Clark v. Douglass

• Decision Date: 03 January 1870
• Citation: 62 Pa. 408
• Court: Pennsylvania Supreme Court
• Parties: Clark <I>et al. versus</I> Douglass.

Page 408

62 Pa. 408

Clark et al. versus Douglass.

Supreme Court of Pennsylvania.

October 19, 1869.

January 3, 1870.

October 19th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Erie county: Of October and November Term 1869, No. 6.

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G. W. De Camp, for plaintiffs in error, cited Phelps's Appeal, 12 Wright 159.

C. B. Curtis, for defendant in error, cited Braddee v. Brownfield, 4 Watts 475; Thompson's Appeal, 7 P. F. Smith 175: Dougherty's Estate, 9 W. & S. 189; Lewis v. Rogers, 4 Harris 18; Hartman v. Ogborn, 4 P. F. Smith 120; Nace v. Hollenback. 1 S. & R. 340; Blythe v. Richards, 10 Id. 261.

The opinion of the court was delivered, January 3d 1870, by SHARSWOOD, J.

All the assignments of error may be considered together, as they rest upon the same principle.

Julius Degmier was a deputy collector of Federal internal revenue for the Nineteenth Collection District of this state, appointed by John W. Douglass, the principal collector. It was found that he had embezzled a considerable sum of money, for which the principal was responsible to the government. He and his wife executed a mortgage of her estate in due form in the sum of $15,000, to secure Douglass from this liability. The amount of the defalcation had not then been ascertained. A scire facias was subsequently issued on this mortgage, the amount due upon it liquidated by the agreement of the parties, and judgment confessed for the sum so ascertained. A levari facias was issued, and the mortgaged property sold by the sheriff. The plaintiffs then applied to the court by petition, alleging that all that was really due on the mortgage was $3316.72, with interest, and as to the balance of the judgment, that it was fraudulent and void; and that by reason of the attempt of Douglass fraudulently to enforce the collection of the whole amount, and thereby to hinder, delay and defraud the petitioners in the collection of their several debts, he, the said Douglass, had postponed his judgment until the petitioners were paid, and thereupon prayed an issue to try how much of the proceeds of the sheriff's sale, if any, could be legally applied to the payment of the judgment in question. The court granted the prayer of the petition. No formal issue, however, was framed. A declaration was filed in assumpsit for goods sold and delivered, work and labor done, and the common money counts, instead of the old and approved form of a count upon a wager, in which the precise question to be tried is stated, and if the parties cannot agree, settled by the court. The loose practice adopted in this case is much to be reprobated. The declaration filed might as well have been a blank sheet of paper. We are driven, then, by necessity, to discover, if we can, from the petition and order of the court upon it, what was the issue awarded. The jury was impannelled to try and determine that issue — what it was in fact, not what it ought to have been. On a writ of error to a judgment on a feigned issue — being on an interlocutory and not a final decree — we cannot revise the order granting the issue, but have only to decide upon the rulings and charges of the court below in reference to it. Taking the petition as our guide, we think the question intended to be submitted to the jury evidently was, whether the judgment on the mortgage was fraudulently confessed for more than the amount honestly due, for the purpose of hindering, delaying and defrauding the petitioners and other creditors. No other issue could properly have been awarded; for it is clear, and now fortunately well settled, that the petitioners had no right to attack the judgment collaterally upon any other ground. It was not a void judgment, for even as to the wife, the mortgage upon which the scire facias issued had been duly executed and acknowledged by her according to law. It was voidable, by strangers to it, only for fraud upon them, leaving it of course still a valid judgment as between the parties. The remedy of the defendants in the judgment was a motion to open it and be let into a defence upon the merits. This creditors could not do in a collateral proceeding, unless upon the ground of collusion: Dougherty's Estate, 9 W. & S. 189; Thompson's Appeal, 7 P. F. Smith 175. In Gates v. Johnston, 3 Barr 52, upon a writ of error to the judgment on the feigned issue, the question was not upon its effect, nor upon whether it was rightly framed, but only whether such as it was, it was rightly tried. Gibson, C. J., however, remarks in his opinion that the form of the issue was wrong, and that it ought to have been whether the judgment was collusive. So in Greene v. Tyler, 3 Wright 361, which was also a writ of error on a judgment in a feigned issue, the only matters properly before the court were the exceptions taken below on the trial. The effect of the verdict on the distribution of the fund was a subsequent and different question. The remarks of Mr. Justice Woodward are to be construed in this light, and the syllabus of the reporter truly expresses all that was really decided by the court. Nor is Benson's Appeal, 12 Wright 159, in conflict; for there the only question was, whether an issue ought to have been granted on an allegation by creditors that the...