Crawford v. Burke ( 1902 )

Opinion per Curiam.

Errors are assigned by the appellants which attack the giving of any judgment at all in favor of the appellees, for tue reasons:

First. Because even if the debt were one incurred by positive fraud, involving moral turpitude and intentional wrongdoing, it had not been reduced to judgment before the discharge of the defendants in bankruptcy, and the undischargeable debts in bankruptcy do not include debts that were created by fraud unless (a) they have been reduced to judgment or (b) they were created by the defendant while acting as an officer or in a fiduciary capacity, which it is admitted these defendants were not.

Second. Because as shown by the plain tiff’s own evidence, by which he construed his own declaration, the indebtedness shown by the plaintiff to have existed is also shown not to have been one resulting from “ positive fraud involving moral turpitude ” as distinguished from implied or constructive fraud or fraud in law.

Cross-errors, also, have been assigned by the appellee because of the holding by the court of certain propositions of law, and the adoption by the court of a wrong rule or measure in assessing his damages in the case, whereby instead of allowing and rendering judgment in his favor for only the sum of $9,690.21, he should have had judgment for a much larger sum. Many of the questions thus involved are important and not easy of decision.

A prior suit involving the transactions in controversy, wherein the declaration was substantially the same and the parties were identically the same, was submitted to and heard by Mr. Justice Waterman while holding Circuit Court and taken under advisement by him. Before he rendered his decision but after the case was in fact ready for decision, that case, because of some supposed irregularity in the form of submission, was dismissed by appellee, and the present suit at once begun. For that reason, Mr. Justice Waterman has declined to participate in the consideration and decision of this appeal, and the other justices, Freeman and Shepard, are unable to agree on the main questions involved. The judgment therefore stands affirmed.