Dickerson v. Wilcoxon ( 1887 )

Smith, C. J.,

(after.stating the facts). The sole question brought up by the appeal, arises out of the refusal of the Judge, upon the record, to award an execution against the personal goods of the defendants. While the possession of -assets was directly averred and denied, and a material issue •thus raised, which it was necessary to dispose of before the •character of the final judgment could be ascertained, it has manifestly never been considered by the referee, nor, so far as the record discloses, passed on by the Judge. It was distinctly recalled to notice in an exception to the report. The agreement that the Judge should take the case and find “ the facts necessary for a full determination of all the issues on the exceptions and the pleadings,” confines him to the proofs already taken, and therefore he could not affirmatively find any fact of which no evidence was furnished. In order to •charge a representative with assets, they must be shown to be, •or ought to have been, in his hands, and in the absence of all proof, the only possible finding, if there be any finding at all, must be in the negative. The entering up of judgment ■generally, was therefore not warranted, inasmuch as its legal •effect then was to charge the defendants with assets, and to require them, if the debt could not be made out of the effects of their testator, after notice, to show cause, and when no cause is shown, to pay it out of their own property.

Now was it out of the power of the Court so far to re-open the cause and reform the judgment, as to permit an inquiry to be made as to the assets? or could the judgment be so modified as not to charge the defendants personalty? or is it a case of wrong without remedy ?

The argument of the appellees’ counsel, assumes the latter to be the correct view, for the reason that the objection should have been made upon the rendition of the judgment. Ordinarily this is so, and the controversy as to every matter entering into the judgment is concluded and settled.

But we think it plain, the dispute before the referee and' transferred to the Judge, was as to the relations of the partner's and the indebtedness of the deceased partner to the one who sues. The resources of the debtor were not the subject of inquiry before either, and the question of assets is left by both, open and undetermined. The error lies in the entering of a judgment before this inquiry was made. We must put this construction upon the record to avoid obvious and unintended injustice, and therefore we concur in the refusal of the Court to direct the issue of the execution asked, until the preliminary matter is settled. There is no error. This will be certified for further action in the Court below.

No error: Remanded.