Starr v. Heckart

• Decision Date: 07 March 1870
• Parties: JOSEPH STARR v. JOHN J. HECKART and WILLIAM YOUNG.
• Court: Maryland Court of Appeals

32 Md. 267

JOSEPH STARR v. JOHN J. HECKART and WILLIAM YOUNG.

Court of Appeals of Maryland

March 7, 1870

APPEAL from the Circuit Court for Harford County, in Equity.

The bill of complaint in this case was filed on the 29th of July 1868, by the appellant, praying for an injunction to restrain the appellees from proceeding with an execution issued against him and levied upon his property. An injunction was issued as prayed. The appellees answered the bill and moved for a dissolution of the injunction. The Court, by its order of the 11th of May, 1869, dissolved the injunction and dismissed the bill. From this order, the present appeal was taken.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER ALVEY and ROBINSON, J.

Thomas Rowland and E. G. Kilbourn, for the appellant.

Upon motion, upon the law side of the Circuit Court for Anne Arundel county, the appellant was entitled to have the fiat judgment struck out, and to be permitted to plead to the scire facias his discharge under the insolvent laws. Fitz-Herbert's Natura Brevium, 237, [104,] J. Title, Audita Querela; 2 Williams' Saunders, 72, S, and 72 U, and cases cited; Foster's Scire Facias, 355, 357, (73 Law Lib., 306, 308;) 2 Tidd's Practice, (3 d Am. Edition,) 1130; 2 Archbold's Practice, 99; Sheridan's Practice, 352; 2 Paine & Duer's Practice, 437; 3 Blackstone's Com's., 405, and note; Porter vs. Vaughn, 24 Vermont, 211; Paddleford vs. Bancroft, 22 Vermont, 529; Dunlap vs. Clements, 18 Alabama, 778; Job vs. Walker, 3 Md., 129; Huston vs. Walker, 20 Md., 305; Munnikuyson vs. Dorsett, 2 H. & G., 374; Bridendolph vs. Zeller's Ex'rs., 3 Md., 325; Same, 5 Md., 58.

There is concurrent jurisdiction in equity to restrain by injunction the execution of such a judgment. Williams vs. Roberts, 8 Hare, 315; 1 Story's Eq. Jur., sec. 64, i, and 80; Hilliard on Injunctions, 208; Munnikuyson vs. Dorsett, 2 H. & G., 374; Peatross vs. M'Laughlin, 6 Grattan, 64; Carrington vs. Holabird, 17 Conn., 531; Marine Ins. Co. vs. Hodgson, 7 Cranch, 336; Hamphreys vs. Leggett, 9 Howard, 313; Jones vs. Com. Bank, 5 How., (Miss.) 43; Walker vs. Gilbert, 1 Freeman, (Miss.) 85; Stubbs vs. Leavitt, 30 Alabama, 352; Bell vs. Williams, 1 Head, ( Tenn.) 229; Lucas vs. Waller, 1 Morris, (Iowa,) 303; Barnes vs. Dodge, 7 Gill, 109.

In this particular case, the appellant's only adequate remedy was by bill in equity in the Circuit Court for Harford county. A motion upon the law side of that Court to strike out the judgment could not have been entertained, because the record was not there. Such a motion in the Circuit Court for Anne Arundel county would have been entertained, but the writ of fieri facias which had been levied upon the appellant's property had passed beyond the jurisdiction of the Court. To stay the execution of this writ there was no remedy but that which the appellant adopted. Hamilton vs. Whitridge, 11 Md., 128.

Upon the hearing of the motion to dissolve the injunction, it was error to dismiss the bill; the appellant should have been allowed an opportunity to sustain by proof the allegation of fraud contained in his bill. Dorsey, et al. vs. Hagerstown Bank, et al., 17 Md., 408; Huston, et al. vs. Huston, et al., 20 Md., 332; Barroll's Chan.

Pr., 300.

Henry W. Archer, for the appellees.

The only ground upon which the appellant claimed relief in equity, was that the judgment was rendered upon two returns of nihil, and that he had no notice, in fact, of the scire facias. He claimed the interposition of a Court of Equity, simply and solely upon the ground that he had been discharged under the insolvent laws, and might have availed himself of the plea, if the writ of scire facias had been served upon him. The appellant had constructive notice, all the notice he was legally entitled to, of the scire facias, and it would be a novel and dangerous doctrine to hold that where the notice prescribed by law has been given, the want of actual notice in fact, will vitiate the judgment.

Two returns of nihil to writs of scire facias are legal notice to the defendant, and equivalent in law to the service of the writ; and fully authorize the entry of the judgment of fiat. Hayward vs. Ribbans, 4 East., 312; Style's Rep., 281; Dyer's Rep., 168, 172; Evans' Prac., (1 st Ed.,) 104.

A judgment in scire facias is a new judgment. And although it is subject to all the provisions, conditions and memoranda attached to the original judgment, it will be observed that the original judgment in this case was absolute upon its face, as is also the fiat. Moore vs. Garrettson, 6 Md., 444; Huston, et al. vs. Huston et al., 20 Md., 305; Norton vs. Beavar et al., 5 Ohio, 180; Scriva, &c., vs. Deanes et al., 1 Brockenbrough, 167.

The appellant's discharge under the insolvent laws, is a defence of which, if he desired to do so, he should have availed himself by plea. The scire facias gives him the opportunity of pleading any defence since the date of the original judgment; and if he failed to do so, he cannot make it the ground of relief in equity. Gott vs. Carr, 6 G. & J., 331; Huston, et al. vs. Huston et al., 20 Md., 331; McCullough, et al. vs. Franklin Coal Co., 21 Md., 262.

A discharge under the insolvent laws is not a meritorious defence; and although a party may avail himself of it, the moral obligation to pay the debt still remains, which is sufficient to sustain a new promise, or to prevent a Court of Equity from opening a judgment to let in such a plea.

ROBINSON J., delivered the opinion of the Court.

This is an appeal from an order of the Court below, dissolving an injunction and dismissing the bill of the complainant.

The bill alleges that Heckart, in 1858, recovered a judgment against the appellant in the Circuit Court for Anne Arundel county, and that in 1859, then being a resident of Baltimore city, the appellant filed his petition in the Court of Common Pleas for the benefit of the insolvent laws, and in the same year received his final discharge.

That, in 1866, Heckart sued out of the Circuit Court for Anne Arundel county, a writ of scire facias on said judgment, and after two returns of nihil, a fiat was entered and execution issued to the appellee, Young, sheriff of Harford county, which was levied upon property acquired by the appellant, by his own industry, subsequently to his discharge under the insolvent laws.

The complainant further avers that he has never assumed or promised to pay said judgment since his final discharge, and that he had no notice of the scire facias and subsequent proceedings thereunder, until his property was seized under the execution.

These averments are substantially admitted by the answer, and the question presented is, whether the complainant is entitled to the relief prayed.

A final discharge of an insolvent debtor releases him from all liabilities existing prior to his application. All the law requires is an honest dedication of his property to the payment of his debts, and this being done, it releases him from future liability on account thereof, in order that, thus unembarrassed, he may be encouraged to renewed efforts to gain a livelihood for himself and family. As the law stood prior to the adoption of the Code, the property acquired by an insolvent debtor "by descent, gift, devise, bequest, or in a course of distribution," after his discharge, vested in his trustee, for the benefit of his creditors, and it was to the trustee and the trust fund alone that they were obliged to look for payment. It is clear, therefore, that his plea of final discharge would have constituted a bar to any further proceedings under the scire facias.

But it is contended that the two returns of nihil, operate as constructive notice to the insolvent, and that he is as much concluded by the fiat judgment, as if being summoned, he had waived his plea of discharge. To this we cannot agree. The object of the law in requiring a judgment to be revived by a scire facias, is to give the debtor an opportunity to plead...