Aron v. Chaffe, Powell & West

Whitfield, J., delivered the opinion of the court. The decree in the case of W. B. Moore & Go. v. L. T. Basket was offered, not as evidence of the facts upon which it was founded, but to show the fact of indebtedness by Basket to Chaffe, Powell & West. For this purpose .it was competent, but was only prima facie evidence. “Where a judgment is introduced to prove the truth of the facts on which it is based, the whole record must be introduced” (George’s Miss. Digest, p. 229, §123); but where it is offered simply to show “the fact of its own rendition, and -the legal consequences which result from that fact” (Freeman on Judgments, §§ 416, 418), it is not necessary to offer the whole record (George’s Digest,' p. 229, § 124). Mr. Freeman says (§ 418): “The better opinion is that such judgment is prima facie evidence against the grantee of the fact of his grantor’s indebtedness. Whenever a judgment creditor is proceeding against a third person, and it becomes necessary to show that the judgment debtor was indebted to him, the judgment is at least prima facie evidence of. that fact. ” This is the doctrine announced in Bergman v. Hutcheson, 60 Miss., 872. The appellant was at liberty to overthrow, if he could, the prima facie showing of indebtedness. The bill, however, it may be remarked, did not proceed [165] upon any denial of indebtedness, but sought to so marshal the securities as to compel appellees to exhaust all else before coming upon appellant. So far as exhibit A to the bill in Moore & Co. v. Basket is concerned, offered by appellant to show, as an admission against appellees, that Basket did not owe appellees by their own showing in that suit, notwithstanding the decree, even if the agreement of counsel at page 45 of the record has the meaning contended for by appellant, and if the exhibit A shows that Basket did not owe appellees, and if, consequently, appellees were not purchasers for value, yet it clearly appears that appellant owed Basket on his notes more than the amount of the decree in this case against appellant. As to the $200, we are not prepared to overturn the finding of the chancellor on the conflicting testimony on this question of fact. But we think it was clearly error to have dissolved the injunction and awarded damages. The bill was primarily one to marshal the securities and compel appellees to exhaust all others before pursuing appellants on the notes in controversy. The injunction prayed was merely in aid; it prayed, however, not only that the action at law be stayed till the final'adjudication of the suits begun by the creditors’ bill and this bill, but also that, “if said Chaffe, Powell & West should not be able to collect their total debt from said Basket by said chancery suit, then that they be required to subject other collaterals held by them as security for the same - debt against which there is no offset, ’ ’ etc. If appellees desired to proceed to judgment at law on the notes (under the rule announced in Hill v. Billingsly, 53 Miss., 111), they should have moved to dissolve or modify the injunction accordingly. They did not do that; and, as the decree in this case settles the rights of the parties, the injunction should have been retained. By some curious inadvertence, a decree was also rendered against S. J. Stein, in no way connected with the record. In [166] so far as the decree was rendered against Stein, and in so far forth as the decree dissolved the injunction and awarded damages, it is reversed, and a decree will be entered here perpetuating the injunction. In all other respects the decree is affirmed. " Appellees will pay the costs of the appeal. Reversed, and decree here.