Love v. Fairfield

• Decision Date: 31 March 1850
• Parties: JAMES LOVE v. ARTHUR FAIRFIELD.
• Court: Missouri Supreme Court

13 Mo. 300

JAMES LOVE

v.ARTHUR FAIRFIELD.

Supreme Court of Missouri.

March Term, 1850.

ERROR TO ST. LOUIS CIRCUIT COURT.

Fairfield sued Love in trespass to the April term, 1846, of the St. Louis Circuit Court, and got judgment by default, on which damages were assessed at the same term for $800, and execution issued therefor. The execution was returned “satisfied in full,” by the sheriff acting under instructions from the plaintiff, Fairfield. This return was made October 28, 1846, the regular return day of said writ being the third Monday of November of that year. On the 28th November, 1846, Field & Hall filed their motion to the St. Louis Circuit Court, to award execution on the said judgment and to set aside and vacate the entry of satisfaction on the execution by Fairfield, for the following reasons: “1st. That Field & Hall had an assignment of five hundred dollars by the said Fairfield before said satisfaction was entered on said execution. 2nd. That said defendant knew that the said Field & Hall had an interest in said judgment at the time he settled with Fairfield.” This motion was called up for hearing on the same day it was filed. Judge Krum heard some evidence on that day, and held the matter up till January 9th, 1847, when he allowed the motion of Field & Hall, and gave judgment that the entry of satisfaction on said judgment, made by said plaintiff, be and the same is hereby vacated, so far as regards the claim of the said Field & Hall, to the amount of five hundred dollars, and that execution for the said sum of five hundred dollars issue on said judgment for the benefit of said Field & Hall, assignees of said judgment, to that amount. Love excepted, and filed his bill of exceptions, first moving for a re-hearing, which was refused.

It appears by the bill of exceptions that on Saturday, the 28th day of November, 1846, when said cause was called for trial, the judge of the St. Louis Circuit Court (Judge Krum) asked if said Love were present; whereupon T. T. Gantt, the attorney of said Love, stated that he attended on the part of Love, who was present in court, having accidently heard on the morning of that day that such a motion was pending, and had employed him (Gantt) to attend to it for him, and that as such counsel he objected to the irregularity of the proceedings, and particularly that the proper parties were not before the court, and could only be brought before the court by a bill in chancery. Love had been subpoened as a witness in the cause and was present. One John H. Deck was also present. The court decided to hear such facts as might be offered, and thereafter to decide upon the law and the facts of the case, to which decision Love excepted. Field & Hall then read an affidavit made by themselves, which they had filed with the motion. This affidavit was not read as evidence of the facts it recites, but laying a basis for the inquiry upon which this court was entering. It set out the judgment in favor of Fairfield, the assignment of five-eighths thereof to Field & Hall, and knowledge of that assignment to Love; also that Love fraudulently procured Fairfield to enter satisfaction of said judgment, after being informed of the said assignment. Field & Hall then called as a witness John H. Deck (who was unknown to the counsel of Love), who testified that some time in August, 1846, he had a conversation with Love about the judgment which Fairfield had obtained against him. That this conversation took place near the shop of Love, who is a blacksmith. That in this conversation Love stated that Field & Hall had an assignment of five hundred dollars of the said judgment. That deponent once had an interest in said judgment, which he sold to Field & Hall, and that he had no interest at the time he testified.

S. M. Bowman testified, that in October, 1846, Fairfield and Love came to his office. They stated that they had been trying to settle. Fairfield said he was willing to settle with Love; for he did not believe that Love cut his wagons. Love said that he could settle with Fairfield, but that Field & Hall did not want to settle. Field & Hall were the attorneys of Fairfield. Fairfield stated that Field & Hall had an interest in the judgment, but he presumed he could settle with them, or fix it with them. The settlement between Fairfield and Love was made subsequently to this interview. On cross-examination, Mr. Bowman said that nothing was said on this occasion of an ““assignment” of any part of this judgment to Field & Hall, and witness, though a lawyer, did not know that there was an assignment. Field & Hall then read an instrument, purporting to be an assignment from Fairfield to Field & Hall of five hundred dollars of a judgment obtained against Love for eight hundred dollars, which instrument was dated May 24th, 1846, but it was admitted that it never had been filed with the papers of the cause, nor exhibited to Love until after the return of the execution in this cause.

Love by his counsel objected, first to the court taking any cognizance of the motion of Field & Hall at all; and secondly he objected that the evidence was not such as to warrant the interference of the court in their favor. The court took the matter under advisement; on the Monday following this Saturday, to wit: on the 30th day of November, 1846, Love filed an affidavit to the effect that he was first informed of the pendency of the motion on the morning of the Saturday previous. That he was led, by information received from counsel, that the matter could not be disposed of by motion, and he was also informed that Field & Hall would have in attendance, and rely upon the evidence of Charles Collins, S. M. Bowman and Hugh Lackey, to prove that Love had notice of the assignment of the portion mentioned of the judgment to Field & Hall. That he relied upon the facts, that he never had heard of such assignment, and he knew that none of the persons named could testify that he had so heard or knew of it. That he was surprised by the production of Deck as a witness; that Deck was a person of infamous character. That affiant could prove by the testimony of numerous persons that said Deck was not a credible witness, and that he asked for an opportunity of trying this before a jury. Affiant denied positively ever having had such a coversation as Deck detailed in evidence, and denied that he ever heard before the return of the execution as satisfied, that Field & Hall had an assignment of any part of the judgment against him, or any lien upon, or separate interest therein; which affidavit was filed as aforesaid, and handed to the judge on first or second day of December, 1846, and before the determination of said motion. Afterwards one Murphy filed an affidavit, which it is not deemed important to notice. The court allowed the motion of said Field & Hall on the 9th day of January, 1847. Love filed a motion for a re-hearing.

On the 8th day of February, when the said motion came on to be heard, the counsel of Love informed the court that since filing said motion, they had ascertained that Field had on the 29th day of May, 1846, taken to, and filed, in the office of the clerk of the Circuit Court for Madison county, Illinois, a transcript of the record in this cause, and made an affidavit, for the purpose of attaching property, belonging to Love, in the State of Illinois, that the amount of said judgment was due from Love to Fairfield. And this the said Love then and there, offered to prove by competent testimony. But Judge Krum refused to permit Love to try such evidence, and Love excepted. Love then offered evidence to prove, that in fact, he had no notice of the assignment from Fairfield to Field & Hall, before the return of the execution in this cause, but the court refused to hear such evidence, and Love excepted. Judge Krum refused to reconsider the cause, and overruled Love's motion for a re-hearing, and Love excepted, and sued out this writ of error.

The above statement is correct except that Bowman testified, that when Love and Fairfield were at his office negotiating about a settlement, the office of Field & Hall, was on the same floor as witness' office, and excepts also, that at the time of the trial of the motion for a new trial, the defendant offered to prove that the transcript filed by Field, in Illinois, was accompanied by an affidavit made by Fairfield, and not by Field, as set forth in the foregoing statement.

POLK and GANTT, for Plaintiff. 1st. The motion of Field & Hall (filed on the 28th November, 1846), shows no cause or reason sufficient to justify the action of the court below. It does not show that Field & Hall had an assignment of any part of the judgment against Love; but only that they had from Fairfield “an assignment of five hundred dollars,” neither does it show that Love knew that Field & Hall had an assignment of said judgment, but only that he had been informed that they had “an interest in it,” which is a very different thing. 2nd. While it is not denied that the assignee of a chose in action, will be protected against attacks of the assignor, done after the notice of the assignment, and detrimental to the interest of the assignee, it is denied that any one can be the...