Lillie v. Dennert

Decision Date02 May 1916
Docket Number2734.
Citation232 F. 104
PartiesLILLIE v. DENNERT.
CourtU.S. Court of Appeals — Sixth Circuit

G. C Brown, of Grand Rapids, Mich., for plaintiff in error.

C. J Hall, of Grand Rapids, Mich., for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and SANFORD, District judge.

SANFORD District Judge.

This writ of error is brought to review an order entering satisfaction of a judgment obtained in the court below.

On December 17, 1913, one Charles R. Horrie, the plaintiff in an action at law brought against one Edgar P. Daggett and Paul Dennert, the defendant in error, as joint tort feasors obtained a judgment against them jointly for $2,683 and costs. On February 9, 1915, this judgment was assigned by Horrie to Charles P. Lillie, the plaintiff in error.

This assignment having been filed in the clerk's office, Lillie moved the court for the issuance of a body execution against Dennert. This motion, being resisted, was heard by the trial judge on oral testimony taken before him, and was, after such hearing, denied. On application of Lillie an execution and a garnishment against Dennert were then issued for the admitted purpose of collecting the entire judgment out of his property. Thereupon Dennert filed a petition, in which he alleged, in substance: that his co-defendant Daggett had paid the full amount of the judgment to the plaintiff Horrie and satisfied the same; that, while this payment purported to have been made by Lillie and an assignment of the judgment had been taken by him, the money paid to Horrie was in reality the money of Daggett, the payment, as a matter of fact and law, the act of Daggett, and the action taken by Lillie a mere sham and pretense; and that Lillie had refused to discharge the judgment of record as he ought to do, and was attempting by his proceeding to compel a contribution by Dennert to Daggett a joint tort feasor, not warranted by law. And he thereupon prayed that an order be entered withdrawing the execution, discharging the garnishment and entering satisfaction of the judgment.

Lillie answered this petition, denying the foregoing allegations of fact, and alleging, in substance: that he had paid Horrie the amount of the judgment with his own money; that no part of it was received by him from or for Daggett; that he took the assignment as his own property, with all rights to enforce it given by law; that it had not been paid and was wholly unsatisfied; and that he was its individual and sole owner.

The issues raised by this petition and answer were heard and determined by the trial judge upon the oral testimony heard by him on the previous motion for body execution, a transcript of which was filed with the petition and incorporated therein by reference; upon the consideration of which, without handing down any opinion or making any finding of facts, he entered an order that the judgment was fully paid and satisfied on February 9, 1914, directing the clerk to make an entry of such satisfaction, recalling the execution and dismissing the garnishment proceedings.

Lillie by his writ of error now seeks to review this order. It has been held that such an order is a decision from which a writ of error will lie. See McCutcheon v. Allen, 96 Pa. 319, 329; also Cooley v. Gregory, 16 Wis. 303, in which an appeal was allowed. In view of the result which we reach on the merits, we assume, without deciding, that the proper remedy has been adopted.

The scope of the review permissible under such writ of error is, however, in the instant case, a matter of grave doubt. Under the established modern practice allowing a motion to enter satisfaction of a judgment at law, by reason of its payment or discharge, as a substitute for the ancient writ of audita querela, the trial of controverted issues of fact arising under such motion, is ordinarily to be had in the same manner as under such writ, that is, by jury trial; to which several state courts have held the parties are entitled as a matter of right. Harding v. Hawkins, 141 Ill. 572, 584, 31 N.E. 307, 33 Am.St.Rep. 347; Bruce v. Barnes, 20 Ala. 219, 222; McCutcheon v. Allen (Pa.) supra, at page 323; Hottenstein v. Haverly, 185 Pa. 305, 308, 39 A. 946; Cooley v. Gregory (Wis.) supra, at page 326; and other cases therein cited. And see 2 Black on Judgments (2d Ed.), Sec. 1014, p. 1491.

Sections 648 and 649 of the Revised Statutes (Comp. St. 1913, Secs 1584, 1587), however, provide that the trial of issues of fact in the Circuit Courts shall be by jury, except in certain cases not here material, unless the parties or their attorneys file with the clerk a stipulation in writing waiving a jury; in which case they may be tried and determined by the court. Neither of these sections is repealed by the Judicial Code; and they,-- as well as Section 700 providing for review,-- are clearly made applicable to the District Courts, as now constituted, by Section 291 of that Code. Act March 3, 1911, c. 231, 36 Stat. 1167 (Comp. St. 1913, Sec. 1268). If, therefore, the issues of fact arising under a motion to enter satisfaction of judgment are to be considered as coming within the class of issues embraced within Sections 648 and 649 of the Revised Statutes, it would seem clear that where the parties, without filing a written stipulation waiving a jury trial, either expressly, or, as in the instant case, impliedly, submit the determination of the controverted issues to the trial judge, as, in effect, to an arbitrator, his conclusion is,-- at least in the absence of a finding of facts,-- not subject to review under writ of error, on a consideration either of the questions of fact or of law, or of mixed fact and law, arising on the evidence heard before him. Campbell v. Boyreau, 21 How. 223, 226, 16 L.Ed. 96; Bond v. Dustin, 112 U.S. 604, 606, 5 Sup.Ct. 296, 28 L.Ed. 835; Andes v. Slauson, 130 U.S. 435, 438, 9 Sup.Ct. 573, 32 L.Ed. 989; St. Louis v. Rutz, 138 U.S. 226, 241, 11 Sup.Ct. 337, 34 L.Ed. 941; Lupton's Sons v. Auto Club, 225 U.S. 489, 494, 32 Sup.Ct. 711, 56 L.Ed. 1177, Ann. Cas. 1914A, 699. And see Edwards v. Ladow (6th Cir.) 230 F. 378, . . . C.C.A. . . . . In the absence, however, of any objection interposed in this behalf by the defendant in error, we are not disposed of our own motion, to apply the rigor of this rule to the instant case, but shall assume, for present purposes, without determination, that it is not applicable, in its strict sense, to the subordinate issues of fact submitted to the determination of the trial judge upon a motion to enter satisfaction of judgment of the court; that in such matter he acts in his judicial capacity rather than merely as arbitrator, and that hence, as to the questions thus determined by him, we have authority, under a writ of error to review the evidence for the purpose of determining whether any error of law has been committed. It is entirely clear, however, that as the right of review under writ of error is limited to questions of law and does not extend to matters of fact (Andes v. Slauson, supra, 130 U.S.at p. 348, 9 Sup.Ct. 573, 32 L.Ed. 989), we can not in any event review the conclusion of the trial judge in so far as it depends upon a mere consideration of the weight to be given the evidence introduced before him, and that his conclusion is to be accepted by us...

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12 cases
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    ...... Philadelphia v. Fechheimer, 220 F. 401, 136 C.C.A. 25, Ann. Cas. 1917D, 64, Edwards v. La Dow, 230 F. 378, 144 C.C.A. and Lillie v. Dennert, 232 F. 104,. 146 C.C.A. 296, are later ones. Analogous questions. constantly arise, as in this case and in other cases pending. ......
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    ......The three cases that Jackman considered at any length in resolving those questions were equally limited in their scope. For example, Lillie v. Dennert, 232 F. 104, 109 (6th Cir.1916), was focused on the purchase of a judgment by the agent of one of several joint tortfeasors: “If, ......
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