Johnson, Smith & Co. v. Thurmond & Terry

By the Court.

McDonald, J.,

delivering the opinion.

The -court annulled the judgment in this case against the surety on the ca. sa. bond. The plaintiffs had been notified of the application of the defendant, Thurmond, to take the benefit of the act for the relief of honest debtors, and were bound by the judgment of the court rendered in his favor on that application. The majority of this court are of the opinion that that judgment operated as a bar against the further proceeding of the plaintiffs in the ca. sa. bond, without plea or proof, and that on that ground the judgment of the court below ought to be affirmed. I incline to a different opinion. The arrest of the defendant by the plaintiffs was a distinct proceeding, which ought to have been met by him as in all other eases. He ought to have appeared and proved his discharge, which would have arrested further proceedings on the bond.

The defense would, no doubt, have been effectual and complete, if he had then made a suggestion and proof of his discharge. But, because he did not then make it, from a misapprehension of the necessity of making it, is he now concluded by the judgment so effectually that he cannot move to set it aside ? The record does not show the view taken of the case by the presiding judge in the court below. He has set aside a judgment rendered against the defendant most unjustly in his own court. Ought this court to disturb his judgment ? The defendants unquestionably knew all the facts of their case, and there is as little question that they acted under a mistake of the law, in the view that I take of it. If they acted under the impression that the discharge of Thurmond under the honest debtor’s act, put a stop to proceedings against him in all other cases, a court of chancery would take jurisdiction of the cause; and if a court of chancery would do it, the same court in which the judgment was rendered ought certainly to take cognizance of it and rescind its judgment which it would be against conscience for it to execute. Story’s Eq. Jur. § 120. Taking either view of the case, then, the judgment of the court below must be affirmed.

Judgment affirmed.