Campbell v. Kent

The opinion of the court was delivered by Huston; J.

The opinion of the court beíow' has been attacked' solely on the ground of authority, and we are told if it be supported, we will overturn a long list of authorities.' I shall consider some of them briefly. Two cases from our'own books were cited; I Bin. 2'l4; in this case the writ was against two, served on one only, and an appearance for both; the cause was referred, and are-port made against both, upon which judgment was entered, and a fieri facias issued, which was levied on a mill and farm, of the defendant on whom the writ had been served. An inquisition was held, which found that the rents, issues and profits would pay the incumbrances within seven years. The plaintiff’s attorney then entered a discontinuance to his fi. fa., took out an ah. fi. fa., and levied on a tract of land, the property of that defendant, on whom the writ had not been served, which was condemned and sold-. The defendants were brothers, and it was scarcely possible that both should not have heard of the reference and of the first fi.fa., and inquisition. The application to the court was not founded on an affidavit of Robert, on whom the lorit was not served, that he never employed the attorney; never knew that he had ap peared for both, &e.; it was solely on the ground, that he had nó' right to appear for a defendant on whom no writ was served, and who had not directed him to appear. The court having determined to set aside the second fi. fa. vend. exps. and sale, because the plaintiff would not relinquish his first fi. fa., &c., and to compel the plaintiff to proceed against him on whom the process had been served, do not appear to have considered this matter much: all that is said on this part of the case is in these words: <sth» *75 judgment below must be affirmed, because it sufficiently appears that the attorney appeared for both defendants;” and they might have added, it does not appear that he was not authorized to appear for both. It must be admitted, however, we have several cases where such an appearance by an attorney for a defendant, on whom the writ was not served, and judgment on it, has been held valid; but I believe no one in which such defendant swore that he never knew of the suit or of the appearance; that he never employed the attorney, or authorized any person to employ him, and never heard of or suspected an appearance for himself, until shortly before his application to the court. And it has not yet been decided in this state, that on such a state of facts, uncontradicted, a judgment would stand.

The next case cited, 1 Bin. 469 , has no application to this. An attorney regularly retained by the defendant, had, by rules, to declare, obtained a nonpros. A year afterwards he agreed that this non pros, should be taken off, and a declaration filed, which was done.

The decision was, that by the practice in this state, an attorney had authority to take off a nonpros. — that the authority of an attorney here is not limited in the same manner that it is in England —for a payment to plaintiff’s attorney, long after judgment, and without execution, had been held good.

Many authorities from the English books were cited, to which I observe that the last case, and some other cases, decide, that the law is not the same in this state, as to the authority of an attorney, as it is in England, and I shall not cite them, because all that were here cited, and many more, are collected in 6 Johns. 296 . On that case the defendants principally relied; but even that case will not support this proceeding; for first, it was conceded that no usage, nor no case, justified an attorney in appearing in vacation, where no writ had issued, and confessing a judgment. There are cases in which the attorney appeared after a writ issued, and before service; but none where an attorney, without any writ or suit, and without Warrant, appeared and confessed judgment; and no case of the kind can be shown, I believe, where such judgment has been sustained. And secondly, that case is expressly put on the ground that the plaintiffs and their attorney were as innocent as the defendant. “If,” says Chief Justice Kent, “there hadjieen any collusion between the plaintiff’s and defendant’s attorney, it would have altered the case; but there is none shown or pretended, and my whole opinion proceeds on the ground, that the plaintiffs have acted with good faith.” And again, he speaks of the plaintiff being entitled to protection; but what court ever held itself bound to protect a party who had assumed, or prevailed on another to assume, for their benefit, a character or authority to which he had no right, and *76 whose conduct was equally contrary to rules of court, and to morality?

The majority of the court there admit, that the practice in England is not correct, reasoning from principles, {page 304;) and they departed from the English practice by opening the judgment, and letting the party appear antj plead. The dissenting judge has shown, that the law was not originally s.p in England, and is not now so; and to his opinion, and tire cases he cites, I refer. I will add, that in the next case in the same book, 318, that court decided that a judgment for costs, against a plaintiff, in whose name a suit; had been brought without his authority, was held void as to him, and he discharged from attachment, on which he was brought into court, for not paying those costs.

We hare two decisions, which have not been cited, which bear P,n this question. Some lawyers were in .the habit of confessing judgment ip several coqnties bn the same bond and warrant.; and afte¡p judgment confessed in one county, all subsequent judgments were held to be void; so much so, ns. that the court was bound to vacate them, on motion. 6 Serg. & Rawle, 296, Martin v. Rex, 14 Serg. & Rawle, 166 , Neff v. Barr; and this, although the warrant authorizes the attorney to enter judgments in the plural. 3 Wash. C. C. Rep. 558 . In the two first cases, it. is intimated that a sale, under such second judgment, wo.uld give a good title; no such matter, was before the court. I admit there may be cases in which such might be the result; but I can also conceive of cases in which such sale would not give any title; e. g. where the plaintiff, whose debt was thus fraudulently made a judgment., became himself the purchaser; and. pertainiy, if he had before collected his debt in another county.. ' . .

These cases decido, that a judgment confessed by an, attorney, without a warrant, may be vacated on motion. Iff such judgment was not void, it could not be easy to find either reason or authority for disposing of it in that manner. This one has less color to support it than existed in those.cases.

Having no Courtof Chancery in which to obtain an injunction, we. attain the result by opening the judgment, and letting theparty into a defence, or permitting creditors to interplead; and whatever may be done on application of the party, may be on application o,f a bona fide creditor; this, practice is of long standing, sanctioned by many decisions, and at least one act of assembly. The right of the ere-, (litors to. interfere was. not denied in this case.

In one of the cases, cited, 1 Salk. 88, and in the argument here, much stress was laid on the fact that the attorney was of good character, and responsible in point of property. How can that -alter-the case? how long will an attorney be responsible in property Yfho adopts such a practice? When is his responsibility to Ire test- *77 pd or how? A man procures a title for land under a power of attorney forged by his procurement, or alleged by him to exist, when he knows it does not exist; will any one say his title is good because the person who acted as attorney is reputed rich? Judgment and execution is a mode of transferring titles to lands. On what principle shall or can it be said, that a fraud of one kind is totally void, and another good and effectual, unless I had some notice and by my silence or laches, occasioned an innocent man to lay out his money, confiding that what was done in form of law, was fairly done, as against the fraudulent party himself, it is no protection, that he has shrouded his conduct in the garb of legal proceedings.

If this conduct is sanctioned, there is an end of all distinction 'between bonds with warrant to confess judgment, and common bonds, nay every common demand.' No man can, however careful and methodical, know how to arrange his business or when to look for an execution. The statute against fraudulent conveyances to defraud or hinder creditors, will no longer be of any avail- The debtor may determine to give no preference to any creditor, but anjr creditor without the debtor’s knowledge can get a preference, if he can find an attorney who will do what he is asked to do oi’ paid for doing, either without reflection, as I suppose was the case here, or without principle, if he. does reflect — as may be the next pase which will be presented. The court is therefore of opinion that the judgment be affirmed.

Gitson C. J.

In contemplation of law, every judgment is an act of the court. It is called by Lord Coke “ Judicium quasi ju-t ris dictum, the very voice of law and right; and therefore judici-. nm semper pro veritale accipilur.’> It is the sentence of the law, says Blackstone, pronounced by the court on the record of the facts, 3 Com. 395-6; and it is surely immaterial to its essence whether those be ascertained by the cognovit of the party or the verdict of a jury. Viewing it as such, it is easy to comprehend how a-security by judgment may be good though erroneous, while a security by act of the party may be void in the first' instance when executed without authority in his name. In the one case, • the effect emanates, if at all, from his own power, and in the other, from a power superior to him. On this principle, a judgment confessed by an attorney, though without warrant, is good till it is reversed. By the common law the default of a warrant of attorney is an error, but one that has been cured, except in particular circumstances, by statute. Still a judgment rendered without a semblance of authority, may be set aside on motion and due consideration of the circumstances; but the interposition of the court, being of favor and not of right, is to he invoked only in the last report; as where the attorney is not of sufficient estate to answer the *78 consequences in an action. “The course of the court is,” said Lord Holt, “where an attorney takes upon him to appear, the court looks no further, but proceeds as if the attorney had sufficient authority, and leaves the party to his action against him.” Anon. 1 Salk. 86. And again: If “the attorney be able and responsible, we will not get aside the judgment; the reason is, because the judgment is regular and the plaintiff ought not to suffer; but if the attorney be not responsible but suspicious (in his circumstances) we will set aside the judgment, for otherwise the defendant would have no remedy, and any one might be undone by that means.” Anon. Salk. 88. The same rule was followed in Allely v. Colley, Cro. Jac. 695. Lorymer v. Hollister, 1 Stra. 685, and many other cases which it is unnecessary to notice, the authorities on the subject having been arranged by Chief Justice Kent, in Denton v. Noyes, 6 Johns. 296 . In that case, the defendant was permitted to plead to the merits, while the judgment was suffered to stand as a security — a practice conformable to our own in cases of fraud, and preferable in my opinion to that of the English courts, as it gives the defendant, without jeoparding the rights of the plaintiff, every fair advantage to be had from an entire vacation of the judgment. I have cited the preceding authorities for a principle that has never been denied, even by Mr. Justice Van Ness, in dissenting from the judgment in Denton v. Noyes , thatan actual appearance to the court is sufficient in the first instance. From the time of Cole v. Law, Roll. Ab. 741, to the decisions of our own court in M’Collough v. Guefner, 1 Binney, 214, and Reinhold v. Albertie, id. 469, a judgment de facto has ever been treated as but voidable. In Martin v. Rex, 6 Serg. & Rawle, 296 , the very point made here was directly decided. It was there determined that a judgment confessed by virtue of a warrant which, having been exhausted by the confession of a previous judgment, was no warrant at all, was nevertheless not void, though clearly irregular, insomuch that a purchaser under it would have had a title; and that the remedy of the party injured, was by action against the attorney, yet at the entry of the judgment, the last spark of authority emanating from the warrant that became extinct. The determination of the case at bar, has been put on the ground, either, that the judgment is void already, or that it is tainted with such fraud, as lays it open to avoidance by creditors in a collateral proceeding. That it is not void, the authorities abundantly prove: and that it is not fraudulent, appears from the interpretation of the word in the books.

It is an undoubted rule, that a judgment may be collaterally impeached for collusion: but I dissent from the conclusion of the majority that there was any thing in the transaction from which collusion could be inferred. It is not only a material but a vital part of *79 the case, that the responsibility which the judgment was intended to secure, had been actually incurred, and in seeking indemnity for a loss impending from it, the plaintiffs might, not only lawfully but honorably, obtain a preference to the disadvantage of the other creditors. With whom could they collude? Not with the defendant; for to have obtained his participation, would have put •the validity of the act beyond the reach of controversy. In no case ezxiper fraudem be replied to the plea of a judgment suffered, unless there was collusion with him who suffered it; at least I have looked in vain for a precedent of it in any other case. In two precedents in 3 Chitty Pl. 1166, the judgment is alleged to have been acknowledged with an intent to defraud by the instrumentality of a fictitious debt; and the whole is charged tobe the fraud of the defendant. Such too was the form of the replication in Trethewy v. Ackland, 2 Saund. 49. But putting the attorney in the place of the defendant and with the same capacity to collude, the difficulty that there was an actual bona fide duty to be secured is insurmountable. In Veale v. Gatisdon, Sir W. Jones, 91, it was resolved that a judgment acknowledged for a true debt, though for the avowed purpose of defeating other creditors, cannot be avoided; and the same principle was held in Waring v. Danvers, 1 P. Wms. 295, and Morice v. The Bank of England, Ca. Temp. Talb. 225. Here the liability for which the plaintiffs were to be indemnified, was an actual and an honest one,* and it is proper to remark that there was nothing in the transaction to reflect on the honor of the attorney or any one else. He appears to have been consulted by all parties to effect the performance of a moral duty by the defendant in his absence; and by the brother of the defendant’s wife who was examined on the part of the creditors, he was called her counsel. But to. treat him as having been retained by the plaintiffs exclusively, would produce exactly the same results. Allely v. Colley was the very case of •a judgment confessed by an attorney retained by the plaintiff withr out the defendant’s knowledge; yet it was held good even on audita querela, and if good against the defendant, it would surely be so against his creditors.

The rule that a judgment cannot be reversed by a collateral proceeding, except for fraud, is an undoubted one; but it seems to admit of this further exception, that strangers to whom it is immediately injurious, may reverse it by plea; because, standing in no privity to the parties, they are not precluded from an averment against it, and because they would otherwise be without remedy. This distinction was made in Godfrey’s case, 11 Co. 44; and in Randal’s case, 2 Mod. 308, it was taken arguendo and apparently recognised by the court. In Winter v. Perry, Cro. Eliz. 199, a plea to a scire facias z^pmet bail, that the defendant in the original *80 action was dead at the rendition of the judgment, Was at first deemed inadmissible as going to avoid the judgment, which, it was said,could be done only by writ of error; but it seems to' have been subsequently received, thoiigh another report of the case in 1 Le. 101, pl. 125, leaves the principle of the decision in doubt. Perhaps the true ground of both that and Randal’s case, is, that the judgment Was not only injurious but void, having been rendered against a party notin existence, and therefore requiring no reversal to ren-5' der it a nullity. The decisions in our own court have generally been between parties who being bound by the judgment as an estoppel, might have reversed it by writ of error; and to whom the"general rule was consequently held applicable. Thus, Nace v. Hollenback, 1 Serg. & Rawle, 348 ; Colley v. Latimer, 5 Serg. & Rawle, 211 ; Allison v. Rankin, 7 Serg. & Rawle, 269 ; and Blythe v. Richards, 10 Serg. & Rawle, 269 , were cases in which a mortgagor was precluded from alleging the existence of error in proceedings on the mortgage, in an ejectment against the purchaser at the sheriffs sale; and in Porter’s Executors v. Neff 11 Serg. & Rawle, 208 , a broad intimation was given that an erroneous judgment could not be reversed in an action between the plaintiff in it and an alienee of the defendant’s land. On the other hand,' it was held in Stump v. Findlay, 2 Rawle, 168 , that a common recovery may be abated by entry and plea; and so far all has been in accordance with the rüle or its exceptions, as already stated.But a difficulty arises when wc come to determine the relation which creditors bear to the parties. An application by them to open thejudgment in order to try a question of fraud, will undoubtedly be entertained, or a collateral issue ordered, as in Kellog v. Krauser, 14 Serg. & Rawle, 307 , and Whiting v. Johnson, 11 Serg. & Rawle, 328 . But can they be admitted to destroy the security of the lien, and that too for a mere error in process, or any other part of the proceeding? We have but one decision on the point, and it merits, for that reason, a particular consideration. I refer to Lewis v. Smith, 2 Serg. & Rawle, 142 , which was an action for the proceeds of an execution from the Circuit Court of .the United States, claimed by virtue of a prior execution from the Supreme Court of Pennsylvania, which had been levied on the same goods. The' marshal having taken defence on the title of the subsequent execution creditor, excepted to the regularity of the judgment on which the prior execution had been issued; so that the contest was there as it is here, between creditors. The objection to the judgment was that it had not been entered accbrding to the terms of the confession. The agreement was without date, but it bore that judgment should be entered of December term, 1799, whereas the paper Was not filed till the 20th of March, 1800. “It does not clearly appear from a view of the docket,” said Chief Justice Tilghman *81 “whether the judgment was really entered of December or March term, but I will suppose it to be March; still 1 think thejudgment may be supported; nobody was injured by it. To Fitzsimmons (the defendant,) if it made any difference, it was rather an advantage, for he gained something on the score of interest, as on the entry of judgment on the scire facias, the interest due on the original judgment would become principal. He never complained, though it was always in his power to have had thejudgment opened, if he considered it as a violation of his agreement. At any bate, it CANNOT BE SAID THAT THE JUDGMENT WAS VOID; IT WAS ENTERED BY THE PROTHONOTARY, AND NEVER HAVING BEEN REVERSED, THE COURT CANNOT IN THIS COLLATERAL WAY CONSIDER IT AS void.” Mr. Jicslice Yeates was of opinion thejudgment was entered of December term, 1799. “Should I however be mistaken,” he subjoined, “I have no hesitation in saying this judgment remains in full force. It cannot be annulled collaterally in another suit between other parties. Mr. Fitzsimmons never complained; of it in his life-time, nor can I discover, if such error existed, how itcould possibly be injurious to him.” Is notthat essentially the case at bar? Although a judgment entered against the terms of an agreement, is no better than if there had been no agreement, it was held that whoever else might complain, the creditors could not. The difference'in other respects is, that here the lien is on land and there it was on goods; that here it proceeds from a judgment, and there it proceeded from an execution; but one to the validity of which a valid judgment was as essential as it is to the existence of a lien in the case before us. There the defendant in the judgment never complained of it, nor has the defendant complained of it here; and that it was not injurious to him, is proved by his subsequent confirmation of it. As regards himself, this confirmation is admitted to be equivalent to a precedent authority, but not as regards intervening judgment-creditors. This assumption that there were intervening'judgment-creditors, is founded on another, that there was a moment when thejudgment ceased to bind. If, however, it was but voidable, there never was that moment. The argument would be unanswerable if the judgment had received its vitality from the act of confirmation, and not from what is in legal estimation the act of the court; but the authorities, without an exception, bear the other way. What then is the right of the creditors to object? When the judgment was rendered, they had no interest in the land further than to be protected from gratuitous incumbrances or a fraudulent transfer of it; and this judgment was neither. In no other way could they be injured. If the defendant might have authorized such ajudgnient, the confession of it by another without his authsrity, was an abuse of his rights, not theirs, which entitled him, and not them, to call for redress, if *82 tbeir right to object is'an independent one aud paramount to hisy they must have an interest to be affected which is also paramount to his; and that they have not, is proved by the fact that he was competent to give an incontestable preference by a mere exercise of his will. According, to all the authorities, the judgment bound him from the entry of it, and as there was then no opposing interests, it also bound his land. When did it cease to do so? If il was ipso facto annulled by the rendition of subsequent judgments, these' must have had the effect of avoiding what was only voidable before, and it seems to me the indirect reversal of one judgment by another, where the party to be affected had • no day in court, is a thing unknown in the law'. A subsequent judgment bond is only the resulting interest of the debtor,, and how it 'can displace a preceding one which was valid against him, without attaching itself to an estate- or interest paramount, is what I am unable to comprehend.- If such a judgment as this binds the debtor’s person, it necessarily binds his land in exclusionmf subsequent liens. And» why should creditors be allowed to destroy a lien for a defect in. the judgment, which was no prejudice to them? No one will say that a writ of error would be allowed to enable them to reverse a judgment on warrant of attorney, for a defect in setting out the cause of action, unless it affected the certainty of the judgment itself. The most they could claim in a case of mere error like the present, would be (according to what is the practice of the courts in New York, and ought to be so elsewhere,) the benefit of a defenceon the merits, without sweeping away the lien in the first instance. For these reasons, it appears to me, there was error in the trial of the issue, for which the judgment on the verdiet ought to be reversed.' *

Kennedy, J concurred with Gibson, C. J.

Judgment affirmed, In McCormick et al v. Miller, (post) determined at the ensuing term for tire ¡southern circuit, an erroneous judgment by default was sustained against creditors, though surreptitiously obtained, to gain a preference over a domestic attachment then in train. The summons was illegal, the day of appearance being less than five days from the date — the period allowed by the act of Assembly; and though the defendant might by possibility have been served, though proved to have been an absconding debtor, yet the service of a void writ, being in legal estimation, no service at all, gave the justice no more authority to sign judgment, than does the office of an attorney without warrant.-