Gunn v. Howell

By the Court.

McDonald, J.

delivering the opinion.

This case brings up three distinct judgments pronounced in the Court below on three motions, in one of which Isaac .•Howell was a party, and in the other he was not a party. A •motion was made to dismiss the bill of exceptions, for want >of service on Isaac Howell, or his attorney; service was acknowledged, and the acknowledgment is in the following words:

“I acknowledge service of copy of the 'within bill of exceptions, and agree that the exceptions to all the motions be taken up in one bill, this the 4th day of October, 1856.

(Signed,) LINTON STEPHENS.”

Mr. Stephens did not sign as attorney for either of the parties. Only two members of the Court presided; my brother Benning, was of opinion that the service was not sufficient in the case to which Howell was a party, it having been stated in the argument, that Stephens did not represent Howell in the Court below, and there being nothing of record to show that he did, and he not having signed as attorney for any one. I thought the service sufficient. Mr. Stephens is a known attorney of the Court, and the acknowledgment embracing a consent that the .exceptions to all the motions be taken up in one bill, and he not signing for any particular defendant, ought to be held to have acknowledged for all. It was admitted, that he is now the attorney of Howell. A question then arose as to the effect of this disagreement. My own opinion was that no judgment could be pronounced on the motion to dismiss, and that.the cause must proceed. My brother Benning, however, entertained a different opinion, and thought that he could not hear a case, which he conscientiously believed was not before the Court, for the want of proper service. The consequence was, that the cases to which Howell was not a party could alone be heard.

The first of the motions to which Howell was not a party, in the order in which they are presented in the bill of exceptions, is the motion to vacate and render invalid a judgment in favor of James M. Calloway vs. Archibald G. Jones and Larkin R. Gunn, on the ground, that it had been rendered in favor of the plaintiff, after his death. The Court refused the motion, and on that refusal, error is assigned. The judgment was rendered on 7th day of March, 1839. At March Term, 1839, the case was stated against the defendants, in the name of James M. Calloway, and not in the name of bis administrators, and entitled “ scire facias.” The scire facias, by the way, a very irregularly drawn process, issued in the name of the administrators, on the 7th day of February, 1839, calling on the defendants or their attorney, to show cause why the administrators should not be made parties plaintiffs, and why a judgment should not be rendered accordingly in such case made and provided. At the Term of the Court at which the defendants were required to appear personally or by attorney, to show cause as aforesaid, the presiding Judge made the following entry on the docket: “ Parties made, and verdict for plaintiff.” The presumption is, that parties were made as proposed in the scire facias, to-wit: That the administrators were made parties plaintiffs, in lieu of the deceased James M. Calloway. The verdict of the jury is for the plaintiff The administrators were then plaintiffs. The Clerk issued an execution seven days after the date of the judgment, in favor of the administrators as plaintiffs, and the Sheriff two days thereafter, made his return thereon. A garnishment was issued and the debt and effects of one of the defendants was levied on in the hands of a third person, judgment entered against him, and the money collected. The parties, defendants and garnishee, have acquiesced in thejudgments against them respectively, ever since the 8th of March, 1843, up to the movement in 1856. No fraud is alleged or complained of against the plaintiffs. The history of the case as detailed here, shows that the only matter complained of was the omission of the Clerk to put on the minutes an order to make parties, which we are bound, upon legal principles, to presume was passed, by the Court. The motion to set aside the judgment, was predicated, then, on mere official neglect in the Clerk, nothing more. It was a want of adherence to a'mode of proceeding, and was the omission to put an order to make parties on the minutes, which was necessary, to the due and orderly conducting of the suit Tidd’s Practice 512. The application to set aside proceedings for irregularity should be made as early as possible; and if there has been any irregularity, if the party overlooked it, and took subsequent steps in the cause, he could not afterwards revert back to the irregularity and object to it Tidd 513.

The parties were made, so says the evidence; the judgment was rendered, so says the record; and the money is presumed to have been long since paid — more than twelve years ago. No precedent, I apprehend, can be found, where the Court has set aside proceedings for such an irregularity, where there has been a final close of the business, the money paid, and thirteen years acquiescence. In the case of Soulden & Smith vs. Cook, 4 Wendall's Reports 217, the Court refused to set aside a judgment for irregularity after a lapse of ten years, and held that where there was no fraud or circumvention, it should not, after so long a time, be set aside on its merits.

It may be seen from what has been said, that in our opinion, there was no error in the order to correct the judgment, however unnecessary it was to do it at this late day; we will presume that the Court had sufficient' legal evidence of the death of the party, to authorize the proceeding.

Judgment affirmed.