Packer v. Whittier, 222.
| Citation | 91 F. 511 |
| Decision Date | 20 January 1899 |
| Docket Number | 222. |
| Parties | PACKER v. WHITTIER. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Robert F. Herrick and Guy Cunningham, for plaintiff in error.
William A. Gaston and Frederick E. Snow, for defendant in error.
Before PUTNAM, Circuit Judge, and WEBB and ALDRICH, District Judges.
This case comes to us on a writ of error, having been tried below by the court, and judgment ordered for the defendant (81 F 335) on an agreement as follows: 'In the above case both parties hereby waive the right to a trial by jury, and agree that the case may be heard and determined by the court on the agreed statement of facts herewith filed. ' The action was on a judgment obtained by a firm, of which the present plaintiff is the surviving partner, against the defendant Whittier, in the superior court for Suffolk county, in December, 1875. The writ in the circuit court is dated September 24, 1895. The plaintiff's declaration contains four counts. The first sets out the judgment in the superior court, and the issue of an execution thereon, which was returned, 'Satisfied for the sum of sixty-five dollars and twenty cents, and no more. ' It also avers that said judgment remains 'in full force and effect, in no wise reversed or annulled or set aside'; 'and the plaintiff further says that the said judgment has never been satisfied except in the sum of sixty-five dollars and twenty cents, and no more.' The only difference between the first and second counts of the declaration is that the second makes no mention of the part satisfaction in the sum of $65.20. The third and fourth counts, after setting out all the facts alleged in the first and second, and in almost identical words, contain this further averment:
'And the plaintiff further says that, after the rendition of this said judgment by said superior court, the defendant procured from the United States district court for the district of Massachusetts his discharge in bankruptcy, and the defendant claims that by his discharge his liability to the plaintiff upon the debt represented by the said judgment is discharged; but the plaintiff says that the said debt represented by the said judgment was created by the fraud of the judgment debtor, and is not canceled by the said defendant's discharge in bankruptcy.'
To this writ and declaration the defendant answered, as follows:
'And now comes the defendant in the above-entitled case, and for answer denies each and every allegation in the plaintiff's writ and declaration, and the several counts therein contained; and the defendant, further answering, says that by virtue of the proceedings instituted in the United States district court for the district of Massachusetts on the 24th day of August, 1878, under the provisions of the Revised Statutes of the United States, title 'Bankruptcy,' and the other acts relating to bankruptcy, the defendant was discharged on the 6th day of December, 1878, a certified copy whereof is hereto annexed, from all debts and claims, including the plaintiff's claim (if any) against this defendant, which were provable against his estate in bankruptcy.'
A copy of the record of the bankruptcy court and of the discharge of the bankrupt is annexed to this answer.
It was after this answer was filed that the parties waived a jury trial, and agreed to submit the case to the court on an accompanying 'agreed statement of facts.'
It is thus seen that the principal issue of fact between litigants was the question of fraud in the inception of the demand on which the judgment of the superior court was rendered. That was a question of fact to be decided by the circuit court, and the agreed statement only included facts upon the probative effect of which that issue of fraud was to be determined. But the circuit court made no finding of fact, either general or special, but ruled, as a matter of law, that the original debt or liability of the defendant was merged in the judgment of the state court.
Under the statute (Rev. St. Sec. 649), authorizing parties to submit their cases to the circuit court without a jury, the determination of disputed facts, fairly raised by the issues as intrusted to...
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