Lowry v. Armstrong, Mallory & Co. , 3 Stew. & P. 297 ( 1833 )

Taylor, J.

This suit, in Chancery, was instituted by the’ plaintiffs in error, for the purpose of obtaining a decree, perpetually enjoining'*' so much of a judgment at law, recovered against them, by the defendants, as they alleged they had paid.

The bill alleges, that the plaintiff,.. Lowry, had paid to Patton, the lawyer first employed by the’ defendants, two thousand seven hundred and fifty dollars, at one time, four hundred dollars, at another, and delivered to'him, besides, forty-three bales of cotton, to be shipped to the defendants, the nett proceeds of which were seven hundred and sixty-three dollars; that, after the payment of those sums, the management of the business had been placed in the hands of Crawford & Hitchcock, who were enforcing the collection of a larger sum than was due.

Armstrong is the only defendant who has answered : he alleges, that the firm of Armstrong, Mallory & Co. had been composed of himself, John H. Mallory and David W. Crawford; that the interest of Mallory had been purchased out, by Crawford and himself, after which Crawford had died, leaving hirn the only surviving partner. He admits the payments of the money and cotton, alleged in the bill, and that the complainants were correct, as respected the proceeds of the cotton; and he introduces the statement of Mr. Crawford, one of the attornies, who had the management of the business, to sho<v the amount then due. This statement charges the complainants with three judgments, and the amount of damages rendered by this court; upon the affirmancé of each; and interest — amounting, in the whole, to' four thousand four hundred and ninety-seven dollars and forty-six and a half cents; and credits them with the payment of two thousand seven hundred and fifty dollars, and the cotton^ at seven hundred and sixty-three dollars; but omits the four hundred dollar payment.

The bill was sworn to, in October, 1827; at February term 1828, an order of publication was made against Mallory. It does not appear, when the answer of Armstrong was filed: it was sworn ’ to, in Madison county (the suit was pending in Monroe,) on the 8th October, 1828. ,

At the October term, 1828, a final decree was rendered, perpetually enjoining the whole amount alleged, by the bill, to have been paid, dissolving the injunction, for “ the residue of the judgments at law,” and decreeing costs against the defendants.

Several assignments of error are made, the first of which, is, that “ the court erred, in finally disposing of the cause, upon the coming in of.the answer of Armstrong, when it appears, from said answer, that there were other defendants who ought to have been made parties, and whose answers were material to the rights of the complainants.”

The answer certainly does not show, that any person should have been made a defendant, beside Armstrong ; but, entirely the contrary. It stales, that Mallory had been bought out, and had no interest ‘ that Crawford, was dead, and the defendant, Armstrong, the only surviving partner. But, if it did appear, from the answer, that other persons should have been made parties defendants, it devolved upon the plaintiffs, and not the defendants, to have this done; and, they cannot come here to correct their own errors.

The second assignment, is, “the court erred, in admitting the statement alleged, in the defendants" answer, to have been made out and furnished by William Crawford esq., when no part of the bill alleges any transaction between the complainants and said Crawford, in relation, to the business between them and the said Armstrong, Mallory & Co.”

As to the admission of this statement, the court had nothing to do with it. It was inserted in the answer, which we must suppose was filed, in the usual way; no part of it was ever excepted to, and-thus brought before the court for its action upon it. Therefore, if the insertion of this statement was impertinent, no opportunity was afforded to the court, to order it to be stricken out.

Third assignment. — " The court erred, in receiving the statement of Crawford, as evidence, of the amount of the proceeds of forty-three bales of cotton; but should have compelled the defendants to produce a regular account of the sales of said cotton.”

It does not appear, from the decree, that the statement of Mr. Crawford, had any influence upon the decree of the court. The complainant, Lowry,in the bill, states, that he has been informed, and believes, the nett proceeds of the cotton, were, seven hundred and sixty-three dollars, the same amount which they are credited at, in the statement, and which is allowed in the decree. Whether the statement in the bill, or that in the answer produced the decree, it is unnecessary to enquire, as they correspond, precisely. In addition to this, the case was finally heard, on the bill and and answer. It has been heretofore decided, by this court, that, on such hearing, the allegations of the answer, are to be received as true, •whether responsive or not. And, besides'the statement of Mr. Crawford, the defendants admitted, in their answer, the allegation in the bill, with respect to the cotton.

Fourth assignment. — “The court erred, in receiving the statement of said Crawford, as evidence, of the amount due from Lowry and M’Connell, to Armstrong, Mallory & Co., when it appears, from the answer of the defendants, that the balance, if any, was in judgment, and of record.”

It does not appear, that the statement was so received. The court decreed in favor of the complainants, for’ the several sums claimed by them, and dissolved the injunction for the remainder, leaving it to the clerk, to ascertain what that remainder was. If there were none, of course, no execution could issue against the plaintiffs in error.

Fifth assignment. — The court erred in blending several judgments at law, when the complainants, by the bill only sought to be relieved from one judgment.”

We can perceive no such blending. It is true,-Ihe decree dissolves the injunction, “'as to the residue of tho judgments." This may have been a slip of the pen, or a mistake in copying. But, if it were intended, no injunction can be dissolved which was never granted. If only one judgment was enjoined; that one, alone will be affected by the' decree.

The decree of the Circuit court is affirmed, at the cost of the plaintiffs in error.

Lipscomb, C. J., not sitting;