Evans v. Rogers , 1 Ga. 463 ( 1846 )

By the Court

Lumpkin, Judge.

The court does not feel called on to go at great length into all the questions arising out of this chaotic record. A more reprehensible example of vexatious litigation has not come under its review.

As to the want of power in the court to amend the verdict, and the nonconformity of the judgment to the verdict, these objections came too late, after five years’ intervening altercations between the parties. In all cases of irregularity in the proceedings in a court the party aggrieved should apply as early as possible ; and if he either proceed himself, or lie by and suffer the other party to proceed, the court will not assist him. — Tidd's Prac. 435. Lord Kenyon, in the ease of Pearson vs Rawlings, (1 East, 77,) declares this to be the universal practice of the court: “ That where there has been an irregularity, if the party overlook it and take subsequent steps in the cause, he cannot afterwards revert back to the irregularity and object to it. Justice requires, that this rule should be general in its operation, having in view the advancement of right.” And in De Argent vs. Vivant, (1 East, 335,) the court say, “ that any irregularity must be taken advantage of in the first instance, and that it is considered as waived by the party, who voluntarily does an act, submitting to the proceeding instead of taking steps immediately, to avail himself of the irregularity, which ought always to be done in the first instance.”

We hold, therefore, that it is too late for the defendant, below, to insist that the execution, which he is resisting, is founded on no verdict or judgment, after lie lias, for a scries of years, been contesting its payment, and joined in sundry collateral issues to arrest its progress.

We are by no means convinced, that the court below had not power to amend the verdict. The ancient rigor of the laws is greatly abated, and the late practice is, to allow great latitude in amending the pleadings. — 2 Sir. Rep. 197; 1 Cain. Rep. 381, 583; 15 Johns. Rep. 318; 7 Mass. Rep. 358; 11 ib. 157; Doug. 376, 746; Bay’s Rep. 496; 1 Cow. Rep. 133.

In the case of the Bank of Pennsylvania vs. Condy,( 1 Hill Rep. 209,) the Court of Appeals decided, that a verdict could be amended, so as to conform to the declaration, if the error be apparent on the face of it; and Earle, Justice, in delivering the opinion of the court, says : “ It is the constant practice here to amend proceedings, in any period of their progress, to preserve tlieir symmetry, and make them conformable, if anything appear by which the amendment can bo framed. Writs, declarations, judgments, and executions, are every day amended, up to the time of final satisfaction. And there can bo no reason why a verdict should not bo also.” — See, also, Brown vs. Hillegas, 2 Hill’s Rep. 447.

The court below having ordered the amendment to be made, and the judgment corresponding with the note, as set forth in the record, it is a very grave question, whether it is matter for which a writ of error will lie. — See Chirae vs. Reinicker, 11 Wheat. 280. The Supreme Court of the United States has repeatedly decided, that the allowance or dis-allowance of amendments is a matter purely of discretion, and that the refusing or granting amendments of pleadings, affords no grounds for a writ of error.— The United States vs. Buford, 3 Peter’s Rep. 12. The right to interfere, therefore, must be derived, exclusively, from the statute creating this court. On these grounds, then, in the assignment of errors, we have no difficulty. The material question to be considered is, has Berry Rogers, the last endorser on the note, which is the basis of this case, the right to enforce a ca. sa. against the body of John P. Evans, a previous endorser on the same paper, and co-defendant with himself in the action? Having paid off the debt to'Uriah J. Bulloch, the plaintiff, he claims to exorcise this right by virtue of an order passed in .November, 1842, giving Min the control of the judgment, to reimburse himself out of the previous parties. That order purports, on the face of it, to be founded on the act of 22d December, 1840, passed for the relief of securities. It is supposed that there is a fatal omission in the statute, which renders it nugatory for any purpose. But waiving that defect, it can never bo made to extend to the present case. Its sole objoet is to enable a security, who has discharged an execution, to control it, against his co-security, for contribution. But Evans and Rogers arc endorsers and not securities. Besides, Rogers is seeking, under this order, not to collect one-half oí the demand, out of John P. Evans, as a co-security, as being the proportionable part equitably due by him, but to compel him to pay the whole as print ipal in this contract. This single view is fatal to the case in its present attitude.

The order under which Rogers claims is most anomalous in its character. It changes the legal liability of all the parties to the instrument, as fixed by its form. It not only converts Rogers into a security, upon a contract on which he appears as endorser, but makes John P. Evans, the previous endorser, the maker of the note, and Rufus K. Evans, the principal, a co-security ; and all this transmutation is wrought, on motion, in a proceeding at law, and without noticé to any of the parlies concerned!

It is urged, however, that this order was granted long anterior to the organization of this court,'and, being res adjudícala, is beyond its reach. So, too, is the subsequent judgment of the same court which passed it, declaring that the order did not authorize Rogers to sue out a ca. sa. against the body of John P. Evans, but that it only gave him the control of the ji. fa., to reimburse himself out of his property. And wc know of no statutory right which Rogers had at that time, independent of that order. If the rule of transit in remjudicatam is to be applied to the order, it is equally applicable to the interpretation of it, and both are alike obligatory. i

acts were of securities on bond, note, or other contract. And even the latter of these statutes, under which this proceeding would fall, if either, (the party not having made special defence on the trial, and shown that ho, was security only, but coming forward, and obtaining control, after the payment of the execution,) only entitles the security to control the fi. fa., for the purpose of remunerating himself out of the property of the principal.

Rogers, then, can invoke no relief from this quarter. The act of 1839, which provides a remedy for endorsers against all prior endorsers, and the makers of promissory notes, and other contracts, is restricted, expressly, to notes, bonds, and other contracts, made in the face thereof, payable at any chartered bank, or which shall be negotiated at any chartered bank, or deposited therefor collectionconsequently, the note, which is the foundation of this ca. sa., is excluded from its provisions. Even if this were a bank-note, the law applies only to persons who should become endorsers after its passage. It was approved December 21st, 1839, and the note bears date the 25th October, 1839 ; and as the endorsement of Berry Rogers is without date, it is presumed to be (and so charged in the declaration) cotemporaneous with the execution of the instrument.

As to the act of December, 1845, explanatory of the previous statutes of 1826 and 1831, it is sufficient to say, that it requires the party seeking the control of the judgment, to make it satisfactorily appear to the court that he was security only upon the original contract, which was the foundation of the judgment; and that, (the order under which this ca. sa. was issued was passed three years previously,) whether it be competent for the party, upon suitable notice, to avail himself of its provisions, we avoid expressing any opinion. Like its predecessors, of which it is amendatory, it seems, ex vi termini, to contemplate securities proper only. And, notwithstanding their manifest anxiety in this behalf, it would seem that it yet remains for the Legislature to provide a summary remedy for endorsers against prior endorsers, upon other than bankable paper.

Let the judgment of the court below be reversed.