner for the detection of fraud.” Manifestly that judgment by confession was open to attack on the part of Barm on the ground that it was not based upon a Iona fide indebtedness, and was fraudulent as to ereditors of Riley. We are of opinion that the court, upon the hearing of the matter of the distribution of the proceeds of the property attached, had jurisdiction to enter into the investigation offered as to the Iona fides of the judgment by confession where it is material to do so, but that, from the view we take of this case, such an inquiry was 'wholly immaterial. The other question is as to the propriety of the order of the court that the plaintiff in the judgment b}r confession was entitled to share pro rata with the attachment creditors in the proceeds of the property attached and sold. Those attachment creditors all had their respective writs of attachment sued out in March, in time for and returnable to the April term of, the superior court, 1885, at which term judgment in their respective suits was obtained, and special execution awarded. The attachment in favor of-Tolman and that in favor of Brewster were each sued out and levied March 21, 1885. The judgment by confession in the same court was not entered until March 23, 1885, and the execution issued upon it and levied on that day created a lien subsequent to that of both the above mentioned attachments ; so that, by the general rule, the attachment creditors being prior in time were prior in right of lien. . To escape that result the plaintiff in the judgment by confession invokes the provisions of § 37 of the Attachment Act as follows: “ All judgments in attachment against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant, recovered at that term, or at the term when the judgment in the first attachment upon which judgment shah be recovered is rendered, shall share pro rata, according tc vthe amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise.” 1 Starr & Cur. Stat., p. 325. The judgment in favor of Rose Riley was neither in fact nor legal effect a judgment in a suit by summons, capias or attachment against Eugene Riley, but a judgment by confession, by means of a warrant of attorney executed by said Eugene Riley. Rot was it entered at the same term as that at which all the judgments in the attachment suits, or any of them, were entered. We are therefore of opinion that the judgment hy confession in favor of Rose Riley did not come within the letter or spirit and intent of said statute, and that the court below erred in directing that she share to rata with said attachment reditors in said proceeds. Under the section above quoted, said proceeds should have been distributed among the three attachment creditors, Tolman, Brewster and Barm, 'pro rata, according to the amount of their respective judgments. The order of the court below will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Order reversed.