Hyde v. Curling

• Decision Date: 31 January 1847
• Citation: 10 Mo. 359
• Court: Missouri Supreme Court
• Parties: HYDE v. CURLING & ROBERTSON.

10 Mo. 359

HYDE

v.CURLING & ROBERTSON.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO MARION CIRCUIT COURT.

RICHMOND, for Plaintiff. 1st. It was erroneous in the Circuit Court to order an inquiry of damages, without first entering a judgment by default against the garnishee, and such a judgment, nunc pro tunc, after the assessment, was irregular and void. Rev. St. 476, 140, 814-15; 17 Johns. R. 270; Graham's Pr 633-4; 5 Wend. 106; 6 Cowen, 599, 600; 1 Mon. 113; 1 Durn. & East, 637-8; Bates v. Lockwood, Tidd's Pr. 965-6-7. 2nd. The court erred in ordering an inquiry of damages on the same day that the supposed judgment, by default, was entered up. Evans v. Bowlin, 9 Mo. R. 407. 3rd. It was error in the court to assess the damages without a jury, as there was no written evidence of indebtedness. Pratte, &c. v. Corl, 9 Mo. R. 163. 4th. The court, sitting as a jury, found a verdict palpably contrary to the law and evidence in the cause. 5th. The affidavit of plaintiff, and other facts, show that injustice was done to the defendant in the Circuit Court, and a new trial should, therefore, have been granted. Mahan v. Jane, 2 Bibb, 33, 287; Haggin v. Christian, 1 Marsh. 579; Dicken v. Smith, 1 Litt. 211.

GLOVER & CAMPBELL, for Defendant, insist on the affirmance of the judgment: 1st Because a good and sufficient judgment, by default, was entered by the court on the 10th August, 1846, immediately before the court proceeded, by consent of the defendant's attorney, to assess the plaintiffs' damages The plaintiffs were entitled to judgment by default, at the first term after the filing of the interrogatories served on the defedant. See Rev. Code, 1835, p. 79, § 22; Graham's S. C. Pr. 632. That the plaintiffs did not take their judgment as early as they might, cannot be objected to by the defendant. 6 Mo. R. 322; 7 Mo. R. 4, 569; 1 Mon. 55. Or, if it was ground of objection he waived it by appearing and consenting to proceed with the trial. 2 Mo. R. 25; 5 Mo. R. 61. The case of Evans v. Bowlin, 9 Mo. R. 410, is not in point here, because the attorney consented to proceed with the case, and dispensed with a jury. That the attorney had the power to bind his client, see 6 Johns. 300; 1 Bin. 214; 7 Pick. 137; 1 Greenl. Ev. 255; 3 Taunt. 485; 1 Salk. 86, 88. But it will also be perceived that no objection was made to entering up the judgment by default, on the 10th August, 1846, nor any attempt to set it aside after it was entered up. See 1 Mo. R. 156. 2nd. That Wesley W. Hyde was largely indebted to the plaintiffs; that he made arrangements to pay his home debts only; that he put in the hands of his brothers $5,000 or $6,000; that he sued the defendant, Jordan, for over $7,000, and dismissed his suit only when he found the plaintiffs were about to recover; that he had received several thousands of dollars from his parents, and settled the same on his child; that he had no visible property, but plenty of money, connected with the fact of total silence, on the part of the defendant, as to the matters of account between Jordan and Wesley, are circumstances fully justifying the verdict. As to the alleged newly-discovered evidence, the affidavit was wholly insufficient. 2 N. Y. Dig. 145, title New Trial; 3 Caine, 182; 2 ib. 185; 18 Johns. 489; 7 Mass. 205; 15 Mass. 378; 2 Binney, 582; 4 Johns. 425; see also Graham's Pr. 511; 7 Mo. R. 25. The evidence which the defendant pretends to have discovered, was, at best, but cumulative, and was, therefore, not admissible. It was not competent for the defendant to introduce evidence on the execution of the writ of inquiry. 9 Mo. R. 503. 3rd. It would seem to be quite immaterial whether the orders, which the court made nunc pro tunc, were properly taken or not; yet the plaintiffs insist said entries were regular. In 1 Salk. 401, the case was a verdict for plaintiff, and the death of defendant before judgment. The court held that as plaintiff was entitled to his judgment, prior to his death, he should have it. See 2 Tidd's Pr. 965; 1 Salk. 87; 3 Salk. 116. Now certainly in this case the plaintiff was entitled to judgment by default, upon the failure of defendant to appear. If so, the entry might properly be made at a subsequent term, because the plaintiffs' interrogatories filed, the law, and the failure of defendant to appear, render it as positively certain that plaintiffs were entitled to their judgment, as if a verdict had been returned into court. But in addition to this, the record shows that the orders were really made by the court, and that defendant had moved to set aside the default. 9 Mo. R. 410.

MCBRIDE, J.

On the 25th June, 1844, an execution issued from the clerk's office of the Marion Circuit Court, in favor of Curling and others, and against Wesley W. Hyde, for the sum of $4,396 35, and costs of suit. On this execution, Jordan W. Hyde, appellant, and others, were garnisheed. Interrogatories were filed against the garnishees, on the 16th October, 1844, which were served on them on 14th November, 1844. On the 10th August, 1846, the case being called, Jordan W. Hyde offered to file his answer to the interrogatories exhibited against him, but the court refused him leave to answer. The court then, “by consent of parties,” proceeded to hear the evidence and assess the damages, and gave a verdict against Jordan W. Hyde for the sum of $5,021 51, and directed judgment to be entered up for the same. On the next day, the 11th August, the court, on the motion of the plaintiffs' attorney, ordered a motion to be entered up as of the 13th day of the previous term, and as if made by Jordan W. Hyde, asking the court to set aside a judgment by default entered against him on that day, and for leave to file his answer to the plaintiffs' interrogatories, which motion was overruled. On the 12th day of August, 1846, the defendant, Jordan W. Hyde, filed his motion to set aside the assessment of damages and for a new trial. On the same day the plaintiff filed his motion to have a judgment by default entered against the defendant, as of the 13th day of the last term, which was sustained, and a judgment, by default, nunc pro tunc, was thereupon entered. On the 13th August, 1846, the defendant moved in arrest of judgment, which motion the court overruled--the court also overruled his motion for a new trial. Exceptions were taken to the several decisions of the Circuit Court, and the cause is brought here by writ of error.

The first error assigned, is the assessment of damages by the court, before a judgment by default had been taken against the garnishee.

This proceeding is founded upon the sixth section of an act to regulate executions, Rev. Code, 1845, p. 476, which provides that “when a fieri facias shall be issued, and placed in the hands of an officer for collection, if no sufficient property can be found in the county, whereof to levy the amount due on said writ, it shall be the duty of the officer to summon, in writing, as garnishees, all such debtors of the defendant, as the plaintiff his agent or attorney, shall direct, to appear in court on the return day of the fieri facias, to answer, on oath, such interrogatories as may be exhibited against him, on the part of the plaintiff, touching his indebtedness to the defendant in the execution; and the like proceedings shall be had, and the like judgment rendered, for or against the garnishee, as are and may be provided in cases of garnishees, summoned in suits originating by attachment.”

The act above referred to, is an act to provide for the Recovery of Debts by Attachment, Rev. Code, 132, the twenty-seventh section of which provides for the filing, by the plaintiff, of written allegations...