Lewis v. Wilder

The judgment of the court was pronounced by Slidell, L This is an action upon a judgment rendered in Mississippi, after personal citation and issue joined, in an action entitled “ Edward W. Jones, survivor of Jones Sf Ballard, use of Edward G. Wood v. William R. Wilder,” whereby it was adjudged “ that the plaintiff, survivor, use as aforesaid, recover of the said defendant the sum of $304 13 and costs,” &c. The plaintiff alleges that Wood was, in that proceeding, the mere agent of him, the plaintiff, the real owner of the judgment. There was a judgment of non-suit in the court below, from which the plaintiff appealed, and has argued the cause here ex-parte, no argument having been presented by the appellee. We shall direct our attention to the bill of exceptions taken by the defendant, and to the evidence offered at the trial. The testimony of a witness for the plaintiff was taken by commission, and comes up in the transcript. By this testimony it is shown that, a judgment obtained in Mississippi by A. for the use of B., is, by the law of that State, the property of B. It was farther shown that the witness was the Attorney [575] for the plaintiff, in the action in Mississippi; that Wood was, in that action, the mere agent for Lewis ; and that the name of Wood was used in the prosecution of the suit merely to save the necessity of giving security for costs, Wood being a resident of that State, and Lewis of Kentucky. To the admission of this testimony the defendant objected, “ because such proof could only be made contradictorily with Wood, or his heirs, and also because the proof made by the record which plaintiff had introduced, could not be contradicted by the testimony.” The court sustained these objections, and the plaintiff took his Bill of exceptions. We think the court erred. Such testimony does not contradict the record; but shows a matter not apparent on the record, nor inconsistent with it. The apparent interest may be in one man, the equitable interest in another. If the defendant had an equitable defence against Wood, it would be a reason for so far disregarding the real interest of Lewis, as to let in such equitable defence against him ; but it is not pretended that any such equity existed. As to the other ground presented by the bill, to wit, that such proof could only be made contradictorily with Wood, it is also untenable. The question is one of fact. Is Lewis the real owner of the judgment, or is he not ? If he is, he is entitled to recover in this action, and without making Wood a party. We may also observe that the plaintiff alleged that Wood was merely his agent in obtaining the judgment, and the defendant, without excepting, joined issue specially upon that allegation. As to the right of Jones, as survivor of Jones and Ballard, to sue for the use of Wood, and transfer the claim to him, that was a matter proper to be investigated in the original' action, and the judgment of the court of Mississippi must be taken as concluding that point, in the absence of any evidence impeaching the judgment. As to the matters pleaded in compensation, there is a conflict in the testimony of the defendant’s own witnesses ; and' the defence on that score fails. We cannot allow interest at eight per cent according to the alleged law of Mississippi, it not being proved. It is therefore decreed that the judgment of the district court be reversed, and that the plaintiff recover of the defendant the'sum of $338 63, with interest from judicial demand, to wit, 4th January 1'84'7, and costs in both courts.