Epstein v. Ferst

• Decision Date: 30 April 1895
• Citation: 35 Fla. 498,17 So. 414
• Parties: EPSTEIN et al. v. FERST et al.
• Court: Florida Supreme Court

17 So. 414

35 Fla. 498

EPSTEIN et al. v. FERST et al.

Florida Supreme Court

April 30, 1895

Appeal from circuit court, Madison county, John F. White, Judge.

Bill by Epstein & Bro. and Eckstein & Co. against M. Ferst & Co., F R. Sweat, and T. T. Ellison. From the decree rendered plaintiffs appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. A decree of a court of chancery stating that the same is without prejudice to a party is, as to such party, the same as no decree, and will not support a plea of res adjudicata and the same matters in issue in the original suit can be again heard and determined.

2. A plaintiff on November 2, 1885, filed a declaration with common counts, but no bill of particulars. No praecipe had been filed or process issued in the case, the declaration being the first paper filed. Together with such declaration was a paper which, after stating venue and title of the cause, was in the following form: 'And now comes Farley R. Sweat, defendant in this cause, and waiving process of summons, or other notice, and says that he acknowledges that he is indebted to the plaintiff [naming him] in the sum of five hundred and twenty-three 09-100 dollars, with interest at seven per centum per annum from the first day of October A. D. 1885, as alleged in his declaration; that he consents that the plaintiff have judgment for said sum, to be entered on the first Monday in November, A. D. 1885. Oct. 31st, 1885. F. R. Sweat.' The clerk, upon this paper, without proof of the execution of the same, or appearance of defendant, entered a judgment for the amount named in the paper. Held, that such judgment was without authority of law, and was void.

3. Clerks of the circuit court in this state have no authority to enter judgments upon such a confession as is set forth in the preceding headnote, made without service of process, when no suit is pending, no appearance of defendant, and there is no proof of the execution of the confession of judgment.

4. Parties having void judgments are not judgment creditors, so that they can attack fraudulent conveyances made by their debtors.

COUNSEL J. N. Stripling, for appellants.

S. Pasco and C. W. Stevens, for appellees.

OPINION

LIDDON, J.

Appellants filed their bill of complaint in the circuit court against the appellees. The respective firms of complainants alleged that they were judgment and execution creditors of the defendant F. R. Sweat, and the purpose of the bill was to set aside, as fraudulent against creditors, a mortgage upon a stock of merchandise made by said Sweat to his codefendants Ferst & Co. The defendant T. T. Ellison was made a party because he had been appointed a receiver in proceedings by Ferst & Co. to foreclose the said mortgage, and had, by virtue of an order of the court, taken possession of the mortgaged property. The complainants in the present case upon their own application, had been made parties defendant in the foreclosure proceedings of Ferst & Co. against Sweat, and had sought, as prior lienors and judgment creditors, to defeat the mortgage upon substantially the same allegations of fraud as are contained in their bill of complaint in the present case. In such proceedings they had filed an answer and a cross bill. Their answer, being considered as a demurrer, was overruled, and on demurrer thereto the cross bill was dismissed. This order of dismissal was general, but the said defendants (complainants in the present case), upon notice, afterwards, obtained a modification of the decree, wherein it was decree 'that the decree of this court * * * whereby the demurrer of the defendants I. Epstein & Bro. and G. Eckstein & Co. to the bill of complaint was overruled, and the demurrer of the complainants to the cross bill of the defendants I. Epstein & Bro. and G. Eckstein & Co. was sustained, and cross bill dismissed, be, and the same is hereby, modified so that the same shall be without prejudice to the rights of the defendants I. Epstein & Bro. and G. Eckstein & Co. to take such other proceedings as they may be advised is necessary to assert their rights.'

The defendant answered the bill of complaint, and the first matter of defense urged in the answer is that the matters thereof had already, in the proceedings of Ferst & Co. v. Sweat et al., been adjudicated in defendant's favor. Various other matters were alleged in the pleadings, and testimony was taken by the respective parties.

Such portions of the pleadings and proof as are necessary to the proper understanding of the points decided in this opinion will be hereinafter referred to. The bill of complaint on final hearing was dismissed, and from this decree and appeal is taken.

First, as to the defense of res adjudicata: The present complainants were parties, upon their own motion, to the proceedings in which the mortgage now sought to be attacked was foreclosed. It is useless to discuss whether, in such proceedings, their rights in the matter were, or could have been, properly adjudicated. By the paractically unanimous agreement of the authorities, a decree of a court of chancery--especially one dismissing a bill of complaint, and stated to be without prejudice to a party--is, as to such party, the same as no decree, and will not support a plea of res adjudicata. The very same matters in issue in the original suit can be again heard and determined. 2 Daniell, Ch. Pl. & Prac. (6th Ed.) 994; 2 Beach, Mod. Eq. Prac.§ 644. In a late decision in Rhode Island (Reynolds v. Hennessy, 17 R.I. 169, text 175, 20 A. 307, and 23 A. 639), we find the following: 'The court dismissed the bill without prejudice to the right of the complainant to prosecute the present action at law, which had then been brought. The intention and effect of such a reservation in a decree are, by express terms, to prevent it from operating as a bar to another suit. A dismissal 'without prejudice' leaves the parties as if no action had been instituted. Magill v. Trust Co., 81 Ky. 129; Lang v. Waring, 25 Ala. 625; Durant v. Essex Co., 7 Wall. 107, 109; Ballentine v. Ballentine (Pa.) 15 A. 859. It has been held that such a reservation prevents the bar, even though it has been erroneously incorporated in the decree. Wanzer v. Self, 30 Ohio St. 378; Gunn v. Peakes, 36 Minn. 177, 30 N.W. 466.' See, also, Northern Pac. R. Co. v. St. Paul, M. & M. Ry. Co., 47 F. 536; County of Mobile v. Kimball, 102 U.S. 691, text 695; Railroad Co. v. Davis, 62 Miss. 271; Ragsdale v. Railroad Co., Id. 480; 2 Black, Judgm. § 721.

The complainants in the suit of Ferst & Co. v. Sweat et al. prosecuted their bill for foreclosure to final decree. This final decree is not in the record. We cannot tell whether complainants in the present case were or were not named as parties defendant in said decree, or whether the case was treated as dismissed, as against said defendants. The burden of proving this defense rested upon the defendants, and, in the absence of the final decree from the record, we cannot say the present complainants were parties defendant to it. From such of the record as is before the court, they seem to have been eliminated from the case. From what has been said, it follows that there was no efficacy in the defense of a former adjudication.

The complainants claim to be judgment creditors of the defendant Sweat. It is conceded that it is necessary that they should be such judgment creditors, before they can maintain their present suit. The defendants Ferst & Co., in effect, deny that the complainants are such judgment creditors; alleging in their answer that, so to the judgments and executions upon which the...