Jones & Parker v. Webb
| Decision Date | 31 October 1876 |
| Citation | 8 S.C. 202 |
| Parties | JONES & PARKER v. WEBB. |
| Court | South Carolina Supreme Court |
In an action for settlement of the business of a copartnership, its creditors were called in and required to present and prove their claims before a Referee. Some of the claims presented and proved were not due; but, by consent of all the parties to the action, a judgment was rendered upon the report of the Referee as well for the claims not then due as for those that had become due before the action was commenced: Held , That this was not such an irregularity as authorized the Circuit Court, on the motion of the defendant, to set aside the judgment so far as it related to the claims not due when it was rendered.
A judgment by consent of parties is in the nature of a contract between them, and cannot be set aside, where fraud or mistake is not alleged, merely because of some irregularity of procedure.
BEFORE MOSES, J., AT NEWBERRY, MARCH, 1875.
The case is as follows:
The plaintiffs, Lambert J. Jones and William C. Parker, and the defendant, William H. Webb, were partners in business at Newberry, under the partnership name of Webb, Jones & Parker. In February, 1874, Jones and Parker commenced this action against Webb, alleging that the defendant had improperly applied partnership funds to his own use, and other irregularities, and praying that the partnership be dissolved; that a receiver of its assets be appointed; that creditors be enjoined from suing at law, and that they be required to present and prove their claims before a Referee. On the 16th day of February, 1874, His Honor the Judge of the Circuit made an order dissolving the partnership, with the consent of the defendant, and, upon motion of plaintiff's attorney passed a further order appointing receivers of the partnership effects, enjoining the creditors from suing at law, and requiring them to prove their claims before the Clerk of the Court. On the 12th day of May, 1874, the Clerk made his report on the claims that had been presented and proved before him. Amongst the claims so reported upon was one in favor of Inmann, Swann & Co., upon three promissory notes, for $3,000 each, dated February 2, 1874 and payable one on the 15th day of October, 1874, one one the 15th day of November, 1874, and one on the 15th day of December, 1874. Other claims, which were not due when the report was made, were reported upon as presented and proved.
Many other claims then due were also reported upon as proved.
Upon the claims not due the Clerk allowed the usual rebate of interest.
On the 12th day of May, 1874, the Circuit Judge made an order at Chambers, with the consent, in writing, of the attorneys of the plaintiffs and the defendant, confirming the report of the Clerk and making it the judgment of the Court.
The order gave the parties whose claims were proved the right to issue executions, but provided that the claims not then due should not be enforced by execution until they became due.
In July, 1874, the defendant, Webb, moved the Circuit Court to set aside, as to him, the judgments of the 12th of May, 1874. The motion was dismissed, so far as it related to claims that had matured when the judgment of May 12, 1874, was rendered, and was granted so far as it related to claims not then matured.
Inmann, Swann & Co., and other creditors of Webb, Jones & Parker, (holders of claims which had not matured when the judgment of May 12, 1874, was rendered,) appealed from so much of the last mentioned order as vacated the judgment of May 12, 1874, upon their claims.
Suber , for appellant, cited Story Eq. Pl., § 99; Whittimore vs. Oxborough , 2 Y. & C., 17; 3 Waite's Pr., 344; Hutchison vs. Bates , 1 Bail. 111; 3 Waite's Pr., 615; Montgomery vs. Ellis , 6 How. Pr. R., 326; Code, § 197; 2 Dan. Ch. Pl. and Pr., 1179; Atkinson vs. Marks , 1 Cow. 693; Harrison vs. Rumsey , 2 Ves., Sr., 488; Jarvis vs. Halner , 1 Barb. Ch., 379; Cosgrove vs. Butler , 1 S. C., 241; Ex parte Monteith , 1 S. C., 231; and other authorities.
Youmans , contra, cited: Barnes vs. Branch , 3 McC. 19; Haigler vs. Way , 2 Rich. 324; Thew vs. Porcelain Company , 5 S. C., 415; Wainthrop vs. Law , 3 DeS. 323; Barnes vs. Milne , Rich. Eq. Cases, 459; Cohen vs. DuBose , Harper Eq., 102; Wiseman vs. Finley & Hunter , 14 Rich. Eq., 172; Allen vs. Richardson , 9 Rich. Eq., 56; Adams' Eq., 220; 1 Chit. Pl., 453; Walker & Bradford vs. Roberts , 4 Rich. 567; 2 Waite's Pr., 133; Josey vs. Dickson & Tindall , 12 Rich. 378; and other authorities.
Notwithstanding the extended brief and the many principles which the counsel thought it necessary to invoke in their respective arguments, there is but a single proposition presented for our determination, and that involves neither doubt nor difficulty. It questions the right of the Circuit Judge, by his order filed on the 29th March, 1875, to set aside that portion of his order of 12th May, 1874, in regard to the demands held by creditors of Webb, Jones & Parker not at the time matured.
The order so changed or modified was by consent of the parties interested. They were unaffected by any disabilities which rendered them incompetent to consent. It awarded judgment and execution and was final in its character. The motion by Webb, one of the copartners, after the dissolution of the firm, to set aside as to him the judgment in favor of the creditors of the copartnership established by the order of 12th May, 1874, had reference to all the judgments which it embraced, excepting none, and the other copartners, Jones and Parker, who now here contest the motion of the appellants, did not unite with Webb in his application to the Court below. Some new view of their interest has induced them to resist a motion which seeks to set aside an order materially affecting one taken on a complaint brought by them and passed on the motion of their own solicitor.
The Circuit Judge does not rest his decision on the ground of " inadvertence, mistake or excusable neglect," as the counsel here do. He vacated the judgment because the demands on which they were founded were not due at the time he made the order. But the plaintiffs, in whose favor the judgment was rendered, were properly in Court. They were called in as creditors, and the fund in the hands of the Court could not have been distributed without provision for the equitable proportion to which the...
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