Tracy v. Maloney , 105 Mass. 90 ( 1870 )

Colt, J.

It was held in Read v. Sutton, 2 Cush. 115, that the docket is the record of the judgment, until the final record is fully extended, and that the same rules of presumed verity apply to it.

The bond upon which this action is brought is conditioned to secure the payment of the judgment, which the plaintiffs, in the suit then pending, might recover against John Dunn & Company or John Dunn or Catherine Maloney, and was given for the purpose of dissolving the attachment of property made therein. In due time judgment was recovered against Catherine Maloney, and by the express conditions of the bond the liability of the defendants became fixed therein, by their failure to pay the same within thirty days.

Most of the grounds of defence set up in the answer, and relied on at the trial in this case, might have been availed of in the original suit. But the neglect or omission of the defendants, who were duly served with process and appeared in court, to defend that suit on the grounds now stated, is not sufficient, in the absence of fraud and collusion, to deprive the plaintiffs of the benefit of the judgment then recovered. For all that the defendants offer to show, the original judgment was not only valid between the parties to it, but it could not be reversed by them on a writ of error. There is no matter of law relied on, which is apparent on the face of the record, sufficient to invalidate it. And the facts relied on only show, at the most, that certain defences existed-which, if put in issue, would have led to a different judgment. They are not facts which affect the validity and regularity of the legal proceeding itself, and their existence will not support a writ of error after judgment.

The cases cited by the defendants stand either upon the familiar rule that a void judgment, recovered contrary to law, may be woided by one who is not a party or privy to it, and who ia prejudiced by it, although it has not been reversed: Downs v Fuller, 2 Met. 135; Laflin v. Field, 6 Met. 287; and see Vose v. Morton, 4 Cush. 27, 31; or upon the rule that a judgment is conclusive evidence of the material facts upon which it is founded, only between parties and privies, and may be impeached by plea and proof in favor of third parties who are injuriously affected by it — a rule which is most frequently invoked in contests between judgment creditors over property of the debtor which they are seeking to apply in satisfaction of their respective claims. Inman v. Mead, 97 Mass. 310. Those cases do not control this. The liability of the defendants is to be determined by the terms of the bond given, and the question whether Mrs. Maloney had a defence to the original cause of action was immaterial, unless the existence of such defence tended to show fraud. And to this extent the defendants were expressly allowed to go, by the ruling of the court.

The evidence offered, that Mrs. Maloney was the owner of sufficient property to satisfy the debt, does not appear, as ■ the case is stated, to have been material as tending to prove collusion, or to have been improperly rejected. Exceptions overruled.