Baker v. Sheehan

Bebry, J.

This action is brought to set aside a judgment of the district court of Freeborn county, alleged to have been obtained by the fraud of the defendants Dutch & Abbott, plaintiffs therein, and of defendant Tyrer, as their agent. The action, is also brought to recover damages of the defendants mentioned, and of the other defendant, Sheehan, on account of the levy by the latter as sheriff, at the instance and request of his co-defendants, of an execution (issued upon the judgment) upon certain goods, property of the plaintiffs as-partners. As respects the levy it is also alleged that a part of the goods levied upon were exempt from execution, and have been duly demanded, etc.

As respects defendant Sheehan no cause of action is stated. Having, as sheriff, received an execution fair upon its face, it was his duty to levy it; whether the judgment was fraudulently obtained or not was no concern of his, as sheriff, so long as it was not reversed, stayed, or enjoined.

With reference to the claim of exemption, while there is considerable conflict of authority (see Thompson, Homesteads & Exemptions, §§ 194-216) as to the applicability of exemption statutes like our own to partnership goods, we are of opinion that the correct view, and that supported by the weight of authority, is that they are not so -applicable. Pond v. Kimball, 101 Mass. 105; Gaylord v. Imhoff, 26 Ohio St. 317, — in which cases the reasons for this conclusion are clearly and forcibly stated. Guptil v. McFee, 9 Kan. 30; State v. Spencer, 64 Mo. 355; Love v. Blair, 72 Ind. 281.

As respects defendants Dutch & Abbott the complaint states one cause of action only. That is a cause of action under Gen. St. 1878, c. 66, § 285, which, after authorizing the bringing of an action to set aside a judgment obtained by fraud, provides that in such action “the court shall have and possess the same power heretofore exercised by courts of equity in like proceedings, and may perpetually enjoin the enforcement of such judgment, or command, the satisfaction thereof, * * * * and may also make such other or further order or judgment as may be just or equitable.” Under the broad power thus conferred, the court is invested with authority, not only to set aside the judgment, but also to afford full relief from its consequences — as, for instance, by making restitution of property received by virtue of it; or — what is certainly comprehended in the words “such other or further order or judgment as may be just or equitable” — by awarding damages for the attempted or successful enforcement of the judgment by execution. In other words, the court is invested with power, according to the usual power of courts of equity, to administer complete justice in the premises. The cause of action thus stated against Dutch & Abbott affects Tyrer as respects the matter of damages only. As he has no interest in the judgment, the setting of it aside is in itself of no moment to him. The case is, then, simply one of a single cause of action, in a part of the relief sought in which one of the defendants, Tyrer, is not interested. There is no misjoinder of causes of action, as claimed in defendant’s demurrer.

The demurrer was based upon two other grounds, viz., the failure of the complaint to state a cause of action, and the pendency of another action for the same cause. The first of these grounds is disposed of by what we have before said. As to the second, we discern no basis for it, and it does not appear to be urged by the appealing defendant.

Order reversed.