Moody v. Muscogee Mfg. Co.

• Decision Date: 13 July 1910
• Citation: 68 S.E. 604,134 Ga. 721
• Parties: MOODY v. MUSCOGEE MFG. CO. et al.
• Court: Georgia Supreme Court

68 S.E. 604

134 Ga. 721

MOODY v. MUSCOGEE MFG. CO. et al.

Supreme Court of Georgia

July 13, 1910

Syllabus by the Court.

Upon a petition for scire facias to revive a dormant judgment wherein the plaintiff alleges that the judgment was rendered in a named cause in the same court, a transcript of which is not attached as an exhibit, but full reference to the cause is prayed, and the defendant by his pleadings invokes a construction of the record in aid of his defense, he cannot complain that the court considers such record in determining whether the judgment was void for uncertainty, or whether it was final or interlocutory.

(a) Even if the defendant's answer be construed to be a plea of nul tiel record, he was not entitled to a jury trial on the issue whether a given judgment had been rendered, as such issue is for decision by the court on an inspection of the record.

A decree may be partly final and partly interlocutory; final as to its determination of all issues of law and fact, and interlocutory as to its mode of execution. A final decree disposing of all the substantial equities of the case is not made interlocutory by the mere reservation of the right to direct the mode of its execution.

Every judgment must be certain and definite as to its amount. This element of certainty is present when the exact amount of the judgment may be ascertained by the subtraction of one named sum from another named sum, as provided in the judgment.

Subdivision 2, § 17, of the original bankruptcy act of 1898 (Act July 1 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]) providing "that judgments in actions for fraud or obtaining property by false pretensions or false representations" are not released by a discharge in bankruptcy, comprehends judgments rendered in actions, the gist of which is the actual fraud of the defendants. In determining this question the courts will look to the pleadings and judgment; and if the relief granted in the judgment is based upon actual, as distinguished from constructive, fraud of the bankrupt, the bankrupt shall not be discharged from its obligation, notwithstanding the action may not be strictly ex delicto in form.

Error from Superior Court, Fulton County; H. M. Reid, Judge.

Suit by the Muscogee Manufacturing Company and others against M. H Moody, administratrix of John T. Moody. From the judgment, defendant brings error. Affirmed as to certain parties, and reversed as to others. See, also, 66 S.E. 908.

In the fall of 1908 the Muscogee Manufacturing Company and 19 other parties, whose names will hereafter appear, filed their several petitions against John T. Moody in the superior court of Fulton county, alleging that at the March term, 1898, an equitable petition was filed by the Park Woolen Mills et al. against Moody & Brewster, a firm composed of John T. Moody and G. S.

Brewster, in which case Brewster was not served; that petitioners were parties plaintiff to the cause and on June 30, 1900, a final verdict and decree were rendered in the case, under which each petitioner was given a judgment for an amount, which was stated; that no fi. fa. was ever issued upon the judgment; that none of the principal, interest, and costs had been paid; and that by reason of the lapse of time the judgment was dormant; wherefore they prayed that scire facias be issued, and that judgment thereon be revived. Full reference to the cause in which the judgment was rendered was made. The defendant Moody answered the scire facias in each case, admitting that an equitable petition was filed in the superior court of Fulton county by the Park Woolen Mills et al. against Moody & Brewster, a firm composed of himself and G. S. Brewster, in which case Brewster was not served; "that on June 30, 1900, a final decree was rendered in said cause;" and that no fi. fa. had ever been issued upon this decree. He alleged that the judgment, if ever valid, is now dormant; that the alleged judgment sought to be revived in each instance is void for vagueness, indefiniteness, and uncertainty, in that the judgment is not, in practical effect, awarded for any definite sum, and the amount for which the judgment should have been or might have been rendered cannot be determined, either from the judgment or the pleadings in the cause of the Park Woolen Mills et al. against Moody & Brewster, since the amount stated in the alleged judgment for each one of the plaintiffs is subject to uncertain deductions or credits which must be proved by aliunde evidence; that the several plaintiffs are not entitled to revive their alleged judgments, for the reason that, if ever valid, the judgments have been released by the discharge in bankruptcy of J. T. Moody, granted on May 3, 1902, in a voluntary bankruptcy proceeding, in which the several plaintiffs were listed as creditors of Moody in his schedule filed in that proceeding; and that the debt of each plaintiff was a provable debt in bankruptcy. The defendants in error severally demurred to the answer, on the grounds: (a) The answer set up no legal reason why the judgment should not be revived; (b) the record discloses that the judgment rendered in the case of Park Woolen Mills et al. against Moody & Brewster is neither vague, indefinite, nor uncertain; (c) the discharge in bankruptcy granted to John T. Moody on May 3, 1902, did not apply to the judgments rendered in favor of the several plaintiffs, because the judgments were based upon fraud; (d) the defendant is not entitled under the facts set up in his answer to a trial by jury. The answer was amended, alleging that the decree of June 30, 1900, in the case of Park Woolen Mills et al. against Moody & Brewster, referred to in the petitions for scire facias, did not contain a final judgment against the defendant or the firm of Moody & Brewster; that the alleged judgment was interlocutory only, and did not finally fix and settle the rights of the parties to the litigation, but left the rights to be determined at some future date, the cause being retained for that purpose; that no final judgment was ever rendered; and therefore that the plaintiffs have no judgments in their favor, capable of being revived against the defendant. The demurrers to the answer were renewed, and sustained by the court, who struck the answers as amended, and entered up judgment reviving the alleged dormant judgments in favor of the respective applicants.

The cause of the Park Woolen Mills et al. v. Moody & Brewster (wherein the decree of June 30, 1900, was rendered and to which reference is made in the several petitions for scire facias and the answers thereto) was an equitable petition by the creditors, alleging, in substance, that in 1897 and 1898 J. T. Moody and G. S. Brewster were engaged in several businesses under different trade-names in the city of Atlanta, and in the latter part of 1897 they entered into a general dry goods and notion business, opening several stores in Atlanta, and were traders engaged in such business; that the defendants were insolvent; that Brewster had absconded that Moody, in behalf of the partnership, had on the previous day executed a large number of mortgages, approximating $77,000; that the goods covered by these mortgages were goods bought from complainants and other creditors, and utilized by the defendants as a basis for loans to pay antecedent debts not arising from the purchase of the goods, the genuineness of which debts was not admitted; that these acts amounted to a fraud upon defendants' creditors; that the goods of petitioners were purchased by Moody & Brewster without any intention at the time to pay for same; that the mortgages are void, and petitioners had a right to identify and reclaim their goods. The prayers were: That the defendants be restrained from further changing the status of their business; that a receiver be appointed; that the assets of the firm be marshaled; that they be allowed to reclaim their goods as against all of the mortgages, except one which was not attacked; and that they have a judgment for whatever goods they could not claim. The original petition was amended by alleging that the firm of Moody & Brewster had been operating in many lines of business under different names (stating them); that they had indiscriminately used the money from each of the concerns. operated by them and the dry goods business for the furtherance of their interests; and that the business of one could not be separated from that of the other; and by further alleging fraud in certain transactions between J. T. Moody and his sister, in that Moody had conveyed to her certain land, which conveyances were made for the purpose of hindering, delaying, and defrauding creditors, and in a similar transaction with the nephew of the absconding partner, G. S. Brewster. The petition was again amended, making the Laurel Mills Manufacturing Company and the Tennessee Woolen Mills, two of the plaintiffs in the present litigation, parties to the case, and alleging that the defendants purchased goods from interveners, representing themselves to be solvent, and that the goods were sold upon the credit of these statements, when as a matter of fact the defendants had no intention of paying for the goods, and fraudulently concealed this intent. This amendment adopted all of the prayers of the original petition. Numerous other creditors filed their interventions (20 of them being parties to the present litigation), all of them, except as hereinafter noted, setting up substantially (and severally expressly adopting) the allegations and prayers of the original bill, and alleging in substance as follows: That they sold and delivered to Moody & Brewster goods amounting to a certain sum, as shown by their attached bill of particulars; that in order to...