Stevelie v. Read , 2 Wash. C. C. 274 ( 1808 )

WASHINGTON, Circuit Justice.

The first -question to be considered is, whether the record in the suit of Stevelie against James Reed, was properly admitted in evidence in this suit, against Joseph Read, administrator of Thomas Bartow? The rule of law is clear, that a judgment is inadmissible in evidence, except between the same parties, or those in privity with them, and for the same cause of action; and unless it appear, that the parties to the record offered in evidence, be in fact the same as those to the suit in which that record is offered, it may be laid down, as a general rule, that such evidence is inadmissible. We say, as a general rale, in order to avoid giving a decided opinion, whether if a judgment be reversed and made void, though a wrong person be made party to the writ of error, such reversal may or may not be given in evidence, in an action against the person who actually received the money, in virtue of the judgment which was reversed. It is not necessary now to decide that question; but we shall inquire whether, in point of fact, Joseph Read, the present defendant. was or was not a party to the proceedings. in which the judgment against the plaintiff was reversed. It was admitted, in argument, that the mere misnomer is not sufficient to prevent the evidence from being admitted, if, in point of fact, the party appeared by a wrong name, and instead of taking advantage of the misnomer, by a plea in abatement, went to issue upon other points, and judgment was given for or against him. Tlie averment in the second action, that he is the same person, if made out in proof, will fix his liability to satisfy the first judgment. Now, what are the facts in this case? In January 1798, the defendant was appointed administrator of Bartow; the next month he appointed G. Shober, of North Carolina, his attorney, to demand and sue for this identical debt due from Goodman. In 1801, he was apprized of the writ of error brought by Stevelie, to reverse the original judgment obtained against Goodman, and attended (nominally, it is true, as attorney, but in fact in his proper person, as representing Bar-tow,) the taking of depositions in that suit. It is worthy of observation, that the same person who is mentioned in the defendant’s receipt, as the attorney who had retained too much for his fee, of the money recovered and received from the plaintiff, on the execution against him, appeared to this writ of error, and pleaded in nullo est erratum. This judgment being reversed, the plaintiff, in July, 1801, gave notice to the defendant, that a writ of error would be moved for, to reverse the judgment against him as bail. The writ was granted, and we find an appearance entered for the administrator de bonis non of Thomas Bartow, but misnamed James, instead of Joseph, and a regular plea put in. Now, can there remain a doubt, but that this evidence fully supports the averment that Joseph Read, the defendant in this suit, and James Reed, the defendant in the writ of error, are one and the same? The surname is the same, the description of -character is the same, but the Christian name is mistaken. . Is it conceivable, that with full notice to the defendant of both writs of error, and with an attorney in fact in North Carolina, an appearance would have been entered, ex-eept by bis orders, or those of his attorney? That without such orders, any person unauthorized, would have appeared; or that knowing of the proceedings, the defendant . would so far neglect his duty, as not to attend to and defend that suit, particularly as he had previously received the money? It is impossible, that against such a mass of proof we can doubt as to the fact. If ■ só, the record was properly admitted, and judgment must be rendered for the sum found by the jury.