10 D.C. 145 (D.C.D.C. 1879), 4711, Bohrer v. Fay

Docket NºEQUITY.— 4711.
Citation10 D.C. 145
Opinion JudgeMr. Justice MACARTHUR
Party NameGEORGE A. BOHRER AND JULIUS S. BOHRER v. JOHN C. FAY, WILBUR S. SUPPLEE, AND ALEX. SHARP.
AttorneyR. Ross Perry , for complainants. John C. Fay , for defendants.
CourtSupreme Court of District of Columbia

Page 145

10 D.C. 145 (D.C.D.C. 1879)

GEORGE A. BOHRER AND JULIUS S. BOHRER

v.

JOHN C. FAY, WILBUR S. SUPPLEE, AND ALEX. SHARP.

EQUITY.— No. 4711.

Supreme Court, District of Columbia.

September Term, 1879

I. A court of equity will not enjoin a judgment at law, where the remedy is adequate and complete at law; and where a motion to open the judgments on the same grounds as those set forth in the bill has been made in the court where the judgments are pending, and which motion is undetermined, there is no ground of relief in equity.

II. The jurisdiction in chancery to stay proceedings at law upon a judgment is well established, but cautiously exercised. A mere defect of jurisdiction is not sufficient. Equity will interfere only to prevent injustice which has not been brought about by the negligence or inattention of the party aggrieved.

III. The complainant in the bill must allege and prove that he has a good defense to the action at law, and explain the merits of such defense, and how he has been prevented from availing himself of it.

STATEMENT OF THE CASE.

This is a bill in equity to enjoin the defendants from enforcing a judgment at law, and a decree to that effect was obtained in the court below. The judgments whose collection is enjoined were rendered April 22, 1871; the bill in this case was filed November 23, 1875. The complainant Julius S. Bohrer was the principal defendant therein, and the summons in the case was returned non est , and a judgment was taken by default for failure to appear and answer. On the same day the process was returned, a writ of garnishment was returned served upon George A. Bohrer, the other complainant herein, who filed an informal answer thereto, not under oath. On the 16th day of March, 1871, interrogatories were filed and served upon the garnishee by Mr. Fay, who was plaintiffs' attorney in the action at law. No answers were filed to the interrogatories, and a judgment of condemnation against the garnishee without an inquest was entered, upon which execution was issued May 22, 1871.

On June 24, 1871, the following motions were filed to strike out the judgments at law:

" The garnishee, George A. Bohrer, moves the court to set aside the judgment rendered against him in the above cause, and assigns as reasons therefor: 1st. That he had answered fully the attachment. 2d. That the interrogatories served on this garnishee were not authorized by law. 3d. That the attachment affidavits are fatally defective. 4th. That the garnishee is not indebted to the defendant, and has valid, legal, and meritorious defense.

" SAMUEL L. PHILLIPS,

" Attorney for Garnishee ."

" The defendant, protesting against the jurisdiction of the court, moves the court to set aside the judgment by default entered in the above, and assigns for reasons: 1st. That he had no notice that the said cause of action was pending against him. 2d. That the said judgment is void, as the said court had no jurisdiction to render a general judgment against the defendant, there being no service of process of the said defendant, he being a citizen of the State of Maryland. 3d. That there is nothing due to the said plaintiff by reason of the cause of action set forth in said declaration.

" JULIUS S. BOHRER, Defendant ."

And thereupon, on the same day, the judgments were by the court vacated and set aside; from which order the plaintiff appealed to the court in general term.

On the 23d day of February, A. D. 1872, the order striking out said judgments was reversed; and on March 5, 1872, a new motion was filed, by leave of the court, to strike out the judgment against George A. Bohrer, garnishee, which motion had been heard but not determined when this bill was filed.

The suit remained in this condition until the 23d day of September, 1875, when a writ of execution was again ordered against the garnishee, and the complainant then filed the bill herein to restrain all further proceedings in the suit at law; the grounds set up in said bill for relief being substantially embraced in the motions referred to in the suit at law, to wit, irregularities and want of jurisdiction.

R. Ross Perry , for complainants.

A court of equity will relieve against a judgment at law, provided the garnishee show a sufficient excuse for his delinquency in failing to answer. (Drake on Attachment, sec. 637 e; Baker v. Glover , 2 Cranch C. C. R., 682.)

The question of jurisdiction is always open to inquiry, whether it be raised directly or in a collateral proceeding. (Drake on Attachment, sec. 85; ex-parte Watkins , 7 Peters 572; 1 Peters 329.)

The affidavits in this case were fatally defective in two respects: 1. The affidavit of the witness does not swear to the non-residence of the defendant as the statute requires. (Rev. Stat. D. C., sec. 782.) This defect is fatal. (Drake on Attachments, secs. 85-98.) 2. The affidavits both purported to be made upon information and belief, and are in this respect fatally defective. (Drake on Attachment, secs. 100, 104, 106, 108, and other authorities there quoted; Garner v. White , 23 Ohio 192.)

An answer was actually filed by the garnishee on the 9th of December, 1870, before the return day of the writ. There was not then, and is not now, in force any rule of law or of court requiring this answer to be under oath. (Rule 16, new rules; rule 17, old rules.) The proceedings, therefore, of the 15th of March, 1871, concerning interrogatories, were irregular and unauthorized. The rule of court providing for these interrogatories was not passed until the 15th day of February, 1873. The interrogatories in question were not accompanied by any rule to answer, and were served by Fay in person, instead of the marshal. The whole proceeding was entirely improper, unauthorized, and void.

It appears from the testimony of Bohrer, that while he did not recognize Fay's authority in the premises, he yet prudently took the copy...

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