Huston v. Ditto ( 1863 )

Bowie, C. J.,

delivered the opinion of this Court:

The primary and preliminary question in this, as in all cases of injunction to stay proceedings at law after judgment, is, had the appellees, the complainants below, adequate relief and opportunity of defence at law; or was there a defence, of which, without fault or negligence in themselves, they could not avail at law, so that it is against conscience to execute the judgment sought to be enjoined? Story’s Equity, 887, 894. 7 Cranch, 332. Barnes vs. Dodge, 7 Gill, 118. White & Tudor’s Equity Cases, vol. 2, pt. 2, p. 98. It is the settled doctrine of the English Chancery, not to relieve against a judgment at law, on the ground of its being contrary to equity, unless the party aggrieved was ignorant of the fact in question, pending tbe suit, or it could not have boeu received as a defence. Williams vs. Lee, 3 Atk., 223. The same principles are recognized and adopted by the Courts of Equity in this State. Fowler vs. Lee, 10 G. & J., 358. Prather vs. Prather, 11 G. & J., 110. Windwart vs. Allen, 13 Md. Rep., 196. Boyd vs. Ches. & O. C. Co., 17 Md. Rep., 211.

The original judgment in this case differs from those referred to and reported in 5 G. & J., 54, 5 Gill, 109, and 4 Md. Rep., but not in the quality of finality. In each of those the judgment, as rendered, was held to be final and not interlocutory, because no other act of the Court was required.

In Turner vs. Plowden, Adm’r of Llewellyn, 5 G. & J., 52, “the judgment was in the usual form of judgments against administrators, but had annexed to it the following hy way of memorandum: ‘Judgment was reudered in this cause on the 9th day of November, in the year 1831, for the damagesJaid in the declaration and costs of suit; to he released on payment of such sum as Enoch J. Millard shall say is clue, and costs. This judgment to bind a proportion of assets, and soforlh, to he ascertained hy reference to Enoch J. Millard.” Dorsey, J., said: The judgment rendered upon it, (the account,) was a final judgment. To make it absolute as far as regarded the amount due on the account, no further action of the Court was necessary. The filing of Enoch J. Millard’s certificate was all that was required for that purpose. The account was extinguished hy the judgment, and could therefore never afterwards he available to the defendant, either as a substantive cause of action or hy way of discount or set off.

In Clark vs. Digges, 5 Gill, 118, Archer, J., said: “The writ of scire facias is not defective on its face, it states a good judgment. The judgment is for the penalty and costs, to he released upon payment of-. The amount of the sum to he'paid is not stated. From this entry of the judgment, we think it indicates a judgment by confession, for the penalty, to be released upon the payment of such a sum as might thereafter be agreed upon; and that it is not binding as a judgment until the sum shall be ascertained as originally contemplated. It is not an interlocutory judgment. In Young & Wife, et al., vs. Reynolds, 4 Md. Rep., 381, this Court said: “The proceedings in the cause show, that at May term 1833, Joseph W. Reynolds obtained a judgment in Calvert County Court against Thomas Mackali, to be released on the payment of such sum as should be ascertained by J. M. Baden. The amount was never fixed by him. * * * * “There can be no doubt, that the original judgment merged the bond, nor that it was paid. 7 Gill, 416. Jarvis vs. Plowden, 5 G. & J., 52. But although the judgment was final, it ivas not effective, nor could it be so until the amount was ascertained, and this was not done and entered of record, until after the death of Thomas Mackall.” 4 Md. Rep., 381.

“A judgment by confession is not, in our practice, considered an interlocutory judgment; it is not necessary to have the damages assessed, not even in the case of a bond, with collateral condition. The confession is considered as an admission of the whole claim, unless it is made, as it frequently is, on terms. The terms, whatever they may be, are in that case reduced to writing and given to the clerk, who inserts them in his memorandum. * * * * The terms sometimes refer the ascertainment of the release to some third person, who must then file his award before there can be execution; but such judgment is final, so far as to merge and extinguish the claims on which it is founded.” Evans’ Prac., 339.

It appears from these citations, that there are three kinds of judgments recognized by our Courts. Interlocutoryjudgments, which require some further action of the Court; final and effective judgments; and final but not effective, either from the nature of the original entries, or become so by some subsequent contingency.

The power of the Courts to refer cases before judgment is recognized by Acts of Assembly, and the modo of subsequent action in such cases, is fully prescribed in 1778, cb. 21, sec. 8, 1185, ch. 80, sec. 11; but there is no Act of Assembly providing for the action of the Court, in cases of judgments entered upon terms, yet the Courts have for many years exercised the power of entering such judgments and subsequently controlling them.

Whether this is one of the inherent powers of the Courts of original jurisdiction, it is unnecessary to inquire. If such a power does not exist, judgments upon terms would often be a nullity, for a non-effective judgment, one which is not binding until the amount is ascertained, is only a judgment in name, except in its power of merging and extinguishing the original cause of action; an incident, rather injurious than beneficial, if tho Courts have not power to render effective what is otherwise inoperative. These entries have been introduced to promote despatch, diminish the delays and expense of litigation, and are substituted often for the action of a jury- in matters of mere calculation. They are quasi references, with leave of the Court and consent of the parties after judgment. The original cause of action is merged, the details to he ascertained in the manner pointed out by the terms filed or to he filed.

Tho original judgment in this case ivas confessed at the appearance term of the Court in pursuance of a power of attorney filed in the cause, which authorized the attorney to confess judgment in the defendant’s name, in favor of the plaintiff, “for whatever balance there may be due and unpaid on a certain bond, and to give judgment for such sum as appears to be due on said bond, all credits made to appear to Isaac Nesbib to be allowed and deducted therefrom.”

The judgment as extended, was for the penalty of the bond, to be released on payment of the sum of $4000 with interest, and a memorandum entered in the margin of the docket, “all credits made to appear to Isaac Ncshit to be allowed.” Judge Archer referring to the entry in the case of Clark vs. Digges, above cited, where the judgment was for the penalty and costs, to be released on payment of -, says, it indicates a judgment by confession for the penalty, to be released upon payment of such sum as might thereafter be agreed upon; and that it was not binding as a judgment, until the sum shall be ascertained as originally contemplated.” 5 Gill, 118. What was inferred from a part nf the entry being in blank in the case cited, is expressed by the power of attorney and the memorandum of the clerk in the case before us.

The memorandum qualified the rights of the parties to the judgment as extended, and imposed obligations on them to conform to the agreement under which it was rendered. It also obliged the referee, if he accepted the office, to discharge it fairly, with due notice to all concerned, and subjected his action to the supervision of the Court, to be corrected or set aside, if not proper or legal. This being the character of the judgment, the sci fa., to revive it, must of necessity be limited, in its effect, to the conditions or terms upon which it was rendered. When revived, it could not be of greater validity than when obtained; if not effective at first, it could not be rendered effective by a mere revival on the original terms, which left the credits to be ascertained and allowed. Vide Moore vs. Garrettson, hereafter cited, 6 Md. Rep., 448.

The office of a sci. fa. embraces and extends to inquiries of this character. It is founded on matters partly of record and partly in pais. The several suggestions of the plaintiff, introduced into the writ., may be traversed, and any matter in discharge of the obligation may be shown. Ev. Pr., 173. Generally, a fiat upon a scire facias to revive a judgment, reinvests -it with all the powers, attributes and conditions which origipally belonged to it, and which have been wholly or in part suspended by lapse of time, change of parties, or the like. Therefore a judgment subject to a discharge under the insolvent law, should, when revived, be taken subject to the same condition or qualification; and the discharge, to be availing, need not again bo pleaded under the sci. fa. Moore vs. Garrettson, 6 Md. Rep., 448.

In Shafer vs. Shafer, 6 Md. Rep., 518, a judgment was entered for the appellant vs. the appellee, on the 20th March 1847, to be released on payment of such sum as Isaac Nesbit shall ascertain to be due. On the 31st of August 1847, Nesbit, (the cleric of the Court,) filed an award finding a certain sum to bo due with interest, till paid, and costs of suit, with this note, viz: “The counsel for the plaintiff agrees, if the defendant shall hereafter show any further credits to which he would he legally entitled, the same shall be allowed him.”

On the 20th March 1848, a fi. fa. was issued on this judgment, and time given to the sheriff to make his return, till the 4th Monday of March 1851. In the mean time on the 8th of May 1848, while that writ was in the sheriff’s hands, the parties entered into another reference, with power to appoint an umpire. On the 31 si of December 1850, Nesbit filed an additional award and directed the sheriff to credit the fi. fa. with the sum of $323.10. This credit the sheriff gave, and made the balance and returned tbe writ accordingly. The plaintiff moved at November term 1851, to quash this return, remand the fi. fa. to levy the amount due on the judgment, or to direct an alias fi. fa., and a rule to show cause was laid on the defendant.

It was held that Neshit’s power over the judgment ceased from May 1848, when the second reference was agreed to, and his last award was void and should have been set aside by the Court. That the effect of this submission upon the judgment and fi. fa. were such, that although the second submission was not effective, yet the defendant not being alone in default, the consequences should not be visited on him alone; that a Court of Equity would have interferred to prevent such an unjust proceeding. That the defendant might, by motion against they?, fa., or to have credits entered according to the submission and award, bave availed himself of the equities growing out of these acts of the parties, upon the principles adjudged in Job vs. Walker, 3 Md. Rep., 129. The motion of the appellant to quash the sheriff’s return and reject the credits allowed by the second award, (of Nesbit,) and order other process, and the rule to show cause, necessarily had the effect of bringing the whole matter before the Court, to be determined according to the agreement of the parties, &o. And if on the hearing it appeared that for any cause the referee could not return the award, the Court should have gone into an examination of demands between the parties, in order to have ascertained the true state of their accounts, that proper credits might have been entered on the judgment. “In this way we think justice might have been effected without resorting to the equity side of the Court, and until this controversy, as to credits., was ended, the plaintiff was not entitled to further process.”

The judgment in Shafer’s case, after Nesbit’s first award, was, in effect, the same with the judgment in the present case, i. e., a judgment for an ascertained sum and costs, with a memorandum, if the defendant shall show any further credits the same shall be allowed him. The agreement to refer to other referees, suspended Nesbit’s power to make further allowances in Shafer’s case. His refusal to act, prevented the defendant from showing credits in this case. Thus far the cases are parallel, and the conclusion of the Court, “if upon the hearing it appeared that, for any cause, the referee could not return the award, the Court should have gone into an examination of the demands between the parties,” applies equally to this.

The decision in Job vs. Walker, 3 Md. Rep., 129, limits the interference of the Court upon motion to any matter which has arisen after judgment, in all cases where the party would be entitled to relief on audita querela, but the argument and decision of the Court in Shafer’s case, has no such restriction, it authorises an examination of demands between the parties to ascertain the true state of their accounts, assuming in fact an unlimited equitable control to effect justice without resorting to the equity side of the Court. The audita querela is said to be superseded in this State by motion.

It thus appears from the authorities cited, two inodes of relief at law were open to the appellees, viz: motion to the Court to have the credits entered according to the agreement, upon the refusal of the referee to act, or upon the return of the fi. fa., or by pleading to the sci. fa. such facie as were necessary to establish. the credits claimed. The appellees adopted the latter cause, pleading a series of pleas, some of which were, upon motion, set aside by the Court below; whether for matter of form or substance does not appear, and it is not for this Court to inquire, collaterally, if such disposition was erroneous or not. The appellees having acquiesced in that decision, are concluded by the judgment of the Court. They cannot call upon this Court, by a bill in equity, to review questions which would uronorly have arisen upon appeal.

A defence which was available at law and lost by acquiescence in the decision of tbo Court of original jurisdiction, cannot generally constitute ground for equitable relief, Simpson vs. Lord Howden, 3 My. & Cr., 108. White & Tudor’s Ca. in Eq., 89. Beall vs. Pearce, 12 Md. Rep., 566. Beall vs. Brown, 1 Md. Rep., 396. Alexander, et al., vs. Mayor & C. C. of Balt., 5 Gill, 398.

Having disposed of the preliminary question, the secondary points arising out of the evidence, are only important as far as the opinion of this Court upon the facts, might operate upon the action of the parties towards each other. Although the appellees, by omitting to prosecute their defence at law, have lost the opportunity of obtaining the credits to which the bond was liable prior to the first judgment, and which are admitted by the appellants to be just, this Court thinks, in "foro consoienlice” they, the undisputed credits, should be allowed, notwithstanding they were rejected by the appellees’ counsel when tendered, because the appellants would not allow all the appellees’ claimed.

(Decided Dec’r 7th, 1863.)

This cause having been heard below upon motion to dissolve the injunction, and not upon final hearing, it was error in the Court to proceed to pass a final decree; the most which the appellees could have asked under such circumstances, if they had succeeded in maintaining their motion, would have been a continuance of the injunction until final hearing. For these reasons the decree below must be reversed and the cause remanded.

Decree reversed and cause remanded.