Lapiece v. Hughes ( 1852 )

Mr. Justice Yerger

delivered the opinion of the court.

Lapiece obtained a judgment by default, in the Adams circuit court against the appellee, as indorser of a note executed by A. McNiel & Co. for the sum of $6,666.33. The appellee filed a bill to enjoin the judgment, and for a new trial at law, because, as the .bill alleges, he never received notice of the protest and non-payment of the note; and secondly, because after its maturity and non-payment, the holder of it, without his knowledge or consent, received from the maker part payment, and received another note from the maker, payable at sixty days after date, for the balance, which note so taken in renewal has been paid. The process at law is returned with the general return of “ executed.” But the bill states, that it was not served personally upon complainant, but that the service was by a copy of the writ left at his place of business in his absence, and that he did not know of the pendency of the suit or the service of the writ until it was too late to defend, or move for a new trial at law. Upon this point, the proof is satisfactory and clear. The complainant lived in Yazoo city, formerly known as Manchester, and was cashier of the Commercial Bank. It is proved that the sheriff received the writ on the 16th of May, 1843, and that he took a copy of it to Yazoo city, to hand to Hughes, on the 17th of May; that Hughes was absent on that day, and that the copy was left on a table at the banking-house. Hughes did not reside at the banking-house, but lived about three hundred yards distant. Smith, one of the witnesses, proves that a few days after the 17th of May, Hughes went to Natchez, and did not return for several days, and that on his return, while looking over his papers, on the 6th of June, in the bank, he discovered the copy, and expressed great surprise at finding it, asking witness why he had not informed him that it had been left. To which witness replied, that he was ignorant of the fact himself. Hughes immediately, in half an hour, went to Benton, to see the sheriff, and ascertain from him what he had done with the writ; and finding it had been returned “ executed,” he left for Natchez on the following day, on a steamboat, and reached there on the 9th of June. The court had then adjourned, and he at once applied to counsel to learn in what way he should proceed to get relief bn the facts stated. This court has held, that where a defendant has a valid defence to a suit, but is absent, and does not know of the institution of the suit until after judgment against him, equity will interpose and grant a new trial, although the sheriff had made a return of “ executed ” by leaving a copy of the writ at the residence of the party. Jones v. Commercial Bank of Columbus, 5 Howard, 43. The same rule must be applied where a general return of “executed” is made on the'writ, if it be proved, that in fact the service was by copy left at the residence of defendant in his absence, of which he did not receive notice in time to defend at law. By so doing, the return of the sheriff is not contradicted; on the contrary, the return is admitted to be true. Yet although true, that notice which the law intended a party should have, of the pendency of a suit against him, may not have been received.

The common rule, that a' defendant shall not contradict the return of a sheriff, collaterally, we do not controvert; yet in this State, where the statute authorizes .service, either personally and directly, or constructively by leaving a copy at the residence of a party, if the rule were established that the defendant could not show, in case of a general return of “ executed,” that the service was in fact only constructive, and that actual notice of the suif was not received by him, irremediable injury and wrong, under the forms of the law, would often be perpetrated. Where a'ctual or 'personal service is required, if the sheriff returns a writ “executed,” and in fact-it.has not been executed, a defendant can hold him liable in an action for false return, if he is damaged thereby. But where the service may be personal and direct, or constructive by means of a copy, as in this State, the sheriff’s return of “ executed” may be true in every particular, and he therefore not liable for damages for a false return, and yet the defendant may.never have received the copy, or known of the existence of the suit, and therefore not have defended it, when he may have had full and ample defence, and would have made it, if that notice of the suit which the law intends should be given, had been actually received. While it is admitted that at law no relief against a judgment so obtained could be granted; a court of equity would be limited and circumscribed in boundaries too narrow to render it of much practical utility, if it could not grant relief. This brings us to the consideration of the question, whether the defence alleged to exist, would have been sufficient, if made at law, to have defeated the action. We think it would. The bill alleges that complainant was indorser of the note sued on, and that he did not have notice of its presentment for payment, and of its nonpayment, and there is no proof in the record that such notice was ever given. On the contrary, the proof almost establishes that it was not given.

But again it is said, that the note sued on was paid by another note given by the maker in its stead. The facts on that point are thesp. The note was made by McNiel, and indorsed by Sprague first, Howell second, Hughes third, Walker fourth, Col-ton fifth, and Quitman sixth, indorsers. On its maturity and nonpayment, the holder agreed to take part payment from the maker, and to renew for the remainder by another note of the parties, at sixty days, which arrangement was made in the absence of Hughes, and without his knowledge or consent. A part of the note was paid, and a new note of the maker, indorsed by all the other parties to the first note, except Hughes, payable at sixty days, for the remainder, was given to the holder, who delivered the first note to Quitman, in order that it might be sued on against Hughes, if it could be legally done, for the use of such party to the last note as might have it to pay. ' Subsequently, Walker and Quitman paid the last note, and Walker, who was a prior indorser to Quitman, repaid him, and Quitman gave him up the first note indorsed by Hughes, which note Walker transferred to Lapiece; and the. question is now, can Hughes be held liable on this state of facts, as indorser ? We think he can not. While it is true, that if either of the subsequent indorsers of the original note, had taken it up by giving their own in payment of it, such party might have sued Hughes upon his prior indorsement ; yet we think it equally clear, whenever the original note was taken up or discharged by the substitution of another note by the maker, all the parties to the first note were discharged thereby from liability upon it, unless they entered into some new contract or agreement to continue their liability. Under this view of the case, the decree of the Vice-Chancellor must be affirmed.

Smith, C. J., gave no opinion, having been of counsel.