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-I
A TREATISE
ON
THE LAW OF JUDGMENTS
INCLUDING THE DOCTRINE OF RES JUDICATA
By HENRY CAMPBELL BLACK, M. A.
Author of "* Black's Law Dictionary " and of Treatises on ""Tax Titles,"
** Constitutional i4iw," ** Interpretation of Laws," **Bankrupicy," eta
SECOND EDITION
IN TWO VOLUMES
VOLUME I
St. Paul, Minn.
WEST PUBLISHING COMPANY
San Francisco, Cal
BANCROFT-WHITNEY CO.
190a
COFTBIGHT, 1891,
BT
WEST PUBLISHING COMPANY,
Copyright, 1902,
BT
WEST PUBLISHING COMPANY.
L 5529
PREFACE TO THE FIRST EDITION,
THE work now given to the public is one which has engaged the au-
thor's study and reflection, more or less constantly, for a considerable
number of years. The magnitude and importance of the subject are
such as to demand the most patient and exhaustive research, the most
careful collation and weighing of authorities, and the most impartial
and reasonable discussion of its disputed points, on the part of any one
who attempts a comprehensive and systematic treatment of it. How
far the author has fallen short of the fulfillment of these conditions, is
for the judgment of those who shall use the book. But the fact that
he has constantly kept this ideal in mind, and devoted his best energies
to the realization of it, is his justification for the hope that the follow-
ing pages may be found to possess some interest and value .for his
brethren of the bar.
The law of judgments, at the present day, aside from local variations
in matters of practice, may be regarded as tolerably well settled.
There are, however, certain branches of the law of estoppel by record
which still present themselves to many a puzzled inquirer as a
labyrinthine confusion of apparently irreconcilable decisions. This
arises, not so much from any real contradiction or obscurity in the
authorities, as from the infinite variety exhibited in the facts of the
different cases and the necessity of making nice discriminations in the
principles to be applied. At such places, the endeavor has been made
to exhibit the result of the decisions in a clear and orderly form, by a
methodical classification of the cases, and by a logical and systematic
arrangement of topics. In illustration we refer to the discussion of the
doctrine of merger as applied to inseverable claims founded in contract
or tort, actions for continuing damages, for distinct trespasses, for
causes of action distinct though founded on the same transaction, for
permanent and recurring nuisances, for periodical liabilities, etc. (vol
"• §§ 73i'~7S3)- Nor is our general subject wholly free from vexed
(Hi)
iy PREFACE.
questions, upon which the authorities are hopelessly at war. In such
cases it has been the author's task to weigh and balance the conflicting
decisions, — not withholding criticism where he deemed it justified, nor
refraining from the positive expression of individual opinion, — ^and to
present what he considered the true rule, or- the best rule, or the rule
sustained by the preponderance of authorities, supporting his con-
clusions as well by the reasoning suggested by his own reflections on
the subject, as by quotations from the opinions of the courts. Ex-
amples of such topics, so treated, may be seen in the discussion of
"judgments as contracts" (vol. i. §§ 7-1 1), the definition of jurisdiction
(§ 215), the question of the collateral impeachment of judgments for
want of jurisdiction (§§ 270-276), the subject of the conclusiveness of
foreign judgments in personam (vol. ii. §§ 825-834), and the matter
of jurisdictional inquiries in actions on judgments from a sister state
(§§ 894-915) and the plea of fraud (§§ 916-921).
Throughout the work an attempt has been made to preserve an
orderly and scientific arrangement, both in the main divisions of the
subject and in the sequence of parts and sections within each chapter.
Such a plan, it is believed, if perfectly carried out, would greatly facili-
tate the use of a text-book so voluminous as the present. As to the
method of using the authorities, it may be observed that quotations
from the opinions of the courts have been quite freely introduced, —
not, it is hoped, to the extent of incumbering the pages with needless
repetitions, but for the purpose of illustrating and re-inforcing the
legal propositions stated by the apt and convincing remarks of learned
judges. For the rest, the citations will be found to cover the English
and Canadian reports, as well as those of all the American states, with
occasional illustrations from the Roman law and other foreign systems.
The extent of the author's researches will be apparent from the fact
that more than ten thousand cases are cited in these volumes. But
he feels confident that to refer to a profusion of authorities is to err
(if at all) on the side most easily pardonable by the profession.
In view of the wide circulation of the various periodicals constituting
the National Reporter System, it was thought that convenience in the
use of the book would be greatly promoted by introducing parallel
references in the case of all decisions reported concurrently in an
official series and in one of the Reporters. And this has accordingly
PREFACE. V
been done. Where a case is cited from one of the Reporters alone,
it is because it was omitted from the official series of reports or has
not yet been reached by that series. For reasons similar to the fore-
g^ing, parallel references to the American Decisions and the American
Reports have been introduce^. The citations have been brought down
to the time the work goes to press. H. C. B.
WashiDgton, D. C, January 1, 1891.
PREFACE TO THE SECOND EDITION.
DURING the twelve years which have elapsed since the first publica-
tion of this treatise, the law of Judgments, as expounded by the courts
and affected by statutory enactments, has undergone a great elabora-
tion and development, though without much change in the cardinal
principles upon which its most important rules are based. In the same
period the case-law of the subject has enormously increased. It there-
fore seemed to the author that a new edition of this work would be
acceptable to the profession, and would indeed be necessary to its con-
tinuance in that career of usefulness of which he has many gratifying
testimonies. Accordingly, the book has been subjected to a careful
and thorough revision, many parts of it have been wholly re-written,
much new matter has been added, and the later decisions, to the num-
ber of about seven thousand, have been incorporated in the notes. It
is hoped that the work, as thus enlarged and brought abreast of the
current of judicial decisions, will be found a reliable guide to the rules
and principles on which its subject rests, and a complete repertory of
the precedents, both ancient and modern. H. C. B.
Washington, D. C, October 1, 1902.
TABLE OF CONTENTS.
VOLUME I.
CTTAPTEB I.
TMJfl NATUKB AND CLASSIFICATION OF JUDGMENTS AND DBCRSB&
Pabt I. Thb Naturb of Judgmbnts.
$ 1. DeflnitiODS ot Judgments, Decrees, and Orders.
2. Tbe Language of a Judgment
3. Ifissentials of a Judgment.
4. Consequences of a Judgment
5. Judgment is not an Assignment
ti. Judgmmt is not a Specialty.
7. Judgments sometimes called Contracts.
8. The opposite View.
I). Where the Cause of Action is in Tort.
10. Judgments are not Contracts.
11. Question of Statutory Construction.
Pabt IL Thb Classification of Judgmbhii.
12. Methods of Classifying Judgments.
13. Judgments on an Issue of Law,
14. Judgments upon Verdict.
15. Judgments without Verdict.
1<S. Judgment against the Verdict
17. Names of Judgments In certain Special Actions.
18. Cross-Classlflcatlons of Judgments.
19. Classification of Decrees.
CHAPTER IL
FINAL AND INTERLOCUTORY JUDGMENTS AND DEOREEa
I 20. Reasons for the Distinction.
21. Definition of Final Judgments.
22. Interlocutory and Intermediate Orders.
1 LAW JUDG. (vll)
Vlll TABLE OF CONTBNTa
S 28. Must be final as to all Parties.
24. Must settle all tiie Issues.
25. Uncertainty of the Amount
26. Judi^ment of Nonsuit.
27. Dismissal of Suit.
28. Judgment by Default
2U. Judgment on Demurrer.
30. Judgment on Plea in Abatement
31. Judgment for Costs.
31a. Allowance of Claims Against Fund.
32. Granting or Refusing Extraordinary Remedies.
33. On Motion for New Trial.
34. Vacating or Reversing former Judgment.
36. Orders as to Interpleader, Intervention, and Joinder of Parties.
36. Dissolving Attachments and Executions.
37. Order removing Cause.
38. Judgments and Orders of Probate Oourti.
39. Judgment in Partition.
40. in Condemnation Proceedings.
41. Finality of Decrees.
42. i^'urtber Action necessary to settle the Equities.
43. Further Action necessary to execute the Decree^
44. Decree ordering a Reference.
45. Directing an Account.
46. Decree suspending Rights until further Orders*
47. Decree dissolving Partnership.
48. Foreclosure of Mortgage.
4tf. Sending issue out of Chancery.
, JUDGMENTS BY CONFESSION.
S 50. Confession of Judgment in Pending Suit.
51. Confession of Judgment without Action.
52. Authorized by. Statutes.
53. Court must have Jurisdiction.
54. Who may confess Judgment.
56. Confession by Married Woman.
56. Married Woman as Creditor.
67. Confession by Partner.
58. Joint Defendants.
59. By Officers of a Corporation.
60. Consent of Creditor is necessary.
61. Requisites of Warrant of Attorney.
61a. Revocation or Expiration of W'ari^cmt
62. Affidavit that Debt is dae.
■p*
TABLB OF CONTENTS. IX
68. Statement of the Indebtedness.
t^. 8i|rnature to Statement.
m. Verllication of Statement.
<56. Amendment of Statement.
f57. Judgement voidable for Failure to comply with Statut«i
W. Valid between Parties.
flM. For what Judgment may be confessed*
70. Debt not yet due.
71. For Future Advances.
72. For contingent L.labllitle8.
73. Amount of the Judgment.
74. LiquidatloD of Amount by Clerk.
75. inclusion of Attomey*8 Fees.
7tS. Recording the Judgment
77. Reversing and Vacating Judgments by Ck>nfe8sion.
7H. Effects of confessed Judgment.
CHAPTER IV.
JUDGMK.NTS BY DEFAUI/T.
79. Judgment of NU Dlcit
7»a. Judgment for Want of AtUdavit of Defense,
80. Judgment by Default.
HI, Against Whom may be taken.
82. Joint Defendants.
83. Jurisdiction of the Defendant.
84. Must be founded on good Declaration.
85. Premature Entry of Default.
86. Default, when proper.
87. Conclusiveness of Judgment by Default
88. Entry by the Clerk.
8V. interlocutory Judgment, when necessary.
W» Assessment of Damages.
91. Evidence on Assessment of Damages.
92. Amount of the Recovery.
U3. Judgment by Default not aided by Presumptions.
91. Opening and Vacating Judgments by Default
05. Review of Judgments by Default
CHAPTEK V.
ARREST OF JUDGMENT.
96. Arrest of Judgment at Common I^w.
97. When the Motion should be made.
98. Grounds for Arrest of Judgment
TABLE OF CONTBNTS.
99. Defect of Parties.
IIX). Jnsufflcient or Faulty i'leadings.
101. Joinder of Good and Bad Counts.
102. Misjoinder of Causes of Action.
103. Objections to tiie Jury.
104. Irregular or Defective Verdict.
105. Grounds held Insufficient.
CHAFTES VL
THE KEiNDlTlON AND ENTRY OF JUDGlfENTS.
§ 106. Distinction between Rendition and Entry.
107. Power and Duty of the Court to render Judgment.
108. Application and Order for Judgnient
109. Signature of Judge.
110. Entry by the Clerk.
111. Entry In wrong Book.
112. Indexing the Judgment
113. Remedy against Clerk for improper Entry.
114. Contents of the Judgment.
115. Form of the Judgment.
116. Designation of the Parties.
117. Designation of the Property.
118. Designation of Amount of Recovery.
119. Conditions in Judgment.
120. Joint Defendants.
121. Time of entering Judgment
122. Date of the Judgment.
123. Construction of Ambiguous Judgments.
124. The Judgment-Roll, or Record.
125. Supplying Lost Records.
125a. Entry of Judgments in Federal Courts.
CHAPTER Vn.
THE ENTRY OF JUDGMENTS NUNC PRO TUNa
§ 126. Origin and Nature of the Power.
127. Delay by Act of the Court.
128. Delay by Motions or Appeal.
129. Laches of Party.
130. Supplying Entry of Judgment.
131. Correction of Clerical Errors.
132. Not a proper Means of changing or revi.'^fng the Judgment.
133. Only proper when i^lnal Judgment could be entered.
TABLB OF CONTENTS. Xl
i 1214, Notice of AppllcaHon.
135. Kvidence.
13t>. HelatioD back of Order.
137. Effect upoD Tiilrd Persona,
CHAPTER Vm.
AMOUNT AND CHARACTER OF RELIEF GRANTBD.
138u Amount greater than Plaintiff's Demand.
1^. Assessment of Damages on Default.
140. Amount Indorsed on Summons.
141. Prayer for Relief as Measure of Recovery.
142. Judgment must follow the Verdict.
143. Allowance of Credits.
144. Tender, Counterclaim, Offer of Compromise,
145. Joint Parties.
14«. AffirmatlTe Relief to Defendant
147. Interest.
148. Conditions as to Payment
149. Statutory Damages.
150. Designation of Amount.
151. Judgment designating Medium of Payment
152. Judgment for Coined Money.
THE AMENDMENT OF JUDGMENTa
f 15S. Amendment during the Term.
154. Amendment afto* the Term.
155. Correction of Clerical Errors.
156. Supplying Omissions.
157. Reforming and Perfecting the Judgment
15S. Judicial Errors not to be thus Corrected.
150. Amendment as to Amount of Judgment
ItSO. Amendment in Respect of Parties.
101. What Courts have Power of Amendment
162. Time of making Applicfttion.
163. Method of applying for Amendment
164. Notice of Application.
165. Evidence.
166. Method of making Corrections.
167. Allowance of Amendment is discretionary.
16H. Jurisdiction of Equity.
169. Effect of Amendments on Third Persons.
Zii TABLE OF CONTENTS.
CHAPTEB X.
THE VAlADiTX OF JUDGMENTS.
I 170. Voidable and Void Judgments.
171. Jurisdiction.
172. Character and Status of Parties.
173. Constitution of the Oaiirt.
174. Disqualllied Judge.
175. Acts of Judge de Facto.
176. Judge out of Oltice.
177. Time and Place of holding Court
178. Place of Trial.
179. Judgment rendered in Vacation.
ISO. After Expiration of Term.
181. Premature Entry of Judgment.
182. Sundays and Holidays.
. 183. Judgment must be supported by the Pleadings.
184. Judgment in Action not at Issue.
185. Findings necessary to support the Judgment
180. Judgment must follow Verdict.
THE VAUDITY OF JUDGMENTS AS AFFECTED BY THE CHARACTKR
OR STATUS OF THE PARTIES.
{ 187. Against what Parties Judgments may be Rendered.
188. Judgments against Married Women at Common Law.
189. For Debt contracted Dum Sola.
190. Effect of Omission to plead Coverture.
191. Under partially enabling Statutes.
192. Statutes removing Disability of Coverture.
193. Judgments against Infants.
194. Service of Process on Infants.
195. Appearance by Attorney or Guardian.
196. Effect of Failure to plead Infancy.
197. Decrees in lixiuity against Infants.
198. Infant Plaintiffs.
199. Judgments against Deceased Parties.
2U0. Judgment against Decedent Voidable only.
201. Death of One of Several Defendants.
202. Entry of Judgment against Decedent Nunc pro Tunc
203. Jurisdiction must be acquired before Party's Death.
204. Judgment for Deceased Plaintiff.
205. Judgments against Insane Persona.
\
\
t
r
TABLB OF CONTENTB. XllI
206. Joint Parties at Common Law.
:*i>7. In Actions of Tort.
208. Joint Debtor Acts.
201^. One Defendant suffering Default.
210. Judgment, when Several, when Joint.
211. Joint Judgment as an Entirety.
212. Confession of Judgment by Joint Defendants.
213. Misnomer of Parties.
214. Descrlptlo Personae.
THE VALIDITY OF JUDGMENTS AS DEPENDENT UPON JURISDIC-
TION.
S 215. Jurisdiction defined. .
216. Sources of Jurisdiction.
217. Consent cannot confer Jurisdiction.
218. Judgment without Jurisdiction is Void.
219. Judgment against One not a Party.
220. Notice to Defendant.
221. Statutes dispensing with Citation.
222. Statutes regulating Mode of Citation.
223. Defects in the I^rocess.
224. Defects In the Service.
225. Appearance as a Waiver of Citation.
226. Defendant's Right to be heard.
227. Judgments against Non-Uesidents.
228. Extra-Terrltorial Service of Process.
229. Jurisdiction by Attachment of Non-Resident's Property.
230. What Property bound.
231. Service by Publication without Attachment.
232. Statutes authorizing Constructive Service to be strictly construed*
2:^3. Joint Defendants.
234. Joint Judgment as an Entirety.
235. Joint Judgment authorized by Statute.
236. Statutory Several Judgment.
237. Judgment against l'£lrtners.
2:{8. Appearance for Defendant not Served.
2:i9. Construction of Judgment against "Defendants'* generally.
240. Jurisdiction of the Subject-Flatter.
241. Sulliclency of Declaration.
242. Jurisdiction of Question decided.
243. Ix^ss of Jurisdiction.
244. Jurisdiction attaching, Error does not Vitiate,
XIT TABLE OF CONTENTS.
OHAFTEB Xm.
COl^LATEKAL IMPEACHMENT OF JUDGMENTS.
Paut I. The General Rule.
% 245. Judgmeuts not to be Attacked Collaterally.
246. To what Judgments the Rule applies.
247. Tax Judgments.
248. Adjudications In Bankruptcy.
249. Awards.
250. Judgments of Inferior Courts.
251. Co-Ordlnate Courts.
252. What constitutes a Collateral Attack.
253. I*roceedings to prevent Execution of th§ Judgment.
253a. I^roceidiiig to Enforce Judgment by Mandamus.
254. Habeas Corpus Proceedings.
255. Errors and Irregularities not Reviewable.
256. Jurisdiction may be examined.
257. Constitutionality of Statutes.
258. Jurisdiction to render the I*articular Scntencei
259. Sufficiency of Process or I'leadings.
260. To what Parties the Rule applies.
Part II. For Errors and iRREouLARiTiBSi
261. Erroneous and Irregular Judgments.
262. Mistakes in the Judgment.
263. Irregular or Defective Service.
264. Objections as to Parties.
265. Legal Disability of Parties.
266. Disqualification of Judge.
267. Judgment for Excessive Amount.
268. InsutHclency of Evidence.
269. Illegal or Insufficient Cause of Action.
Part III. For Want op Jurisdictobt.
270. Jurisdiction of Superior Courts presumed.
271. Silence or Incompleteness of the Record.
272. Appearance by Attorney.
273. Jurisdictional Recitals.
274. Decision of the Court upon its own JurisdictloD.
275. Cases denying Conclusiveness of Record.
276. Arguments on the Conclusiveness of Records.
277. No Presumption against the Record.
278. Judgment Void on Its Face may be Attacked Collaterally.
TABLE OP CONTENTS. XV
Part IIL For Want op Jukisdiction— Continued.
f 279. Superior Courts exercising Special Statutory Powers.
280. Summary l^roceedlngs.
281. Constructive Service of Process.
282. Judgments of Inferior Courts not aided by Presumptions.
283. Superior and Inferior Courts distinguished.
284. Probate Courts.
285. Federal Courts.
28t5. Justices of the Peace.
287. Record of Inferior Court, showing Jurisdiction, is Conclusiva
288. No I'resumption of Validity on Direct Attaclt.
280. Foreign Judgments.
Part IV. For Fraud.
2«0. Whether Parties can Impeach Judgment for Fraud,
291. Fraud in Procuring the Judgment.
2U2. Fraud in the Cause of Action.
2^3. Creditor may show Fraud in a Judgment.
2M. Fraud must affect the Creditors.
2D6. What Creditors allowed to allege I<Yaud.
286. False Testimony.
VACATING AND OPENING JUIXiMENTS.
Part I. Thb Power to Vacate Judgmbkti.
f 2Syi. What Courts possess the Power.
21f7a. As Between Federal and State Courts.
2U8. JL/eglslature cannot interfere.
Part IL The Method of ssekimo Relief.
2U9. By Audita Querela.
9UU. By Error Coram Nobis.
301. By BiU of Review.
302. By Direct Action,
aui. By Motion.
'SH. Indirect Vacation of Judgment
Other Remedies Available.
Part III. The Time of AppLTnra
au5. Daring the Term.
306. After the Term.
307. Void Judgments.
ZVi TABLE OF CONTENTS.
Part III. The Timb of Applting— Continued.
§ 308. Interlocutory Judgments.
309. i'ennsylvaula Tractlce.
310. Judgment carried over the Term by Motion.
iMl, rnder Statutes.
'612. Judgments against Non-Uesldeuts.
313. Laches of l»arty.
Part IV. This Parties who mat Apply.
314. Successful Party may Apply.
315. Joint Defendants.
31t5. Legal KepresentatiTes of l*arty.
317. Strangers.
Part Y What Judgments mat be Vacateix
318. General Kule.
319. Consent Judgments.
320. Judgments in Divorce.
320a. Adjudications in Bankruptcy.
PaBT VI. GUOUNDS FOR VACATING JUDGMENTS
821. Fraud and Collusion.
322. Judgment taken contrary to Agreement
323. Perjury.
324. Want of Notice.
325. Unauthorized Appearance by Attorney.
32G. Irregularities.
32(;a. Objections to Jury.
327. Judgments against Persons under Disabilities.
328. Unauthorized Entries.
329. Judgment not Vacated because Erroneous.
330. Not for Grounds which might have been pleaded in Defense.
331. Illegality of Cause of Action.
:^32. Newly-discovered Evidence.
333. Judgment on reversed Judgment.
334. Statutory Grounds for Vacating Judgments.
3d5. Mistake.
33(J. Surprise.
337. Casualty or Misfortune.
338. Sickness of Defendant
339. Sickness of Counsel.
340. Excusable Neglect.
340a. Mistake, Ignorance, or Erroneous Advice of Counsel.
341. Negligence of Attorney.
TABLE OF CONTENTS. XYll
Part YL Oroundjb for Yacatikg j cd jmbnts— ContlDued.
342. Misunderstanding of Counsel.
343. Unavoidable Absence of Counsel.
344. Fraud of Attorney.
345. Misinformation as to Time of Trial.
34^. Estoppel to Apply for Vacation of Judgment.
Part YIL Practice on Yacating Judgments.
346. Notice of Application.
346b. Requisites of Petition or Moving Papers.
347. Affidavit of Merits.
348. Meritorious Defense must be Shown.
349. Technical or Unconscionable Defense not Sufficient.
350. Opening Judgment to admit Defense.
351. Evidence.
352. Imposition of Terms.
353. Partial Yacation of Judgment.
354. Allowance of Application discretionary.
354a. Practice on Opening Default.
356. Effect of Yacating Judgment
CHAPTER XV.
RELISF IN EQUITY AGAINST JUDGMENTS AT luAW.
Part L Jurisdiction of Equity to Enjoin the Enforcement of JunoMEim.
f 350. Origin of the Power.
357. Nature of Relief granted.
358. What Adjudications subject to the Power.
359. What Parties may Apply.
360. What Ck)urts exercise the Power.
361. Concurrent Remedies.
362. Same; ReUef on Motion.
363. Same; Appeal, Error, or Certiorari.
364. Same; Cross-Actions and Actions over.
Part II. Grounds for Enjoining Judgmentsl
366. General Grounds for Equitable Relief.
366. General Rule Stated.
367. Errors and Irregularities.
368. Fraud.
369. Fraud In Preventing Defense.
370. Fraud in Procuring the Judgment
371. Deceit and Codcealment
1 LAW JUDG.— b
XViii TABLE OF CONTENTS.
Part IL Groundb for ENjomiNO Judgments— Continued.
S 372. Perjury.
373. Taking Judgment contrary to Agreement.
374. Unauthorized Appearance of Attorney.
375. Negligence or Mistake of Counsel.
376. Want of Jurisdiction.
377. Judgment founded on False Return of Serylce.
378. Legal Defense not Interposed.
370. Illegality of Consideration.
380. Excuses for not defending at Law.
381. Same; Mistake.
382. Same; Surprise.
383. Same; Accident or Misfortune.
384. Ignorance of Legal Defense.
385. Discovery must have been sought
386. Newly-discovered Evidence.
387. Negligence of Party precludes Relief.
388. Defense not available at Law.
389. Defense available either at Law or Ekiuity.
390. Satisfaction or Release of Judgment.
391. Injunction as a Means of securing Set-OfE.
392. Personal Disability of Parties.
Part III. Practice on Appltcatiok to Ekjoin Judgment.
398. Nature and Requisites of Bill.
393a. Evidence.
393b. Joinder of Parties.
394. Conditions on Granting Relief.
395. Effect of Enjoining Judgment
386. Dissolution of Injunction.
CHAFTEB XVL
THE LIEN OP JUDGMENTS.
Part I. Origin and Nature of Judgment- Liens.
397. Early History of Judgment-Liens.
398. Judgment-Lien is Statutory.
399. Legislative Control of Judgment-Liens.
400. Lien gives no Property in Debtor's I^nd.
401. Lien is General.
402. Courts cannot control the Lien.
403. Parties cannot change Nature of Lieu.
404. Docketing the Judgment.
TABLB OF CONTENTS. ZlX
Past L Orioik and Naturb of JuDGMBNT-LiBNS—CoDtinued.
i 406. Indexing the Judgment.
406. Certainty required in Docket and Index as to Nantes of PartieB.
406a. Same; As to Amount.
Part XL What Judgments crsatb Libns.
40T. What is Necessary to Judgment-Liens.
408. Interlocutory Judgments.
400. Judgments against Personal Representatives.
410. Nunc Pro Tunc Judgments.
411. Decrees in Chancery.
41^ Judgments of Inferior Courts.
413. Judgments of Federal Courts.
414. Statutory Basis of such Liens.
415. Territorial Extent of such Liens.
410. Decrees in Admiralty.
Part III. To what Property the Lien attaches.
417. Territorial Restriction of Lien.
418. Transfer of Judgment to Another County.
419. Lien binds Real Estate.
420. Actual Interest of Debtor bound.
421. Title held in Trust
422. Inchoate Title.
423. Land Fraudulently Conveyed.
424. Exempt Property.
425. Homestead Property.
426. Life-Estates.
427. Estates by Curtesy.
428. Reversions and Remaindera
429. Leasehold Interests.
430. Land held by Joint Ownera
431. Partnership Property.
432. After-Acquired Property.
433. Equitable Estates and Interests.
434. Equity of Redemption.
435. Judgment against Trustee.
436. Land held under a Power.
437. Judgment against Cestui Que Trust
438. Interest of Vendor under Executory Contract.
439. Interest of Vendee under Executory Contract.
439a. Sale of Land After Enti'y of Judgment
440. Estates successively conveyed.
TABLB OF CONTENTS.
Part IY. Date of the Lien.
S 441. Oommon Law Rule.
442. Exceptions to tbe Rule.
443. Present Statutory Rules.
444. Gases in which Lien relates back.
Pabt y. Priobitt and Prbcbdbncb of Judgment- Liens.
445. Lien is subject to Prior Rights and Equities.
446. As against Prior Unrecorded CJonyeyance.
447. Precedence of Purchase-Money Mortgage.
448. Priority of GoTernment Claims.
449. Priority by Date of Entry.
4o0. Two Judgments entered the Same Day.
451. Judgment and Gonyeyance entered the Same Day.
452. Judgment given to secure Future Advances.
453. Prior Undocketed Judgment.
454. As against Subsequent Dower Right
455. Priority by Superior Diligence.
456. Priority by Prior Levy.
457. Postponement by Stay of Execution.
458. Postponement by Failure to Revive.
459. Sale under Junior Judgment.
460. Order of Priority on After-Acquired Lands.
Part VI. Duration of the Libn.
461. General Rules.
462. Dormant Judgment Acts.
463. Legislative Abridgment of the Time.
464. Lien of Transferred Judgment
465. Extension of Lien by Agreement of Parties.
466. Survival against Judgment-Debtor.
467. Death of Judgment-Debtor.
468. Remedies of Greditor after Expiration of Lien.
Part VII. Suspension and Dibcharob of JudombnT'Libns
469. General Principles.
470. Suspension of Lien by Injunction.
471. Stay of Proceedings.
472. Opening or Vacating Judgment
473. Appeal or Error.
474. Bankruptcy.
475. Appointment of Receiver.
476. Taking Defendant on Gapias.
477. Payment
TABLE OF CONTBNTS. ZZi
Part YIL Suspxhsion and Dibchabob of Judgmbht-Libhs— Continued.
i 478. Oancellatlon or Entry of Satisfaction.
479. Sale of the Land.
480. Acquisition of Title by Jndgment-Oreditor.
481. Release of Lien.
CHAFTEB XVn.
RBVIVAL OF JTJDGMBNTS.
§ 482. Bevlval by Motion or Snit
482a. Reyival by Scire Facias.
483. Venue of the Action.
484. Right to sne out Scire Facias.
485. Time of Issuing the Writ
486. Pleadings.
487. BtfTlce of Writ
488. Parties PlaintilT.
489. Parties Defendant
490. Same; Judgment against Decedent
491. Same; Joint Defendants.
492. Terre-Tenants.
493. Defenses.
494. Same; Payment Release, Set-Oft.
496. Same; Discharge in Bankruptcy.
490. Same; Invalidity of Original Judgment;
497. Same; Oollateral Agreements.
498. Judgment on Scire Facias.
^9. Practice in Pennsylyania.
TABLE OF CONTBNTS. XXiii
VOLUME II.
GHAFTKB XVJLUL
ESTOPPEL BY JUDGMENT, AND THE DOCTRINE OF RES
JUDICATA.
PaBT L OrIGIK and GeNBBAL FbINCIFLES of THB DOCTftlNB OF RB8 Jctdigata.
f GOO. Basis of tbe Doctrine of Res Judicata.
501. In the Roman Law.
502L Modem European Systems.
603. In Anglo-American Jurisprudence.
604. The Rules Stated.
506. Judgment can be Nothing less than Condusiye.
600. Difference between Conclusiveness of Judgment and B^r by Former
Recovery.
607. Scope of this Chapter.
Pabt II. What Judgmbnts are ConoIjUSivb.
508. Character of the Adjudication.
609. Judgment must be Final.
610. Effect of Pending Appeal.
611. Reversed Judgment.
612. Not affected by Motion for New TriaL
613. Voidable and Void Judgments.
614. Erroneous Judgments.
616. In Actions to Annul Judgments.
Part III. Organization and Chabactbr of thb Court.
616. Judgment must be rendered by a validly constituted Court.
617. Courto of Equity.
618L Decrees In Equity binding at Law, and Vice Versa.
619. Probate Adjudications.
620. Judgments of the Federal Courts.
621. Courts of Admiralty.
622. Inferior Courts.
1 LAW JUDG.
I
TXIV TABLB OF CONTENTS.
Pabt III. Organization and Character of the Coubt-— Continued.
f 528. Ecclesiastical Courts.
524. Oourts-Martial.
525. Military Tribunals.
526. Awards of Arbitrators.
527. Decisions of Appellate Courts.
528. Judgment given by Divided Court
529. Criminal Sentences not Evidence In Civil Issues.
530. Decisions of U. S. Land Department
531. Rulings of Government Officials.
582. Boards of Municipal Officers.
533. Judgments conclusive on Habeas Corpus.
Part IV. Of the Persons concluded bt Judombnts.
534. Parties and Privies.
534a. Judgment as Estoppel against United States or State.
535. Persons under Disabilities.
536. Party bound only in the Capacity in which he Appears.
537. Nominal and Real Parties.
538. Use Plaintiff.
539. Stranger Promoting the Litigation.
540. Person Assuming the Defense.
541. Person Submitting his Interest is bound.
542. Witnesses.
543. Effect of Additional Parties.
544. Effect of Severance as to Parties.
545. One Plaintiff suing in Behalf of Many.
546. Unknown Owners.
547. Evidence to Identify Parties.
548. Estoppel must be Mutual.
• 549. What constitutes Privity.
550. Purchaser Pendente Lite.
551. Mortgagor and Mortgagee.
552. Sheriff and his Vendee.
553. Co-Tenants.
554. Remaindermen.
555. Parties to Negotiable Paper.
556. Husband and Wife.
557. Guardian and Ward.
558. Decedent and Heirs.
559. Decedent and Representatives.
560. Administrator and Heir or Devisee.
561. Executor and Legatee.
562. Successive Administrators.
563. Principal and Ancillary Administrator.
564. Administrator and Probate Purchaser.
TABUE OF CONTENTS./ ZXY
Past IV. Of the Pbbsons cokcluded by Judgments— Continued.
I 565. Go-Heirs or Distributees. ,
560. SurYlving Partners and Representative of Deceased.
567. Warrantor and Warrantee.
5G8. Defenses Open to Warrantor.
569. Requisites of Notice to Warrantor.
570. Warrantor must have Opportunity to Defend.
571. Effect of Judgment when Warrantor not Notified.
572. Warrantor of Personal Property.
573. Indemnitors.
574. Persons Responsible Over.
67S. Judgment against City as Evidence in Action against Person Liable
Over.
576. Intervening Claimants.
577. Landlord and Tenant
578. Principal and Agent
579. Master and Servant
580. Officer and Deputy.
581. BaUor and Bailee.
582. Successors in Office.
583. Cknporation and Stockholders.
583a. Corporation and Bondholders.
584. Municipal Corporation and Tax-Payers.
585. Trustee and Cestui Que Trust
585a. Assignees and Receivers.
586. Principal and Surety.
587. Sureties on Bonds given in Legal Proceedings.
588. Sureties of Sheriffs and Constables.
589. Sureties of Elxecutors and Administrators.
590. Sureties of Guardians.
591. Actions between Sureties for Contribution.
592. Principal and Guarantor.
598. Conclusiveness of Judgment against Garnishee.
591. Not Cbnclusive as to Amount of Debt
595. Right of Garnishee to Question Legality of Prior Proceedings.
596. As between Garnishee and Assignee of Claim.
597. As between Garnishee and Stranger.
598. Foreign Judgment against Garnishee.
599. Effect of a Judgment as between Co-Defendants.
600. Judgments do not bind Strangers.
601. Exception; Courts of Exclusive Jurisdiction.
602. Exception; Judgments In Rem.
608. Exception; Principle of Stare Decisis.
604. Judgment as Evidence of its own Existence.
605. Judgment as Evidence of Relation of Debtor and Creditor.
606. Judgment as Evidence of Facts Provable by General Reputation.
607. Judgment as Linlc in Chain of Title.
608. Judgment as an Admission.
I
ZXVl TABLE OF CONTENTS.
Part V. What Points and Questions a2UI OoHOLUDEDb
S 600. Scope of the Estoppel.
610. The Four Identities.
611. Matters Incidentally Considered.
612. Inferences from the Judgment.
613. Necessary Conditions to the Adjudication.
614. What Constitutes the "Matter in Issue."
- 615. Points Necessary to Warrant the Judgment.
616. Points in Issue but not Decided.
617. Points not in Issue.
618. Matters which could not have been Adjudicated.
619. Judgment on Matters not Presented.
620. Claims Withdrawn or Withheld.
621. Entire Demands cannot be Severed.
622. Facts Assumed or Admitted.
623. Evidence to Identify Points Adjudged.
624. Parol Proof Admissible.
625. Record cannot be Contradicted.
626. Parol Evidence not Admissible to Enlarge the BstoppeL
627. General Declaration or General Pleas.
628. Parol Evidence to Escape the Estoppel.
629. Burden of Proof.
630. What Species of Evidence Receivable.
631. Questions of Law or Fact.
632. Inconsistent Positions in Litigation.
Part VI. Conclusiveness of Pbobatb Ai>jUDiCATiOHa»
633. Probate Decrees binding.
634. When Impeachable for Fraud.
635. Probate of a Will.
636. Conclusiveness of Probate as to Realty.
637. Effect of Rejection of Will.
638. Parties bound by Probate.
638a. Construction of Will.
639. Appointment of Administrator. i
640. Grant of Administration no Proof of Death. I
641. Allowance or Rejection of Claims.
642. Order for Sale of Land. '
643. Decree of Distribution.
644. Settlement of Accounts.
645. Appointment of Guardian.
646. Order for Partition.
TABLE OF CONTENTS. JXVU
Pabt VIL D18TINCTIYB Rules as to Ejecthbmt and Oxheb Real Actions.
f 647. Common Law Rules as to Real Actions.
9i8. Ck)mmon RecoTery.
64». Writ of Entry.
660. Ejectment at Common Law.
651. Ejectment upon an Equitable Title.
652. In Action for Mesne Profits.
653. Confession of Judgment in Ejectment.
654. Successive Judgments in Ejectment made Oondusiye by Statutes.
655. Modem Actions Corresponding to Ejectment.
656. After-Acquired Title not Barred.
657. Judgment in Trespass.
658. Whether Judgment in Trespass is Conclusive in Subsequent Eject-
ment
669. Trespass to Try Titles.
660. Judgment in Partition.
661. Parties bound by Partition.
661a. Landlord's Action for Recovery of Possession.
662. Action for Use and Occupation,
663. Forcible Entry and Detainer.
664. Action to Quiet Title.
665. Dower Proceedings.
666. Foreclosure Suits.
667. Award of Arbitrators upon Title to Land.
668. Bankruptcy Proceedings.
Pabt VIIL Judgicemts in Actions concbrning Chattblb.
669. Trespass.
670. Trover.
671. Replevin.
672. Detinue.
CHAPTER ZEZ.
FORMER RECOVERY AS A BAR.
Part I. Gbnbral Prinoifles.
673. Estoppel by Former Judgment.
674. Doctrine of Merger.
675. Merger by Decree in Equity.
676. Foreign and Sister State Judgments.
677. New Debt created by the Judgment
678. Estoppel by Election.
I
jariii table of contents.
Part IL What Judoubnts Operate as a Bab.
§ 679. Oonstitution of the Court
G80. There must be a Valid Judgment
681. Erroneous or Irregular Judgments.
681a. Judgment Procured by Fraud.
682. Verdict without Judgment no Bar.
683. Judgment Reversed or Vacated.
684. Effect of Granting New Trial
085. Pendency of Appeal.
686. Effect of Discontinuance.
687. Decision of Court without Jury.
688. Awards.
689. Judgment in Summary Proceedings.
690. Lis Pendens and Priority of Decision.
691. Judgments on Motions.
692. R^iewal of Motion In the Same Case.
Part IIL Of the Rule that the Judgment must hate been upqh the
Merits.
693. Merits must be Adjudicated.
694. Meaning of the Term "Merita.'*
695. Judgment must be Final.
696. Judgment upon Plea in Abatement
697. Judgment by Default.
698. Judgment upon Confession.
699. Nonsuit no Bar.
700. Judgment on Retraxit
701. Discontinuance.
702. Judgment of Non Pros.
703. Dismissal of Complaint
704. Judgment in Test Case.
705. Agreed Judgments.
706. Dismissal of Suit "Agreed."
707. Judgment on Demurrer.
708. General Demurrer to Declaration.
709. Demurrer to Cause of Action Stated.
710. Demurrer Based on Several Grounds.
711. Demurrer to Bill for Want of Equity.
712. Demurrer to Evidence. I
713. Dismissal for Want of Jurisdiction. •
714. Dismissal of Action Prematurely Brought i
715. Dismissal of Misconceived Action. !
716. Dismissal on Technical Grounds.
717. Failure of Evidence.
718. Defects in the Pleadings.
719. Dismissal for Defect or Want of Parties.
TABLB OF CONTENTS. ZXIX
Pabt UL Of thv Rule that the Jddoicbht must have been ufox the
MERiTS—Continued.
f 720. Dismissal of BiU In Equity.
721. Dismissal "Withont Prejudice."
722. Presumption that Merits were Oonsldered.
723. Dismissal for Want of Prosecution.
724. Evidence to Show Consideration of Merits.
Pabt IV. What Causes of Action are Barreix
725. Causes of Action must be the Same.
726. Identification of Causes of Action.
727. In Criminal Cases.
728. Certainty required in Estoppels.
729. Estoppel Oannot be Avoided by Varying Form of Action.
730. Limitations of this Rule.
731. Judgment Conclusive of Whatever might have been Litigated.
732. Restrictions of Foregoing Rule.
733. Second Action Proceeding on Different Theory,
731. Rule against Splitting Causes of Action.
735. What Demands are Inseverable.
736. Action on Running Account.
737. Okiims Omitted by Mistake.
738. Entire Claims founded on Tort
730. Recovery in Malicious Prosecution bars Action for Slander.
740. Distinct Injuries from same Tortious Act.
74L Distinct Trespasses.
742. Continuing Damages from Tort
743. Distinction between Permanent and Recurring Trespass or Nuisance.
744. Plaintiff not Required to Join Distinct Demands.
745. Causes of Action Distinct though Founded on Same Facts.
746. Actions on Collateral Securities.
747. Successively Arising Causes of Action.
748. Breach of Continuing Covenant
749. Actions for Instalments.
750. Judgment in One Such Action as Evidence in the Next
751. Successful Defense to one of a Series of Actions.
752. Suits for Wages.
753. Plaintiff can have but one Satisfaction.
Part V. Defenses and Counterclaims Concluded bt Former Judgmbht
754. Defenses concluded by Judgment for Plaintiff.
755. Same; Adverse Title.
756. Same; Fraud.
757. Same; Agreement to Compromise.
758. Same; Payment.
I
TABLE OP CONTENTS.
Part V. Dbfbnbbs akd Countkrclaims Concluded bt Formbb Judqmbnt—
Continued.
i 759. Same; Usury.
760. Same; Discharge iu Bankruptcy.
761. Matter Available as a Set-Off.
762. Submission of All Matters in Difference.
763. One Claim cannot be Used both as Set-Off and as Cause of Action.
764. Counterclaim not Adjudicated.
765. Voluntary Allowance of Credit or Counterclaim.
766. Equitable Defenses not Concluded by Judgment at Law.
767. Cross-Actions.
768. Action for Price of Goods and Cross-Action for Breach of Warranty.
769. Action for Services and Cross-Action for Negligence.
Part VI. Who may takb Advantagb of the Bab.
770. Joint Contractors.
771. One Joint Contractor a Non-Resident
772. Effect of Joint Debtor Acts.
773. Successful Defense by One Joint Debtor.
774. Joint and Several Contractors.
775. Joint Judgment on Joint and Several Contract
776. Judgments against Partners.
777. Joint Tort-Fcasors.
778. Joint Trespassers; English Rule.
779. Joint Trespassers; American Rule.
780. Election between Joint and Several Action.
781. Successful Defense by one Joint Trespasser.
782. Satisfaction of Judgment against One.
Pabt VIL Pleading an Estoppel of Record.
783. Necessity of Pleading Prior Adjudication.
784. Where there is no Opportunity to Plead.
785. When Admissible under General Issue.
786. Waiver of Estoppel by Failure to Plead.
787. Conclusiveness of Judgment when not Pleaded,
788. Arguments on the Question.
789. Under Code Practice.
790. Requisites of Plea of Former Judgment.
791. Judgment recovered after Institution of Second Suit
JUDGMENTS IN REM.
H 792. Definitions.
793. Judgments Quasi in Rem.
794. Jurisdiction.
TABLE OF CONTENTS. XXXi
f 796. Effect of Adjudications in Rem.
TVtSw Decrees in Admiralty.
TUT. Judgments in Prize Cases.
TU8. Judgments in Collision OaseS.
TW. Cbndemnation of Goods Seized under Excise or Revenue Laws.
iHUO. Acquittal of Goods Seized.
Wl. Attachment Proceedings.
^02. inquisitions of Lunacy.
8U3. Decrees of Divorce.
804. Orders of Naturalization.
8U6. Settlement of a Pauper.
806. Questions of Identity, Legitimacy, and Pedigree.
80T. Bankruptcy and Insolvency.
808. Probate Adjudications.
8U9. Judgments for Taxes and Assessments.
810. Foreclosure of Liens.
811. Decrees of Sale.
812. Establishment of Roads and Boundaries.
OHAFTEB XXL
FOREIGN JUDGMENTS.
Part L Foreign Judgments in Rbic
813. Conclusiveness of Foreign Judgments in Rem.
814. Decrees in Admiralty.
815. Conclusive of Grounds of Sentence.
816. Grounds of Condemnation must Clearly Appear.
817. Not Conclusive of Collateral or Incidental Matters.
818. Impeachable for Want of Jurisdiction.
819. Not Impeachable for Error.
820. Whether Fraud may be Shown.
821. Objections to Legality bt Court
822. Foreign Decrees of Divorce.
823. Foreign Probate Decrees.
82^ Foreign Adjudications in Bankruptcy.
Part II. FoRSiaN Judgments in Personam:
825. Conclusiveness on the Merits. Early English Cases.
826w Distinction between Foreign Judgment as a Cause of Action and
as a Defense.
827. Later English Decisions.
828. Early American Decisions.
829. Recent American Decisions.
830. Arguments on the Question.
831. Reason of the Recognition of Foreign Judgments.
XXXii TABLE OF CONTENTS.
Pabt IL Fobeion Judgmbkts in Personam— ContinuecL
f 832. Scotch Law of Foreign Judgments.
833. French Law.
834. Oanadian Doctrine of Foreign Judgments.
835. Jurisdiction may be Inquired Into. •
83(5. Judgments against Non-Residents.
837. Extra-Territorial Service of Process.
838. Plea Negativing Jurisdiction.
839. Foreign Judgment in Summary Proceedings.
840. Kepugnance of Judgment to Natural Justice.
841. Local or Police Regulations of Foreign Country not Enforced*
842. Mistake of Law as Ground of Impeachment.
843. Mistaken Conception of Foreign Law.
844. Whether Impeachable for Fraud.
845. Judgment must be Final.
846. Effect of Pendency of Appeal.
847. No Merger of Original Cause of Action.
848. Form of Action on Foreign Judgment.
849. Pleading and Exhibiting Foreign Judgment
850. Plea of Statute of Limitations.
851. Judgments of Foreign Courts of Inferior Jurisdiction.
852. Foreign Garnishment Proceedings.
CHAFTEB XXn.
JUDGMENTS OF COURTS OF A SISTER STATSL
Part I. Conclusiveness and Effboi^
§ S53. Before the Constitution.
854. Constitutional and Statutory Provisions.
855. Early Cases on the Subject.
850. Mills V. Duryee, and Later Decisions.
857. Judgment Conclusive on the Merits.
858. Chancery Decrees Equally Conclusive.
859. "Full Faith and Credit" to be Given.
800. Validity and Effect how Ascertained.
861. No Greater Effect to be Given than the Judgment has at Homeii
862. Judgment not Executory in Foreign State.
863. Rank and Priority.
864. Original Cause of Action Merged.
865. Lis Pendens in Another State no Bar.
806. Judgment for Defendant as a Defense.
TABLE OF CONTENTS. XXXIU
Part IL Sistbr State Judgmbnt as a Cause of Action.
§ 867. JudgiDent must be Valid, Subsisting, and Final.
S6S. Judgments uimii Confession.
SC9. I^crees in Chancery.
870. Sentences imposing Penalties.
871. Police Regulations of Another State not Enforced.
S72. Judgments affecting Land outside the State.
873. Form of Action on Sister State Judgment
874. Requisites of Declaration.
875. Averring Jurisdiction.
876. Authentication of Record.
877. Completeness of Record.
878. Attestation of Clerk, and SeaL
879. Certificate of Judge.
SSO. Amount of Recovery; Interest
Part IIL Defenses to Actiok on Sibteb State Judgmbht.
881. Objections to Character of Judgment
882. Pendency of Appeal.
883. Defense cannot be Taken on the Merits.
881. Nil Debet not a Good Plea.
8*^5. Xul Tiel Record.
s8(>. Incompleteness of Record.
887. Want of Jurisdiction.
888. Personal Disability of Defendant
889. Error and Irregularity.
800. Payment.
891. Adjudication in Bankruptcy.
892. Statute of Limitations.
893. Aflldavit of Defense Required.
Part IV. Jurisdictional Inquiries.
891. Want of Jurisdiction destroys Effect of Judgment
895. Want of Jurisdiction apparent on the Record.
890. Presumption in Favor of Jurisdiction.
897. Jurisdiction may be Inquired into.
898. Requisites of Plea Denying Jurisdiction.
899. Jurisdiction, if Impeached, may be Supported by Evidence.
900. Cases Refusing to Allow Contradiction of Record.
901. Record may be Contradicted.
902. Plea Contradicting Record must be SpeciaL
903. Denying Authoritj' of Attorney to Appear.
904. Jurisdiction by Attachment of Property.
903. Extra-Terrltorlal Service of Process.
906. Constructive Service on Non-Residents.
1 LAW Jl'DG.-
ZZZlfr TABLB OF CONTBNT8.
Pabt ly. JuBxsDicTidVAL Ikquirkwi— CoBtioued*
I 907. Constructive Serrioe os Besidents.
908. Voluntary Appearance of Non-Resident
909. Defendant Decoyed Into Another State.
910. Non-Resident Corporations.
910a. Non-Resident Stockholders of Domestic CkNrpoirationt.
911. Irregularities In Service.
912. Continuation of Jurisdiction.
913. Judgment against Joint Defendants.
914. Joint Debtor Acts.
915. Jurisdiction of Subject-Matter.
Part V. Fraud as Ground of Impeachment.
^916. Cases Allowing Defense of Fraud.
917. Plea of Fraud, when Admissible.
918. Principles Governing the Question. ,
919. En joining Action on Fraudulent Judgment j
920. False Evidence and Conspiracy.
921. Fraud Anterior to the Judgment !
■
■
Part VI. Sister State Judgments in Rem. i
922. Probate Adjudlcotions. !
923. Garnishment Proceedings. I
924. Decrees In Divorce. '
925. Divorce Proceedings are in Rem. j
926. Both Parties Citizens of the. State. 1
927. Neither Party a Domiciled Citizen,
928. Domicile of one Party Suffldent I
929. Domicile must be Bona Fide.
980. Conclusiveness of Findings as to Residence. I
931. Couslmctive Service of Process.
932. Validity of Divorce Granted on Constructive Notice.
933. Matters Incidental to Dissolution of Marriage.
Part VII. Judgments of Inferior Courts op Another Statb.
934. Doctrine that such Judgments are to be treated as Foreign Judgments.
935. Conclusiveness of Justices' Judgments.
936. Jurisdi<>tional Inquiries.
93T. Authentication of Such Judgments.
Part VIII. Conclusiveness of Judgments as between Federal, State, and
Territorial Courts.
938. Federal Judgments in the State Courts.
938a. Authentication of Federal Judgments.
TABLfB OF 00NT1BNT8. XXXV
Past VIIL Concldbiyenbss of Judouents as bbtwebn Federal, State, and
Tebbitobial CouBTS—Continued.
§ 038b. Judgment of Federal Court as Foundation for Creditor's BllL
938c. State Judgments In Federal Courts.
d39. Jurisdiction May be Questioned.
939a. Lis Pendens and Priority of Decision.
939b. Judgments of Territorial Courts.
939c Judgments of Indian Courts.
^11
CHAPTBR
ASSIGNMENT OP JUDGMENTS.
940. E^ect of Assignment at Common Law.
911. Parties to Assignment of Judgments.
912. What Judgments Assignable.
943. Agreement to Assign Future Judgment.
944. Asaignmeiit of Part of Judgment.
945. Mode of Assignment.
94C. Statutory Mode of Assignment
947. Equitable Assignment
948. Title Passing to Assignee.
949. Bights as against Assignor.
9nO. Notice of Assignment.
951. RIgbt of Assignee to Sue.
952. Rights as against Judgment-Debtor.
953. Assignee Takes Subject to Equities.
954. Set-Off of Judgment against Judgement
955. Vnontlon or Ueversal of Judgment In Assignee's Hands.
956. Latent Equities of Third Persons.
957. Priority' between Assignments.
CHAFTEB XXIV.
ACTIONS UPON JUDGMENTS.
958. Judgment as a Cause of Action.
969. Judgment must be Final and in Force.
960. Effect of Pending Appeal.
961. Judgments of Inferior Courts.
962. Suits on Decrees in Chancery.
963. Parties to Action on Judgment.
964. Requisites of Declaration.
965. Declaring on Judgment of Inferior Court
966. Averments of Jurisdiction.
XXXV] TABLE OF CONTENTS.
I 967. Statutes Regulating Jurisdictional Ayerments.
968. Evidence.
969. Action on Lost or Destroyed Record.
970. Defenses to Action on Judgment.
971. Plea of Nul Tiel Record.
972. Want of Jurisdiction as a Defense.
973. Fraud as a Defense.
974. Error or Irregularity no Defense.
975. Plea of Payment
97(5. Accord and Satisfaction as a Defense.
977. Discharge in Bankruptcy.
978. Arrest and Imprisonment of Debtor.
979. Equitable Defenses.
980. Amount of Recovery.
981. Interest on Judgments.
•982. Rate of Interest how Determined.
983. Interest on Decrees in Equity.
984. Compounding Interest.
985. Limitation of Actions on Judgments.
985a. Mandamus to Enforce Judgments against Municipal Corporations.
985b. Same; Power of Federal Courts.
♦ 985c. Same; Prerequisites to Issuance of Writ
,985d. Same; Defenses; Impeachment of Judgment.
985e. Same, Execution of Writ
985f. Same; Effect of Limitation of Taxing Power of Municipality.
PAYMENT AND SATISFACTION OF JUDGMENTS.
Part I. Payment by Judoicbnt-Dbbtob.
I 986. To Whom Payment may be Made.
987. Medium of Payment.
OSS. Tender.
989. Payment of Less than Whole Amount
990. Evidence of Payment.
991. Keeping Judgment Alive after Payment
Part II. Presumption of Payment from Lapse of Timb.
992. Common Law Presumption.
993. Evidence to Rebut Presumption.
994. Lapse of Less than Twenty Years.
TABLE OF CONTENTS. XXXVll
Part III. Payment by Joint Party ok Third Person.
f 906. Parties Jointiy Liable.
906. Payment by Surety.
007. Uelease of Garnishee by Payment of Principal Judgment
90S. Payment by Sheriff.
909. Payment by Stranger.
Part IV. 8bt-0ff of Judgment against Judgment.
1000. Power to Order Set-Off of Judgments.
1001. Judgments of Different Courts may be Set Off.
1002. Where the Motion should be Made.
1003. Moving Party must be Real Owner of Judgment.
1004. Mutuality of Parties Required.
1005. Requisites of Judgments to be Set Off.
Pabt y. Saiisfaction bt Pbogebdinos on Final Process.
lOOa Levy on Real Estate.
1007. Levy on Personalty.
1008. Satisfaction by Levy Is not Absolute.
1009. Release of Property on Forthcoming Bond.
1010. Sale on Execution.
lOU. Taking Defendant on Ga. Sa.
1012. Discharge of Defendant from Custody.
1013. Cumulative Judgments.
Pabt VL Entbt of Satisfaction on the Hbcori».
1014. Bntry of Satisfaction when Ordered.
1015. Nature and Effect of Entry.
lOld. Striking <^ Mistaken or Fraudulent Entry.
1017. Release and Discharge of Judgment
TABLE OF CASES CITED.
VOLUMES I. AND IL
[The references are to sections. Sections 1 to 499 inclusive are comprised in Volxune
I , the residue in Volume IL]
Aaron y. Wamer, 449.
Abat y. Atkinson, 430. .
Abbe V. Marr, 84.
V. Rood, 989.
Abbey v. Bank, 414.
V. Railroad Co.*8 Receiyers, 585a.
Abbott V. Bradstreet, 644.
y. Foote, t>44.
V. Insurance Co., 513.
y. Osgood. 1012.
y. Stevens, 765.
V. Zeiglo*, 36.
Abdil y. Abdil, 194.
Abeless y. Powell, 79a.
AbeU y. Simon, 81, 593.
Aber y. Clark, 802.
Abington y. Lipscomb, 127.
Abienian y. Booth, 265.
y. Roth. 367, 368, 393.
Abouloff y. Oppenheimer, 844.
Abraham y. Leyy, 179.
Abram French Co. y. Marx, 349.
A. B. Smith Co. v. Bank, 253.
Ach V. Carter, 183.
Achey y. Creech, 731.
Acker y. Ledyard, G91.
Ackerly y. Oabom, 29.
Ackerman v. Ackerman, 1016.
Ackerman'8 £r*r8 y. Van Houten, 760.
Acklen y. Acklen, 137.
Ackley y. Chamberlain, 425.
Atwk y. Hal89y, 346.
Acorn, The, 29(). 509.
Adam y. Tolman, 446.
Adams, Ex parte, 533.
V. Adams, 320, 617, 644, 75a
V. Barnes, 787.
V. Betz, 124.
V. Butts, 554.
V. Cameron, 722.
V. Conover, 567.
V. Crosby, 462.
y. Filer, 598, 597.
V. Grey, 327.
V. Hackett. 947.
V. HafPards, 741.
y. Harris, 439.
y. Hickman, 347.
y. Higgins, 132.
y. Lee, 946.
y. Leeds Co., 57.
y. Oaks, 84.
y. Railroad Co., 275, 600« 612, 700,
783.
y. Re Qua, 135.
y. Rowe, 482, 912.
y. St Leger, 585.
y. Smith, 1010.
y. Stake, 490.
V. Tlernan, 282.
V. Walker, 116.
V. White, 393.
Adams* Appeal, 350.
Adams County v. Grayes, 549.
Adams Exp. Co. v. Hill, 225.
Adams* Heirs v. Adams, 633.
A^dams' Lessee v. Jeffries. 270. 279.
Adams School Tp. v. Ir^iu, 393a.
Addams y. Worden, 888, 841.
1 LAW JUDG.
(xxxix)
xl
CASBS
[References to sections. {{ 1 to
Adderton v. Collier. 209.
Adelbert OoUege v. Railway Co., 545.
Adickes v. Lowry, 438.
Adkinson v. Keel, 125.
Adler V. Anderson, 50.
V. Construction Co., 3(38, 705.
Adrian v. Jackson, 118.
iEtna Ins. Co. v. Aldrich, 333.
V. Confer, 574.
V. McCormick, 313.
iEtna I-ife Ins. Co. v. Com'rs, 305, 355.
V. Lyon County, 228.
V. McCJormick, 318.
Agard V. Valencia, 378.
Agnew V. Adams, 513.
V. McElroy, 603, 729.
Agricultural Bank v. Fallen, 469.
Agry V. Betts, 287.
Ah Jow, In re. 257.
Ahl V. Ahl. 735, 749.
V. Goodhart, 729.
Ah Lee, In re. 175.
Ah Lep V. Gong Choy, 208.
AUrs Estate, In re, 737.
Alcardl v. Craig, 421.
Y. Robbins, 987.
Aiken V. Peck, 624.
V. Stewart, 627.
\iiislie V. Boynton, 1005.
V. Mayor of New York, 534.
Ains worth v. Trading Co., 67.
Aislin v. Parkin. 504.
Alabama G. & N. Co. v. State. 122. 443.
Alabama Gold Life Ins. Co. v. Nichols,
153.
Alabama G. S. R. Co. v. Blivens, 717.
Alabama Iron & R. Co. v. Austin, 625.
Alabama Nat. Bank v. Hunt 115.
Alabama Warehouse Co. v. Jones, 518.
Alabama & V. R. Co. v. Bolding, 306.
V. McCerren, 707.
Alameda County v. Crocker, 213.
Albee V. Curtis, 461.
Albert V. Hamilton, 541.
Albin V. People, 486. 958.
Albree v. Johnson, 191.
Albright V. McTlghe, 207.
V. Oyster, 720.
V. Warkentln, 312.
Albritton v. Bird. :585.
Alcott T. Hugus, 734.
Alderson y. Bell, 261.
CITED.
499 in vol. 1; residue in vol. 2.]
Aldricn v. JbLousn, 2U1.
V. Kinney, 227, 828, 856, 897, 903,
906.
V. Maitland, 116.
Alelx V. Derbigny, 576.
Alexander v. Abbott, 299.
V. Arters, 961.
V. Bouton, 192.
V. Bridgford, 737.
V. Gill, 287.
V. Gould, 293.
V. Ling, 326.
V. McDow, 92.
V. Mortgage Co., 359.
V. Nelson, 251.
V. Polk, 1008.
V. Stern, 237.
V. Stewart, 86, 164.
V. Stokeley, 806.
V. Taylor, 579.
V. Walter, 600.
Alford V. Hoag, 482.
V. Moore*s Adm'r, 306.
Alie V. Xadeau, 752.
Alivon V. Furnlval, 842.
Alklre Grocery Co. v. Richesln, 605,
938b, 838c.
V. Tagart, 744.
Alldritt V. Bank, 61a.
Allebaugh v. Coakley, 628.
Allegheny Nat. Bank v. Hays, 666.
Allen, Succession of, 644.
V. Allen, 367, 368, 666.
V. Bank, 774.
V. Belches, 48.
V. Bradford, 132, 134.
V. Butman, 671.
V. Chadsey, 233.
V. Cla^-ton, 208.
T. City of Savannah, 510.
V. Coffman, 141.
V. Conrad, 1015.
V. Craig, 779.
V. De Groodt, 554.
V. Dubois Borough, 985a.
V. Dundas, 635.
V. Godfrey, 182.
V. HalL 1004.
V. Hoffman, 341.
V. Holden, 998.
V. Johnson, 1008.
V. Krlps, 326.
OASES CITED.
[References to lectlons. H ^ to 499 in vol. 1; residue In vol. 2.]
Xli
Alien T. Lee, 22r>.
▼. Liggett, 485.
T. Lmuber Co., 90.
y. Lorman, 677.
y. Maclellan, 320.
y. ^lacpherson, (h^, 636.
y. Martin, 250.
. T. M1U8, 250.
V. Norton, 72.
y. Rogers, 324.
y. Sales, 131, l(i6.
y. Sbepard, tS38a.
y. Stone, 374.
y. Thompson, 248.
y. Watt, 92, 593, li39a,
V. Wheatley, 782.
y. Wilson, 306.
y. Word, 100, 105.
Aliens y. Andrews, 493.
Alley y. Cbase, 518.
y. Ledbetter, 886.
y. Nott, 709.
AUgood y. Wbltiey, 970.
Alliance Trust Co. y. Barrett, 346.
AUln y. Hairs Heirs, 534.
AJlinet V. His Creditors, (j99.
Allin*s Heirs y. Hall s Heirs, 540.
Allis y. Dayldson, <:09.
AUlsoD y. Drake, 45.
y. Hess, 706.
y. Little, 536.
y. Rankin, 263.
y. Taylor, 193. 205.
y. Tbomas, 156.
V. Whlttier, 346.
Allman y. Taylor, 197.
Allston y. Bank, 428.
y. Sing, 127.
Allured y. VoUer, 273.
Alniy y. Daniels, 615.
Alpers y. Schammel. ir>0.
Alsop y. Matber, 562.
y. Moseley, 415.
Alston y. Munford, 560.
y. Roblnett, 248.
Altbouse y. Hnnsberger, 213.
Altman y. Gabriel. 313.
y. KUngensmith, 991.
y. School Dist., 261, 2('9.
Amador Co. y. Butterfield, 15.
Amason y. Nash. 84.
Ambler y. Whipple, ^4, 892, 917.
American Aquol & Pyrodene Paint Co.
V. Smith, 325.
American Bell Telephone Co. y. Al-
bright, 777.
American Brewing Co. y. Jergens, 345,
346a.
Ajuerican Building & L. Ass'n v.
Stonemau, 586.
American Exch. Bank y. Andrews, 550.
American Fire Ins. Co. y. Landfare,
986.
American Grocery Co. y. Plrkl, 768.
American Ins. Co. y. Oakley, 272, 374.
American Inv. Co. v. Nye, 48.
American Tube & Iron Co. v. Crafts,
899.
Amerman y. Briggs, 522.
Ames y. Ames, 39.
y. Bates, 1000.
y. Hoy, 958, 962, 969.
y. Wlnsor, 226.
Ames Iron Works v. Chlnn, 335.
Amesti y. Castro, 655.
A. M. Holter Hardware Co. y. Mining
Co., 418.
Amlck y. Bowyer, 371.
y. Oyler, 651.
Ammerman y. State, 313.
Ammons y. Whitehead, 367.
Amory y. Amory, 703, 938c.
Amrhein y. Dye Works, 741.
Amsbaugh y. Exchange Bank, 907.
Amsden y. Raihroad, 624, 631.
Amy y. Amy, 271.
y. Barkholder, 985b.
y. City of Galena, 986a, 986d.
Amyx V. Smithes Adm'x, 204.
Anaconda Miu. Co. v. Saile, 345, 352.
Anders y. Anders, 526.
Anderson y. Anderson, 290, 806, 642,
891, 917, 918.
y. Amette, 237.
y. Beebe, 349.
V. Best, 1014.
V. Bigelow, 5(»7.
y. Binford, 2M2.
y. Bright, (KM.
y. Brown, 220.
V. Carr, 262, 319.
y. Chilson, 206.
V. Clark, 891.
y. Commission Co., 154
xlii
CASES CITED.
[ReferrencM to Mctlons. H 1 to 499 in vol. 1; residue in vol. S.]
Anderson t. Elliott, 251.
V. Field, ta, 321.
V. Fry, 857.
V. Gage, 494.
V. Gray, 209.
V. Green, 341, 035, 638.
V. Haddon, 839.
V. Hawhe, 220.
V. Hot^ Co.. 170.
V. Kreidler, 629.
V. Matthews, 32.
V. Miller, 220.
V. Morris, 225.
V. Xagle, 44<5, 440.
V. Oldham, 393.
V. Perkins, 86.
V. Rogge, 764.
V. Settle, 994.
V. Studebaker, 3.51.
V. Thompson, 306.
V. Trimble, 714.
V. Trust Ck)., 935.
V. Tuck, 443.
V. T3'dlngs, 427.
V. Watts, 566.
V. Williams, 493.
V. Young's Ex'rs, 593, 596.
Anderson's Adm*r v. Irvine, 197.
Anderson's Appeal, 331.
Anderson's Succession, 981.
Andover Savings Bank v. Adams, 747,
749.
Andres v. Krldler, 336.
Andrew ▼. Schmitt, 745.
Andrews v. Anderson, 560.
T. Andrews, 929.
V. Brown, 796.
V. Davison, 567.
V. Denlson, 567.
V. Fenter, 878.
V. Flack, 874, 878.
V. Foundry & Pipe Works, 32, 540,
583.
V. Harper, 487.
V. Herring, 600.
V. Herrlot 835.
V. Insurance Co., 84.
V. Love, 32.
V. Matthews, 446.
y. Monilaws, 138, 326.
V. MontgomeiT, 522, 857, 916.
V. School Dlst., 703.
V. Swartz, 255, 257.
Andrews v. Varrell. 690.
V. Wilkes, 413.
Andrews' Adm'r v. Bank, 135.
Andrew^s Bros. Co. v. Coke Co., 609.
Andrus v. Burke, 455.
Angell V. Bobbins, 287, 288.
Anglo-American Land Mortgage &
Agency Co. v. Bush, 445, 941.
Anheuser-Busch Brewing Ass'u v. Me-
Gowau, 85, 261.
Annett v. Terry, 589.
Ansley v. Carlos, 604.
V. Robinson, 39.
Antelope, The, 841.
Anthony v. Estes, 1C8.
v. Humphries, 496, 1006.
V. Taylor, 406.
App V. Drelsbach, 644.
Appel V. Brooks, 81.
Appci'son V. Memphis, 985b.
Appleby v. MuUaney, 442.
Applegate v. Applegate, 409. .
V. Dowell, 617.
v. Edwards, 465, 470.
V. Mason, 948.
Appleton V. Marx, 644.
Appling V. Stovall, 400.
Archer v. Gulll, 245.
v. Mosse, 635.
v. Romalne, 875, 936.
Ard V. Pratt, 530.
Argall v. Pitts, 697.
Arlington Mfg. Co. v. Mears, 31L
Armfield v. Nash, 749.
Aimington v. Rau, 455.
Armistead v. Harramond, 589.
V. Ward, 384.
Armroyd v. Williams, 814.
Amistead v. Bllckman, 720.
Armstrong v. Barton, 184.
V. Bridge Co., 104.
V. Carson, 855.
v. Elliott, 439a.
V. Harper, 1016.
V. Harshaw, 219.
y. Masten, 526.
V. Prewitt, 774.
V. Robertson, 165.
Armstrong's Appeal, 402.
Armsworthy v. Cheshire. 376.
Amdt V. Amdt 229, 904, 906.
v. Griggs, 793.
Amegaard v. Arnegaard, 633.
CASES
[Reference* to aectlona. H 1 to
Arnett v. Cloud, 908.
Arnetrs Ex'r v. Arnett, 284, 683.
Arnold t. Arnold, ($47, 058.
V. Frazler, 879.
y. Fuller's Heirs, 1010.
T. Griines, 713.
V. Harris, 600.
y. Hosiery Co., 335, 756.
y. Kelley, 298.
V. Kilchmann, 331.
V. Patrick. 445.
y. Roraback, 862.
y. Shields, 210.
y. Sinclair, 47.
Arnold's Devisees y. Arnold's Bx'rs,
it3o.
Amott y. Redfem, 825, 827.
y. Webb, 835. 807.
Arrington y. Conrey, 159, 163, 165.
Axthur y. Mosby, 182.
y. Schrieyer. 127.
Artisans' Bank y. Treadwell. 110.
Arundell y. Tregono, 529.
Asay y. Hooyer, 636.
Asbury v. Friss, 370.
Ash y. McCabe, 211.
Ashbridge, Succession of, 109.
A<«bby y. Glasgow, 306.
Asboraft v. Knoblock, 300, 905.
y. Powers, 326.
Ashland Land & Llye-Stock Co. y.
Woodford, 144.
Ashley y. Hyde. 305, 306, 310.
Ashniead v. Hurt, 613.
Ash ton y. Ash ton, 197.
y. Ass'n, 341.
y. City of Rochester, 260, 578.
y. Heydenfeldt, 967.
y. Slater, 400.
Ashton's Appeal, 601.
Askren y. Squire, 84. 354.
Aslin y. Parkin, 652.
Aspden y. Nixon. 563. 600, 624.
Atchison Say. Bank y. Means. 351.
AtchJHon. T. & S. F. R. Co. y. Brown,
21.
y. Coni'rs, 584.
y. Elder, 319.
y. Nicbolls, 86.
Atheam y. Brannan, 618.
Athens Leather Mfg. Co. y. Myers, 340.
Atherton v. Atherton. 536, 032.
Atkins y. Anderson, 696.
CITED. xliii
499 in vol. 1; residue In vol. 2.]
Atkins y. Bally, 588.
V. Churchill, 1004.
V. Horde, 650.
V. Sawyer, 155.
Atkinson y. Allen, 260, 296.
V. Dayies, 16.
y. Hancock, 421.
y. Harrison, 1014.
y. Parks, 604.
y. Railroad, 135.
y. White, 670.
y. Williams, 33. «
Atkison y. Dixon, 683.
Atlanta Eleyator Co. y. Bag Sc Cotton
Mills, 734.
AtlanUc Dock Co. y. City of New York,
777.
Atlantic Dredging Co. y. U. S., 534a.
Atlantic Lumber Co. y. Lumber Co., 36.
Atlantic Mutual Life Ins. Co., In re,
320a.
Atlas Nat. Bank y. More, 293.
Attica State Bank y. Benson, 682.
Attorney-General y. Caryer, 697.
y. Eriche, 513.
y. Telegraph Co., 981.
AttrlU V. Huntington, 870.
Atwater y. Bank, 63. 246, 868.
Atwood y. Bobbins, 627.
Audubon y. Insurance Co.. 349, 699.
Augenstein, In re, 320a. ^
Augir y. Ryan, 751.
Auld y. Butcher, 100, 892.
y. Smith, 687.
AuU V. Day, 154.
y. Trust Co., 161.
Aultman y. Mount, 751.
Aultman Miller & Co. y. Mills, 898.
901.
V. Sloan, 600.
Aultman & Taylor Co. v. O'Dowd, 16.
Aurand's Appeal. 466.
Aurora Citj' v. West. 707, 790.
Aurora Hill Con. Min. Co. y. Mining
Co.. 530.
Austin y. Austin, 268.
V. Hamilton County, 576.
V. Jordan, 167.
y. Nelson, 341.
V. Riley, 306.
V. Seminary, 193, 195.
Auwerter y. Mathlot, 433. 439.
Ayegno y. Schmidt, 558.
xlir CASES
[Referencei to sectioni. S§ 1 to
Avera v. Rice, 600.
Averlll V. Loucks, 71, 091.
V. Smith, 796.
Avery v. Ackart, 948.
V. Court, 652.
V. Fitch, 734, 736.
V. Fitzgerald, 650.
V. U. S., 299, 3J^.
Axford V. Graham, 570.
A:xman v. Dueker, 271.
Axtel V. Chase, 761.
Aydelotte v. Brlttain, 135.
Ayer v. Ashmead, 779, 782.
V. Bailey, 233.
V. Termatt, 25.
Ayers v. Waul, 471.
Aylesworth v. Brown, 945.
Aymar v. Chace, 181.
Ayre v. Burke, 485.
Ayres v. Findley, 592.
B
Babb V. Sullivan, 494.
Babcock v. Brown, 341.
V. Camp, 504.
V. Jones, 432.
V. McCamant, 368.
V. Marshall, 861, 919.
V. Perry, 341.
V. Wolf, 176.
Babcock Hardware Co. v. Bank, 310,
370.
Bach V. Burke, 27.
Bache V. Pur cell, 744.
Baclielder v. Bean, .36.5.
Bach man v. Schertz, 610.
V. Sepulveda, 183.
Backer v. Eble, 179.
Bacon v. Green, 236.
V. Howard, 892.
y. Johnson, 346a.
V. McBean, 838.
v. Raybould, 67, 68.
v. Schepflin, 714.
V. Thornton, 33.
Baden v. Clarke, 100.
Badger v. Badger, 720.
v. Tltcomb, 621, 73(5, 747..
Baggett V. Watson, 367.
Baggott V. Boulger, 589.
Bagley v. Cohen, 346a.
CITED.
499 in vol. 1; residue In vol. 2.1
Bagot v. Williams, 734.
Bailey v. Bailey, 446, 731.
V. Bank, 378.
V. Clayton, 352.
V. Crittenden, 213, 547.
V. Dilworth, 633.
V. Eder, 418.
V. Edmundson, 85.
V. Fairplay, 650, 652.
V. Hester, 986.
V. Irrigation Co., 84.
V. Laws, 609.
V. McGinniss, 193, 211, 265.
V. Martin, 877, 896.
V. Sloan, 88.
V. Snyder, 59.
V. Stevens, 363.
V. Sundberg, 640, 574, 579, 795.
798.
V. Taaflfe, 340, 347, 352, 354.
V. Winn, 650.
Bailey Loan Co. v. Hall, 209.
Bailey*s Adm'x v. Robinson, 600.
Baily V. Doolittie, 118.
Bain, Ex parte, 259.
V. Wells, 605.
Bainbridge v. Burton, 585.
Baines v. Babcock, 583.
V. Burbridge, 55.
Baird, In re, 585a.
V. Klrtland, 433.
V. U. S., 734.
V. WlUiams, 421.
Baker v. Baer, 87.
T. Bank, 23.
V. Barcllft, 307.
V. Byrn, 293.
V. Chandler, 417.
V. Cummings, 720.
V. Deliesseline. 604.
V. Frellsen, 709.
Y. Hess, 527.
V. Hoag, 1000.
V. Hummer, 959.
V. Hunt, 986.
V. Judges, 299.
V. Kerr, 225.
V. Lane, 719.
V. Lehman, 48.
V. Lukens, 55, 330.
V. Merrifield, 526.
V. Morgan, 367.
V. Morton, 414, 420.
CASES
[References to Bections. H 1 to
Baker t. O'RIordan, 301.
V. Palmer. 829.
y. People, »32.
T. Preston, 586.
T. Bailroad Ck>., 536.
T. Rand, 504, 618, 729, 866.
V. Redd, 373.
T. Remington, 33.
T. Schoeneman, 38.
▼. Secor, 945, 949.
V. State, 2, 115.
T. Stincbfleld, 758, 764.
y. Stonebraker, 272. 867, 903, 946,
994.
T. Wadsworth, 323.
T. Wyman, 807.
Baker*s Case, 255.
Balch T. Sbaw, 155, 164.
Baldridge t. Eason, 431.
V. Penland, 271.
Baldwin t. Baer, 252.
T. Davidson, 363.
V. Engineering Co., 80L
T. Foss, 33.
V. Klmmel, 972.
▼. McClelland, 306.
V. McCrea, 51&
V. Wright, 36.
Balfonr-Gnthrie Iny. Co. y. Oelger,
308.
Balio y. Wilson, 15-1.
Balk y. Harris, 275.
Ball T. Miller, 75.
y. Reese, uo«>.
y. Sleeper, 299.
y. Trenholm, 682.
V. Warrington, 861.
BaDance y. Forsyth, 530.
Ballant^ne y. Mackinnon, 795, 796.
Ballard y. Mitchell, 526.
y. Purcell, 305.
Ballentine y. Ballentine, 721.
Balliett y. Humphreys, 98.
Ballin v. Loeb, 938b.
Ballinger y. Sherron, 58.
y. Tarbell, 223.
Ballon y. Ballon. 556.
Ballow y. Hudson, 635.
Baltimore County Dairy Ass'n, In re,
320a.
Baltimore Steam Packet Co. v. Garri-
son, 572.
CITED. Xlv
499 in TOl. 1; residue in vol. 2.1
Baltimore & O. R. Co. v. Faulkner,
y. Fltzpatrlck, 986.
y. FlinJa, 340a.
V. May, 593.
V. Railroad Co., 632. •
Baltimore & O. S. W. R. Co. v. Alsop,
101.
Baltimore & O. & C. R. Co. y. Rowan,.
16.
Baltzeil V. Hickman, 142.
V. Noeler, 903.
y. Randolph, 384, .'(86.
Bamka y. Railroad Co.. 740.
Bancroft y. Wlnapear, 737.
Bandon y. Becher, 293.
Bangs y. Strong, 692.
Banister y. Engine Co., 901.
Bank v. Labitut, 306.
y. Morsel 1, 434.
V. Watson, 432.
Bankers' Life Ins. Co. y. Bobbins, 961,
482a, 485.
Bank of Australasia y. Harding, 827^
847.
y. Nias, 583, 827, 829, 844, 847.
Bank of Belolt v. Beale, 1011.
Bank of Carlisle y. Hopkins, 101.
Bank of Chadron y. Anderson, 867,
897, 917.
Bank of China, Japan & The Straits
V. Morse, 836, 839.
Bank of Colfax y. Richardson, 271^
281.
Bank of Commerce y. City of Louis-
ville. 545, 704.
V. Mayer, 860.
Bank of Hamburg v. Howard, 440.
Bank of Kentucky v. Stone, 534a, 578.
Bank of Kinderhook v. GifTord, 349.
Bank of Lewisburg y. Sheffey, 43.
Bank of Maywood y. McAllister's Es-
tate, 703.
Bank of Mobile y. Hall, 44.
y. Railroad Co., 534.
Bank of Monroe y. Widner, 107.
Bank of Newburgh v. Seymour. 137.
Bank of North America v. Fitzslmons,
466.
y. McCall, 821.
y. Wheeler, 690, 857, 804, 882, 8^.
Bank of Pennsylvania y. Winger, 1010*
Xlvi CASVS
[RoferenoM to ■(Bctloaf . iSlto
Bank of Priuceton v. Johuston, 338.
Bank of RussellvUle v. Coke, 141.
Bank of Saliua v. Abbot, 005.
Bank of Santa Fe v. Bank, 514.
Bank of South Carolina v. Bridget, 659.
V. Mosely, 995.
Bank of StatesviUe v. Foote, 349.
Bank of Stratton v. Dixon, 348.
Bank of Tennessee v. Patterson, 168.
Bank of the Commonwealth of Ken-
tucky V. Hopkins, 706.
Bank of U. S. v. Bank, 690, 864, 875.
V. Beverley, 517.
V. Lougworth, 399.
V. Moss, 329.
V. Patton, 1009.
V. Ritchie, 197.
V. Voorhees, 245.
Bank of Warren County v. Kemble,
991.
Bank of Wooster v. Stevens, 269.
Banks, In re, 807.
V. Evans, 477, 1008.
V. Speers, 589.
Banning v. Sabin, 666.
V. Taylor, 333.
Bannister v. Higglnson, 201.
Bannon v. People, 278.
Banta v. McClennan, 1008.
Banton v. Campbell's Heirs, 39.
Baptist Cliurch v. Wltherell, 523.
Baragree v. Cronkhite, 394.
Baragwanath v. Wilson, 204.
Barbee v. Shannon, U39c.
Barber, In re, 257.
v. Bowen, 641.
V. aty of BUoxi, 154.
v. Graves, 193, 195, 299.
V. Kendall, 009, 616.
V. Lamb, 847.
V. Reynolds, 1007.
V. Root, 926, 927. 932.
V. Rutherford, 754.
Barbour v. Bank, 1005.
V. White, 206.
Barbour County Court v. O'Neal, 306.
Barclay v. Kinsey, SCO.
v. Plant, 173, 407.
Bard v. Fort, 349.
Barden v. Grady, 550.
V. Railroad Co., 530.
Bardonski v. Bardonskl, 375.
Barelll v. Wagner, 229, 201.
CITBD.
mifiywLli reilAiis in vol. tl
Barger v. Hobbs, 624, 655.
Baring v. Clagett, 815.
Barkaloo's Adm'r v. Emerick, 605.
Barker v. Ayers, 206.
V. Cassidy, 555.
T. Olevelaod, 504, 729, 768.
V. Cocks, 208.
V. Crawford, 1014.
V. Elkins, 385.
V. Hamilton, 197.
V. Justice, 305.
V. Laney, 644.
y. Miller, 697.
V. Shepard, 225.
V. Walsh, 299.
Earkley v. Com'rs, U85e.
Barkman v. Hain, 419.
V. Hopkins, 898, ii06.
Barksdale v. Greene, 330.
Barlow v. Steel. 897.
Barnard v. Ashley, 530.
V. Devine, 738.
v. Gibson, 32.
Baru?s, In re, 38, 508*
V. Branch, 326.
V. Coal Co., 749.
V. Gibbs, 864.
V. Gill, 313.
V. Hale, 158.
V. Harris, 965, 966.
V. Hurd, 99.
V. Mott, 481.
V. Railroad Co., 242.
V. Rodgers, 16.
V. Smith, 958.
V. \'incent, 635.
Bamesley, Ex parte. 802.
V. Powell. 356, 634.
Barnett v. Barnett, 370.
v.Juday, 770.
V. Lynch, 359.
V. RaiU-oad Co.. 417.
V. Smart, 518, 681.
V. Squyres, 446.
Barney v. Chittenden, 250.
V. Dewey, 572.
V. GoflP, 697.
V. Patterson's Lessee. 828, 938.
V. White, 857, 862.
Barnhart v. Eiiwards, 97.
Baruum v. Green, 944.
Baron v. Abeel, (k)2.
Barr v. Gratz, 607.
CASS8
OteCertneet to iftlnni 11 1 to
Barr v. Uaseldon, 141.
V. Poet, 372, 387.
T. Simpson, 058.
Barras v. Bidwell, U17.
BarreU v. Tllton, 153, 16G.
Barret v. Thompson, 181.
Barrett v. Cleydon, 487.
V. Cycle Oo.. 313, 34«a.
T. Falling, 616» 020, »38.
T. Furnish, 4C7.
V. Garragan, 114.
V. Graham, 321.
V. Hopkins, 256, 6^
y. Llngle, 101<5.
V. Oppenheimer, 887.
y. Vaughan, 299.
y. Wilkinson, 990.
Barringer v. Boyden, 996.
y. King, 880, 896.
Barroilhet y. Hathaway, 47L.
Barron y. Frink, 84.
V. Paine, 583.
y. Thompson, 432.
Barrow y. Bailey, 487.
y. Jones, 375.
y. Robichaus, 357,
y. West, 508. 852.
Barrows y. Kindred. 656.
Barry y. Carothers, 534.
y. Patterson, 279.
Bartels y. ScheU, 731, 785.
y. Sonnenscheln, 30.
Barth y. Burt, 708.
y. Loeffelholtz, 1013.
y. Makeeyer, 413, 415.
y. Bosenfeld, 35.
Bartholomew y. Hook, 426*
V. Yaw, 385.
Bartle y. Plane, 118.
Bartlet y. Knight 828, 855.
Bartlett y. Gaslight CJo., 577.
y. Gayle, 470.
y. Lang*s Adm'rs, 109.
y. McNeil, 229.
V. Pearscm. 1000.
y. Russell, 268.
y. Spicer, 004.
y. Yates, 945, 986.
Bartling y. Thielman, 138.
Bartoe y. Guckert, 79a.
Bartol y. Eckert, 485.
Barton y. Allbright, 593, 594.
V. Anderson, 87, 697.
CITBD. zIyU
tfeiayoLl; rtsidiu in vol. 2.]
Barton y. Bank, 153.
y. Ix>ng, 600.
y. Radcliffe, 979.
Barton's Appeal, 354.
Bascom y. Manning, 768.
V. Young, 83.
Basebe y. Matthews, 529.
Basom y. Taylor, 680.
Bass y. EstiU, 52.
y. Seyler, 553.
Basset y. Mitchell, 140.
Bassett y. Railroad Co., 744.
y. Sherrod, 600.
V. U. S., 687.
Bass Foundry & Machine Works y.
Com'rs, 537.
Bast y. Hysom, 92.
Batchelder v. Batchelder, 926.
y. Robinson, 649.
Bate y. Fellows, 699.
Bateman y. Miller, 273.
y. Pool, 80.
y. Railroad Co., 600.
y. Wllloe, 356, 378.
Bates y. Bates, 337. '
V. Crowell, 618.
y. Cullum, 60, 77.
y. Delayan, 904.
y. Hamilton, 321.
y. Hinsdale, 450.
y. Kimball, 298.
y. Plonsky, 295.
y. Quattlebom, 734.
y. Spooner, 731.
Battell y. Lowery, 3, 118.
Battelle y. Brldgman, 77.
Battey y. Holbrook, 080.
Battle y. Jones, 836.
Baudin y. RollflP, 699.
Bauer y. Rlhs, 61a.
Bnugert y. Blades, 599.
Baugbn y. Baughn, 123.
Baum y. Custer, 492.
Bauserman y. Cbarlott, 802.
Bausman y. Eads, 82.
y. Tilley, 351.
Bayington y. Clarke, 430.
Bawell y. Keusey, 734.
Baxley y. Linah, 857, 8(14.
Baxter y. Allen, 467.
y. Ass'n, 16.
y. Aubrey, 724.
y. Baxter, 635.
xlviii CASES
[References to sections. 9S 1 to
Baxter v. Carrol, 577.
V. Chute, 340a.
V. Dear, 403.
V. Insurance Co., 815, 810.
V. .Myers, 540, 000, OOU, 754.
V. I'eople, 182.
Hayless v. Daniels, 233.
V. Jones, 97, 100.
Bayley v. Buokland, 325, 374.
V. Edwards, 825, 847.
Baylis v. Hayward, 41)3.
Baylor's Lessee v. Dejarnette, 564, 007.
Baynard v. Harrity, 57S.
Bay or v. Ewart, 32.
Bays V. Trulson, 783.
Baze y. Arper, 654.
BazlUe v. Murray, 655.
Beach v. Beach, 346.
V. Beckwlth, 107.
V. Botsford, 52, 286.
V. City of Elmira, 609.
V. (^rain, 748.
V. McCann, 326.
V. Reed, 439a.
V. Vanderbergh, 998.
Beadle v. Graham^s Adm*r, 699.
Beal V. Smith, 935.
Beale v. Berryman, 884.
Beale's Adm'r v. Gordon, 614.
l^eall V. Beck, 586.
V. Brown, 364.
V. Mill Co.. 343.
V. rearre, 504, 687, 787.
V. Powell, 300.
V. Price, 1010.
V. Slnquefleld, 174.
V. Territory of New Mexico, 587.
V. Walker, 783.
Keairs Adm'r v. Taylor's Adm'r, 8W.
Beals V. Judge, 774.
Beam v. Bridgers, 157.
V. Hayden, 139.
Beams v. Denham, 373.
Beam's Appeal, 419.
Bean v. HaflPendorfer, 337.
V. Seyfert, 1006.
Bear v. Oom*rs, 253a, 584.
V. Youngman, 182.
Beard, Ex parte, 128.
V. Beard, 227. 932, 933.
V. Deitz, 427.
V. Federy, 530.
V. Hall. 127.
CITED.
499 in vol. 1; residue in vol. 2.]
Beard v. Milllkau. 986.
V. Roth, 200.
V. Shoe Co., 86.
Beards y. Wheeler, 317.
Beardsley v. Hilson, 217, 311.
Bear River Valley Orchard Co. v. Han-
ley, 33.
Beattie v. Latimer. 208.
Beatty v. Beatty's Adm'r, 39.
V. O'Connor, 342.
Beaty v. Bordwell. 350.
Beaubien v. Hamilton, :^00.
Beaudrias v. Hogan. 282.
Beaudrot v. Murphy, 278.
Beaver v. Irwin, 660.
Beazley v. Prentiss, 1006.
Bechtel V. Brewing Co., 943.
Beck V. Bellamy. 344.
V. Devereaux, 734,
V. Fransham, 360.
V. Juckett, 354a.
V. Kallmeyer, 560.
Becker, In re, 196.
V. Huthsteiner, 345a, 348.
V. Sauter, 153, 154.
Beckett v. Cuenin. 183.
' V. Dean, 437.
v. Selover, 274, 641.
V. Stone, 099.
Beckham, Succession of, 958.
Beckley v. Xewcomb, 190.
Beckneil v. Becknell, 958.
Beckwith v. Boyce, 138.
Beck & Pauli Lith. Co. v. Mining Co.,
27, 771.
BecQUet v. McCarthy, 227, 836. 842.
Beet on v. Becton, 198.
v. Ferguson, 945.
Bedell v. Hayes, 252.
v. Stevens, 100.
Bedon v. Davie, 554.
Bedwell v. Ashton, 200.
V. Thompson, 86.
Beebe v. Bank, 956.
V. Beebe Co., 85.
V. Bull, 764.
V. Elliott. 549. 784, 787.
V. Grlffing, 39.
V. Russell, 44, 45.
V. State. 298.
Beecher v. Shirley, 700.
Boekman v. Hamlin, 992. 993.
V. l»eck, 301.
CASES
CReferencea to BecUons. H 1 to
Beeler's Heirs t. Bullitt's Heirs, 195,
197.
Beer v. Simpson, 8G7, 892.
V. Tbomas, 660, 755.
Beere v. Fleming, 720.
Beers, In re, 1014.
V. Hendrickson, 989.
V. Pinney, 573.
Beets y. Strobel, 10.
Behl y. Schuette, 352.
Bebrens Drug Co. y. Hamilton, 141.
Behrens' Estate, In re, 324.
Belne, In re, 257.
Beltber y. Zeigler, 28.
Belcber y. Curtis, 264, 446.
y. She^an. 227.
Belden y. Meeker, 287.
y. Seymour, 567.
y. State, 733.
Belford y. Woodward, 151, 873, 968.
Beliyean y. Mfg. Co., 50.
Belkin y. Ubodes, 130, 135.
Belknap y. Greene, 460.
y. Groover, 354a.
V. Stewart, 600.
BeU y. Bell, 561, 897.
y. Dayis, 453.
y. Eyans, 446.
V. Gilmore, 411.
y. Hanks, 331.
y. McCoUoch, 729.
V. McDuffie, 438.
V. Merrifield, 733.
V. Otts, 186.
y. Perry, 995. '
V. Peterson, 549.
y. Raymond, 250, 787.
y. State, 206.
y. Thompson, 306.
y. Williams, 377, 493, 496.
V. Wilson, 548.
Bellamy v. Bellamy, 41.
y. Woodson, 378.
Bell County Coke & Imp. Co. y. Board.
754.
Belles y. MUler, 261.
Belleyllle Nail Co. y. People, 809.
HelleviUe A St. L. R. Co. y. Leatbe,,
612, 627.
Bellinger y. Crafgue, 769.
y. Tbonipscn, 580.
Belloc y. Rogers, 644.
Bellows y. Ingham, 908.
1 LAW JUDG.— d
ciTBD. xlii
499 in Yol. 1; residue in yoI. S.]
Bellows y. Shannon, 16.
y. Sowles, 964, 976.
Beirs Adm'r y. Ayres, 641.
Belmont y. Coleman, 583.
V. Ponyert, 25.
Beloit V. Morgan, 506.
Belt V. Davis, 21, 26, 34.
Helton V. Fisher, 857.
V. Summer, 250.
Beltzhoover v. Com., 775.
Bement v. Trust Co., 641.
Bemis v. Stanley, 892.
Bemmerly v. Woodward, 155.
Benbow v. Boyer, 461.
Bender v. Askew, 246.
v. Pennsylvania Ca, 37.
Bendernagle v. Cocks, 734, 736, 738,
741, 744, 747, 749.
Benedict v. Arnoux, 349, 351.
v. Auditor General, 355.
V. Smith. 807.
Benge v. Potter, 335.
Benicia Agricultural Works v. Creigb-
ton, 16.
Benjamin v. Dubois, 30.
v. Early, 268.
Benne v. Scbnecko, 951.
Benner v. Marshall, 865.
Bennet, The, 814.
Bennett, Ex parte, 179, 215.
V. Allen, 61a, 69, 77.
v. Bennett, 862.
V. Buttei-worth, 979.
y. Graham, 589.
y. Gray, 549.
V. Hanley, 1004.
y. Holmes, 600, 629.
y. Jackson, 336.
v. Leach, 577.
V. McGrade, 1008.
v. Morley, 902.
V. Townsend, 236.
V. Winter, 301.
Bensen v. Railroad Co., 250, 284.
Bensimer v. Fell, 439a, 466, 549, 605^
810.
Benson v. Anderson, 306, 368, 370.
V. Arnold, 181.
y. Cahill, 265.
V. Haywood, 954.
y. Matsdortr, 052.
V. Maxwell, 423.
T. Paine, 774.
1
CA8HS CITED.
Ulto
CRetereacM to MCtlon
Bent T. Miranda, 308.
Bentley y. Finch, 341.
▼. Gardner, 110.
▼. Goodwin, 2d5.
V. O'Bryan, (517.
V. Wright. i;J4.
Beutiy y. Dillard, 378, 389.
Benton v. Benton, 055.
V. Burgot, 828, 857, 884, 917.
V. Crowder, 1009.
Benwell v. Black, 960.
Benwood Iron-Works Co. y. Tappan,
341.
Benz y. Hines, 610.
Berber y. Kerzinger, 544^
Berg V. Bank, 57.
V. Pohl, 352.
Bergemann y. Backer, 259.
Bergen y. Bolton, 239.
Berger y. Williams, 583, 586.
Bergeron, In re, 320a.
y. Richardott, 615.
Bergin y. Haight, 252.
Bering y. Burnet, 55.
Berkey y. Judd, 200.
Berkley y. Lamb, 420.
y. Wilson. 702.
Berkowitz y. Brown, 220.
Bemal y. Lynch, 250, 522.
Bernard y. City of Hoboken, 750.
y. Douglas, 317.
y. Merrill, 740.
Bernardi y. Motteux, 813, 814, 816,
817.
Bemeckcr y. Miller, 193.
Bemert, Ex parte, 258.
Bernhardt y. Brown, 260, 270.
Beronlo y. Railroad Co., 738.
Berry y. Anderson, 118.
y. Borden, 16.
y. Burgbard, 387.
y. Chamberlain, 576L
y. Clements, 451.
y. Foster, 271.
y. Shuler, 444.
Berry hill y. McKee, 44.
y. Potter, 438.
y. Wells, 981.
Bersch v. Schneider, 282.
Bertha Zinc & Mineral Co. y. Yanghan,
297a.
Herthold v. Fox, 134, 164.
Bertliue y. Bauer, 335.
tftlAYoLl: rMidue In ToL 1]
Bertrand y. Bingham*s Adm% 715^
Bertron y. Stewart, 487.
Berwick y. Duncan. 16^
Besecher y. Flory, 694.
Best y. Hopple, 703.
y. Lawson, 1001.
y. Nix, 204.
Betancourt y. Eberlin, 493, 496^
Bethel v. Bethel, 154.
Bethlehem y. Watertown, 5(^.
Betterton y. Roope, 746.
Bettmau y. Cowley, 95&
Eetts y. Bagley, 287.
y. Baxter, 83.
y. Johnson, 487.
y. Starr, 504, 729, 787.
y. Town of New Hartfoid, 529*
Beyen y. Chesire, 300.
Beyer y. North, 567.
Beyerley y. Brooke. 440.
Beverley's Case, 205.
Beverly v. Burke, 218.
Bevington y. Buck, 3..
Beyerle y. Haln, 179.
Bibb, Ex parte, 298.
y. Allen, 206.
y. Avery, 173.
y. Jones, 1008.
Bibend y. Insurance Co., 981.
y. Kreutz, 361, 362, 377, 381.
Bible V. Voris, 62.
Bick y. Seal, 31.
Bickel y. Cleayer, 493%
y. Brskine, 193.
y. Kraus, 326a.
BIcknell y. Field. 917.
BIddle y. Bank, 992.
y. Dowse, 959.
y. Pierce, 246.
y. Wllkins, 677, 970.
Biddle & Smart Co. v. Bumbam, 548w
BIdleson y. Whytel, 8.
Bldwell y. Coleman, 406^
y. Huff, 938b.
Bierer y. Fretz, 754.
Blerman y. Crecelius, 6i0.
Blesecker v. Cobb,. 467.
Biesenthall y. Williams, 907.
Bllield y. Taylor, 585.
Bigelow, Ex parte, 244, 255.
y. Bigelow, 245.
y. Chatterton, 273.
T. Preyost, 99&
CA6B8
[References to aoctieiM. H 1 to
BIgelow T. Stearns, 275.
V. Winsor, 518. 722.
Blggam V. Merritt, 450.
BIsge, In re. 38.
Biggins V. Raisch, 588.
Big Goose & Beaver Ditch Go. ▼. Mor-
row, 118.
Bigle3' V. Jones, 715.
BlgDold V. Carr. WSS.
Billan v. Hercklebrath. 417.
Billing V. Gilmer. (514, 093.
BUUngs V. Russell, 245. 250. 286.
BiUingslea v. Smith. 160.
Blllnps T. Freeman, 300.
Blloxi Lumber & Export Co. y. Sup-
ply Co., 86.
Bilsland v. McManomy, 725.
Bimeler t. Dawson. 828, 857, 887, 900,
910.
Blnck T. Wood. G97, 758.
Binford v. Alston. 1008.
Bingham v. Honeyman. 620.
Btnsse v. Barker, 322, 368.
Birch V. Frantz, 340.
V. Fnnk, 693, 606, 707. 709.
Bhrd, In re. 250.
T. Chaffln, 381.
V. Mfg. Co., 110.
T. Mitchell, 589.
V. Randall, 753, 778» 786, 787.
T. Smith, 970, 975.
BIrdMell Mfg. Co. v. Fire-Sprinkler Co..
115, 133.
Birdseye v. Rogers, 117.
T. Srhneffer, 37.
V. ^haelTer, 631, 650.
Bfnninghanoi v. I^ieonhardt 165.
BiMhoff V. Weathered, 227, 836, 897,
900.
Blscoe V. Butts, 641.
V. Sandefnr. 1008.
Bish V. Burns, 47A\.
V. Wnilar, 486.
Bishop T. Abom. 158.
V. Camp. 14.
T. Carter, 182.
y. Donnell. 83.
y. McGillis. 706.
T. Perrln. 663.
Bfsland v. Hewitt 454.
Bismark Bniidiug & Loan Ass'n y.
Bolster, 429.
Blssel y. Axtell, 356.
ciTBrD. li
#9 in TOl. 1; TMltw in yrt. Si]
Bissell y. Briggs, 828, 867, 897.
y. Edwards, 879, 935.
y. Huntington, 581.
y. Jaudon, 903.
y. Kellogg, 614, 687.
y. Township, 707, 710, 761.
y. Wheelock, 896, 897.
Bisson V. Curry, 530.
Bitzer y. Klllluger, 681.
V. O'Bryan, 353, 718.
y. Shunk, 57.
Bixby V. Whitney, 626.
Black y. Black, 666, 600, 720, 754, 857,
897, 901.
y. Caldweil, 666.
y. Epperson, 425.
y. Pattlson, 70.
y. Plunkett, 297.
y. Smith, 919.
Blacklmm y. Traffic Co.. ^1«
Blackburn y. Beall, 498.
V. Crawford, 543.
y. Jackson, 896.
y. Knight, 305.
y. Squib, 994.
y. State, 175.
Blackham*8 Case, 614.
Black Hills Nat Bank y. Kellogg, 209.
Blackinton y. Blackinton, 720, 729.
Blackman y. Joiner, 946.
y. Simpson, 782.
y. Wright. 872.
Blackmer y. Greene, 66.
Biackmore y. Gregg, 611.
Black Rlyer Say. Bank y. Edwards,
750.
Black's Ex'r y. Black, 961.
Blackwell y. Dlbbrell, 786.
V. State, 482.
V. WlUard, 173.
Blackwood y. Brown, 542^
Blaln y. Blain, 927.
y. Shaffner, 340.
y. Stewart, 488.
Blaine y. Briscoe, 324.
Blair, In re, 255.
V. Bartlett, 769.
y. Caldwell, 877, 969, 1007.
y. Chamblin, 434.
y. McLean, 699.
y. Russell, 306.
Blaisdell v. Harris, 127, 128.
V. Pray, 270,
Ill CASES
CReterenoes to Mctioni. §S 1 to
Blake ▼. Blgelow, 807.
▼. Hurley, 807, 963.
V. Butler, 033.
y. Dodemead, 486.
V. Douglass, 193, 196.
V, Heyward, 411.
V. Mfg. Co., 270.
V. Railroad Co., 613, 615.
Blakely v. Calder, 601.
Blakemore v. Wise, 440.
Blakeslee v. Murphy, 080.
Blakesley v. JoUnsou, 373, 953.
Blalock V. DenLam, 43Ua.
Blanc V. Mining Co., 900.
Blanchard v. Hatch, 312.
T. Russell, 824.
Blanck v. Medley, 57, 70, 74.
Bland v. State, 306.
Blandy v. Griffith, 787.
Blankenship v. Douglas, 420, 445.
Blann v. Cocherou, 779, 782.
Blanque v. Peytavln, 815.
Blanton v. Carroll, 277.
Hlasdale v. Babcock, 572.
Blattner v. Frost, 962.
Blauvelt v. Kemon, 77.
Blewett V. Tregonnlng, 127.
Blight's Heirs v. Tobin, 357,
Blln V. Campbell, 680.
Blindert v. Kreiser, 419.
Bliss v. Clarke, 425.
V. Treadway, 313.
V. Weil, 747.
V. Wilson, 220.
Bliase v. Castlio, 135.
Bloch V. Trice, 541, 938c.
Blodget V. Jordan, 857, 935.
Blodgett V. Dow, 016.
Blohme v. Lynch, 459.
Blood V. Bates, 182.
Bloom V. Burdick, 195, 220, 275,
Bloomfield v. Humason, 433.
Bloomfleld R. Co. v. Burress, 213.
Bloomstock v. Duncan, 910, 1001.
Blose V. Bear, 425.
Bloss V. Hull, 380.
V. Plymale. 779.
Blossom V. Barry, 113.
Bludworth v. Poole, 107, 118, 201, 488,
498.
Blue V. Collins, 402.
Blum V. Keyser, 405, 411.
Blumke v. Dailey, 147.
CITED.
489 in vol. 1; reildue In vol. S.]
Blythe v. Hinckley, 297a, 308, 324,
938c.
BIythe's Estate, In re, 085.
Blytli & Fargo Co. v. Svvenson, 233,
312, 325.
Boardman v. Acer, 782.
V. De Forrest, Ul;3.
V. Grocery Co., 9«0.
V. Patterson, 147.
V. Wlllard, 421.
Board of Administrators, In re, 496.
Board of Com*rs of Cheyenne County v.
Com'rs, 982.
Board of Com'rs of Custer County v.
Moon, 118.
Board of Com'rs of Grand County v.
King. 985f.
Board of Com'rs of Jackson County v.
Nichols, 532.
Board of Com'rs of Lake County v.
Piatt, 253a, 270, 291, 097, 731.
V. Sutliff, 500.
Board of Com'rs of Rio Grande County
V. Burpee, 2o3a.
Board of Com'rs of Wells County v.
Fahlor, 218.
Board of Directors of Broadway Ins.
Co., In re, 297.
Board of Education v. Bank, 324.
V. Fowler, 683.
Board of Public Works v. Columbia
College, 897, 913.
Board of School Directors v. Hernan-
dez, 548.
Board of Sinking Fund Com'rs v. Ma-
son & Foard Co.. 141.
Board of Sup'rs v. Thompson, rs.le.
Board of Trustees of School District
No. 1 V. Whalen, 538.
Boarman v. Patterson, 147.
Boas V. Heffron, 349.
V. Hetzsl, 807.
Boasen v. State, 253a.
Boatner v. Ventress, 530.
Boaz V. Heister, 233.
Bobb V. Bobb, 306.
V. (Jraham, 407, 000.
Bobe's Heirs v. Stickney, 758.
Bobo V. State, 135.
Eockover v. Ayres, 428.
Bodkin v. Aniokl, 095.
Bodurtha v. Goodrich, 901, 903.
V. Phelon, 708.
CASES
(References to sectloni. H 1 to
Boe T. Irish, 124.
Boeing Y. McKinley, 312.
Boenninghaiiseii, Ex parte, 257.
Bogan V. Hamilton, 857, 8U0.
Bogart, In re, 255, 256.
V. Perry, 433.
Boggess y. Howard, 170.
Boggs V. Douglass, 477, 953.
Bogie V. Bloom, 1016.
Boliannon v. Combs, 305.
Bobn V. StlTers, 166.
BoUeau v. Rutlin, 622.
Boisse Y. Diclcson, 200.
Boland, Ex parte, 266.
Y. BeDson, 100.
T. Spitz, 763.
Bolen Y. Crosby, 948, 062.
Bolen Coal Co. y. Briclc Co., 736.
Boles Y. Smitli, 677.
Bolinger y. Fowler, 491.
BoUing Y. Speller, lia
Bolton Y. Brewster, 287.
Y. Gladstone, 815.
V. H?y, 681.
Y. Scliriever, 250.
Bomar y. Ass'n, 541.
Y. Parker, 708.
Bonar y. Gosney« 162, 1G3.
Bond, Ex parte. 258.
Y. Banlc, 111.
Y. Billups, 754.
Y. Charieen, 36.
Y. Epley, 334.
Y. McXIder, 703.
Y. Markstrum, 629, 750, 754.
Y. Marx, 42.
Y. Neuscbwander, 327.
Y. Pacheoo, 89, 138» 267.
Y. Wilson, 288.
Y. Wycoff, 346a.
Bone T. Torry, 574.
Bones y. Aiken, 996.
Bonested y. Gariingbouse, 1012.
Y. Todd, 770, 771, 853. 913.
Bonnell y. Holt, 193.
Y. Pack, 000.
Y. Railroad Co., 337.
Bonner, In re, 258.
Y. Martin, 298.
Bonnet y. Ij^chman, 276.
Bonsall t. Isett, 274, 278. 287.
Bonta Y. Clay, 73.
Booge Y. Railroad Co., 752.
CITED. liii
499 in ToL 1; residue in toI. 2.]
Book V. U. S., 699, 702.
Booker y. Kennerly, 193.
Booker's Adm'r v. Bell's Ex'rs, 671.
Boon Y. Boon, 165.
Boor V. Lowrey, 201.
Boos Y. Morgan, 946.
Y. State. 159.
Bootb, Ex parte, 257.
Y. Bank, 110, 949, 996.
Y. Campbell, 989.
Y. Kesler. 357.
Y. Koebler, 363.
Bordages y. Higglns, 261.
Borden y. Borden, 407.
V. Fltcb, 275, 278, 828, 836, 897,
916,932.
Borden Mfg. Co. y. Barry, 683.
Boren y. McGebee. 998.
Borer y. Cbapman, 136.
Bore's Bx'r y. Qulerry's Ex'r, 093.
Borgwald y. Fleming, 80.
Bomgesser y. Harrison. 734, 736w
Borrowscale y. Tuttle, 722.
Borst Y. Baldwin, 953.
y. Nalle, 398.
BosbyshcU y. Summers, 341.
Boscb Y. Kassing, 84.
Bosman y. Akeley, 181.
Bosquett y. Crane, 611.
Bostlc Y. LoYe, 262.
Boston Y. Haynes, 366. 376.
Boston Blower Co. y. Brown, 620.
Boston India Rubber Factory y. Holt,
828, 873.
Boston Loan & Trust Co. y. Organ,
346a.
Boston Water Power Co. y. Gray, 520.
Boston & C. Smelting Co. y. Reed. 783.
Boston & W. R. Oo. y. Sparbawk, 290,
291.
Bostwick Y. Abbott, 703.
V. Benedict. 418.
Y. Perkins, 313.
Y. Van Vleck, 167.
Boswell Y. Coaks, 332.
Y. Dlckerson, 242.
Y. Otis, 232.
Botkin Y. Com'rs, 164.
Y. Klelnschmldt, 267, 690.
Botto Y. Vandament, 15.
Bottorff V. Wise. 624, 628.
Botts Y. Crenshaw. 173.
Y. Shields' Heirs. <]53.
liv
CASES CITBD.
[RaflBr«noes to sectloat. H 1 to 499 in toI. 1; residue in vol. 2.]
Bouchaud v. Dias, 707, 751.
Boucher y. Lawson. 825, 826.
Bougher v. Scobey, 504.
Boughton V. Bank of O^'laana, 439.
Bouldin v. Miller, 252, 284, 290.
Bourg Y. Gerdlng, 609.
Bourgeois y. Jacobs, 090.
Bourke y. Granberry, 816.
Bourne y. Simpson, 195.
BournonYiUe y. Goodall, 000.
Boutel Y. Owens, 69.
Boutin Y. Qatlin, 322, %2.
V. lindsley, 617.
Eowden y. Hatcher, 177.
Bowdoin College y. Merritt, 707.
Bowdre y. Hampton, 16.
Bowe Y. Arnold, 295.
Y. McNab, 607.
Y. Bdllk Co., 615, 747.
Bowen y. Allen, 635.
Y. Clark, 390.
Y. Hastings, 770.
Y. Johnson, 922.
Y. Mill Co., 326.
Bowers v. Boom Co., 742w
V. Chaney, 218.
V. Harner, 489.
Bowersox y. Gitt, 861.
Bowie V. Kansas City, 27.
V. Xeale, 486.
Bowler, Ex parte, 257.
Y. Ennls, 277.
Y. Huston, 237, 907, 913.
V. Palmer, 27.
Bowles Y. Orr, 844.
Bowling Y. Blum. 3i3.
V. Garrett 443.
Bowman y. Field, 375.
Y. Forney, 1016.
V. Humphrey, 746.
Y. Insurance Co., 877.
Y. Noyes. 209.
Y. Silvus, 412.
Y. Wilson, 292.
Kown V. Morange, 977.
Bowne y. Joy, 865.
Bowzer y. RIcketts, 320.
Boyce y. Danz, 530.
Boyd, In re, 255, 406a, 407.
Y. Baynham, 239.
Y. Blalsdell, 165.
V. Boyd, 720, 1)03, 904.
V. Caldw?li, 589.
Boyd Y. Canal Co., 367.
.Y. Ellis, 233.
Y. Ernst, 186.
Y. Ghent, 430.
V. Hitchcock, 976.
V. Huffaker, 587.
Y. Mann, 1006.
V. Miller, 297.
Y. Munson, 315.
Y. Koane, 193.
Y. Robinson, 614.
V. Schott, 135.
Y. Wallace, fi»40«
Y. WeaYer, 368.
Y. Whitfield, 567, 569. 572.
Boyer v. Austin, 714.
Y. Bolender, 952.
Y. xteeB, 4o^.
Y. Robinson, 86.
Y. Schofield, 522.
Boyer's Estate, 451.
Boyken y. State, 118.
Boykin y. Buie, 906.
V. Cook, 558, 560.
Boylan y. Anderson, 483.
Y. Whitney, 903.
Boyland y. Boyland, 281.
Boyla Y. Maroney, 454, 593.
Y. Wallace, 744.
Boyles v. Chytraus, 68.
Boynton v. Ball, 977.
Y. Foster, 243.
Y. Morrill, 573.
Boys Y. Shawhan, 208.
Bozarth y. McGillicuddy, 138.
Bozzio Y. Vaglio, 311.
Brace y. Duchess of Marlborough, 400.
Bracey v. C'alderwood, 219.
Brachtendorf v. Kehm, 32.
Bracken y. Parkinson, 530.
V. Trust Co., 585, 617, 731, 790. •
Brackett v. Bauegas, 311.
V. Hoitt, 717.
Y. Norton, 986.
Y. People, 714.
Y. Winslow, 299.
Bradbury v. Walton, 812.
Braddee y. Browutield, 78, 298. 69a
Bradeu v. Reitzeubergar, 366, 378.
Bradfleld v. Newby. 418.
Bradford y. Bradford, 493, 650.
Y. Bradley's Adm'rs, 44.
Y. Burgess, 787.
CASES CITBD.
OEUtarcncM to MCtiOM. If 1 to 4M in yOI. 1; rmMliM ia toI. S.]
Iv
Bradford v. Colt, ail.
T. Knowles, (515.
T. I^arUn, 261.
T. Rice, 091.
Bradiflh v. Gee, 356.
V. Grant, 720.
▼. State, 12*2, 443.
Bradley, In re, 041.
V. Andrews, 740.
▼. Beetle, 583.
V. Bradley, 529, 710.
V. Burnett. 227.
Y. Clandon, 182.
T. Fowler. 227.
T. Glass, 66, 67.
T. Hefleman, 448.
T. Johnson, 548.
Y. McDaniel, 577.
Y. Sandllands, 83.
Y. Slater, 305.
Y. Township, 800.
Y. Welch, 807.
Y. West, 663.
Bradley Fertilizer Go. y. Caswell, 16.
Bradshaw y. Bank, 23, 359.
Y. Bratton, 1016.
Y. Hedge, 16.
Bradshaw's Appeal, 618.
Bradstreet y. Insurance Co., 797, 814,
815, 817, 818, 900.
Bradwell y. Spencer, 586.
Brady y. Ball, 779.
Y. Beadleston, 671.
Y. Beason, 155.
Y. Brady, 248, 540.
Y. Creditors, 458.
Y. Horvath, 398.
Y. Insurance Co., 300, 324, 346.
Y. Madden, 206.
Y. Murphy, 783.
Y. Palmer, 877.
Y. Pryor. 611.
Y. Reynolds, 770.
Y. Spurck, 568.
Bragg Y. Lorio, 246.
Y. Railroad Co., 16.
Y. Thompson, 199.
Bragner y. Langmead, 441.
Brahan y. Ragland, 945.
Braiden y. Mercer, 590.
Brainard y. Fowler, 857, 884, 916.
Brake y. Payne, 373.
Brakke v. Hoskins, 258.
Brakken y. Railroad Co., 742.
Braly y. Seaman, 232.
Bramblet's Heirs v. Pickett's Hehrs,
154, 165.
Bramlett v. McVey, 877.
Branch y. Branch, 27.
V. Lowery, 415.
Y. Mfg. Co., 872.
Branch Bank y. Ford, 478.
Brand y. Stafford, 340.
Brandenburgh y. Beach, 986.
Brandhoefer y. Bain, 261.
Brandies y. Cochrane, 433, 434, 436.
brandon y. Green, 373, 378.
Brandt's Appeal, 418.
Branley y. Dambly, 411.
Brannan v. Kelley, 483.
Brannon y. Noble, 593.
Branson y. Caruthers, 247, 273.
Branstetter v. Rives, 326. 347.
Brautingham y. Brautingham, 269.
Braswell v. Downs, 857, 897.
V. Hicks, 536.
Bratton v. Leyr«r, 1014.
Brauer v. City of Portland, 982.
Braunsdorff y. Fay, 184.
Brawley y. Mitchell, 235.
Bray y. Laird, 36.
Brazee v. Bank, 456.
Brazill Y. Isham, 526, 688, 789.
Breading v. Boggs, 5, 115.
V. Slegworth, 597, 801.
Breault v. Lumber Co., 541.
Brebner v. Johnson, 421.
Breckenridge v. Railroad Co., 614.
Breckenridge Co. v. Perkins, 326.
Breden v. Gilllland, 306.
Breed v. Gorham, 432.
V. Ketchum, 336.
Breene v. Booth, 160, 162, 165.
Breeze v. Doyle, 261.
Bremen Bank v. Umrath, 82.
Brengle v. McCIellan, 863.
Brennan y. Bridge Co., 91, 709.
Brenner v. Gundershiemer, 85.
Brent y. Bank, 448.
Bresnahan y. Price, 368.
Brett V. Marston, 689.
Brettell v. Deffebach, 317.
Brewer v. Beck with, 652.
Y. Mock, 394.
Ivi CASES
[References to lectioBa. H 1 to
Brewer v. Thomes, 992.
Brewer & Hoffman Brewing Ck>. y.
Lonergan, 346a.
BrewiB y. Lawsou, 500.
Brewster v. Boyle, 34l>a.
V. Clamflt, 471.
V. Norfleet, 30(5.
Brlce V. Taylor, 941.
Bridge y. Ford, 906.
y. Gray, 627.
y. Johnson, 942.
y. Sumner, 699.
y. Ward, 426.
Bridge Co. y. Douglass, 534a.
Bridgeport Electric & Ice Co. t. Im-
provement Co., 354.
Bridgeport Fire & Marine Ins. Co. y.
Wilson, 293, 573.
Bridgeport Say. Bank y. Eldredge, 287,
373.
Bridges, Ex parte, 256.
y. Blalceman, 354.
y. McAlister, 548.
y. Nicholson, 245.
y. Smyth, 127. 200.
y. Thomas, 110.
Bridgman y. McKissick, 455.
Brlesch y. McCauley, 366, 378.
Briggs y. Briggs, 425.
y. Clark, 270.
y. Dorr, 945.
y. Milburn, 071, 785.
y. Richmond, 87, 687, 766.
y. Sholes, 86.
y. Smith. 387.
y. Thompson, 1014.
y. Wells, 624, 630.
y. Yetzer, 63.
Brigham v. Fayerweather, 638.
y. Henderson. 857.
Bright y. Diamond, 330.
y. Smitten. 935.
V. State, 105.
Brightman y. Brigbtman. 550.
Bright's Adm'r v. Sexton. 992.
Brlgnardello y. Gray. 132.
Brigot's Heirs y. Brigot. 272, 367, 862.
Brlley y. Sugg, 975, 996.
Brill V. Shively, 666.
Briukerhoff y. Marvin, 71.
V. Telford. 518.
Brinkley v. Brinkley, 857, 867.
Brinsmead v. Harrison, 778.
CITBD.
499 in vol. 1; residue in vol. L]
Brinton's Estate. 633.
Brisbin y. Newhall, 953.
Briscoe y. Lomax. 606.
y. Stephens. 278. 680.
Brister v. State. 103.
Bristol y. Ross, 306.
Bristor y. Galvin, 339.
Brittain, In re, 254.
v. Mull, 205.
Brittenham v. Robinson, 156, 162^
Brittin v. Wilder, 211.
Britton y. State, 529.
v. Thornton, 654.
Brizendiue v. Bridge Co., 543.
Broaddus v. Broaddus. 373.
Broadis v. Broadis, 376.
Broadwater v. Foxworthy, 1014.
Broas v. Mersereau, 204.
Brock v. Garrett, 600.
y. Klrkpatrick, 958.
Brockenbrough's Ex'x y. Brocken-
brough's Adm'r, 441.
Brockman v. McDonald. 211, 233.
Brock's Adm*r v. Frank. 635, 636.
Brockway v. Kinney, 621.
Broda v. Green wald/ 375.
Broder v. Conklin, 110, 266.
V. Court, 107.
Broderick, In re, 625.
Brodie y. Bickley. 563.
Brodrib v. Brodrib. 590, 644.
Bromley v. Littleton. 487.
Bronson v. Railroad Co., 48*
y. Rodes. 152.
y. Schulten. 306.
Bronzan y. Drobaz. 964, 967.
Brooke v. Filer. 173.
y. Gregg. 790.
y. Phillips, 418.
Brooker v. Sprague, 460.
Brooking v. Dearmond, 536.
Brooklyn City & N. R. Co. T. Bank,
774.
Brooklyn, W. & N. R. Co., In re, 798.
Brooks V. Ashbum, 779.
v. Brooks, 130.
y. aty of New York, 261.
y. Harrison. 376, 377.
T. Hunt 299.
y. Johnson, 340a, 348.
y. Munoz, 666.
y. O'Hara, 754.
y. Powell. 245, 252.
CASES
(RflferMkeM to Mottaas. H 1 to
Brooks T. Whitson, 373, 383.
T. Wilson, 423.
Brook's Adm*r v. Love, 306.
Broome v. Wooton, 778.
Browiahan, In re, 257.
Brothers v. Beck, (120.
T. Uiggins, 703.
T. Hurdle, 052.
Brougtaton v. Mcintosh, 758.
▼. Wlmberly, 44.
Bronnker v. Atkyns, 582.
Bronssard v. Broussard, 009.
Browder v. Faulkner, 158.
Brower ▼. Bowers, 545.
T. NeUis, 970.
Brown, In re, 977.
T. Ayres, 950.
Y. Balde, 275.
Y. Barnes, 155.
Y. BarngroTer, 63, 421.
Y. Bartlett, 165.
Y. Bates, 938b.
Y. B^nett, 329.
Y. Birdsall, 771, 864.
Y. Bradford, 588.
Y. Brown, 352, 808.
Y. Butler, 438.
Y. Campbell, 3C3, 685, 783, 789.
Y. Oanal Oo., 486.
Y. Carraway, 33.
Y. Causey, 248.
Y. Chaney, 534, 574.
Y. Chapman, 80, 224, 362.
Y. Christie, 261.
Y. City of New York, 87, 697, 729.
Y. Coal Co., 24.
Y. Cody, 684.
Y. Darrah, 641.
Y. Dudley, 593, 594.
Y. DufTus, 257.
Y. Baton, 920.
Y. Edgerton, 34.
Y. Bvans, 21.
Y. Feeter, 976.
Y. Gale, 42&
Y. Harley, 482, 486.
Y. Hearon, 245, 567.
Y. Howard, 536.
Y. Huber, 351.
Y. Hume, 52.
Y. Hyman, 412.
Y. Insurance Co., 248, 814, 816.
T. Kern, 989.
CITED.
499 in Yol. 1; rosldao In toI. L]
Brown y. King, 621.
V. Kirkbride, 70a
Y. Lanman, 250.
Y. Lawler, 159.
Y. Lee, 98.
Y. Luehrs, 384.
V. McCune, 167.
Y. McKinney, 191.
Y. McMullen, 572.
V. Mfg. Co., 22.
Y. Montgomery, 142.
Y. Moran, 729.
Y. Nichols, 225, 272.
Y. Nickle, 650.
Y. 0*Connell, 175.
Y. Parker, 861, 892.
Y. Porter, 121.
Y. RaUroad Co., 103, 866.
Y. Reed, 659.
Y. Rhinehart, 318.
Y. Rice, 22.
Y. Roberts, 656.
Y. Scott, 948.
Y. Searle, 16.
Y. Smart, 807.
Y. Smyth, 160.
Y. Somerville, 593.
Y. Sprague, 704, 705.
Y. Squires' Adm*r, 733.
Y. Stegemann, 351.
Y. Swann, 32, 384, 385.
Y. Taylor, 567.
Y. Telephone Co., 743.
V. Thornton, 308.
V. Tillman, 534, 783.
V. Todd's Adm'r, 872.
Y. Toeirs Adm'r, 379.
Y. Trulock, 970.
Y. Tucker, 229.
Y. Yandermeulen, 32.
Y. Wadsworth. 524.
Y. Walker, 360, 541.
V. Warren, 346a, 1000.
Y. Webb, 490.
Y. Wheeler, 127, 128, 648.
Y. White, 995.
V. Wiley, 589.
Y. Williams, 454.
Y. Wilson, 378, 380.
Y. Wootton, 778.
Y. Wuskoff, 464.
Y. Wygant, 487, 48a
Y. Wynkoop, 000.
Ivii
lyUi
CABEB CITBD.
CftafiMaeM to Mctionp. IS 1 to 409 la toL 1; rtsidva la vol. 1.]
Browne v. Browne, 107.
V. Cassem, 57, 61.
V. French, 586.
V. Joy, 299.
Browner v. Davis, 544.
Browne & Mauzanares Co. y. Canavez,
484, 485.
Brownfield v. Dyer, 281.
Browning v. Uoane, 322, 326» a47.
Brownlee v. Com'rs, 135.
Brown's Adm'r v. Johnson, 770, 773.
Brown's Appeal, 466.
Brownsville Taxing Dist. v. Loague,
253a.
Brozton v. Nelson, 734.
Bruce v. Gloutman, 278, 959.
V. Conyers, 36.
▼. Dpollttle, 179.
V. Foley, 518, 726.
V. Osgood, 274, 506, 541.
▼. Sugg, 400.
V. Vogel, 450, 459.
Bruce's Ex'x v. Strickland's Adm'r,
307.
Bruclcman v. Taussig, 835, 875, 966.
Brumbaugh v. Schnebly, 363.
V. Stoclcnmn, 341.
Brummagim v. Ambrose, 642.
Brundred v. Egbert, 261.
Brunner's Appeal, 55.
Bruno v. Oylatt, 493.
Brunsden v. Humphrey, 740.
Brury v. Smith. 616.
Hruschke v. Der Nord Chicago Schuet-
zen Vereln, 218.
Brush V. Cook, 577.
V. Kaiiroad Co., 144.
V. Bobbins, 306.
V. Wilson, 586.
Brush Electric Co. v. Electric Co., 509.
V. Improvement Co., 27.
Brusie V. Peck Bros. & Co., 157.
Bryan v. Alexander, 664.
V. Esiton, 408.
V. Kennett, 194, 246.
V. Miller, 63, 68.
Bryant v. Allen, 633,
V. Harding, 293.
V. Hunter, 518.
V. Johnson, 299.
V. Keed, 782, 905.
V. Richardson, 346a.
Bryar v. Bryar, 690.
V. Campbell, 786.
Bryn Mawr Nat. Bank ▼. JamM,
Bryson v. St. Helen, 783.
Buchan v. Sumner, 420, 44&
Buchanan v. Biggs, 799.
V. Kauffman, 572.
V. Plow Co., 57, flO.
V. Port, 884.
v. Railroad Co., 613, 686.
v. Rucker, 220, 227, 836.
V. Springer, 750.
V. Thomason, 306.
Buchegger v. Shultz, 152.
Bucher v. Raihroad Co., 688.
Buck V. Buck, 526.
V. Havens, 351.
V. Littie, 142.
V. Rhodes, 671.
V. Spofford, 694^
▼. Wilson, 735.
Buckingham, Appeal of, 661.
y. Ludlum, 566.
V. McCracken, 16.
Bucki & Son Lumber Co. T. liUmber
Co.. 734.
Buckland v. Jc^nson, 778.
Buckles v. Bank, 154.
V. Railroad Co., 691.
Buckley v. Duff, 16. .
Buckmaster v. Carlin, 244.
V. Grundy, 632, lOOll
Buckueil V. Deering, 421.
Buckner v. Finley, 8^.
V. Geodeker, 550.
V. I^ucaster, 510.
Buck's Appeal, 492.
Budd V. Finley, 651.
V. Gamble, 374,
V. Shock, 57.
Buddress v. Schafer, 733.
Buehlcr's Heirs v. Buffington, 499.
Buell V. Emerlch, 324.
Buena Vista Co. v. Railroad Co., 345.
Buena Vista Petroleum Co. y. Mining
Co., 530.
Buffington y. Cook, 599.
Buffum V. Ramsdell, 211.
V. Stimpson, 896.
Buford y. Adair, 54a
y. Buford, 916.
y. Rucker, 600.
CRcCflrenew to flections. K 1 to 199 In vol. 1; reeldue In vol. 2.]
Uz
Bnhl ▼. Wagner, 449.
Building, Light & Water Go. ▼. Fray,
e07.
Bulger, Ex parte, 258.
Balkley t. Andrews, 644.
V. Stewart 52B.
Bulkly T. Healy, 609.
BuU V. Mathews, 98, 102.
Bullard v. Sherwood, 88.
Bullene ▼. Hlatt, 425.
Bullenkamp y. Bullenkamp, 188.
BuUer ▼. Sidell, 979.
BuUitt T. Taylor, 988b.
Bullock y. BaUew, 970.
y. Bullock, 872, 933.
y. Winter, 359.
Bump y. Butler County, 270.
Bumstead y. Read, 240.
Bunding y. Miller, 412.
Bundy y. Cunningham, 666.
y. Maginess, 121.
Bunker y. Gilmore, 506.
v. Langs, 746.
y. Tufts, 729.
Bunker Hill & Sullivan Mining & Con-
centrating Co. V. Mining Co., 713.
Bunn y. Lindsay, 4o3.
Bunnel y. Pinto. 526, 736.
Bunnell y. Bridge Co., 23.
Bunnell & Eno Inv. Co. y. Curtis, 311.
Buntain v. Blackburn, 393.
Bunton v. Lyford, 374.
Buntyn y. Holmes. 560.
Burch v. Newburj-, 298.
y. Scott, 153, 368.
v. West, 361.
Burcham v. Terry, 247.
Burden y. Homsby, 33.
Bnrdlck y. Cameron, 751.
y. Post, 609.
y. Railroad Co., 604.
Burd's Ex'rs v. McGregor's Adm'r, 644.
Borford v. Kersey, 731.
Burge y. Gaudy, 124.
Burgess y. Cave, 946.
V. Loyengood, 372.
y. Mortgage Co., 703.
Y. Kuggles, 34.
V. Souther, 962.
Burghardt y. Van Deusen. 646, 660.
Burgwald v. Welppert, 101.
Borbans y. Van Zandt, 504.
y. Village of Norwood Park, 352.
Burk V. Hill, 19U.
Burke v. Elliott, 522.
v. Miller, 609.
y. Stokely, 199, 201, 341.
y. Ward, 354.
V, Wheat, 367.
Burldiam v. Van Saun, 69.
Burkhard v. Smith, 324.
Burlen y. Shannon, 613, 615, 624, 657^
754, 803, 822, 928, 932.
Burley v. Filby, 351.
Burling Y. Goodman, 92, 152.
Burllngham y. Vandevender, 546.
Burlington, C. R. & N. B. Co. y. Sim-
mons, 48.
Burn y. Bletcher, 836.
Burner y. Heyener, 69L
Bumes v. Simpson, 966.
Burnett, Ex parte, 257.
y. Ballund, 98.
y. Crandail, 944.
y. Milnes, 393a.
y. Smith, 763.
V. State, 130, 185.
Bumey v. Boyett, 450.
V. Hunter, 1016.
Bumham v. Bumham, 560, 641.
V. City of Chicago, 155.
y. Bailing, 127.
y. Railroad Co., la
y. Smith, 347. .
V. Webster, 828, 829.
Burnley v. Rice, 373.
V. Stevenson, 857, 872.
Burns v. Bangert, 948.
V. Gavin, 539.
V. Hodgdon, 656.
y. Monell, 615.
y. Scooffy, 343.
y. Simpson, 958.
y. Thornburgh, 1000.
Bumside v. Bumside, 867.
V. Ennis, 346.
Burns & Smith Lumber Co. y. Doyle,
242.
Burpee v. Smith, 368.
Burr v. Mathers, 52, 57.
v. Mendenhall, 1007.
Burrill v. West, 573.
Burritt v. Belfy, 747, 749.
Burrows v. Cox, 23.
V. Jemino, 820.
y. Niblack, 98, 101.
IX CASES
CRefarencM to Mctlont. || 1 to
Burson y. Blair» 962, 053.
Burt V. Casey, 992, 993.
y. McBaiii, 197.
y. Railroad Co., 173, 175.
y. Scranton, 85.
y. Sternburgh, 504, 657, 787.
y. Stevens, 211, 771.
Burtls y. Cook, 953.
Burton, In re, 760.
v. Barlow's Estate, 617.
y. Burton, 510.
y. Gagnon, 646.
y. Hazzard, 600.
y. Huma, 664.
y. Hynson, 375, 389.
y. Lawrence, 50.
y. Perry, 219, 296.
y. Smith, 428.
y. Stewart, 970.
V. Township, 261.
y. WUey, 375.
Burtt y. Barnes, 29.
Burwell y. Jackson, 970.
Busch y. Jones^ 620.
Buschlng y. Sunman, 326.
Buse y. Bartlett, 281.
Busenbark y. Busenbark, 359.
Bush, In re, 320a.
y. Arnold, 938b.
• y. Bush, 136.
y. Farris, 406a.
V. Glover, 173.
y. Hanson, 279.
y. Knox, 549.
y. Merriman, 766.
y. Monteith, 350.
V. O'Brien, 367, 691.
v. Sheldon, 633.
Bushee v. Surles, 269.
Bushong v. Taylor, 987.
Busklrk, Ex parte, 256.
Bussey v. Dodge, 607.
Butcher v. Bank, 860, 875.
V. Taylor, 36.
Bute V. Brainerd, 770.
Butler y. Ashworth, 995.
y. Eaton, 511.
y. Fayer weather, 22.
V. Horwitz, 152.
y. James. 462.
y. Mitchell, :)11, 347.
y. Morse, 341.
V. Owen, 908.
CITBD.
4M in voL 1; residue in voL 2.]
Butler y. Railroad Co.. 352.
y. Soule, 326.
y. Vineyard Co., 186.
Butte Butchering Co. v. Clarke, 348,
351.
Butterfleld v. Smith, 644.
v. Town of Ontario, 747.
Butterfield's Appeal, 269.
Buttrick v. Allen, 826, 828.
Butts v. Armor's Estate, 16.
y. Cruttenden, 405, 406.
Butz y. Muscatine, 985b.
Byers v. Butterfleld, 33.
y. Fowler, 285. 413, 416.
Bynum v. Barefoot, 986.
Byram y. McDowell, 232.
Byrket v. State, 737.
Byrne v. Hoag, 158.
y. Hudson, 27.
v. Hume, 643.
V. Prather. 510, 685.
y. Railroad Co., 742.
Cabell y. Given, 407.
Cackley v. Smith, 680.
Cadaval v. Collins, 758.
Caddy v. Barlow, 529.
Cade v. McFarland, 745.
Cadmus v. Jackson, 247.
Cadwallader v. McClay, 322, 361.
Cadwell v. Dullaghan, 135.
Cage y. Cassidy, 373.
Cagger v. Gardiner, 313.
Cahill y. Lilienthal, 347.
Cahnmann v. Railroad Co., 740.
Cahoon y. McCuUock, 770.
Cairo & St. L. R. Co. v. Holbrook, 136.
Cake y. Bhd, 1010.
Cake's Appeal, 447.
Calderwood v. Brooks, 549.
Caldwell v. Bryan, 23.
y. Carrington, 938c.
y. Carter, 349.
v. Fifleld, 321.
y. Harp, 236.
y. Jacob, 554.
v. Martin, 996.
v. Taggart, 585.
V. Walters, 5o, 293.
Caledonia Ins. Co. y. Wenar, 866.
CASES
[References to sectiona. §9 1 to
Calef v. Parsons, 169.
Caley v. Morgan, 68, 480, 945.
Calboun v. Adams, 486.
y. Insurance Co., 814.
V. Pace, 152.
▼. Ross, 270.
V. Terry Porter Co., 118.
California Beet Sugar Co. v. Porter,
370.
California Dry Dock Co. ▼. Arm-
strong, 740.
California Southern R. Co. v. Rail-
road Co., 109.
California & O. Land Co. y. Worden,
612,
Calkins y. Allerton, 549.
Call y. Cozart, 481.
Callahan y. Fahey, 490.
y. Griswold, 245, 293.
y. Murrell, 737.
Callahan's Estate, In re, 3a
Callan y. Lukens, 79a.
Callanan y. Bank, 302, 339.
y. Votruba, 404.
Callen y. £ailson, 190, 270, 273.
CalUcott, In re, 257.
Callis y. Cogbill. 567.
Calloway y. Byram, 70.
y. Cooley, 250.
y. Glenit, 583, 859.
y. McElroy, 388.
Calloway's Heirs v. Eubank, 491.
Calyerly y. Phelp, 585.
Calyert y. Ash, 315.
y. Boyill, 816, 817.
y. Roche, 446.
Camberford v. Hall, 513.
Cambridge Valley Nat. Bank y. Lynch,
29.
Camden y. Plain, 284.
Came y. Brigham, 200, 583.
Cameron y. Bennett, 27, 29.
y. Boyle. 261.
y. Cameron, COO.
y. Hintou, 707.
y. Railroad Co., 114, 703.
y. Wurtz's Adm'r, 863.
Cammell y. Sewell, 795, 813, 844.
Camoran y. Thurmond, 135.
Camp y. Baker, 493.
y. Forrest, 650, 059.
y. GaJn?r. 4J)8.
y. Phillips, 86, 313.
CITBD. 1x1
499 in Tol. 1; retidae in yol. 11
Camp y. Ward, 372, 393.
V. Wood, 53.
Campbell y. Ayres, 556.
y. Bank, 269.
V. Booth, 1015.
V. Brown, 220, 278.
V. Butts, 625.
V. Campl>ell, 31a.
V. Com., 175.
V. Consalus, 617.
V. Cross. 657, 658, 790.
V. Donovan, 83, 354.
V. Edwards, 376.
V. Goddard, 75.
V. Hall, 551, 655.
V. Hays, 83, 224, 263.
V. Insurance Co., 904.
V. Ketcham, 371.
V. McHarg, 209.
V. Mayhugh, 761.
y. Mesier, 127.
y. Nixon, 661a.
V. Phelps, 580.
y. Pope, 1007.
y. Potts, 703.
y. Spence, 417, 473, 1007.
y. Steele, 771.
y. Strong. 504, 641.
y. Swasey, 225.
y. Williamson, 816.
Campbell Printing Press & Mfg. Co. y.
Marder, Luse & Co., 263, 393.
Campbell's Appeal, 496, 957, 999.
Campbell's Registration, In re, 727.
Campion v. Friedberg, 948, 988.
Canady y. Detrick, 593.
Canal & Banking Co. v. Brown, 580.
Canal & C. R. Co. v. Railroad Co., 609.
Candee y. Clark, 776.
y. Lord, 605.
Candler v. Pettit, 349.
Canjolle y. Ferrle, 633.
Cannon v. Brame, 787.
y. Harrold, 338.
y. Hemphill, 39, 109.
y. McDaniel, 641.
y. Nelson, 584.
y. State, 693.
Cannon River Manufacturers* Ass'n y.
Rogers, 540.
Cantrell y. Ford, 950.
Capehart v. Cunningham, 220.
V. Etheridge, 391.
fadi CASKS
OtMtfencMi to Mctlons. §i I to
Gapell ▼. Moses, 39.
Capen v. Inhabitants, 157, 30G.
Oaperton y. Hall, 646.
T. Schmidt, 504, 655.
Capital City Dairy Co. v. Pluumier,
772.
Capital Lumbering Co. y. Learned,
941.
Capital Savings Bank & Trust Co. v.
Swan, 335.
Capllng V. Herman, 849.
Captain of The Mollie Hamilton v.
Paschal, 116.
Carberry v. Railroad Co., 720.
Carbiener y. Montgomery, 609.
Card y. Melneke, 110.
Cardesa y. Humes, 493.
Carey v. Browne, 338, 346a.
y. Giles. 707.
T. Rooseyelt, 536, 540, 561, 970.
y. Wilcox, 667.
Carlt y. Williams, 677.
Carkhuff v. Anderson, 433.
Carl y. Coal Co., 16.
Carland v. Custer County, 175.
Carleton v. Bickford, 227, 289, 835,
897, 901, 906.
V. Insurance Co., 270, 279, 906.
y. Lombard, 624.
Carley y. Carley, 320.
Carli y. Rhener, 176.
Carlin y. Brackett, 708.
y. Taylor, 906.
Carlisle y. Godwin, 398.
y. Howes, 615, 722.
y. Killebrew, 654.
y. Wilkinson, 311.
Carlson y. Carlson, 691.
y. Phinney, 330.
Carlton v. Davis, 671.
y. Patterson, 155.
y. Young, 483.
Carmack v. Com., 588.
Cannichael v. Abrahams, 411.
v. Governor, 588.
Cnrmody v. City of Rome, 521.
Carraony v. Hoober, 6J)3.
Carnarvon v. Viilebois. 006.
Carnes y. Crandall, 48:^.
Caraey v. Village of Marseilles. 378.
Carolina Inv. Co. v. Kelly, S(*.
Carolina Nat. Bank v. Ass'u, 301.
Carolus v. Koch, 384.
CFTBD.
4M in vol. 1; residua In vol. 2.)
Carondelet Canal Nav. Co. y. City of
New Orleans, 32.
Carothers v. Lange, 153, 483.
Carpenter v. Butler, 958.
v. Cameron, 635.
y. Canal Co., 545.
y. Dexter, 860.
y. AlcClure, 594.
y. Pier, 935.
y. Ritchie, 896, 898, 908.
v. Sheldon, 138.
y. Sherfy, 118.
y. SUlwell, 998.
V. Strange, 857, 872.
V. Thornton, 962.
Cariientier v. Brenham, 141.
V. City of Oakland, 272, 973.
Carr v. Bank, 324.
v. Brick, 514.
y. Dawes, 343.
y. Fife, 530.
y. Miner, 291.
y. School Dist, 354.
y. Townsend's Ex'rs, 200, 498.
y. U. S., 578.
v. Weld, 1008.
Carrigan v. Semple, 563.
Carrlngton v. Holabird, 357, 365, 368.
Carroll v. Board, 532.
y. Carroll, 635.
y. Goldschmidt, 549.
V. Watkins, 413, 415.
Carr's Will, In re, 335.
Carshore v. Huyck, 985.
Carskadden v. McGhee, 160.
Carson v. Clark, 693.
V. Machine Co., 504.
y. Moore, 491.
y. Taylor, 265.
Carstarphen v. Holt, 682.
Carter v. Adamson, 892.
v. Bennett, 357, 862.
v. Caldwell. 31a.
y. Carriger's Adm'rs, 199, 482a.
y. Challen. 421.
y. Christie, 147.
y. Couch. 613.
y. Elmore, 114.
y. Eugles, 641.
y. Gibson, 242.
y. Hnuna. 701.
y. Kaiser, 324.
V. ^IcBroom, 135.
CASBS CITBO.
[Referencei t* aecttoa*. H I to 4W in toI. 1; reild«« in toI. 2.]
Ixiii
Carter ▼. Paige, 904.
▼. Scaggai 663.
T« Torrance, 301.
Garter, Bice & Ca t. Howard, 556.
Carthage Turnpike Co. y. Overman,
106.
Camth y. Grigsby. 586.
Caruthers y. Corblu, 022.
y. Hartafiekl, 302, 377.
y. WlUlams, 000.
Canrer y. Adams, 118.
y. Canrer, 103.
Caryill y. Garrigues. 021, 734, 785.
Cary y. Dixon, 100, 191.
y. State, 170.
Case y. Bartliolow, 000.
y. Beauregard, 720.
y. Bridge Co., 013.
y. Case, 313.
y. Hawicins, 069.
y. Huey, 037.
y. Ingle, 28, 20.
y. Mannls, 164.
y. Plato, 118.
y. Railroad Co., 720.
y. Rlbelln, 200.
y. State, 06.
Casebeer y. Mowry, 684.
Case Threshing Machine Ca y. Peder-
son, 063.
Casey y. Galli. 531.
y. McFallB, 663.
y. People, 273.
Cashman v. Henry. 102.
Casoni y. Jerome, 580.
Cass y. Adams, 1007.
Cass County y. Johnston, 065b.
Cassel y. Scott, 367. .
Cassels y. Vernon, 635.
Cassidy y. Leltch, 007.
y. Time-Stamp Co., 373, 374.
Cassill y. Morrow, 766.
Castellaw y. Guilmartin. 561.
Casteiline y. Mundy, 3(M).
Castle v. Noyes, 540, 570. 655.
Castledine y. Mundy, 300.
Castleman y. Templeman, 583.
Castlio y. Bishop, 347.
Oaston y. Perry. 755.
Castriqne v. Behrens. 810.
y. Imrle, 814, 810, 827, 843.
Castro y. lilies, 402.
Caswell y. Caswell, 260.
y. Comstock, 44.
Oatawba Mills y. Hood, 734.
Gates y. Riley, 264.
Catbcart v. Peck, 100.
Cathcart*s Appeal, 1007.
Catlin y. Latsou, 82.
y. Robinson, 430.
y. Underbill, 870.
Catron y. Lafayette County, 962.
Catterlin v. City of Frankfort, 575.
Cattlin V. Kemot, 1012.
Caudle y. Dare, 1008.
Caughey v. Eleyator Co., 343.
Caughran y. Gilman, 877, 806^ 000.
Cauhape y. Parke, 713.
Caujolle y. Curtiss, 683.
C. Aultman & Co. y. Wirth, 116e
Oauthom v. Berry, 138, 155, 106.
V. King, 207.
Cavan v. Stewart, 840.
Cayanaugh y. Buehler, 611.
y. Peterson, 446.
y. Railroad Co., 354.
y. Smith, 278.
Cave V. City of Houston, 118.
Cavender v. Guild. 880.
y. Smith's Heirs, 211, 422.
Cavln V. Williams, 145.
Cawley y. Leonard, 301.
Cayce y. Stoyall, 482, 400.
Caylus y. Railroad Co., 674.
Cecil y. Cecil, 584, 033, 635.
y. Johnson, 650.
Central Appalachian Co. y. Buchanan,
1005.
Central Bank y. Gibson, 218, 27a
y. Veasey, 064.
Central Baptist Church ft Society v.
Manchester, 540.
Central Coal & Coke Co. y. Bank, 406,
406, 462, 475.
Central Irr. Dist, In re, 282.
Cantral Nat Bank v. Hazard, 540.
y. Stevens, 360.
Central R. Co. v. Brinson, 740.
Central R. R. & Banking Co. y. Smith,
flOS.
Central Trust Co. v. Bridges, 508.
V. Clark, 616.
v.- Condon, 583a.
y. Henuen, 583a.
Ixiv
CASES CITED.
IReferencei to sectloni. §§ 1 to 499 in yoI. 1; residue In vol. 2.]
Central Trust Co. v. McGeorge, 217.
V. Madden, 48.
v. Railroad Co., .48.
y. Season good, 251.
C. Graham & Sons Co. v. Van Horn,
750.
Chace v. Vasquez, 44.
Chadbourn t. Johnston, 325.
Chaddock v. Barry, 282.
Chadrou Building &. Loan Ass'n v.
Hamilton, 445.
Chaffe V. Morgan, 632.
Chaffee v. Hooper, 138, 267.
Chatliu T. Fulkerson, 335.
V. Kimball's Heirs. 197.
Chaboon v. Hollenback, 438.
Chalfant v. Monros, 106.
Challenor v. Nlles, 482a, 483. 488.
Challis V. Headley, 326.
Chamberlain v. Blodgett, 232.
V. Bradley, 607.
V. Carlisle, 788.
V. City of New Orleans, 606.
V. Faris, 904.
V. Gaillard, 614.
V. Godfrey, 588.
V. Hopper, 661a.
V. Pierson, 529.
V. Preble, 567, 705.
V. Sutherland, 723.
Chamberlin v. Murphy, 779.
V. Vance, 152.
Chambers v. Bridge Manufactory, 288,
377.
V. Carson, 487.
V. Clearwatar, 174.
. V. Denie, 61.
V. Hodges, 358.
V. Lapsley, 577.
V. McDowell, 967.
V. Xeal, 299.
V. I*rewitt, 585.
V. Bobbins, 373.
V. Upton, 210.
Chamley v. Dusany, 145.
Champ V. Kendrick, 23.
Champion v. Sessions, 179.
Champlin v. Bakewell, 216.
V. Railroad Co., 41.
V. Smith, 713.
V. Tilley, 209.
Chandler v. Drew, 1000.
V. Furbish, 1006.
Chandler v. Higgins, 1008.
V. Nash, 282.
Chandler's Ez'r, Appeal of, 634.
Chandler & Taylor Co. y. Norwood, 90.
Chaney v. Bryan, 901.
V. Ramey, 138.
Chant V. Reynolds, 560, 577.
Chapdelaine v. Handy, 346.
Chapin v. Broder, 118, 411.
V. Curtis, 707.
V. McLaren. 60, 68.
V. Thompson, 52. 58^ 77, 212.
Chapman, In re, 255.
V. Armistead, 650.
y. Blakeman, 1016.
y. Brewer, 248.
y. Chapman, 462, 867.
y. Douglas County, 892.
y. Hatt, 1011.
y. Holmes, 567.
y. Hughes, 611.
y. Nelson, 483.
y. Sloan, 975.
y. State, 182, 532.
V. Wells, 108.
Chappel V. Chappel, 63.
Chappell V. Comins, 36.
V. Pooling Co., 304a, 326.
Chapron v. Cassaday. 432, 433.
Chaquette v. Ortet, 9G4.
Chard v. Holt, 549.
Charles v. Haskins, 775, 942, 061.
Charley y. Kelley, 247.
Chase y. Christianson, 141.
y. Curtis, 938c.
y. Driver, 41.
y. Giknan, 122, 443.
y. Jefferson^ 684.
y. Manhardt, 373, 381.
y. Miles, 504.
y. Swain, 504.
y. Tuckwood, 246, 293.
y. Walker, 784.
V. Whitten, 158.
y. Woodward. 954.
Chase's Case, 722.
Chattanooga, R. & C. R. Co. v. Jack-
son, 080.
Chatterton y. Young, 190.
Chauncey y. Wass, 247.
Chautauqua County Bank T. Risley,
42,S.
y. W-hite, 434.
CASES
CBeferences to sections, tt 1 to
Chavent v. Schefer, 731.
Cbeairs v. Slaten, 593.
Cheatham, £x parte, 213.
V. Morrison, 587.
Cheek v. Pugh, 211, 219.
i:heeseman t. Thome, 66L
Cheever v. Mirrlck, 998.
V. Wilson, 932.
Chemical Bank t. Bulkley, 946.
Chemung Canal Bank v. Judson, 275.
Cheney v. Cooper, 699.
V. Cross, 538.
V. Hovey, 387.
V. Patton, 538, 790.
V. Stone, 716.
(*heraw & 0. R. Go. v. Marshall, 490.
Cheriot V. Foussat, 818.
Cherry v. Speight, 922.
V. York, 657, 786.
Chesapeake Bank v. Swain, 152.
Che84ipi»ake, O. & S. W. R. Co. v.
Dyer Co., 529.
Chesapeake & O. Canal Co. v. Git-
tings, 614.
Chesley v. St. Clair, 581.
Chesnut v. Marsh, 247.
Chester t. Apperson, 375.
V. MUler, 225, 368, 376.
Y. Plalstow, 99a
Chester City Presbyterian Church v.
Gonlin, 682.
Chesterfield t. Perkins, 524.
Chew V. Bnimagim, 857, 862.
Chezam t. Glaypool, 691.
Chicago T. Bobbins, 575.
Chicago, B. & Q. R. Co. v. Hitchcock
County, 272.
V. SchalTer, 743.
V. Wlngler, 135.
rhlcago City R. Co. v. Blanchard, 950.
Chicago Clock Co. v. Tobin, 213.
Chicago Driving Park v. West, 269.
Chicago Fire-Proofing Co. v. Bank, 77.
Chicago Forge & Bolt Co. v. Rose,
C83.
Chlcngo. K. & W. R. Co. v. Black,
731.
Chicago, M. A St P. R. Co. v. Hoyt,
718.
Chicago Opera House Co. y. Paquin,
745.
Chicago, R. I. & P. R. Co. v. Berg,
ILAWJUDG.— e
CITED. IXV
499 In vol. 1; residue In vol. 2.]
Chicago, R. I. & P. R. Co. v. Campbell,.
859, 897.
V. Depot Co., 506.
V. Sturm, 859, 889.
Chicago Tip & T. Co. v. Bank, 50, 591
Chicago Trust & Sav. Bank y. Kin-
nare, 57.
Chicago Waifs' Mission & Training
School V. Electric Co., 307.
Chicago & A. Bridge Co. v. Fowler,.
938b.
V. Provision Co., 938.
Chicago & A. R. Co. v. Clausen, 97^
V. Ferry Co., 251, 860, 938c.
V. Maher, 743.
V. Pearson, 97.
Chicago & E. I. R Co. v. Hines, 97.^
V. State, 714.
Chicago & E. R. Co. v. Harshman,.
560.
V. Kreig, 16.
Chicago & N. W. R. Co. v. Andrews, 29.
V. Packet Co., 567, 568, 574.
Chicago & S. E. R. Co. v. Higgins,
963, 967.
V. Spencer, 240.
V. Wheeler, 96. 100.
V. Yawger. 725.
Chichester v. Cande, 130, 692.
Chickaming v. Carpenter, 985c»
Chickering v. Failes, 232.
Child V. Morgan, 508.
V. Powder Works, 864.
V. Whitman, 162.
Childress v. Smith, 141.
Childs V. Dlgby, 801.
Y. Hayman, 793.
Y. Lanterman, 196b
Y. ^IcChesney, 109.
Y. ^rfg. Co., 7.
Y. Railroad Co., 310.
Chiles V. Champenols, 717.
Chilton Y. Town of Gratton, 583a.
China Mut. Ins. Co. y. Force, 576, 796.
Chinn y. Mitchell, 379.
Chipman y. Emrick, 149.
Y. Fowle, 1000.
Y. Martin, 746.
Y. Montgomery, 284, 633.
Chirac v. Reinecker, 600, 606, 652.
Chlsholm Y. State, 333.
Chisolm Y. Chittenden, 1008.
Chlssom V. Barbour, 126,
Ixvi
CASES CITED.
[References to Bectioni. 9§ 1 to 499 in yoI. 1; residue in toI. 2.1
Giiittenden v. Society, 44.
Ghoat V. Bennett, 52.
Clioate V. People, 487.
Cboppin y. Bank, 660.
Chouteau v. Gibson, 527, 651.
V. Rice, 32, 225.
Chrisman v. Dlvinla, 261.
Clirismau*9 A(lm*x y. Harman, 624,
629.
Christal v. Kelly, 225.
Christensen's Estate, In re, 218.
Christian, Ex parte, 367.
V. O'Neal, 83, 224.
V. Yarborough, 16.
Christiansen, In re, 513.
V. Mendham, 671.
Christian & Craft Grocery Co. v. Cole-
man, 829, 835, 849.
Christie v. Bishop, 558, 956.
V. Insurance Co., 115, 509.
V. Secretan, 817.
Christmas v. Russell, 290, 857, 859,
8S4, 892, 917. 918, 973.
Christner v. Hochstetler, 55.
Christoflferson v. Pfennig, 269, 281.
Christy v. Sherman, 57, 376.
V. Waterworks, 660.
Chrysler v. Renois, 152.
Chudleigh v. Railroad Co., 557.
Church V. Chapin, 605, 615.
r. Cole. 958.
V. Grossman, 114.
V. Hubbart. 849.
V. Lacy, 341.
V. Leavenworth, 504, 623.
Churchill V. Holt, 574.
V. Morse, 420.
V. Warren, 1008.
Churchman y. Martin, 152.
Cincinnati. S. & C. R. Co. y. Sloan, 32.
y. Village of Belle Centre. 274.
Cincinnati, U. & F. W. R. Go. v.
Wynne. 829.
Cist y. Zeigler, 729.
Citizens' Bank y. Brlgham, 609.
V. Brooks, 127.
y. Miller, 538.
Citizens' Loan Ass'n y. Martin, 408.
Citizens' Trust & Surety Co. y. Good-
child, 309.
City and County of San Francisco y.
Burr, 213.
y. Le Roy, G18, 004,
City Bank of New Orleans y. Walden,
707.
City Block Dhrectory Co. y. App, 340.
City Building & Loan Aas'n y. Nickey,
482a.
City Council of Anderson y. Fowler,
527.
City Ins. Co. y. Bank, 872.
City Nat. Bank y. Swink, 483. 493.
City of Aurora y. West 683. 790.
City of Bath y. Palmer, 20.
City of Boston y. Robbing, 250.
y. Worthingtou, 574, 575.
City of Broken Bow y. Waterworks
Co., 366. 381.
City of Burrton y. Bank, 982.
City of Cairo y. Eyerett, 985c.
City of California v. Harlan, 160.
City of Carlyle y. Power Co., 538.
City of Cincinnati y. Emerson, 754.
y. Hafer, 468.
y. Hosea, 609.
City of Cohoes y. Morrison, 57ri.
City of Dayenport y. Railroad Co., 750.
City of Delphi y. Startzman, 274.
City of Detroit y. Ellis, 938.
y. Railroad Co., 232.
City of Duluth v. Dibblee, 313.
City of East St. Louis y. Canty, 968,
971.
y. U. S., 985a.
City of Elkhart y. Slmonton, 533.
City of Fostoria y. Fox. 218.
City of Galena y. Amy, 985b, 985f.
City of Goliad y. Welsiger, 358.
City of Guthrie y. Lumber Co., 89.
City of Hammond y. Eyans. 964, 966.
City of Helena y. U. S.. 246. 253a.
City of Houston y. Emery, 985d.
City of Johnstown y. Wade. 40.
City of Lancaster v. Frescoln. 754.
City of La Porte y. Organ, 115, 641.
707.
City of Little Rock v. Bullock, 306.
City of Los Angeles y. Baldwin, 743.
y. Melius, 708, 709.
City of Louisville y. Muldoon. 107.
City of Lowell y. Parker, 295, 588.
City of New Orleans y. Bank. 516,
534a, 582, 610, 617, 750.
y. Gaiithreaux, 179.
y. Peake. 32.
V. Warner, 87, 583a.
CASES
IRflferencM to secUons. IS l to
City of New Orleans v. Whitney, 200,
745.
City of Newport v. Com., 750.
City of New York v. Brady, 332, 574,
575.
T. CoDStantine, 735.
V. Smith, 325, 354.
City of North Muskegon v. Clark, 709,
718, 939a.
City of Oakland v. Water-Front Co.,
715.
City of f>gden v. Irrigation Co., 32.
City of Olney v. Harvey, 318, 985a.
City of Oskaloosa v. Piukerton, 575.
City of I'ana v. Humphreys, 86.
City of Parsons v. Lindsay, 182.
City of Peterson v. Baker, 506.
City of Philadelphia v. Dobson, 290.
▼. Railroad Co., 617.
T. Simon. 1016.
V. fc^tewart, 774.
T. Weaver, 351.
City of Portland v. Kicliardson, 575.
City of Providence v. Adams, 657.
City of Roodhouse v. Christian, 777.
City of St. Joseph v. Railroad Co., 575.
City of St. Louis v. Bissell, 567.
T. Gleason, 211.
T. Lang, 697.
V. Schuienburg & Boeekler, 650.
City of Sherman v. Langham, 9, 253a.
City of Spokane Falls v. Curry, 354.
City of Syracuse v. Reed, 183.
City of Texarkana v. Rodgers, 23.
City of Troy v. Railroad Co., 573.
City of Washington v. Calhoun, 96.
City of Wetumpka v. Wharf Co., 518.
City Savings Bank v. Whittle, 145.
Ciaason's Appeal, 450, 451.
Clabby v. Sheldon, 32.
Claflln V. Butterly, 208.
V. l>od8ou, 63.
V. Dunne, 200, 203.
V. Fletcher, 539.
V. Mcr>ermott, 862, 088b.
Claflin & Kimball v. Electric Co., 734.
Claggett V. Simes, 1, 108, 513, 692.
Claghom*8 Estate, In re, 54.
Clapp V. Bromagham, 660.
V. Ely, 72.
V. Graves, 223.
V. McCabe, 242.
V. Thomas. 699.
ciTBD. Ixvii
499 in vol. 1; residue in vol. 2.]
Clapp*s Ex'rs v. Branch, 505, 872.
Clare v. Clare, 177.
V. Raih*oad Co., 740.
Clarlday v. Reed, 509.
Ciark v. Baiiey, 293.
v. Bank, 687.
V. Barnard, 149.
V. Bettelhelm, 560, 651.
V. Blair, 624.
V. Boyreau, 652.
V. Bryau. 261, 270, 273, 282.
V. Butler, 447.
V. Butts, 446.
V. Carrington, 574.
V. Cliarles, 348.
v. Child, 882.
V. Clark, 155, 183, 926.
V. demeut, 992.
V. Com., 175.
V. Compton, 87.
V. Digges, 163. 951.
V. Douglass. 291, 294.
V. Duke, 451.
V. Dunnam, 47.
V. Dyer, 742.
V. Ewing, 339.
V. Finnell, 239.
V. Fitch. 32.
V. Flannery, 585.
V. Gallaher, 142.
V. Goodwin, 058, 978.
V. Irvin, 529.
V. Jones, 734.
V. Kern, 247.
V. Kingsland, 941.
V. Lamb, 135, 165.
V. Lanier, 743.
V. Lary. 154.
V. Lee, 378.
V. Little, 972.
V. Lyon, 341.
V. McComman, 286.
V. Mattress Co., 720.
V. Moss, 945.
V. yiunroe, 447.
V. Newman's Adm'x, 589.
V. Nordholt, 7JK).
V. Norman, 591.
V. Ogilvie, 916.
V. Ovharzabai. 324.
v. Parsons, 934.
V. People, 181.
V. Perdue, 577.
Ixviii CASES
[Referencea to aections. H 1 to
Clark V. Perry, 313.
V. Railroad Co.. 950.
V. Raymond, 32.
V. Rowling, 977.
V. Sayers, 381.
V. Story, 1000.
V. Thompson, 194.
V. Village of North Muskegon, 29.
V. Whitaker, 103.
V. Willet, 963.
V. Withers, 1007.
V. Wolf, 584.
V. Young, C9t5, 714.
Clarke, Appeal of, 536, 872.
Ex parte, 257.
V. Clarke, 872.
V. Dunham, 205.
V. Hogeman, 957.
V. Perry, 644.
V. Railroad Co., 308.
V. Witram, 354.
V. Yorke, 742.
Clark's Adm'r v. Stroud, 680.
Clark's Cove Guano Co. v. Steed, 304a.
Clarkson v. Beardsley, 958.
V. Manson, 144.
Clary v. Brick Co., 98.
Clawson v. Eichbaum, 450, 451.
Claxton V. Swift, 774.
Clay V. Clay, 892.
V. DeskJus, 938c.
V. Fry, 379, 389.
V. Ilildebrand, 123, 315.
V. Hoysradt, 989.
Clay County v. McAleer. 985f.
Clayton v. Gresham, 640.
V. West, 600.
Cleaton v. Chambllss, 787.
Cleavenger v. Felton, 420.
Cleaves v. Lord, 857, 8(M, 908,
Clegg V. Fithian, 326.
Cleiman v. Murphy, 996.
(^Iclnnd V. Trust Co.. 335.
Clemens V. Murphy, 623.
Clement v. Field, 763.
Clements v. BeiTy, 28.
V. Collins, 571.
V. Davis. 606.
V. Gerow, 63.
Clemmer v. Cooper, 859.
Clemons v. demons' Estate, 971.
v. Heelan, 183.
Clester v. Gibson, 39.
CITED.
499 in vol. 1; residue in vol. 2.]
Cleveland y. Cbambliss, 599.
V. City of Bangor, 777.
y. Heidenheimer, 539.
y. McCanna, 1000.
y. Rogers, 966.
y. Shannon, 446.
y. Spencer, 543, 600.
aeveland, C, C. & St. L. R. Co. y.
Jenkins, 97.
y. Nuttall, 742, 743.
Cleveland Co-Op. Stove Co. y. Grimes,
140. ^
Cleveland I^eader Printing Co. v.
Green, 132.
Clews V. Lee County, 253a, 985b.
Click V. Gillespie, 375.
Clifford v. Gruelle. 340a.
Clifton v. Livor, 388.
Clinch Valley Coal Co. y. Tonkin, 906.
Clink V. Thurston, 784.
Clinton V. City of PorUand, 247.
Clinton Bank v. Hart, 770, 774, 775.
Clippinger v. Miller, 492.
Clodfelter y. Hulett, 683.
Clopton v. Carloss, 367.
v^ Herring, 24.
Close v. Close. 411.
y. Gillespey, 156.
y. Hancock, 79a.
Cloud v. Inhabitants, 81.
V. Wiley, 510, 685.
Clough v. Brown, 299.
Clowes y. Dickenson, 440.
Cluff V. Insurance Co., 529.
Clune V. Qultzow, 81.
Clute y. Emmerich, 213, 406.
v. Potter, 378.
Coad y. Cowhick, 443.
Coates V. Blush, 320a.
v. Roberts, 593, 597.
Coats V. Barrett, 115, 144.
Coats worth v. Ray, 144.
Cobb y. Arnold, 062.
v. Fogg, 618.
V. Gamer, 250.
Cobbey v. Wright. 376.
Coburn v. Currens, 593.
V. Palmer, 978, 1012.
Cochran v. Couper, 722.
V. Eldridge, 350, 356.
V. Loring, 245.
V. Miller, 44.
V. Thomas, 272.
CASES
[References to sectlom. SS 1 to
Cochrane v. Pnrker, 205, 513.
Cocke V. Jenner, 778.
CockerUl y. Stafford, 620.
Cocke's Adm'r v. GUpin, 42, 47.
Cockey v. Milne's Lessee, 444, eOO.
Cockley v. Rehr, 282.
C^udde T. Mahiat, 51&
Codding, In re, 431.
V. Wood, 497.
Coddrington v. Webb, 372.
Codwise t. Field, 987.
Y. Gelston, 423.
Cody V. Cody, 290.
T. Hough, 246.
Cue, In re, 37.
V. Aiken, 370.
V. Erb, 122.
T. llallam. 449.
V. Hamilton, 206.
T. Bitter, 585.
Coffee V. Ball, 378.
T. Hayues, 187.
V. Neely, 916.
T. Tevis, 995.
Coffey V. Carter, 345a.
V. Coal Co.. 329.
V. U. S., 529.
Coffin T. Bell, 200.
T. Cottle, 174.
T. Freeman, 260.
V. Heath, 197.
V. Hill, 151.
▼. Knott, 707.
T. McCullough*s Adm'r, 367, 641.
Coffinberry v. Horrill, 177.
Coffman t. Brown, 144, 700.
Coger T. Coger, 220.
Ooggtns V. Balwlnkle, 745.
C6h T. Bright, 119.
Cobee t. Baer, 265.
Coben t. Burgess, 70.
T. Camp, 1016.
T. Dubose, 367.
Colt T. Beard, 703.
T. Haven. 270, 271, 278, 900, 901.
T. Tracy, 604.
Coltbe T. Crane, 44.
Colbum T. Pomeroy, 567.
V. Woodworth, 681.
Colby Y. Parker, 680.
Colcben y. NInde, 97.
Colclongh Y. Hhodus, 976.
Coldinn y. Shoe Co., 421.
CITED.
499 in Yol. 1; residue in vol. 2.1
Cole V. Adams, 583.
V. Brewer, 957.
Y. Butler, 224, 263.
V. Conolly, 513.
Y. Cunningham, 862, 897.
Y. FaYorite, 549, 729.
V. Fllteraft, 865.
Y. Grigsby, 81.
Y. Hundley, 383.
Y. Mitchell, 958.
Y. Robertson, 1009.
Coleman y. Dalton, 707.
Y. Davis, 549.
Y. EXiwards, 491.
Y. Floyd, 90, 328.
Y. Henderson, 182.
Y. McAnulty, 200, ai6.
Y. McKnlght, 270.
V. McMurdo, 562.
Y. Reel, 117.
Y. Waters, 53, 868.
Coleman's Appeal, 230, 628.
Colenburg y. Venter, 490.
Coler Y. Com'rs, 583a.
Coles Y. Carter, 785.
Colhoun Y. Snider, 432.
Collais Y. McLeod, 981.
CoUard y. Railroad Co., 779.
College Street, In re, 307.
Collier Y. Cunningham, 732, 744.
Y. Easton, 378.
Y. ^itzpatrlck, 340a.
Y. Jenks, 16.
CoUlDgwood Y. Carson, 482a.
Y. Irwhi, 667, 671.
Collins Y. Baker, 669.
Y. Bennett, 729, 764.
Y. Brook, 986.
Y. Butler, 362.
Y. Freas, 350.
Y. Goldsmith, 649, 665.
Y. Hydron, 636, 586.
Y. Hyslop, 116.
Y. Jennings, 509.
Y. Kammann, 286.
Y. Knight, 199, 201, 211.
Y. Lee, 389.
Y. Lemasters, 770.
Y. Lofftus, 586.
Y. Mitchell, 200.
V. Prentice, 127, 128.
Y. Scott, 369.
Colman y. Watson, 169.
Ixiz
CASES CITED.
[References to sectionB. SS 1 to 499 in yol. 1; residue in vol. 2.]
Colorado Central Consolidated Mln.
Co. V. Tnrck, 142.
Colorado Coal & Iron Co. v. U. S., 530.
Colorado Eastern 11. Co. v. Railroad
Co., 21, 27.
Colquitt V. Bonner, 1000, 1004.
Colson V. Kennedy, 458.
Colson'8 Ex'rs v. \Vade*s Ex*rs, 199.
Colt V. Colt, 2G5, 536.
V. Du Bois, 420, 432, 441.
Colton V. Onderdonk, 536.
V. Koss, 141.
V. Rupert, 232.
V. Smith, 660.
Colton Land & Water Co. v. Swartz,
124.
Columb V. Mfg. Co., 731.
Columbia Real Estate Co., In re, 248,
320a.
Columbus Mut Life Ass*n v. Plum-
mer, 347.
Colusa Co. V. De Jamett, 532.
Colvln V. Reed, 928.
Cohvell V. Bleakley, 616.
V. Rockwell, 493.
V. Wehrly, 319.
Colyer v. Langford's Adm*r, 386.
Combs V. Bentley, 346a.
V. Breathitt County, 89.
V. Oil Co., 376, 393.
Comegys v. Vasse, 530, 943.
Commercial Assurance Co. v.» Insur-
ance Co., 573.
Commercial Bank v. Banking Co., 415.
V. Kendall, 490.
V. Sherwood. 511.
V. Yazoo Co., 459.
Commercial Union Assur. Co. v. Ever-
hart's Adm'r, 90.
Commissioners of Brown County v.
Butt 574. •
Commissioners of Lake County y.
Piatt, 261.
Commonwealth v. Adkins, 407.
V. Baldwin, 461.
V. Blatt, 32.
V. Blood, 875, 924.
V. Bollch, 901.
V. Burnett, 950, 953.
V. Cochran, 536.
V. Com'rs, 216.
V. Comrey, 508.
V. Ebert, 92Z
Commonwealth t. Feldman, 529.
V. Gleim, 468.
V. Goddard, 707.
V. Gracey, 644.
y. Green, 856, 857.
▼. Horton, 529.
V. Hultz, 167.
v. Keeper of Jail, 255.
V. Kirkbride, 894.
V. Krause, 86.
V. McCleary, 28.
V. Mateer, 491.
V. Order of Solon, 613.
V. Patterson, 644.
V. Pease, 985a.
V. Rhodes, 590.
V. Smith, 589.
V. Steacy, 246.
^ V. Sutherland, 617.
Commonwealth Mut. Fire Ins. Co. t.
Hayden, 857.
Compton Y. Jesup, 545, 938c.
Comstock, In re, 298.
V. Clemens, 377.
V. Crawford, 250, 287.
V. Davis, 13.
v. Holbrook, 482a, 487.
Conable v. Bucklln, 1000.
Conant v. Jones, 541, 613.
V. Van Schaick, 583.
Conard v. Insurance Co., 400, 415, 448.
Condon v. Railroad Co., 721.
Cone V. Cotton, 270.
V. Hooper, 857. 912.
Coney v. Harney, 548.
Conger v. Chllcote, 539.
Conkliu V. Furman, 583.
V. Railroad Co., 153.
Conkling v. Ridgely, 179.
Conley v. Buck, 462.
V. Chapman, 913.
Conlin V. Iron Co., 141.
Conn V. Bernheimer, 715.
Connay v. Halstead, 74.
Connecticut Mut. Life Ins. Co. v.
Jones, 674.
V. Smith, 707.
Connecticut Nat. Bank v. Bayles, 985.
Connell v. Brumback, 23.
V. Galllgher, 325, 600.
V. Stelson, 362, 377.
Connelly v. Arnold, ,^>26.
V. Connelly, 822.
CASBS
[References to Mctlona. H 1 to
t'oiiner y. Noff, 483.
y. Pennington, 975.
Connltt y. Reformed Gburcb, 523.
Connolly y. Connolly, 633.
y. Edgerton, 185.
<\mnoly y. Railroad, 93.
Connor y. Corson, 707.
Conn*8 Liessee y. Whiteside, 321.
Conord y. Runnels, 33.
Conrad y. Baldwin, 277.
y. Eyerlcb, 407.
Consolidated Canal Co. y. Peters, 100.
ConsoUdated Coal Co. y. Oeltjen, 327.
Consolidated Hand-Method Lasting
Mach. Co. y. Bradley, 509, 574.
Consolidated Roller MUl Co. y. Smith
Co., 7513.
Consolidatc'd Wyoming Gold Min. Co.
V. Mining Co., 938c, 93Ua.
Contee y. Cooke, 357.
Conyerse y. Colton, 621.
y. I>airy Co.. 398.
y. Davis, 541.
v. I^ngshaw, 157.
V. Sickles, 717.
Conway y. Ellison, 889, 916.
y. Halstead, 74.
y. Town of Jefferson, 101.
Conwell y. Hartsell, 006.
Coogan, In re, 297.
Cook y. Allen, 546, 661.
V. Brown, 909.
V. Cattle Co., 754.
V. Cook. 928. 932.
y. Cooi)er, 74.
y. Darling, 273.
y. Dillon, 4^4.
V. Doremus, 719.
V. Field, 5f«. 785.
y. Jones, 493.
y. Lasher, 549.
y. Litchfield, 865.
y. Mci'ahill. 953.
V. Moore, 985.
y. Mo8«ley, 768.
y. Parham. 551.
y. Phillips, ;M7.
y. Rice, 510.
y. Rogers, 198.
y. Thomhill, 857.
y. Thurston, 958.
y. Town of Monis, 293, 600.
y. Vimont. 747, 785.
CITED. Ixxi
499 in YOl. 1; residue in vol. 2.]
Cook y. Whipple, 65, 71.
y. Wood, 154, 164, 306.
Cooke y. Avery, 406.
v. Burnham, 358.
y. Cook, 747.
y. Crawford, 13.
y. Sholl, 529, 800.
y. Smith, 1002.
Cooksey y. Railroad Co., 674.
Cook's Heirs v. Bay, 41, 42.
Coolbaugh v. Roemer, 68, 438.
Cooley y. Beach Co., 89, 305.
y. Brayton, 787.
y. Gregory, 332.
y. Land & Imp. Co.'s Assignee,
337.
y. Smith, 262.
Coombs V. Jordan, 308, 420, 439, 445.
Coon V. Jones, 376, 377.
Cooper y. Borough of Kingston, 352.
y. City of Brooklyn, 747.
V. Cooper, 122, 153.
V. Cutshall, 439.
V. Dlsbrow, 326.
y. Duncan, 290, 326, 335, 644.
y. Hayes, 872.
y. Hunchin, 189.
y. Insurance Co., 177.
y. Mayfield, 273.
y. Metzger, 1.
V. Newell, JK».
y. Reynolds, 216, 227, 229, 240,
801, 004, 906.
y. Sunderland, 270, 274, 279, 282,
287.
y. Tyler, 373.
Co-operative Savings & I>oan Ass*n v.
Mcintosh, 281.
Coos Bay, H. & E. R. & Nay. Co. v.
Endlcott, 335.
Cope V. Humphreys, 992.
Copenhaver, In re. 985b, 985e.
V. Stewart, 938.
Copeland v. Todd, 958.
Cope's Appeal, 472.
Copin v. Adamsou, 8.*]6.
Corbet v. Barnes, 778.
v. Evans, 749.
Corbett, In re, 256.
V. Wood, 5;i0.
Corbin v. Adams, 52().
y. Land Co., 360.
y. Westcott, 590.
Ixxii
CASES
CReferences to sections. 8§ 1 to
CJorbltt V. Timmerman, 272.
Oorbley v. Wilson, 529, 606.
Corby V. Taylor, 744.
Corcoran v. Canal Oo., 599.
V. Chesapeake Co., 536.
V. Doll, 984.
Cordler v. Schloss, 63, 68.
Cordray v. City of Galveston, 73.
0>rey v. Gale, 758.
V. Morrill, 245.
V. Elpley, 248, 320a.
V. White, 995.
Corley v. Anderson, 284.
V. McKeag, 367.
V. Renz, 453.
Cornelius v. Burford, 1008.
V. Thomas, 388.
Cornell v. Bai'nes, 9G5, 96a
V. Green, 536.
V. Hartley, 723.
Cornells v. Shannon, 939c.
<:ornell University v. Hotel Co., 86.
V. Parkinson, 153.
Corprew v. Corprew, 638a.
Corrigan v. Bell, 190.
Corry v. Lackey, 803.
Cors v. Tompkins, 32.
Corse V. Chapman, 643.
Cortez V. Court, 482.
Corthell v. Mead, 107.
Corwin V. Bensley, 316.
Corwin*s Lessee v. Benham, 414.
Corwith V. Bank, 718.
Corwlthe v. Griffing, 368.
Coryell, Matter of, 259.
Cosby V. Powers, 271.
Cosgrove v. Butler, 326.
V. U. S.. 317.
Coskery v. Wood, 89(>.
Cossitt V. Biscoe, 641.
Coster V. Griswold, 360.
Coster's Ex'rs v. Bank, 445.
Cottam V. Currie, 32.
Gotten V. McGehee, 130, 306.
Cotterell v. Koon, 291.
Cottingham v. Weeks, 529.
Cottle, In re, 174.
V. Cole, 973.
Cotton V. Bank, 461.
V. Jones, 659.
Cottrell V. Pierson, 448.
Cottreirs Appeal, 996.
Cotzhausen v. Kerting, 372.
CITED.
499 in vol. 1; residue in vol. 2.]
Couch V. Heffron, 307.
Ooughanour v. Bloodgood, 1.
Coughran v. Gilman, 896, 939b.
V. Gutcheus, 135, 154, 105
CougiU V. Insurance Co., 867
Coulter V. Davis, 617, 631.
V. Lumpkin, 407.
Council V. Willis, 330.
Council Bluffs L. & T. Co. v. Jennings,
302.
Council Bluffs Sav. Bank v. Griswold,
211.
Oountz V. Markling, 56.
Courier-Journal Job Printing Co. v.
Insurance Co., 609.
Oourson v. Walker, 447.
Court, In re, 320a.
Courtnay v. Parker, 438.
Court of Probate v. Sprague. 98.
Coutts V. Walker, 437, 441.
Covenant Mut Life Ins. Co. v. Clov-
er, 211.
Cover V. Black, 400.
Covert V. City of Brooklyn, 742.
Covey V. Wheeler, 317.
Covhigton V. bhamblin, 368, 633.
V. Ingram, 246.
Covington & C. Bridge Co. v. Sargent,
729, 754.
Covington & G. Elevated Railroad &
Transfer & Bridge Co. v. Klelmeler,
738.
Cowan V. Anderson, 197.
V. Braidwood, 838.
V. Price, 378.
V. Wheeler, 518.
Cowardin v. Anderson, 447.
Cowin V. Toole, 368.
Cowles V. Cowles, 84, 89, 340.
V. Hayes, 311, 326, 334.
Cowley V. Railroad Co., 362.
Cox V. Allen, 691.
V. Armstrong, 340a.
V. Barnes, 917.
V, Brackett, 306.
V. Capron, 86.
V. Cox, 320, 929, 9:33.
V. Davis, 261.
V. Hartranft, 671.
V. Jagger, 667.
V. Jerman, 371.
V. Mitchell, 847.
V. Moss, 103.
CASES CITED.
IReferencM to sections. SS 1 to 499 In toL 1; residue in toI. 2.]
Ixxiii
Cox ▼. Palmer, $>I0, 956w
Y. Bailroad Ck>., 886.
T. Ratdiffe, Id.
Y. Reed, 1009.
Y. Smith, 996.
V. Story, 194, 197.
▼. Strode, 567, 571.
Y. Thomas' Adm'x, 606.
▼. Von Ahlefeldt, 861.
Cox*8 Adm'rs y. Uill, 599.
Coy, Ex parte, 259.
Y. Lyons City, 985f.
Coyle Y. Ward, 751.
Coyne t. Souther, 113.
Crabb y. Larkin, 555.
Crabtree y. Green, 526.
Y. WeUea, 714, 764.
Craddock v. Croghan, 1.
Y. Tomer's Adm'x, 589.
Craft Y. Merrill, 991. 995.
Crafts Y. Dexter, 376. 377.
Cragin y. Carleton, 008.
Craiff Y. Alcorn, 110.
Y. Brown, 878.
▼. Glass, 50.
Y. Herring, 587.
Y. InYestment Co., 340.
Y. Major, 340.
Y. Smith, 354.
Y. Ward, 550.
Y. Watson, 656.
Y. Wroth, 326.
Craighead y. Dalton, 666.
Y. Wilson, 44.
Craine y. Bdwards, 636.
Crake y. Crake, 967.
Cralle y. Cralle, 154.
Cramer y. Mfg. Co., 540.
Y. Moore, 518, 720.
Crandall, Ex parte, 258.
Y. Bacon, 180, 361, 377.
Y. Gallup, 561, 612, 790.
Crane y. Barry, 318.
Y. Crane, 86, 156, 875.
Y. French, 57, 211.
Y. Knauf, 16.
Y. O'Connor, 429.
V. Penny. 400.
Y. Richardson, 472.
Crank y. Flowers, 211, 271, 368.
Cranor y. School Dist, 980.
Crapo Y. Township, 530.
CraYen y. Railroad Co., 319.
CraYens y. Duncan, 945.
Y. Jameson, 607.
Craver y. Christian, 703.
Crawford, In re, 977.
Y. Bank, 1009.
Y. Bergen, 529.
Y. Cheney, 299.
Y. Howard, 282.
Y. McDonald, 250, 252.
Y. Pyle, 592.
Y. Simonton's Ex'rs, 754, 857, 889,
971, 981.
Y. Summers, 099.
Y. Thomson, 206.
Y. Wilcox, 213.
Y. Word, 68a
Crawford's Adm'r y. Glass' Bx'rs, 700.
Crawford's Ex'rs y. Ellison, 975.
Crawley v. Isaacs, 840.
Cray v. Wright, 600.
Creager y. Walker, 687.
Creath v. Sims, 379.
V. Smith, 197.
Crebbin v. Bryce, 620.
Crecelius v. Bierman, 954.
Credit Foncier of America v. Rogers.
271.
Credits Conunutation Co. y. XJ. S., 35.
Creed y. Scruggs, 394.
Creigh v. Hedrick, 120.
Creighton y. Keith, 685.
V. Leeds, 400.
V. Murphy, 857.
Crenshaw v. Julian, 55.
Crescent Brewing Co. y. Gullins, 321.
Crescent Canal Co. y. Montgomery,
' 77, 347.
Crescent City LiYe-Stock Landing &
Slaughter-House Co. y. Butchers*
Union, 938.
Cressey y. Kimmel, 555.
Cresswell y. White, 343, 349.
Creswell y. Slack, 963.
Orews Y. Cleghorn, 703, 721.
Y. Lackland, 208.
Crim Y. England, 589.
V. Haiidley. 375, 383, 388.
Y. Kessing, 109.
Crippen y. Dexter, 633.
Crisman y. Beasley, 384.
Critchfleld Y. Porter, 325, 362, 374.
Critten v. Vredenburgh, 63.
Crittenden, Ex parte, 44.
I
IXXiv CASES
[References to sections. H 1 to
CroasdeU y. Tallant, 210.
Crocker v. Allen, 362, 365.
V. Balch, 279.
V. Clements' Adm'r, 983.
Crockett v. Doriot, 191.
V. Drew, 193.
y. Lasbbrook, 650, 652b
V. Parkison, 280.
V. Routon, 726.
Croft V. Steele, 620, 621.
Crofut V. Aldrich, 69.
Crogban v. Livingston, 661.
Cromer v. Boinest, 176.
Crompton & Knowles Loom Works v.
Brown, 750.
Cromwell v. Sac Co., 506, 509. 610.
614, 673, 697, 731, 750, 751, 754.
Crook V. Hamlin, 326.
V. Tull, 982.
Croom V. Winston, 214.
Croop V. Dodson, 349.
Cropper's Case, 256.
Cropsey v. Crandall, 413, 415.
Crosby v. Baker, 716.
V. Jeroloman, 770.
V. Lang, 293.
V. Wood, 1017.
Crosley v. Calboon. 633.
V. Hutton, 203.
Cross V. Armstrong, 792, 903.
V. Birch, o47.
V. Moffat, Ola, 69.
V. Zane, 1010.
Crossman v. Davis, 706.
Crotbers v. Rcss' Distributees, 306.
Crouch V. Crouch, 320.
V. Grldley, 943.
V. Ha nee, 99.
Croudson v. Leonard, 797, 814, 815.
Crouse v. Derbyshire, 50.
V. Holman, 747.
v. Johnson, 67.
V. Murphy. 406.
V. Reichert, 83.
Crouse's Appeal, 438.
Crow V. Mortgage Co., 326.
Crown Coal & Tow Co. v. Mining Co.,
97.
Cruger v. Douglas, 44.
V. Sullivan, 981.
Cruikshank v. Cruikshank, 297.
V. Gardner, 211.
V. Insurance Co., 16.
CITED.
499 in vol. 1; residue in vol. 2.]
Crum V. Rea, 790.
Crumlish's Adm'r v. Improvement Co.»
897.
v. Railroad Co., 786.
Criunpton v. State, 707.
Cruse V. Cunningham, 345.
Crutcher v. Com., 169.
Crutchfleld v. Robins, 987.
V. State, 513.
Cryer v. Andrews, 646.
Cucullu V. Insurance Co., 814, 815, 821.
Culbreth v. Smith, 153.
Cullum V. Casey, 376.
Culver V. Brlnkerhoff, 324, 348.
V. Leovy, 179.
V. Rogers, 411.
Cumberland Coal & Iron Co. v. Jef-
fries, 522.
Cumberland Co. v. Boyd, 250.
Cumming v. Eden's Devisees & Terre-
Tenants, 487.
Cummings v. Banks, 828, 829.
V. Colgrove, 629.
V. Cummings, 633.
V. Harrison, 567, 569.
V. O'Brien, 896.
V. Powell, 530.
V. Ross, 326.
Cummings' Api)eal, 431.
Cummins v. White, 369.
Cummin's Appeal, 1008.
Cundlff V. Trimble, 958.
Cunningham v. Ashley, 560.
V. Brown, 296.
V. Butler, 862.
V. City of Cleveland, 719.
V. Dixon, 236.
V. Foster, 628.
V. Harris, 549.
V. Hatch, 354.
V. Holt, 510, 685.
V. Hydraulic Co., 877. 910.
V. Mining Co., 156. 877.
V. Morris, 652, 738.
V. Schley, 15, 700.
V. Smith's Adm*r, 040.
V. Squires, 283.
Cupisino V. Perez, 521.
Cureton v, Shelton, 589.
V. Stokes, 80.
Curran v. Kerchner, 79.
Currle v. Chowning, 504.
v. Franklin, 250.
CASES
[References to sections. tS 1 to
Curry v. Janicke, 324.
Y. Mack, 586.
▼. Bonndtree, 82, 8&
Curds ▼. Ballagh, 341.
V. Bradley, 538.
Y. Bnrdick, 100.
Y. Donnell, 085.
V. Fox, 72.
T. Gooding, 677.
y. Hawn, 483.
V. Hubbell, 878.
V. Root, 432, 447, 473, 1008.
r. SI088OD, 350.
rurtiss Y. Beardsley, 960.
Curts V. Trustees, 722.
Cuahlng v. Edwards, 540.
Custer V. Detterer, 482a. 409.
Y. Russey, 508.
Cutler Y. Button, 312.
Y. Cox, 729.
V. ( Humberts. 36.
V. Huston, 285.
Cutter V. Butler, 635.
V. KYans, 587.
l^yphert y. McClune, 315.
Cyrus V. Hicks, 358.
r. & C. Electric Motor Co. y. Lewis,
45.
l>abbs Y. Dabbs, 49.
Dabney y. Manning, 660.
Da by v. Ericsson, 994.
Daggett V. Daggett, 671.
Y. Robins, 671.
Dail y. Freeman, 400.
Daily's Adm*r y. Reid, 197.
I>alngerfleld y. Smitli. r)<:o.
Daisy Roller Mills y. Ward, 482.
Dakin y. Hudson. 96(;.
Dalby y. Cronkhlte, 481.
Dale y. Bugh, 347.
V. Doddrldg?, 663.
Dalgleisb y. Hodgson, 816.
Dalhoff y. Keenau, 362.
DflUinger y. Richardson, GliS.
l>a]rymple y. Gamble, 922.
DaltoD y. Bowker, 567.
V. Libby, 177.
Daly y. Pennie, 363.
y. Thomiison, 348.
Dame y. Wingate, 78i.
CITED. IXXV
489 in yol. 1; residue In yol. 2.]
Damm y. Mason, 551.
Damouth v. Klock, 39, 44.
Damp Y. Town of Dane, 217.
Damport v. {Sj'uipgon, 296.
Damix»n v. Ferguson, 33.
V. Smith. 439.
Dana v. GUI, 699.
Dancy v. Martin, 55.
Dandridge v. Harris, 370.
Dane v. Gilmore, 295, 588.
Danfortb y. Morrlcal, 530.
V. Thompson, 935.
Daniel v. Cooper, 28.
V. Gibson, 982.
V. Gum, 536, 613, 734.
y. Haynes, 462.
Daniels v. Benedict, 291.
y. Daniels, 21, 31a.
y. Heidenreich, 744.
Y. Hendei'son, 550.
y. McGinnis, 159.
y. Southai-d, 297.
Danielson v. Fuel Co., 21, 110.
Danziger y. Williams, 7ol.
Darcy y. Kelley, 612.
D'Arcy y. Ketchum, 227, 897, 906.
Darragh v. Bigger, 77.
Darrah's Ex*rs y. Bayard, 1004.
V. Watson, 229.
Darrlngton y. Borland, 560.
Darrow y. Calkins, 560.
V. Darrow, 1016.
Dart V. Hercules, 86.
Dartmouth Say. Bank y. Bates, 415.
Dauberman v. Huln, 2(11.
Dauchy v. Goodrich, 687.
Daugherty y. Steel Co., 21.
Dayenport y. Bamett, 543.
y. Bufflngton, 622.
V. Dodge County, «85c.
y. Hubbard, 761, 767.
y. KIrkland. 1(50.
Y. Moore, 207a, 360.
V. Mulr, 567. 568.
y. Wright, 54, 73.
Dayenport Mills Co. y. Chambers, 57.
Dayey's Estate, In re, 490.
Dayld y. Porter, 867.
Dayid Bradley Mfg. Co. y. Manufac-
turing Co., 509, 731, 787, 791.
Dayidson v. Alexander, 63.
y. Bond, 20(J.
y. Burke, 468.
IXXVi CASES
[References to sectlone. SS 1 to
Davidson v. City of New Orleans, 615.
V. Frew, 454.
V. Gaston, 1006.
V. Geoghugau, 1000.
V. Hunter, 486.
V. Ivnox, 237.
V. ^klyers, 406.
V. Nebraker, 958.
V. Root, 417.
V. Sharpe, 860, 906.
V. Sbipman, 617.
V. Thornton, 261, 493, 496.
V. Weed, 759.
Davie V. Davis, 694, 724.
V. McDaniel, 633, 642.
Davies v. Coryell, 200, 306.
V. Davies, 127.
V. Lowndes, 607.
V. Thomson, 24.
Daviess County Court v. Howard, 154.
Davis, EIx parte, 257.
V. Aikin, 761.
V. Banlc, 192.
V. Barker, 130.
V. Bass, 362.
V. Beall, 462.
V. Beason, 255.
V. Benton, 432. 460.
V. Blevins, 635.
V. Bowker, 1017.
V. Bums, 938b.
V. Burt, 324.
V. Canal Co., 449.
V. Caswell, 780.
V. Clements, 367, 393.
V. Commonwealth, 927.
V. Connelly's Ex'r, 896.
V. Comue, 360.
V. Davis, 39, 145, 227, 291, 312,
358, 536, 924, 958, 9^.
v. D. M. Osbom & Co., 253.
V. Fasig, 32.
V. Field, 152.
V. Fields, 329.
V. Fish, 182.
V. Foy, 190.
V. Hamilton, 275.
V. Harper, 402.
V. Havard, 667.
V. Headley, 860, 872, 919.
V. Hedges, 761, 768.
V. Hoopes, 1000.
CITED.
499 in vol. 1; residue In vol. 2.]
Davis V. Jordan, 83.
V. Lane, 874, 884.
V. Lennen, 664.
V. McCary, 118.
V. Mason, 152.
V. Milburn, 735, 954.
V. Mlllaudon, 37L
V. Morris, 63.
V. Morris' Ex'rs, 864.
V. Morton, 989a.
V. Murphy, 758.
V. Packard, 275.
V. Packer, 53.
V. Roberts, 308.
V. Schaffner, 624.
V. School Tp., 324, 34a
V. Sexton, 629.
V. Shaver, 135.
V. Smith, 574. 897, 9ia
V. Solomon, ^7.
V. Steeps, 406.
V. Talcott, 623.
V. Tallcot, 768.
V. Taylor, 207.
V. Tlleston, 384.
V. Trump, 031, 681.
V. Vass. 439.
V. Village of Menasha, 298.
V. Wade, 261, 307.
V. Weibbold, 530.
V. Wilboume, 569.
V. Wimberly, 91.
V. Wood, 806.
Davis' Case, 259.
Davis' Estate, In re, 34, 340.
Davison, In re, 256, 524.
v. Brown, 181.
V. Harmon, 770.
V. Heffron, 341.
Davisson v. Mackay, 458.
Davis & Rankin Bldg. & Mfg. 06. v.
Creamery Co., 23.
Davoue v. Fanning, 260.
Dawes v. Shed, 589.
Dawley v. Brown, 655, 726.
Dawson v. Baum, 753.
V. Cunning, 412.
V. Daniel, 960.
V, Hardy, 204.
V. McCarty, 446.
V. Parham, 655.
V. Schloss, 207.
V. AVisner, 153*
CASES CITED.
[Reference* to seotionB. 18 1 to 499 in toI. 1; residue in yoI. 2.]
Ixxvii
Day T. Bank, 261.
V. Crosby, 968, 993.
V. l)e Jonge, 510.
V. Goodwin, 130, 346.
y, Hamburgh, 300.
V. Hill. 774.
V. Holland, 510.
T. Mertlock, 83, 86, 347, 692.
V. Patterson, 440.
V. Porter, 778.
V. Printing Co., 155.
V. Rubber Co., 534.
V. Vallette, 629.
V. Willy, 492.
V. Woolen Co., 138.
Dayton v. Mlntzer, 284, 633.
Dazey v. Pennington, 240, 307.
Deadrick y. Harrington, 115.
Deadwyler v. Bank, 23.
De Agrcda y. Mantel, 127.
Dean y. Blount, 147.
V. Chapin, 799.
Y. BidsAvay, 716.
Y. Stone, 876.
Y. Thatcher, 67, 78, 698.
Deane y. Ix)uek8, 346a«
Dear y. Reed, 724.
Hearing y. Bank, 906.
Y. Shepherd, 985a.
I>e Armond y. Adams, 293, 295.
DeaYer y. Erwln, 378.
Y. JcMies, 319.
Debbs Y. Dalton, 260.
De Brimont y. Penniman, 841.
Debs Y. Dalton, 81.
De Camp v. Bates, 313.
Y. Miller, 685.
Y. Thompson. 1006.
Y. Thomson, 1005.
De Cnfftro y. Richardson, 153. 154, 165.
De Caters y. Le Ray De Chaumont,
156.
Decatur Gaslight & Coke Co. y. How-
ell. 743.
Decatur T^nd Co. y. Cook, 45.
Decatur &. X. Imp. Co. v. Crass, 90.
De Chambrun y. Campbell, 938c.
De Chanbmn y. Schermerborn, 938c.
De Chastellux y. Fairchild, 298.
Deck Y. Deck, 822.
Y. Gerke, («44.
Y. Johnson. 548.
D.^ckard y. State, 256.
Decker v. Decker, 754.
Y. Gilbert, 469.
Y. Graves, 337.
Deck's Estate v. Gherke, 216, 641.
De Cosse Brissac v. Ratbbone, 827.
Deegan v. Deegan, 252, 272, 590.
Deem y. Grume, 971.
De Ende v. Wilkinson's Adm*r, 857.
Deering y. Poston, 972.
Deerlng Harvester Co. v. Donovan, 330.
De Figanlere v. Young, 1005.
De Ford v. Green, 494.
De Forest v. Andrews, 082.
v. Thompson. 297a.
Degelos v. Woolfolk, 534.
De Graaf v. Wycoflf, 764.
De Graf v. Navigation Co., 26.
De Graw v. Elmore, 183.
De Haven v. Covalt, 367.
De Hymel v. Mortgage Co., 159.
Deickhart v. Rutgers, 25.
Deldrich v. Nachtsheim, 961.
Deisber v. Gehre, 663.
De La Guerra v. Xewhall, 741,
Deland v. Hlett, 089.
Delaney, Ex parte, 257.
De Laney v. Blizzard, 100.
Delaney v. Brown, 373.
V. Reade, 513, 693.
Delano V. Jacoby, 543.
V. Jopling, 857, 912.
Delap V. Hunter, 23.
De Lashmutt v. Sellwood, 600.
De La Vergne v. Evertson, 477, 956.
Delaware v. Ensign, 63.
Delaware, L. & W. R. Co. v. Brecken-
ridge, 650.
De Leon's Estate, In re, 554.
Delk V. Yelton, 510.
Deloach v. Myrick, 1006.
De I>ouIs V. Meek, 369, 373, 374.
Delta Building & Loan Ass'n y. Mc-
Clune, 1016.
De Marco v. Mass, 341.
Demens v. Poyntz, 3.
Demerit v. Lyford, 372, 973.
V. Mills, 99.
Demlng v. Storage Co., 219.
Dempsey v. Bush, 996.
v. Insurance Co., 815.
V. Oswego Tp., 402.
V. Schawacker, 605.
Ixzviii CASES
DUfbrenceB to lectionft. SS 1 to
Dempster Mill Mfg. Co. v. Fltzwater,
206.
Den V. Tomlln, 128.
Den d. Bray v. McSbane, 652.
Denegre v. Haun, 482a, 498.
Dengler v. Kiebner, 402.
Denlke t. Deuike, 599, 609.
Denison v. Lewis, 138.
V. Williams, 958.
Dennett v. Cliick, 771.
Denney v. State, 534a.
Dennie v. Smith, 588.
Denning y. Corwin, 279.
Dennison v. Chapman, 352.
V. Hyde, 504, 600, 901, 93a
V. Leech, 138.
V. U. S., 609, 617.
Denny v. Eddy, 993.
V. Mattoon. 218.
V. Reynolds, 671.
Denslow v. Bush, 29.
Densmore v. Tomer, 548.
Dent V. Ashley, 563.
V. King, 599.
Denton v. Baker, 359.
T. Bank, 313.
V. Denton, 320.
V. Noyes, 32r>.
Denver City Irrigation & Water Co.
V. Middaugh, 743.
Denver Consol. Tramway Co. v. Riley,
740.
Denver & R. G. R. Co. v. lies, 699.
Denvrey v. Fox, 1008.
Depriest v. Patterson, 338.
Deputy V. Tobias, 357, 385.
Depuy's Estate, In re, 174.
Dequlndre v. Williams, 274.
Derby, In re, 320a.
V. Jacques, 87, 697, 699, 705.
v. Yale, 783.
De Riemer v. Cantillon. 77, 367.
Dermott v. Carter, 417.
Dernburg v. Tefft, 220.
Derr v. Wilson, 261.
De Saussure v. Zeigler, 408.
Deslonde v. Darrinjrton's Heirs, 635.
Des Moines Nat. Bank v. Harding,
617.
Des Moines & Ft. D. R. Co. v. Bul-
lard, 731.
Desnoyers v. Dennison, 541, 731.
De Sollar v. Hauscome, 728.
CITED.
499 In vol. 1; residue in yol. 2.]
Desribes v. Wilmer, 346.
Dessauer v. Koppln, 237.
Destrehan v. Scudder, 857.
Desvergers v. Parsons, 41.
De Tar v. Boone Co., 83.
Detrick v. Sharrar, 707,
Detroit L. & N. R. Co. v. McCammon,
720, 790.
Deuel County v. Bank, 985b, 985t
Deutermanu v. Pollock, 176.
Devereaux v. City of Brownsville,
985d, 985e.
Devln V. City of Ottumwa, 599.
Devlin y. Boyd, 335, 384.
Devol V. Halstead, 770.
Devon V. Scales, 370.
De Wandelaer v. Hager, 313.
Dewees v. Richardson, 376.
De Weese v. Smith, 7o5.
Dewey v. City of Des Moines, 227.
V. Humphrey, 16.
v. Latson, 473.
V. Moyer, 69.
V. Peck, 754.
v. Sugg, 406.
Dewing V. Sears, 152.
De Wolf V. Crandall, 750.
Dewsnap v. Davidson, 761.
Dexter v. Clark, 703.
Dexter, Horton & Co. v. Sayward, 689.
Dial v. Holter, 126-128.
Diamond v. Law^rence Co., 550.
Diamond State Iron Co. v. Alex K.
Rarig Co., 807.
Dibble V. Truluck, 363, 375.
Dick V. McLaurln, 326.
V. Mahoney, 316.
V. Tolhausen, 190, 974.
V. Webster, 747.
V. Williams, 343, 691.
Dickenson v. Codwise, 42, 44.
V. Gilliland, 691.
Dickerson v. Chrisman, 211.
V. Corners, 381.
V. Davis, 205.
V. Powell, 655.
Dickerson*s Appeal, 487.
Dickey v. Gibson, 156, 513.
Dickinson v. Allison, 483.
V. Hayes, 611, 63S.
Dickinson v. Price, 622.
Dicks V. Hatch, 217. 278.
Dickson v. Burke, 211.
CASES CITED.
[References to eectlonft. H 1 to 489 in vol. 1; residue in vol. 2.]
Ixxix
Dickson t. UolTs Adm*r, 165.
r. Matbeson, 326.
y. Kichardson* 380.
Y. Wilkinson, 403.
Dteffenbach v. Rooh. 1000.
Diehl T. Marcliant, 609.
Dietrich Y. Dietrich, IIG.
Dietz, In re, 320a.
Y. Transfer Co., 617.
Dlgnan t. Dignan, 043.
Dill V. White, 772.
Dillard, Ex parte, 122, 443.
V. Iron Co., 277.
Y. Turner's Adm'r, 236.
Dilley r. McGregor, 576.
Dnilng ▼. Murray, 296.
DiUinger y. Kelley, 714.
Dillon Y. Porter, 236.
Y. Railroad Co., 158, 461, 504.
Y. Rand, 83.
Di Lorenzo y. Dragone, 409.
Dllwortb Y. Curts. 938b.
Y. Johnson, 900.
Dimes Y. Canal Co., 174, 783.
Dimmick y. Rcsenfeld. 421.
Dinet y. Eigenmann, 375.
Ding Y. Kennedy, 213.
Dlngman y. Myers, 299.
DInsmore y. Austin, 118.
Y. Boyd« 957.
Dionne y. Matzenbaugb, 351.
Dlrmeyer y. O'Hem, 191.
District of Ck)lumbla y. Eaton, 100.
District Tp. of Newton v. White, 861.
Ditch Y. People, 83.
Dltson Y. DitsoQ, 822, 927. 928, 982.
DiToIl Y. Atwood, 504.
Dixon Y. Baxter, 297.
Y. Bropbey, 322.
r. Dixon, 433.
Y. I.yne, 342.
Y. Miller, 674.
Y. Sinclear, 694.
Dixson Y. Warters. (MK).
D. M. Osborne & Co. v. Alliance Corp.,
83.
Y. Machine Co., 30.
Doak V, WIswell, 761.
Doan Y. Holly, 326.
Doane y. Glenn, 166, 346.
Dobberstein y. Murphy, 513.
I>obbins Y. McNamara. 348.
lN>b8on Y. Pearce, 373, 857, 858, 973.
Dodd Y. Bond, 421.
V. Brott, 950.
V. Groll, 875.
Y. Maylleld, 750.
V. Scott, 755.
Doddridge's Estate y. Doddridge, 618.
Dodds Y. Blackstock, 098.
Dodge Y. Coffin, 179, 889, 892, 896.
Y. Hubbell. 299.
Y. Williams, 369.
Y. Wright 141.
V. Zimmer. 537.
Doe V. Calvert. 636.
V. Harlow, 650.
V. Huddart, 783.
Y. Jones, 436.
Y. Mining Co., 154.
V. Oliver, 843.
V. Riley, 642.
Y. Thomas, 650.
V. Watts, 530.
Doe d. McMuIlen v Lank, 437.
Doe d. Parrish v. Ferris, 720.
Doescher y. Doescher, 749.
DogUoni Y. Crispin, 823, 827.
Dohner's Assignees. In re, 487.
Dole V. Boutwell, 593.
Dolen V. Buchanan, 297.
Dolphin Y. Robins, 822.
Don Y. Lippmaun, 825, 835, 850.
Donahue y. Johnson, 32.
Donald v. Kell, 677.
Donaldson v. Bank, 42.
V. Roberts, 363.
Donham y. Hardware Co., 376.
Donnell y. Hamilton, 306.
V. Wright, 616.
Donnelly, In re, 320a.
Y. Graham, 211.
Y. McArdle, 297.
V. Wilcox, 705.
Donner v. Palmer, 418.
Donovan y. Finn, 367, 518.
Y. Simmons, 446.
Donworth v. Coolbaugh, 583.
Dooian v. Carr, 530.
Dooley v. Dooley, 633.
v. Watklns, 641.
Doollttle V. Don Maus, 660.
v. Holton. 284.
Dore Y. Thornburgh, 802.
Dormitzer v. Society-, 272.
Doman y. Furniture Co., 267.
IXXX CASES
[References to sections. 88 1 to
Dorr V. Blrge, 84.
y. Stockdale, 560.
Dorrance v. Scott, 55.
Dorrell v. State, 529.
Dorris V. Erwln, 613.
Dorr's Adm'r v. Robr, 220.
Dorsey v. Dorsey, 926, 932.
V. Kendall, 261, 278.
V. Maury, 853, 857, 938a.
V. Reese, 388, 389.
V. Thompson, 28, 34.
Dortic V. Loekwood, 80.
Doster v. Bank, 423.
Doswell V. Adler, 420, 445.
V. Stewart, 125.
Dotterer v. Harden, 453.
Doty V. Brown, 504, 506, 029.
V. Caldwell, 160.
Doub y. Mason, 963.
Doud Sons & Ck). y. Milling Co., 84.
Dougherty, In re, 255.
y. Bank, 354.
y. Gummings, 763.
y. McManus, 214.
Dougherty's Estate, In re, 291, 294,
483, 486.
Doughty y. Meek. 130.
Douglas y. Douglas, 349.
y. Forrest, 227, 836.
y. Twombley, 1009.
Douglas y. Yost, 641.
Douglass y. Brooks, 335.
y. Ferris, 590.
y. Rowland, 586, 592.
y. Joyner, 360.
y. Todd, 340a, 351.
Douglass* Lessee y. Massie, 211, 233.
Douthit y. Douthit, 322.
Doyer y. State, 255.
Dow y. Blake, 43, 882, 933.
y. Jewell, 197.
y. March, 85.
V. Plainer, 63.
y. Whitman, 162.
Dowdall V. Cannedy, 733.
Dowdell V. Neal, 459.
Dowell y. Applegate, 218, 271, 755.
y. Goodwin, 364. 377.
y. Grlswold. 981.
Dowling y. McGregor, 491, 493.
y. Polack, 27.
Downer y. Bank, 953, 956.
V. Crlpps, 682.
CITED.
499 In vol. 1; residue in yol. t.]
Downer y. Dana, 209.
y. Morrison, 600.
y. Shaw, 227, 896.
Downey y. Forrester, 497.
Downing y. Diaz, 536.
y. Railroad Co., 627.
y. Still, 314, 326.
Downs y. Fuller, 293.
Dows y. McMichael, 543, 784.
Doyle y. Com., 533.
V. Gore, 529.
y. Hallam, 87, 664, 607.
y. Reilly, 758.
y. Smith, 184.
' y. Wade, 415.
Doyley y. White, 189.
Dozler y. Lewis, 401.
y. Richardson, 275.
Drake y. Brander, 865.
y. Duyenick, 270.
y. Hanshaw, 193, 367.
y. Iryine, 79a.
y. I^yons, 364.
y. Mitchell, 746, 770.
V. Ogden, 247.
y. Slmi)Son. 5-4, 61.
V. Smythe, 328.
y. Steadman, 303.
y. Water Co., 787.
Draper y. Bishop, 347.
y. State, 211, 987.
Draughan t. Bank, 135.
Drenuan y. Bunn, 573.
Dresser v. Wood, 237. .
Drew y. City of St. Paul, 355.
y. Clarke, 381.
y. Towle, 594.
Drexel y. Man, 652, 654.
Drexel's Appeal, 260, 317.
Dreyer y. Goldy, 23.
Dreyfuss v. Soale & Co., 262.
V. Tompkins, 130, 155, 1G2.
Drlggers y. Cassady, 247, 261.
Driuger y. Raih*oad Co., 368.
Drinkhouse v. Water-Works, 550.
DriscoU y. Damp, 624.
Driver y. White, G50.
Droham y. Norton, 315.
Droz y. La key, 121.
Drumm y. Sherman, 950, 986.
Drummond y. Matthews, 313.
V. Prestman, 586.
Drydeu v. Dryden, 84.
CASES
[References to Metiona. H 1 to
Dryden v. Parrotte, 252.
V. Ballroad Co., UUl.
1 »u Bay V. Ullne, 184.
Du Bois V. dark, 313, 324, 377.
y. Dubois, 869, 961.
v. Railroad Co., G09.
Du Bose V. Marx, 779.
i>uche8s of Kingston*s Case, 283, 503,
516, UUO, 611, 783, 787.
Ducker, Succession of, 958.
Pnckwortb t. Duckworth's Adm'r,
284, 380. 033.
Ducommuu v. Hyslnger, 878.
Imden t. Maloy, 939a.
Dudley T. Brinck, 352.
V. Insurance Co., 344.
Y. Lindsey, 938, 968, 971.
Duell V. Potter, 432.
l>uer V. Thweatt, 246.
Duff V. Carrier, 31a.
V. Wyncoop, 499.
Duffey V. lioutz, 158, 46L
Duffield V. Smith, 524.
Duffy V. Gray, 745.
V. Lytle, 621. 791.
I>ufo8sat V. Berens, 361.
Dufour V. Camfranc, 273.
T. Lang. 32.
Dugan T. McGlann, 321, 368.
V. Xorthcutt, 49.
Dugas T. Mathews, 943, 946.
Duggc T. Stumpe. 600.
Dubaime y. Monast, 324w
Duke y. Oark, 446, 956.
I'ukesy. Bowley, 118.
intlaney v. Murphy* 32.
V. Payne, 747.
Dull y. Blackman, 549, 793.
Dullard y. Hardy, 641.
T. Phelan. 52, 63, 303.
r>nlle y. Lally, 354a.
DumbouM y. Bowley. 424.
Dunagain y. State, 529.
Dunbar y. Hallowell, 875.
Duncan r. Asbcraft 406.
y. Bancroft. 613.
y. Flynn. 492.
y. Geidine, 83, 288.
y. Uargroye, 495.
T. Holcomb. 599, OOO.
T. l4inkford. 247.
y. ryon. 386, 390.
y. McCall. 257.
1 LAW JUDG.— f
CITED.
409 in YOl. 1; residue in vol. 1]
Duncan y. Stokes, 729.
Dunckle v. Wiles, 657.
Dunliam v. Bower, 767.
V. Carson, 701.
V. Cox, 423.
y. Doremus, 554.
V. Downer, 388, 389.
y. Dunham, 862.
V. Insurance Co., 770.
y. Jones, 245.
y. Wllfong, 263.
Duuham Lumber Co. v. Holt, 391.
Duukin v. Vandenbergh, 1005.
Dunklee y. Goodenougb, 696, 790.
Dunklin v. Wilson, 376, 513.
Dunlap V. Byers, 290.
V. Clements, 299.
y. Cody. 909.
y. Edwards, 628.
V. Gallatin Co., 44a
y. Glidden, 624.
y. Robinson, 682.
y. Southerlin, 241.
y. Steere, 324.
Dnuleyy y. Ross, 487.
Dunloyy's Estate, In re, 680.
Dunlop y. Schubert, 336.
Dunn, In re, 938c.
y. Barton, 790.
y. Beaman, 996.
V. Dunn. 228.
V. Pish, 367.
V. Hall, 233.
y. Hughes, 83.
V. Murray, 752.
V. Pipes, 87, 697, 706.
V. Seymour, 585.
y. Snell, 945, 998.
y. Tillotson, 159.
Dunns v. Batchelor, 3, 118w
Dunn's Ex*rs y. Renick, 122,
Dunson v. Spradley, 174.
Dunstan y. Higgins, 829.
Duplelx y. De Royen, 850, 802.
Du Pont y. Abel, 229.
y. Du Bos, 22.
Durand y. Trusdell, 905.
Durant y. Abendroth, 795.
y. Comegys, 21.
V. Duchesse D'Auxy, 301.
V. Essex Co., 528, 720, 721, 722.
938.
T. Gabby, 986.
IXXZii CASES
[R«f«renceB to MCtiooi. || 1 to
Durden y. Garhart, 91.
Duren v. Kee, 620.
Durham v. Brown, 76.
V. Darby, 39.
V. Moore, 348.
V. Williams, 044.
Durlnger v. Mosebino, 909, 973.
Dumford, Succession of, 123.
Durning v. Burkhardt, 158.
Durousseau v. United States, 216.
Duryea v. Fuechsel, 158.
Duryee v. Hale, 913, 914.
Dusing Y. Nelson, 31.
Dusy V. Prudom, 324.
Dutcber r. Dutcber, 92a
Dutll V. Pacheco, 389.
Dutton V. Hobson, 263.
V. McReynolds, 446.
V. Mason, 953. 1000.
V. Sbaw, 734.
V. Smtth, 275, 691.
V. Woodman, 657.
Duvall V. Fearsqn, 857.
Duxbury v. Dable, 278.
Dwigbt V. Newell, 445.
V. St. Jobn, 1016.
Dworak v. More, 879.
Dwyer v. Wilgbt, Go3.
Dyckman v. City of New York, 287.
l>yer v. Print Works, 609.
Dy?r\ille Mfg. Co. v. Heller, 162.
Dygert v. Dygert, 620.
Dyke v. Bank, 118.
Dynes v. Hoover, 250, 256, 524.
Dysart v. Brandertb, 412.
Dyson v. Leek, 659.
y. Simmons, 122, 443.
Eager v. Stover, 903.
Eagle Mfg. Co. v. Mfg. Co., 540.
Eagles V. Kern, 588.
Eakin v. McCraltb, 549.
Eames v. Eames, 49.
V. German ia Turn Verein, 407,
411.
Ean V. Railroad Co., 336.
Kans V. Sawyer, 612.
Earl V. Bull, 768.
V. Mathenoy, .^95.
V. Raymond, 865, 938c.
CITED.
496 in vol. 1; residue in vol. 1.]
Earle y. Earle, 642.
Earley v. Churcb Soc, 1015.
Earley's Appeal, 354.
Earll V. City of Chicago, 77.
Earl of Bandon v. Becber, 508.
Earls y. Earls, 179.
Early y. Moore, 3, 118.
Earnest v. Hoskins, 77, 683.
Eartbman's Adm'rs y. Jones, 279.
Easley v. Camp. 330.
V. McClinton, 284.
East, The, 814.
Eastern Building & Loan Ass'n y.
Welling, 510.
Easterly y. Goodwin, 229.
Eastern Townships Bank y. Beebe,
847, 853.
Eastbam y. Sallis. 21.
Eastlick y. Wright, 141.
Eastman y. Cooper, 611, 657, 658.
y. Porter, 732, 744.
y. Scbettler, 423.
y. Wadleigh, 230.
y. Waterman, 299.
Eastmure y. Laws, 729, 763.
Easton y. Plckersgill, 691, 692.
East Rlyerside Irr. Dist y. Holcomb,
393b.
East Tennessee, V. & Q. B. Co. y.
Kennedy, 923.
y. Mabiney, 619.
East Texas Land & Imp. Co. y. Gra-
ham, 393.
Eaton, In re, 255, 259.
V. Badger, 240, 906.
y. George, 699.
y. Harth, 592. 625.
y. Hasty, 482a, 857, 897, 916, 919.
y. Lyman, 570.
V. Ryan. 42.5.
V. Sanxter, 436.
Eaton's Appeal, 407, 448.
Eaton & Hamilton R. Co. v. Hunt.
216.
y. Varnum, 32.
Eau Claire Lumber Co. y. Anderson,
155.
Eaves y. Vial, 617.
Eayrs y. Nason. .560.
Eboll V. Bursinger. 326.
El)erle y. Bryant. ."ilK).
Efcles V. Daniels. (j41.
Eckart, In re, 255.
CASBS
[Reference* to Mctioni. H 1 to
Eeker ▼. First Nat. Bank, 182.
Eckert v. Blnckley, 514.
V. BInkley, T91.
Eddie ▼. Eddie, 166.
Eddleman v. McGlathery, 27.
Eddy & Bissell Live-Stock Ck>. v.
Blackburn, 183.
Edelln t. Lyon, 29.
Eden v. Uartt, 629.
Edgar t. Buck, 722.
V. Greer, 52, 67. G83.
EdgeU v. Slgerson, 750, 790.
Edgerly v. Emerson, 100.
T. Stewart, 22.
Edgerton v. Edgerton, 291.
V. Muse, 660, 705.
Eklmanson t. Best, 380» 756.
Bdmlston y. Edmiston, 279.
Edmonds ▼. Montgomery, 903, 940,
%1.
£dmonson v. Moseby's Heirs, 373.
Edmunds t. Smith, 469.
Rdmundson t.- School District, 253fi,
290.
Edrlngton y. AUsbrooks, 232.
Eklson y. Cumings, 368.
y. Edson, 320.
y. Munsell, 660.'
Eklwards y. Bates County, 751.
y. Carter, 233.
y. Edwards, 55.
y. Helllngs, 121, 236. 341, 461, 964. ;
V. Jones, 857, 889.
y. McKay, 338.
y. Maupin, 22.
y. Osgood, 299.
y. Roys, 655.
y. Stevens, 526.
y. Stewart, 769.
y. Turner, 50.
y. Whlted, 190, 278.
Edwards' Appeal, 297.
Egan y. Rooney, 340.
y. Sengpeil, 306.
Egberts v. Dibble, 892.
y. Wood, 585.
Eggleston y. Morrison, 48.
Ehle y. Bingham. 631.
Ebmgren v. Gronlund, 939b.
Eioeman v. Finch, 454.
Efchelberger v. Smyser, 968.
EJchert v. Schaffer. 650.
Kichboff y. Elcbhoff, 271.
CITED. Ixxxiil
499 In vol. 1; residue in vol. 2.]
Eickmau v. Uersker, 246.
Eichoff V. Eichoflf, 376.
Eikenberry v. Edwards, 544.
Elmer v. Uiekards, 252.
Einstein v. Davidson, 93, 307.
Eisenhower v. School Dlst., 734, 752.
Biseulord v. Clum, 600.
Eiseumeuger v. Murphy, 196.
Eltel v. Foote, 247.
Ekel V. Snevily, 350.
V. Swift, 341.
Ekey v. Inge, 050.
Ela V. Edwards, 563.
Elder v. Bank, 330.
y. City of New Orleans. 329.
y. Grunsky, 88, 107.
y. McClaskey, 39.
y. Mining Co., 158, 271, 297a, 311,
9380.
Eldred v. Hazletf s Adm'r, 354, 482a,
498.
v. White, 393.
Eldredge v. Aultman, Miller & Co.,
958.
Eldridge v. Adams, 141.
y. Hill, 650.
v. Post, 430.
Eleventh School Dlst. In Alburgh v.
Rodd, 299.
Elgin Watch Co. v. Meyer, 730.
Eliot y. McCormlck, 220.
V. Porter, 730, 770, 777, 779.
Elizabethtown Savings Inst. v. Ger-
ber, 862.
Elkhart Car- Works Co. v. Bills, 718.
Elkins V. Wolfe, 61.
Elligood y. Cannon, 93.
Ellinger's Appeal. 349.
Ellington V. Crockett, 699.
Elliott V. Bastian, 200.
V. Bufflngton, 159.
V. Haydoii, 777, 779.
V. Hoi brook, 57, 958.
V. Jordan, 115.
V. Ivnlght. 140.
V. Peirsol, 218, 245, 513.
V. Qiilmby, 526.
V. Wnrlng. 940.
V. Woodward, 555.
Ellis V. Bonner. 313, a46a.
V. Clarke. 1)70.
V. Crowl. 534. 738.
V. Duuu. 118.
Ixxxiy CASES
[References to sectioiiB. {{ 1 to
Bills V. Ellis, 124, 178, 876, 927.
y. Harrison, 300.
T. Insurance Co., 059.
y. Jameson, 608.
y. Jones, 213, 348.
y. Kelly, 291.
y. Kerr, 953, 955.
y. The Lyceum, 632.
y. Mills, 87, 697.
y. Rademacher, 141.
y. Smith, 987.
y. Staples, 790.
V. White, 875.
Ellis* Estate, In re, 290.
Ellis H. Roberts & Co. y. Buckley, 169.
Ellison V. Bank, 183.
V. State, 211.
Elliston y. Bank, 354.
Ells y. Bone, 772.
y. Tousley, 421, 445.
Elsworth y. Caldwell, 948.
Ellsworth y. Cuyler, 439.
Elmendorf y. Elmendorf, 278.
Elsasser y. Haines, 912.
Elsenrath y. Kallmeyer, 98.
Elson V. Comstock, 584.
Elston y. Robinson, 425.
Elting y. Bank, 370.
Elton y. Brettschneider, 345.
Eltzroth V. Vorls, 93.
El well V. Gooduow, 22.
y. Hitchcock, 438.
y. Johnson, 29.
y. Security Co., 549.
Ely V. Beaumont, 428.
V. Cooke, 954.
y. Lamb, 986.
y. Parkhurst, 72.
y. Tallman, 277.
Elyton Land Co., Ex parte, 44.
Emanuel v. State, 259.
Embry y. Palmer, 938, 939b.
Embury v. Conner, 279, 621, 731.
Emerlck v. Garwood, 450.
Emerson y. Head, 158.
y. Knapp, 949.
y. Sansome, 656.
y. Udall, 366. 378.
Emerson, Talcott & Co. v. Skidmore,
207.
Emery y. Downin^c, 85.
y. Fowler, 578, 579, 784.
y. Nelson, 522.
CITED.
499 In vol. 1; residue in yoI. 2.]
Emery y. Whltwell, 164.
£2mig y. Medley, 114.
Emlson y. Walker, 159.
Emma Sllyer Mln. Co. y. Emma Mln.
Co., 578.
Bnmel v. Hayes, 651.
Emmons v. Dowe, 671.
Emory y. Jolce, 941, 945.
Empey y. Plugert, 530.
Empire State Xail Co. y. Button Co.,
540, 615, 625.
Empire Tp. v. Darlington, 906.
Emporia Mut. Loan & Say. Ass'n v.
Watson, 442.
Endicott y. Morgan, 897.
Eneu y. Clark, 55.
Enewold v. Olsen, 496.
Engel y. Scheuerman, 916.
England v. Garner, 193, 225.
England Mortgage Security 00. v. Tar-
yer, 50.
English T. Aldrlch, 381, 666.
V. English, 721.
y. Miller, 360.
y. Mun*ay, 040.
y. Savage, 197, 383.
English's Adm'r y. Murray, 640.
English's Appeal, 77.
Engstrom y. Sherburne, 296, 917, 920.
Ennis V. Ass'n, 337.
y. Smith, 806.
Eno V. Crooke, 995.
Binos y. Capps, 107.
V. Smith, 220, 278,
V. Suthsrland, 44.
Ensign v. Kindred, 878.
Enslen y. Wheeler, 467,
Ensley y. Wright, 352.
Ensly y. Wright. 352.
Entrekin y. Chambers, 232.
Epling y. Dickson, 981.
Eppinger y. Kirby, 118.
Epprlght V. Kauffman, 793.
Epstein y. Ferst, 721.
Equator Mining & Smelting Co. t.
Hall, 654.
Equitable Securities Co. y. iBloi-k, 265.
Equitable Trust Co. y. Smith, 722.
Erck y. Bank, 140.
Erlcksou y. Quinn, 423.
^Erlanger v. Ayegno, 118.
Ernst's Estate, In re, 488.
Erwln y. Gamer, 536.
-]
:i
GASBS
DUfereneet to secUoiiB. U 1 to
flkrwln ▼. Lynn, 734.
y. Rutherford, 986.
T. Scotten, 772.
▼. Vint, 301.
Esmond, In re, 524.
Essex V. Berry. 308.
Estelle y. Peacock, 540.
Estep y. Hntchman, 682.
V. Larsb. 707, 724.
y. Watklns, 246.
Esterly's Appeal, 401.
EBtes, In re, 420. 423.
y. NeU, 553.
y. Railroad Co., 6G0.
EstUl y. Tanl, 604, 714.
Estls y. Patton, 377.
Etherldge y. Middleton, 11&
EtK y. Wheeler, 875.
Eoreka Clothes Wringing Machine Co.
y. Machine Co., 531.
Eureka Iron Works y. Bresnahan, 260.
Erangelical Synod y. Schoeneich, 585.
Kvans v. Ashby, 261.
y. Barclay, 77.
y. Blrge, 612.
y. Bradley, 085a.
y. Breueman, 231.
y. Caiman, 392.
y. Chester, 189, 300.
y. Cleary, 802.
y. Commonwealth, 588.
y. Duim, 41, 47.
y. Eyans. 444.
y. FaU River County, 354.
y. Fearne, 61a.
y. Fisher. 132.
y. Gill, 233.
y. Instlne, 972.
y. Lipscomb, 189.
v. McGlasson, 446.
V. McMahan, 123, 700.
y. I^arks, 139.
V. Percifull. 27a
V. Uees, 126, 127, 606.
y. Schafer, 141.
y. Stokes, 585.
V. Tatem, 517, 720, 857, 869. 884,
885, 962.
y. Trust Co., 363, 393a.
V. Watts, 57.
y. Wells, 976.
y. White, 699.
T. Young, 271«
CITED. IXXXV
499 in Tol. 1; residue in toI. 2.]
Evans* Adm*r v. Clover, 34.
EvansvUle, S. & C. Straight Line R. Co.
V. City of Evansvllle, 287.
Everett v. Printing Co., 750.
v. Reynolds, 303.
Everill y. Swan, 754.
Everling y. Holcomb, 571.
Eyers v. Watson, 274, 285.
Ewald y. Waterhout, 671.
Ewell y. Pitman, 24a
Ewen y. Terry, 1001.
Ewer y. Cotfln, 905.
Ewmg y. Fuller, 32.
y. Hatfield, 116.
y. Jennings, 964.
V. McXairy, 737.
y. Nickle, 378.
y. Wilson, 205.
Excelsior Mfg. Co. v. Boyle, 456.
Exchange Bank y. Ault, 271.
y. Ford, 306, 776.
y. Oilman, 700.
y. Streeter, 306.
Exchange Nat. Bank y. Allen, 162.
y. Clement, 229.
Excise Com*rs y. Holllster, 348.
Exendine y. Pore, 939c.
Exl?y y. Berryhill, 352.
Ex-Mission Land & Water Co. y.
Flash, 356.
Exposition Building & Loan Co. v.
Spiegel. 306.
Expressman's Mut. Ben. Ass'n y. Hur-
loc:k, 906.
Ex ton y. Zule, 643.
Eyre v. Cook, 208.
Eyres y. Sedgewicke, 296.
Ezzell y. Maltbie, 714.
Faber v. Hovey, 510, 882, 960.
Factors* & Traders' Ins. Co. v. De
Blanc, 245.
Fagan y. Barnes, 83.
Fahey y. Mottu, 286.
Fahs y. Taylor, 263.
Fain y. Hughes, 707.
y. Miles, 663.
Fairbanks y. Bank, 107.
y. Kraft, 57.
Fairchild y. FalrchUd, 274
IxXXVi CASES
[References to sectlonB. {{ 1 to
Fairchlld v. Holly, 746.
V. Lyn(*h, 732.
Fulres v. McLellan, Oil.
Fairfield v. McNauy, 761.
Falconer t. Cochran, 604.
Falken v. Railroad Co., 90.
Falkuer v. Guild, 223.
V. Insurance Co., 882.
Fall V. Evans, 315.
Fallbrook Irrigation Dist. v. Bradley,
938c.
Fallon. In re. 807.
V. Murray, 572.
Falls V. Robinson, 384.
Faun V. Atkinson, 441.
Fanning v. Bank, 380.
V. Insurance Co., 789.
V. Krapfl, 232.
F. A. Poth Brewing Co. v. Bemd, 326.
Faran v. Robinson, 560.
Farber v. Iron Co., 714.
Faris v. Durham, 293.
Farlsh v. Austin, J)58.
V. Corlies, 349.
Farley, Ex parte, 256.
V. Cammann, 155.
V. Lea, 441.
V. McAlister, 446.
Farmer v. Farmer, 565.
The, V. McCraw, 581.
V. Sasseen, 1010.
V. Simpson, 593.
V. Wilson, 135.
Farmers' Hank v. Beaston, 596.
V. Collins, 357.
V. Groves. 976.
V. Hclghe. 417, 418.
V. Ijeonard, 992.
V. Steamboat Co., 583.
Farmers' Fire Ins. Co. v. Johnston,
389.
Farmers* Ins. Co. v. Hlghsmith, 274.
Farmers' Loan & Trust Co. v. Bank,
375, 382.
V. Killlnger, SoS,
V. McKinney, 278.
V. Schwenk, 425.
Farmers' Nat. Bank v. Burns. 32.
Farmers' & Mechanics' Bank v. Math-
er, 7, 60.
V. Spear, 70.
Famey v. Hamilton County, 206.
Farnham, £x parte, 255.
CITED.
499 in vol. 1; residue in toI. 2.]
Farnham v. Mallory, 148.
Farnsley v. Stillwell, 351.
Famum v. Machine Shop, 583.
Fan- V. Ladd, 286, 900.
Farrar v. Mining Co., 321.
Farrel v. Bank, 585a.
Farrell v. City of St. Paul, 754.
Farrell Foundry & Machine Co. v.
Bank, 585a.
FaiTington v. City of New York, 246.
v. Payne, (;21, 734, 738. .
Farris v. Hayes, 190.
V. People, 486.
V. Walter, ^i.
Farrow v. Dial, 321.
Farson v. Gorham, 32.
Farwell v. Huston, 70.
v. Raddin, 291.
Fasholt V. Reed, 438.
Fassett v. Tallmadge, 1011.
Faucette v. Ludden, 89. '
Faughnan v. City of Elizabeth, 966,
989. 1016.
Faulconer v. Stinson, 1005.
Faulder v. Silk, 802.
Faulk V. Kellums, 115.
Faulkner v. Campbell. 378b
Fauntleroy v. Lyle, 589.
Faurot v. Bank, 86.
Faver v. Briggs. 233. 237,
Fawcett v. Vary, 156.
Faxon v. Baxter, 299.
Faj' V. Ames, 588.
y. Ednilston. 588.
V. Wenzell, 155.
Fayerwcather v. Monson, 32.
V. Ritch, 616, 624, 731.
y. Tucker, 88.
Fayette City Borough v. Huggins, 16.
P'ayssoux v. Kendall County, 252.
Fears v. Riley, 321, 375.
Feaster v. Woodflll, 295.
Featherson y. Turnpike Co., 574.
Featherston v. Small, 287.
Feeter v. McCombs, 487.
Feikert v. Wilson, 313.
Felch y. Beaudry, 15.
Fell v. Bennett, 543, 553, 734.
Fellows v. Fellows. 926.
v. Hall, 248.
Fels y. Raymond, 86.
Felt v. Cook, 1014.
V. Turn u re, 707.
CASES
[References to Bectloni. H 1 to
Felter v. MuUiner, 115, G82.
Felton V. Railroad Co., 16.
V. Smith, 732. 751.
FeltUB V. Starke, 006.
IVndaU v. U. S.. 534a, 627.
Fendir v. Stiles, 236.
Fenn v. Dogdale, 555.
Fenton r. Garllck, 904.
V. White, 38.
Fenwlck t. ThorntOD, 536.
Ferebee v. Doxey, 493.
Ferguson v. Carter, 729.
V. Crawford, 275, 287, 901, 972.
V. Harw'ood, 877, 878.
V. Kuinler, 246.
V. Mahon, 827, 829, 835.
V. Mason, 29.
V. MlUaudou, 130.
V. Miller, 787.
V. Staver, 682.
V. Town of Sheffield, 680.
V. Yard, 284.
Fernandez v. Da Costa, 815.
Ferrall v. Bradford, 770.
Ferrea v. Chabot, 560.
T. Tubbs. 988.
Ferrell r. Alder, 567.
V. Broadway, 806.
T. Hales, 127, 180, 410.
Ferrers v. Arden, 715.
Ferrer's Case, 647.
Ferriday v. Seleer, 388.
Venis v. Coovei, 216.
V. Fisher. 660.
V. Udell, 511, 615, 684.
Ferry v. Car- Wheel Co., 902
V. Street, 530.
Festoraszi r. Church, 29.
Fetter v. Beale, 734, 738.
Fetterman v. Siurphy, 466.
Fkkes T. Vlck, 376.
Fidelity Insurance Trust & Safe De-
posit Co. V. Fridenberg, 518.
v. Gazzam, 74b
T Iron Co., 159.
Fidelity Trust & Safety-Vault Co. v.
City of Louisville. 609.
Fidelity & Deposit Go. v. Bank, 419.
FMler v. John, 423.
Field T. Cain, 860.
T. Glbbs. 272, 903, 938c.
V. Liver man, 455.
V. Mllburn. 456.
CITED.
Ixxxvii
499 in vol. 1; residue in vol. 2.]
Field V. Sandei-son, 290, 890.
V. Sims, 958.
V. Slsson, 330.
V. Williamson, 197.
Fielden v. Lahens, 208.
Fields V. Brown, 331.
V. Mundy's Estate, 892.
Fifleld V. Edwards, 618.
Fifth Mut. Bldg. Soc. v. Holt, 541.
Fifth Nat. Bank v. Judge. 329.
Figge V. Rowlen, 269, 271.
Filbert v. Hawk, 9.^3.
Files V. Robinson, 88.
Filley v. Cody. 179.
V. Duncan, 438.
Fllson V. Greenspan. 77.
Finance Co. v. Hanlon, 206.
Finch V. Earl of WInehelsea, 400, 445.
V. Galigher, 772.
Flncher v. Malcolmson, 344.
Flndley v. Johnson, 326.
V. Smith, 949.
Finlayson v. Accident Co., .140, 34L
Finley v. Carothers, 981.
V. City of Tucson, 15.
V. Hanl>e6t 504, 631, 785, 791,
V. Houser, 292, 666.
V. Robertson, 193, 194.
Flnley's Appeal, 55.
Finnagan v. Manchester, 116.
Finnegan v. Campbell, 620.
Flnnell v. Jones' Ex'x, 165.
Finneran v. Leonard, 272.
Finney v. Boyd, 549.
V. Ferguson, 60.
Fire Ass'n of Philadelphia v. Ruby,
r)88.
Firebaugh v. Ward, 446, 449.
Fireman's Ins. Co. v. McMillan, 588.
V. Thompson, 907.
First Baptist Church v. Fort, 242.
V. Syms, 370, 561.
First Nat. Bank v. Bennett, 429.
V. Burkhardt, 210.
V. Carleton, 63.
V. Clark. 415.
V. Clements, 576.
V. Cloud, 406a.
V. Crosby, 874.
V. Cunningham, 61a, 291, 861,
897, 920:
V. Distining Co., 252.
V. Dry-Goods Co., 238, 307.
Ixxx^ili
GASES CITfllO.
[References to Mctloni. §§ 1 to 499 in toL 1; residue in vol. 2.]
First Nat. Bank v. Duel Gouuty, 862.
V. Dusy, 158.
v. Bwlng, 583a.
V. Finck, 770.
y. Garland, 53.
y. Garlinghouse, 55, 192.
y. Gibsou, 991.
V. Hanior, 971.
V. Hanua, 245, 270.
V. Hays, 439a.
y. Ileudrieks, 448.
y. Hostetter, 179.
V. Hyer, 2t)2.
V. Jaggers, 213.
V. Kowalsky, 155.
y. Lieberman, 304a.
y. Linville, 509.
V. Lumber Co., 78,
y. McKinney, 53.
V. Mfg. Co., 995.
y. Maxwell, 423.
V. Oldham, 005.
y. Prescott, 80.
y. Rogers, 1008.
y. Sloman, 938b.
y. Trout, 61.
y. Vander Stucken, 186.
y. Wallis, 857, 889.
y. Williams, 315, 783.
y. Wolff. 121.
Fischer y. Qulglcy, 745.
y. Stlefel, 313.
Flscus y. Guthrie, 514.
Fish y. Benson, 663.
y. Folley, 748.
y. Howland, 585.
V. Lane, 371.
y. Lightner, 611.
y. Wheeler, 86.
Fishblate y. McGuUough, 351.
Fish Bros. Wagon Co. y. Mfg. Co.,
504.
Fishbume y. Engledove, 663.
Fisher, Bx parte, 257.
In re, 321.
y. Fielding, 836, 844, 849, 874.
y. Fisher, 746.
y. Harnden, 218.
y. Holbrook, 393a.
V. Kelly. 790.
V. Ijongnecker, 278, 699.
y. McGirf, 257.
V. Ogle, 810, 817.
Fisher v. Railroad Co., 300. 354a.
y. Scharadin, 16.
V. Sieyrea, 125.
y. Simon, 297.
y. Wineman, 600.
Fish Furniture Co. y. Jenkins, ?W6.
Fishli y. Fishll, 926.
Fishmongers Co. y. Robertson, 129.
Fisk y. City of Hartford, 725.
y. Miller, 296, 659.
y. Parker, 703, 721.
y. Thorp, 306, 346.
Fiske y. Anderson, 230.
Fisler y. Stewart, 1017^
Fitch y. Byall, 367.
y. Cornell, 195.
y. Meudenhall, 466.
y. Richard, 162.
y. Scot, 16.
V. Scoyel, 299.
Fithlan y. Monks. 216, 242.
Fitzgerald y. Salentine, 213.
y. Stewart, 128.
Fitzhugh y. Blake, 482a.
y. Custer, 275.
V. McKinney, 761.
V. Orton, 367.
Fltzpatrick v. Oampbell, 340.
y. Hoffman, 567.
y. Leake, 485.
Fitzsimmons y. Insurance Co., 816, 817.
y. Johnson. 889, 922.
y. Marks, 864.
V. Munch, 115, 130.
y. Railroad Co., 29.
Flad Oyen. The, 818, 821.
Flagg V. Flagg, 461.
V. Kirk, 991.
Flake y. Carson, 206.
Flanagan y. Insurance Co., 60.
V. Patterson, 338.
Flanagin v. Daws, 437.
Flanders y. Hall, 703.
Flandreau v. Downey, 784, 787.
Flanneken v. Wright, 363.
Flannery y. The Alexander Barkley,
798.
V. Fertilizer Co., 274.
Flat Top Grocery Co. y. McClaugherty,
744.
Flecktpn y. Spicer, 567.
Fleece y. Russell, 27.
Fleenor v. Drlsklll, 123, 660.
0A8BS CITBD.
Izxsix
[Raferencea to lectionB. fiS 1 to
Fleetwood y. Mortgage Co., 345.
Fleischman y. Walker, 217.
Fleitas Y. Meraux, 731.
Fleming y. Beayer, 991, 996.
Y. Boiling, 25, 44.
Y. Freese, 235.
y. Hawley, 699.
Y. Improvement Co., 83.
Y. Insmrance Co., 719. .
Y. Jencks, 331.
Y. McDonald, 779, 782.
Y. Seellgson, 200.
Y. Stansell, 953.
Y. Ttowsdale, 253a.
Flemings y. Blddlck's Ez*r, 683.
Fletcher y. Coombe, 135.
Y. Ferrel, 857, 859.
Y. Holmes, 87, 411, 697, 705.
Y. Jackson, 591, 592.
Y. Rapp, 916.
Y. Warren, 367.
Flewellen y. 'Ft Bend County, 616.
FUcklnger y. Hull, 394.
Y. Railroad Co., 153.
Flint Y. Bodge, 756.
Y. Sheldon, 970.
Flint River Steamboat Ca y. Foster,
221.
Y. Roberts, 220.
Flippen v. Dixon, 616.
Flitters V. Allfrey, 522.
Florat V. Handy, 390.
Florida Cent U. Co. v. Schntte, 614.
Florida Southern R. Co. v. Brown, 707.
Florshelm Bros. Dry-Goods Co. y. Wil-
liams, 324.
Fkmrenoy y. Durke, 878w
Floumoy y. Healy, 152.
Flowers v. Alford, 3ia
V. Jackson, 83.
Fkjyd V. Browne, 779.
V. Olark, 461, 466w
V. Harding, 445.
V. lion Co., IG, 98.
Fluker v. Herbert. 681.
Flynn v. Hlte, 755.
V. Morgan, 409.
F. Mayer Boot & Shoe Co. v. Falk, 246.
Foertsch v. Germulller, 191.
Fogarty v. Sparks, 577.
Fogg V. Glbbs. 271.
v. Plumer, 578, 607.
Folan Y. Folan, 299.
499 in vol. 1; residue in vol. 2.]
Foley V. Foley, 138, l&i.
Foley's Bx'r v. GatUff, 77.
Folger Y. Insurance Co., 228, 835, 897,
905.
Follansbee v. Paving Co., 25.
V. Walker, 537, 538, 624,
Follett V. Alexander, 326^ 346a.
V. Hall, 442.
Folmar's Appeal, 636, 638.
l'\)lsom V. Ballard, 304a«
V. Blood, 878.
V. Carli, 425.
V. Chesley, 1008.
V. Clemence, 737.
V. Couuer, 299.
V. Howell, 707.
Foltz V. Wert, 445, 956.
Folz V. Nelke, 725.
Fontaine v. Hudson, 109.
Foot V. DlUaye, 407.
V. Sprague, 766.
Foote V. Clark, 617.
Y. Glbbs, 722.
Y. Glenn, 360.
Y. Sllsby, 386.
Footman v. Stetson, 7581
Forbes v. Bringe, 233.
Y. Douglass, 560.
Y. Muxlow, 85.
Y. Navra, 130.
Y. Scanneil, 851.
V. Tiffany, 940.
Forcey's Appeal, 611.
Ford V. Doyle, 213, 219, 692.
. V. Elkln, 72.
Y. Ford, 381.
V. Ford's Adm'r, 611, 642.
V. Hill, 59. 367.
Y. Land Co., 224.
Y. Newcomer, 641,
Y. Roberts, 706.
Y. Stuart, 'Mb,
Y. llgue, 346a.
Forder v. Davis, 660.
Fore V. Manlove, 957.
Foreman v. Bibb, 1014.
V. Carter, 318, 326.
Forgay v. Conrad, 42, 44.
Forin v. City of Duluth, 347.
Formby v. Shackleford, 4G2.
Forquer v. Forquer, 156, 163, 165.
Forrest v. 0*Donnell, 948.
Forrester v. Strauss, 70.
XC CASES
[ReferencM to MctionB. S8 1 to
Forsyth v. City of Hammond, 938c
Forsj'the v. McCralght, 378.
Fort V. Battle, 1533.
V. Blagg, 9G1.
Fortier, Succession of, 252.
Fortman y. Ruggles, 222.
Fortune v. Bartolomei, 61, 69.
Forwood V. Dehoney, 952.
I«'osliee V. McCreary, 366.
Fosliier v. Narver, 898.
Foss V. Hinlcell, 530.
V. Witliam, 299.
Foster v. Andrews, 551.
V. Baiili, 378.
V. Bowman, 117.
V/ Com., 707.
V. Crawford, 252, 1008.
V. Derby, 549.
V. Evans, 650.
V. Foust. 438.
V. Glvens, 271. 273.
V. Glazener. 279.
V. Hunter, 994.
V. Jones, 205, 341, 593.
V. Undley, 29.
V. Martin, ^47.
V. Milliner, 707.
T. Napier, 738.
V. Powers, 600.
V. Railroad Oo., 152.
V. The Richard Busteed, 501, 675,
093.
V. Rutherford, 1006. 1008.
V. Smith, 91.
V. Wells, 504, 624, 715.
y. Wood, 378, 390.
Foster's Appeal, 4.39.
Foster's Estate, In re, 460.
Foullc V. Collmm, 969.
Foulke V. Thalmessinger, 754, 787.
420 Mining Co. y. Mining Co., 696.
Four-Mile Land Co. v. Slusher, 123.
Fourth Nat. Banic y. Neyhardt, 125a.
Foust V. City of Huntington, 537.
y. Trice, 441.
Foute y. Fairman, 400.
Fowble T. Walker, 352.
Fowle y. New Haven & N. Co., 743.
y. Park, 760.
Fowler y. Atkinson, 766.
y. Brooks, 174.
V. Brown, 227, 794.
V. Doyle, 123.
CITED.
499 in vol. 1 ; residue in vol. 2.]
Fowler v. Halt, 783. 785.
y. Lee, 365, 377.
V. Lewis' Admr, 281.
V. Osborne, 543, 622.
V. Owen, 779.
V. Rlckerby, 491.
y. Roe, 382.
y. Savage, 007.
V. Shearer, 697, 758,
y. Simpson, 277.
y. Smith, 990, 991.
y. Succession of Gordon, 250.
Fowlkes V. State, 785, 790.
Fox V. Assu, 245, 261.
y. Bank. 321.
y. Hoyt, 286. 287.
y. McClay. 367.
y. McC^omb, 619.
y. Muller, 210.
y. Reed, 225.
Foxcroft v. Baraes, 660, 661.
Fox's Appeal. 431.
Foye y. Patch. 506, 785.
Fraley v. Feather, 305.
Francis v. Cox, 347, 351.
y. Insurance Co., 815.
y. Rand, 1004.
v. Steamer Black Hawk, 86.
Francovlz v. Ireland, 312.
Frank v. Brasket. 1007.
y. Jenkins, 671.
y. Myers, 585a.
y. Snow, 872,
y. State, 98.
y. Tatum, 24.
y. Thomas, 58.
y. Wadderin. 540.
Franke y. Brewing Co., 406, 432.
y. Franke, 617.
Frankel y. Satterfield. 278.
V. Stern, 996.
Frankfurth v. Anderson, 84.
Franklin v. Merida, 204.
Franklin County v. Bank, 615.
Franklin Sav. Bank v. Taylor, 556,
585.
Frankovlz y. Smith, 347.
Franks v. Lockey, 315.
Franz Falk Brewing Co. v. Hirsch,
513, 905.
Frary v. Frary, 926.
Fraser y. District of Columbia, 31a.
Frayes v. Worms, 845.
CASES
[Ref erenccB to sections. S9 1 to
Frazer v. Barry, (591.
V. Thatcher, 445.
Frazier v. Bishop, 340.
V. Felton, 190.
T. Frazier's Ex'rs, 600.
T. Griffie, 297.
T. McQueen, 1009.
T. Moore's Adm*r, 847.
V. Williams, 211. 303.
Frederich, Ex parte, 255.
Fred Miller Brewing Co. v. Insurance
Co.. 80, 859, 881, 889.
Freedman's Savings & Trust Co. r.
Earle, 434, 437.
Freel v. State, 1(52,
I^eeland v. Sup'rs, 82.
T. Williams, 9. 11.
Freeman, Appeal of, 857.
V. Alderson. 220, 792, 793, 004.
T. Baruum. GOO, 613.
Y. Bass, 750.
V. Caldwell, 1010.
V. Camden, 97.
T. Hawkins, 606.
T. Menrs, 132.
T. Paul, 1016.
V. Preston. 227.
Freer v. Stolen bur, 577.
Freiberg v. Collender Co., 186.
V. Le Clair, 352.
Fremont v. Seals, 86.
French v. Edwards, 64, 683.
V. Eversole, 338.
y. Frazier*s Adm^r, 640.
T. Goodnow, 138.
T. Howard, 750.
T. Ice Co., 42.
V. Xeal, 543.
V. Pease, 109. 857, 889.
▼. Savings Inst.. 29.
V, Shooniiiker. 32.
V. Shotwell, 359, 705.
V. Snjder, 1008.
V. Tumlin. 173.
French Lumbering Co. v. Theriault,
42:*, 445.
Fresno Milling Co. v. Irrigation Co.,
U81
Frevert v. Henry, 183.
Friar v. Ray, 443.
tVIdge V. State, 245.
Friedman v. Manley, 346a.
T. Shamblin, 252.
CITED. zci
499 in Tol. 1; resiaue in vol. 2.]
Friendly v. Lee, 16.
Frlerson v. Moody, 379.
V. Travis, 193.
Fries V. Fries, 301.
V. Railroad Co., 683.
Frlese v. Hummel, 372.
Frink v. Frink, 135. 105.
Frisbie v. McFarluue, 208.
Frlsseli v. Haile, 950.
Fritz V. Fisher, 902.
V. Iloney, 340.
v. Tompkins, 657, 787.
Fromlet v. Poor, 671.
Frost V. Dodge, 347.
v. Hull. 182.
V. Koon, 63.
Frothingham v. Barnes, 901, 906, 918.
V. Stacker, 446.
Fruchey v. Eagleson, 16.
Fruits V. Elmore. 261.
Fry V. Bank, 1006.
V. Malcolm, 9v>9.
V. Taylor, 808.
Frybnrger v. Andre, 947.
Frye v. Jones, 71.
Fryer v. Myers, 872.
Fuehs & Land Mfg. Co. v. Springer &
Welty Co., 352.
Fuellhart v. Blood. 407, 467.
Fuerman v. Ruble, 27.
Fuher v. Vlllwock. 718.
Fulbright v. Canuefox, 195, 225.
Fullan V. Hooper, 376.
Fuller, In re, 984.
V. .4.dnms, 32.
V. Boggs, 33.
V. Brownell, 534.
y. Cushman, 589.
V. Dry-Goods Co., 358.
T. Eastman, 758.
V. Hamilton County, 938c.
V. Insurance Co., 625.
V. Little. 375.
V. Nelson, 406.
V. Pease, 248.
V. Robb, 211.
V. Shattuck, 697, 758.
V. Smith, 193.
Fullerton v. Kelliher, 118.
Fuller Watchman's Electrical Detect
or Co. V. Louis. 116.
Fulliam V. Drake, 359, 365, 512, 754.
Fullmer v. Pine Tp., 944, 958.
xcu
CASES
[References to lectioni. {{ 1 to
Fulton V. Fulton. 127.
y. Hanlow, 611, 619.
V. Harrington, 906.
V. State, 109.
Fulton Iron Works v. Riggin, 866.
Fulton's ElBtate, 421.
Funderburk v. Smith, 482a, 483, 489.
Funk V. Mfg. Ck)., 322, 375.
Furber v. McCarthy, 981.
Furgeson y. Jones, 278, 279.
Furguson y. Glaze, 589.
Furlong y. Banta, 536.
Furman y. Furman, 315, 321, 352.
Fumald y. Glenn, 358, 362, 387.
Furneaux y. Bank, 751.
Fumiss y. Ferguson, 940.
Fursht y. Oyerdeer, 485.
Fuselier y. Babineau, 590.
Gaar y. Lockridge, 438.
Gable y. Miller, 523.
Gabrielson y. Waydell, 702.
Gaddis y. Leeson, 1005.
Oaehring y. Haedrlch, 317.
Gaff y. Hutchinson, 146.
Gaffleld y. Plumber. 638a.
Gage y. Allen, 183.
V. Bailey, 809.
y. City of Chicago, 306.
V. Downey, 3, 178.
V. Eddy. G55.
y. Eich, 29.
y. Ewlng, 720.
y. Goudy. 247. 607.
y. Hill, 278, 513.
y. Holmes, 624.
y. Judson, 115.
y. Parker, 549.
y. Pumpelly, 247, 809.
y. Rogers, 92.
Gaiennie v. Akin's Ex'r, 237.
Gaines, Succession of, 685, 882.
y. Betts, 115.
V. Cyrus, 29.
y. Kennedy, 378, 655, 761.
y. Patton, 44.
y. Relf , 2113.
y. Wedfi:eworth, 156.
Gaines* Will, In re, 829.
Gains y. Johnston, 290.
OITBD.
499 in Tol. 1; residue in toI. 2.1
Gainsborough y. Giff<H^ 856.
Gainty y. Russell, 357.
Gairdner v. Tate, 5<X).
Gaither v. Welch's Estate, 560.
Galbraith y. Barnard, 363.
y. Black, 522.
y. Martin, 378, 388.
V. Neville, 825.
y. Sidener, 100.
Gale y. Best, 681.
Gall y. Gall, 141.
Gallagher y. Water Co.. 610, 750.
Gallaher y. City of MoundsyUle, 606.
y. Pendleton, 954.
Galley y. Baker, 356.
Gallop y. Allen, 297.
Galloway y. Bank, 271«
y. Galloway, 141.
y. McKeithen, 156.
Gairs Estate, In re, 588.
Gallup y. Lichter, 709.
y. Smith, 250.
Galpln y. Fishbume, 137.
y. Page, 194, 229, 277, 279, 281,
289, 896, 897, 904. 938c 939.
Gait y. Todd, 985.
Galyeston, H. & S. A. B. Co. r. Katac,
556.
Galway v. Malchow, 420.
Gambette y. Brock, 190.
Gambia y. Howe, 61.
Gamble y. Buffalo County, 179.
y. Banking Co., 943.
y. Voll, 551.
Gammon y. Knudson, 125.
Gandell y. Pontigny, 752.
Gandy y. Jolly, 263.
Gannon y. Riel, 158.
Ganzer y. Schiffbauer, 337.
Gapen y. Bretternitz, 082.
V. Stephenson, 423.
Garber y. Commonwealth, 589.
Garden City Wire & Spring Co. v.
Kause, 367.
Gardenhire y. King, 462.
y. Vinson, 338.
Gardiner y. Van Alstyne, 368, 387, 973.
(Gardner, Ex parte, 218.
y. Buckbee, 504, 729. 787.
y. Bunn, 68.
y. City of New London, 91.
y. Bering, 156.
y. Henry, 958.
GASBS
[References to lectiona. H 1 to
ciardner y. Jenkins, 377.
V. Letson, 747.
y. Railroad Co., 680, 946.
y. Balsbeck, 599.
T. Stratton's Adm'r, 541.
4 Pardon ▼. Chester. 44G.
Oarey t. Saugston, 950.
4:arfield v. rnlverslty, 299.
iSaribaldi v. Carroll, 125.
liarland y. Harrisou, 95G.
V. Tucker, 828. 873.
V. Wynn, 530.
Garland County t. Hot Spring Coun-
ty. eOO. 938.
<;arluck y. Calkins. 297.
4 Earner y. Bank, ()97.
V. Burleson, 77.
y. Carrol, 15.
y. Erlanger, 354.
y. Gamer, 905, 933.
y. Henzig. 782.
y. Prewltt, 44, 47.
y. State, 98, 185.
V. Wills, 790, 967.
f wnmett y. Macon, 560.
4;arrard y. Dollar, 91, 697.
V. Hull, 549.
V. Webb, 44.
Oarretson y. Ferrall, 696.
i.arrett y. Beaumont, 16.
V. Greenwell, 696.
V. Lynch, 384.
<;arrick y. Chamberlain. 720.
Uarrigne y. Amott, 534.
Uarrison y. Transportation Co., 574.
y. Cobb, 378.
y. City of New York, 9, 11, 677.
y. People, 132.
y. Tlnley. 630.
Carrott y. Johnson, 764.
riarr. Scott & Co. y. Spalding, 109.
Uarry y. Jenkins, 44.
Garth y. Campbell, 998.
(;artbwaite y. Wentz, 089.
Garton y. Botts, 644, 787.
Garvey y. Janrls, 989.
Garyie y. Greene, 349.
Garrin y. Ganrin, 417, 430.
y. Hall. 945.
V. Squires, 391.
Garwood y. Garwood, 547, 614, 633,
«39.
CITED. xciii
499 in vol. 1; residue in toI. 2.]
Gary v. Ass'n, 83.
GaskeU y. Gaskell, 661.
Gasklll V. Dudley, 87, 583, 697.
Gassert y. Black, 714.
Gassncr v. Sandford, 975.
Gates V. Bennett, 161, 624.
V. Bucki, 939a.
y. Gorebam, 726.
y. Lane, 359.
y. McLean, 099.
V. Newman, 204, 761, 875.
y. Parmly, 612, 699.
y. Preston, 769.
y. Salmon, 39, 44.
y. Steele, 370.
V. Treat, 633.
Gatewood y. Long, 734.
Gatewood*s Adm'r v. Goode, 41T..
Gaullagher v. Caldwell, 950.
Gault V. Sickles, 641.
Gauthier y. Rusicka, 347.
Gautier y. English, 982.
Gayin y. Curtin, 554.
y. Graydon, 787.
Gay y. Cheney, 160, 165.
y. Gay. 349.
y. Grant, 183, 351.
y. Lloyd, 875.
y. Mantle Co., 761.
y. Minot, 174.
y. Rainey, 450.
y. Smith, 278.
y. Stancell, 665.
Gayer v. Parker, 726.'
Gayle v. Foster, 52.
Gaylord y. Payne, 211.
Gaynor y. Clements, 15Sw
Gaytes v. Bank, 600.
Gear y. Hart, 117.
Geary y. Bangs, 733.
Gebhard y. Gamier, 875.
Gechter y. Gechter, 320.
Gederholm y. Davies, 28.
Gedney v. Gedney, 737, 744.
Gedney's Estate, In re, 646.
Gedusky y. Rubinsky, 16.
Gee V. Burt, 632.
Geekie y. Carpenter Co., 680-
Geer v. Com'rs, 253a.
Geery v. Geery, 407.
Gehrke v. Jod, 341.
Geissiuger's Appeal, 1016.
XCIV
CASES CITED.
[Referencei to sectloiu. H 1 to 4d9 in toI. 1; residue in vol. S.]
Gelston v. Hoyt, 799, 800.
Gemmell t. Hueben, 1005.
V. Elce, 270. 281.
Genella v. McMurray, 560.
General Steam Navigation Ck>. v.
GouiUou, 827, 836.
Genestelle v. Waugli, 69.
Genet v. Cauai Co., 158.
Geneva Nat. Bank v. School Dist,
609.
Genobles v. West, 194.
Gentle v. Ass'u, 388.
Genties v. Fink, 732, 744.
Gentry v. Allison, 439.
V. U. S., 138.
George v. Belk, 186.
V. Gillespie, 624, 785.
Y. Middougb, 125.
V. Tutt, 383.
George P. Steel Iron Oo. t. Jacobs,
143.
Georgetown v. Smith, 438.
George W. McAJpln Co. v. Flnster-
wald, 57.
Georgia Home Ins. Oo. v. Goode, 138.
Georgia R. & Banking Co. v. Harris,
217, 227.
V. Pendleton, 89, 244.
Gerald v. Burthee, 50.
Gerault v. Anderson, 897.
Gerber v. Gerber, 703.
(Jere v. Sup'rs, 54.
Cterhart v. Font, 95.
Gerllng v. Insurance Co., 98.
German-American Bank v. Stickle, 82.
German-American Sav. Bank v. Fritz,
477.
German-American Title & Trust Co. v.
Campbell, 70.
(lerman Bank v. Insurance Co., 541.
German Exchange Bank v. Kroder,
692.
Ciernian Fire Ins. Co. v. Perry, 369.
Germania Iron Co. v. U. S., 530.
Germania Life Ins. Co. v. Koehler, 900.
(iennan Ins. Co. v. Frederick, 16.
German Reformed Church v. Common-
wealth, 523.
German Security Bank v. Campbell,
450.
GeiTish V. Cummings, 120.
V. Hunt, 376.
V. Pratt, 709.
Geriish v. Seatou, 376.
Gerstein v. Fisher, 536w
Geseirs Appeal, 39.
Getchell, In re, 248.
Gettys V. Gettys, 929.
Geyer v. Douglass, 367«
Gheer v. Huber, 338.
Gibbon V. Ass^n, 16.
Gibbons v. Campbell, 851.
V. Ogden, 32.
Gibbs V. Bryant, 770.
V. Jones, 699.
V. Southern, 247.
Gibson, Ex parte, 255.
V. Beveridge, 208.
V. City of Chicago, lia
V. Chouteau. 194, 700.
V. Chouteau's Heirs, 130. 132, 139l
V. Cincinnati Enquirer, 98L
V. Davis, 483, 486.
V. Emerson, 216.
V. Gibson, 701.
V. Insurance Co., 939, 988b.
V. Mi In, 724.
V. Moore, 378.
V. Parlin, 790.
V. Robinson, 589.
V. Templeton, 216.
V. Vaughan, 125.
V. Watts, 382.
V. Willis, 536.
Giddlngs v. Steele, 200, 641.
V. Whittlesey, 881.
Gideon v. Dwyer, 341.
Gleseke v. Schrakamp, 1000.
Gifford v. Thorn, 374, 705.
V. Whalon, 960.
Glhon V. Fryatt, 1005.
Gilbert v. Earl, 118.
V. Marrow, 348.
V. Thayer, 22.
V. Thompson, 611.
Gilbreath v. Jones, 790.
Gilchrist v. Bale, 729, 785. •
Gill v. Jones, 27.
V. Pelkey, 168.
V. Truelsen, 956.
V. U. S., 538.
Cille V. Emmons, 307.
Gillespie v. Campbell, 354.
V. Coleman, 29.
V. Hauenstein, 250.
V. Insurance Co., 894, 907.
CASES CITED.
(ReCerencet to aectioni. SS 1 to 499 in vol. 1; residue in toI. 2.]
XCV
Gillespie t. Rogers, 330.
T. Webster, 351.
T. Weiss, 351.
GiUett y. Booth, 165.
T. Camp, 922.
Y. Landis, 604.
v. Sullivan, 388.
GiUette-Herzog Mfg. Go. t. Asbton, 85.
GilUam v. Ketldick, 173, 516.
GinUan Y. Murphy, 270.
v. Spratt, 6U9.
Giniland y. Bredin, 354.
V. Seller, 240.
GiUim Y. DaYless Count}', 619.
Gillbigham y. Towboat & T. Co., 579.
(Dillon Y. Wear, 273.
Gillum Y. Case, 652.
Y. Railway Co., 208.
Gitanan y. DonoYan, 204.
Y. Foote, 774.
Y. Gilman, 901, 903.
Y. HoYey, 407.
Y, Lewis, 227.
Y. Rives, 707, 708, 709.
Gilixuin*n Estate, In re, 313.
Gilmer, Ex parte, 135.
V. City of Grand Rapids, 167, 713.
Y. Morris, 709. 718, 725.
<>ilmore v. Ro<l jeers, 250.
V. Ward, 101.
v. Whltemau, 750.
V. Williams, 768.
(tilmour v. Ewing, 939a.
<:ilpin V. Railroad C6., 920, 1016.
<;ilreath v. GiUiland, 146.
GUmth Y. Gilrutb, 320.
GllsoD, In re, 255. •
Y. Bingham, 768.
Giitinan v. Strong, 587.
Gingrich v. Gingrich, 306.
Oirardln v. Dean, 543, 725.
c;iKller Y. Carter, 667.
<;i«t V. Davis, 713.
V. McJunkin. 624.
i'Avonn V. Campbell. 376.
V. Peake. 745.
Givens* Appeal, 379.
<iladweU v. Hnme, 663.
4;iae9er v. City of St. Paul, 324,
Glanton v. Griggs, 596.
Glaser v. Meyrovitz, 790.
iilasner y. Weisberg, 543.
Glaspie Y. Keator, 745.
Glass v. Blackwell, 829, 935.
v. Gilbert, 260.
Y. Glass, 134.
v. Smith, 358.
Glasscock v. Price, 406.
V. Stringer, 405, 406a, 453.
Glaude v. Peat, 747, 7tS3.
Gleason v. Dodd, 855, 901.
v. Peck, 299.
Y. Supply Co., 20a
Y. Wilson, 801.
Glenn v. Brush, 510.
Y. Priest, 789.
Y. Savage, 620.
v. Shelbume, 84.
Glickman v. Loew. 352.
Glldden v. Packard, 83.
V. Railroad Co., 530.
Globe, The, 791.
Globe Ace. Ins. Co. v. Reld, 84.
Gloninger v. Hazard, 350.
Glos v. Sankey, 896.
Glover v. Flowers, 290.
V. Hedges, 386.
Y. Holman, 85, 181, 223.
V. Moore, 190, 192.
V. Stamps, 655.
(ilyde Y. Keister, 55.
Goar Y. Maranda, 271.
Goble Y. Dillon, 751, 769.
Godard v. Gray, 814, 820, 827, 843,
0"1'1 .
Godbold V. Klrkpatrick, 944.
Goddard v. Benson. 790.
V. Bolster, 127, 204.
V. Coffin, 106.
V. Seidell, 621.
Godding V. Decker, 206.
Goebel v. Iffla, 554.
Goenen v. Schroeder, 713.
Goergen v. Schmidt, 318.
Goetzinger v. Rosenfeld, 451.
Goff V. Dabbs, 78, 698.
Goggan V. Evans, 147.
Gold V. Hutchinson, 347.
V. .Tohnson, 1006.
Goldberg v. Fowler, 83.
Goldsberry v. Carter, 347.
Goldschmidt v. Mills, 599.
Goldsmith v. Wilson, 29.
Goldtree v. Allison, 643.
(Solightly v. Jellicoe. 762.
(Joniez v. Gomez, 246.
XCTl CASES
[Reterencei to secUonB. (fi 1 to
Gonzales v. Batts, 260.
Gooch V. Atkins, 1010.
Good V. Good, 505.
V. Norley, 194.
Goodale y. Cooper, 206.
Goodall V. Harris, 122. 443.
Y. Marshall, 865.
Goodell V. Blumer, 417, 418, 445.
v. Raymond, 161.
V. Starr, 274.
Goodenow v. Litchfield, 751.
Goodess V. Williams. (iOl.
Goodfellow, In re, 248.
Goodhue V. Churchman, 347.
T. Daniels, 604.
V. Meyers, 338, 339.
Goodin v. Newcomb, 542.
Goodman v. Hailes, 577.
V. Malcolm, 703.
V. Pocock, 752.
V. Winter, 635.
Goodness y. Railway Co., 352.
Goodnow V. Hill, 192.
Y. Litchfield, 548.
V. Smith, 605.
V. Stryker, 540, 892.
Goodrich y. Alfred, 50.
Y. Bodurtha, 683.
Y. City of Chicago, 521,
V. ColYin, 958.
Y. Jenkins, 857.
Y. StCYens, 878.
Y. Thompson, 633.
Y. WiUard, 299.
Y. Yale, 729, 734, 78a
Goodwill Y. Elkius. 50.
(Goodwin Y. Miller, 42.
Y. Richardson, 954.
Y. Wilson, 589.
Goodwlne y. Hedrlck, 163.
Goodyear Dental Vulcanite Go. y.
Frlsselle, 958.
Gordon y. Bodwell, 109.
Y. Downey, 183.
Y. Gilfoil, 939a.
Y. Johnson, 508.
V. Kennedy, 633.
V. Mackay, 897.
▼. Rixey, 404.
Y. State, 727.
V. WeaYer, 655.
Gordonier y. Billings^ 299.
CITED.
499 in vol. 1; residue in vol. U
Gore Y. Gore, 617.
Y. Poteet, 949.
Gorgas y. Blackburn, 985e.
Gorham y. Farson, 429.
Gorman y. Young, 364.
Gormully &, Jeflfery Mfg. Co. y. Cath-
arine, 354a.
Gorrill v. Whittier, 174, 245, r»13.
Goss Y. Singleton, 541.
V. Wallace, 600.
Gott V. Carr, 369, 372.
GotUieb v. Fred W. Wolf Co., 744.
Y. Thatcher, 473.
Gonce y. McCoy, 1006.
Goucher v. Clayton, 698,
Goudy V. Hall, 274.
Gough Y. McFall, 167.
Y. Pratt, 389.
Gould Y. Crawford. 699.
V. Crow, 925, 932, 933.
Y. EleYator Co., 108.
Y. Hayden. 864, 958.
Y. Kelley, 100.
Y. Loughran, 180.
Y. Luckett, 454.
V. McFall, 191.
Y. Railroad Co., 693, 703, 707, 709.
V. Sternburg, 315, 683.
Y. Webb. 852.
Gould's Estate y. Watson, 154, 300.
Goundle y. Water Co., 660.
Goiurlay y. Hutton, 349.
Gove Y. Lyford, 722.
Governor v. Read, 986.
V. Shelby, 588, 689.
Governor and Company of Bank of
Scotland v. Fenwick, 486.
Govin Y. De Miranda. 744. 745.
Gowen y. Conlow, 355.
Goyhlnech v. Goyhinech. 34.
Grace y. Marble Co., 211.
Grader v. Weir, 351.
Qracy v. Coates, 81. 593.
Grady y. Donahoo, 340.
Graef y. Bernard, 314.
Y. Beraard, 511, 864.
GraefP, In re, 32.
Grafton y. Brigham, 661a.
Grafton & G. R. Co. y. DaYlsson, 303.
407.
Gragg Y. Richardson, 567.
Graham, Ex parte, 63, 76, 482.
CASES
[References to sections. iS 1 to
(Graham, In re, 533.
T. Bank, 366, 387.
% Dyer, 567.
v. Graham, 83.
V. Grigg, 934, 937.
Graham v. Improvement Co., 252, 393.
y. Long, 55, 190.
V. Lynn. 135, 137.
V. Railroad Co., 242, 248, 297a.
T. Reynolds, 280.
V. Roberts, 375, 381.
V. Scripture. 958.
V. Spencer, 230, 901, 903, 939.
T. Tankersley, 371, 567, 571.
(frames t. Un wley, 306.
(rraud Gulf Bank v. Henderson, 449.
Grand Island & N. W. R. Co. v. Ba-
ker. 253a.
Grand Rapids Sav. Bank y. Wldd-
comb, 157.
Granger v. Clark, 273, 290, 917.
T. Singleton, 703.
Graniee, Ex parte, 255.
Granite State Provident A88*n v. Mc-
Hugh. 155.
Grange v. Frihgs, 354.
<;rant v. Bledsoe, 875.
V. Bnrgwyn, 674.
V. Easton, 848.
V. Harrell, 303.
V. Hill, 2S4, 295.
V. Insurance Co., 41.
V. Lowe, 22.
V. McCatfgbin, 349.
V. McLachlin, 814.
V. Maclaren, 644.
V. Oliver. 530.
V. Quick. 361.
V. Railroad Co., 41.
V. Ramsey, 504.
V. Schmidt, 145.
V. Spann, 250.
Grantham v. Kennedy, 367.
Graotland v. aty of Memphis, 489.
Grant Tp. v. Reno Tp., 540.
Grass T. Hess. 376.
Grattan v. Matteson, 65, 297.
Graver v. Faurot, 372.
Graves V. Bnlkley. 588.
V. Hebbron, 624. 665.
V. Joice, 652.
▼. Skeels, 490.
V. Whitney, 52.
1 LAW JL DG.
CITED. XCVU
4&d in vol. 1; residue in vol. 2.]
Graves v. Woodbury, 953, 954, 1004.
Graves' Adm'r v. Flowers, 562.
Gravett v. Malone, 590.
Gray v. Barton, 362.
Gray v. Bicycle Co., 321^ 804, 919.
V. Brignardello, 132, 245.
V. Canal Co., 923.
V. Daniels, 704.
V. Dougharty, G93, 714.
V. Edwards, G17.
V. Gates, 306, 324.
V. Glllllan, 304, 787.
V. Gray, 707.
V. Hlnes, 143.
V. Larrlmore, 281.
V. McNeal, 282, 287.
V. Palmer, 47.
V. ringiy, 729, 783, 784, 787.
V. Sabin, 343.
V. Smith, 554.
V. Stuart, 170, 211.
V. Thomas, 133, 803.
V. Thrasher, 482a.
V. Ward, 371.
V. Winder, 198.
Graydon v. Hurd, 666.
V. Justus, 875.
Gray's Adm'r v. McDowell, 210, 491. •
Gray's Adm'rs v. White, 206.
Gray*s Heirs v. Coulter, 118.
Great Falls Co. v. Worster, 293.
Greathouse v. Smith, 958.
Great Western Tel. Co., In re, 320a.
V. Piwdy, OlOa.
Great West Mln. Co. v. Mining Co., 83.
(ireaves v. Middlebrooks, 069, 780.
Greely v. Smith, 647, 609.
V. Townsend, 216.
Green v. Association, 896, 907.
V. Ballard, 191.
V. Banks, 31, 32.
V. Barker, 530.
V. Beals, 211.
T. Bedell, 529.
V. Bogue, 509.
V. Branton, 190.
V. Brown, 213.
V. Burke, 1008.
V. Clark, 578, 581.
V. ClawBon, 680.
V. Cobden, 127.
V. Fisk, 39.
V. Foley, 857.
XCYIU CASES
CBeterenOM to MCtloiii. HI to
Green y. Fricker, 526.
V. Grant, 302.
V. Hamilton, 87.
y. Huggius, 562.
y. Jones, 86.
y. Marks, 425.
y. Massie, 385.
y. Plattsburg, 494.
y. Railroad C^o., 305, 806, 810.
y. Reagan, 179.
y. Sanbon, 866.
y. Sarmiento, 828.
V. Shaw, 236.
V. Starr, 864.
y. Taney, 199.
y. United States, 718.
y. Van Busklrk, 904.
Greenabaiun y. Elliott, 758.
Greene v. Darling, 526, 956.
V. Greene, 290, 296.
V. Halleubeck, 973.
y. Haskell, 368.
V. Railroad Co., 733, 972.
Greene County v. Daniel, 985c.
Greenlaw y. Williams, 569.
Greenleaf y. Com'rs, 582.
y. Maher, 369.
Greenlee v. Lowing, 630.
Green man v. Fox, 593.
Greeno v. Barnard, 119.
Green's Appeal, 485.
Greenstreet v. Thornton, 199.
Greenway v. Cannon, 432.
Greenwich Bank y. Loomis, 411, 550.
iJreeuwood v. City of New Orleans,
197, 706.
V. Marvin, 692.
V. Murray, 635.
y. Warren, 644.
Greenzweig y. Strelinger, 897, 911.
Greer v. Hale, 379.
y. Simrall, 556.
y. Bank, 491.
Gregg V. Belting Co., 610.
V. Jamison, 175.
Gregory v. Bovier, 287.
y. Clabrough's Ex'rs, 549.
y. Cuppy, 954.
y. Ford, 377.
y. Gregory, 927.
V. Hnynes, 352, 550.
V. Ken yon, 783.
V. riive, 504.
CITED.
4M in Tol. 1; reiidue In yol. 2.]
Gregory y. Stark, 1006.
y. Woodworth, 707.
Grenell v. Sharp, 491.
Gresham y. Ellis, 311.
Greve v. Goodsou, 32.
Grevemberg y. Bradford, 284.
G rider v. Apperson, 865.
Grldley v. College, 283.
y. Watson, 466.
Griefswald, The, 821.
Griel v. Vernon, 341.
Grier v. Jones, 346, 691.
Griess v. Insurance Co., 88.
G riffle v. McClung. 779.
Griffin V. Brewer, 340.
y. Camack, 945.
y. McGavin, 263.
y. Orman, 44.
y. Railroad Co., 681.
y. Seymour, 696, 707, 710.
V. Smyly, 261, 378.
V. State, 255.
Griffin's Case, 175, 256.
Griffin's Ex'r v. Cunningham. 218. 298.
Griffith V. Clarke, 188, 190, 392.
y. Fields, 728.
y. Furry, 206.
y. Griffith, 393.
V. Happersberger, 600.
y. Harvester Co., 213.
y. Maxwell, 158.
y. Ogle, 128.
y. Reynolds, 371.
Griffiths v. Sears, 956. '
Grigg y. Gilmer, 86.
Griggs y. Becker, 867.
Grignon y. Astor, 283.
Grigsby v. Akin, 809.
(Jrim V. School District, 298.
Grimes v. Barratt, 38.
y. Grosjean, 155.
V. HiUlary, 41.
y. Port man, 425.
y. WMlliams' Estate, 782.
Grimes' Estate y. Norris, 633.
Grimke's Ex'rs v. Mayrant, 483.
Grimley, In re, 256.
Grimmett y. Askew, 177.
Grinnell y. Schmidt, 326.
Griswold v. Hazard, 251, 380.
y. Hill, 127, 1013. .
y. Pitcairn, 826.
V. Rutland, 299.
CASES
CR«f«reiioM to Mctioiis. H 1 to
Grlawold y. Stewart, 203, 260.
Griswold Unseed Oil Co. y. Lee, 822,
351.
Groat y. Pracht, 526.
Groesbeck v. Golden, 603.
GroDer v. Hield, 641.
T. Smith, 130.
Gronfler v. Puyniirol, 194, 195.
Groning y. Union Ins. Co., 815.
Groome, In re, 320a.
Grootemaat y. Tebel, 340.
Groshon v. Thomas, 548.
Gross y. Railroad Co., 995.
Grosyenor y. Cbesley, 958.
y. Doyle, 335.
Grotenkemper y. Carver, 709.
Groth y. Washburn, 556.
(Sroondie y. Water Co., 578, 660.
Groat y. Chamberlin, 568.
Groye y. Bnsh, 343.
G rover y. Boon, 490.
V. Groyer, 87a
Groyer & Baker Co. y. Raddiffe, 894.
Groves y. Brown, 694.
Grovetf Appeal, 398.
Grahh y. Crane, 347.
Gmbbs y. Blum, 61.
Gnmd v. Tncker, 583.
Gnmdy y. Kelley, 347.
Gmner y. Westin, 473.
Granert y. Spalding, 549, 600, 609,
615^ 629.
Gmsenmeyer y. Logansport, 250.
G. 8. Congdon Hardware Co. y. Min-
ing Co., 340, 851.
Guarantee Co. of North America v.
Tmst Co., 46.
Guarantee Tmst & Safe-Deposit Co. v.
Railroad Co., 31a.
Guaranty Trust & Safe-Deposit Co. '
V. Railroad Co., 232, 513. ,
Guardian Say. Bank v. Reilly, 44. |
Gude y. Insurance Co., 875.
Guerln y. Danforth, 550.
Guernsey v. Carver, 734, 736.
V. Froude, 351.
Guernsey Branch of State Bank v.
Kelley, 982.
Guest y. Guest, 926.
Guidiy v. Jeanneaud, 578.
Guild v. Bonnemort, 30.
v. Phillips, 321.
Guiles V. Murray, 986.
CITED. XCIZ
499 in vol. 1; realdue in vol. 2.]
Guille y. Swan, 770.
Guinard v. Heysinger, 213, 970.
Guinness v. Carroll, 827.
Guise y. MiddletoD, 165.
Guiteau y. Wisely, 440.
Gulf City Street Ry. & Real-Estate
Co. y. Becker, 28.
Gulf City Trust Co. v. Hartley, 541.
Gulf, C. & S. F. Ry. Co. v. Blankeu-
heckler, 393b.
y. Henderson, 863, 393.
y. King, 363.
y. James, 084.
y. Moody, 529.
y. Stephenson, 24.
Guliano v. Whitenack, 261.
Gulick v. Lodei-, 892, 975.
Gulickson V. Bodkin, 271.
Gullett Gin Co. v. Oliver, 404-406.
Gulley V. Thurston, 445.
Gumbel v. Abrams, 152.
y. Pitkin, 576.
Gum-Elastic Roofing Co. y. Mexico
Pub. Co., 138.
Gummer v. Trustees of Village of
Omro, 699.
Gund y. Horrlgah, 130.
Gundlhi y. Packet Co., 696.
Gunn y. Black, 44.
y. Donoghue, 22.
y. Howell, 204, 246, 247, 279, 593.
857, 875, 886.
V. Miller, 220.
y. Peakes, 721, 835, 849, 875, 877.
y. Plant, 110, 245, 513.
v. Railroad Co., 661.
Gunnell v. Emerson, 141.
Gunter v. Buckler, 404.
Gurley v. Railroad Co., 29.
Gumea v. Seeley, 682.
Gurnee v. Maloney, 641.
Gusman v. De Poret, 386.
V. Hearsey, 681a.
Gutchess v. Whiting, 746.
Guthrie v. Bashlinc, £^.
y. Doud, 372.
v. Havard, 190.
v. Lowry, 897.
y. Pierson, 576,
v. Reid. 1016.
Gut Luu, In re, 533.
Gntzwiller v. Crowe, 118.
Guy V. Ide, 312.
C CASES
[References to secttOM. H 1 to
Guy V. Lumber Co., GOO.
Guyer's Adm'r v. Guyer, 109.
(iwinn V. Newton, 367.
V. Parker, 305.
Gwj'nn V. Hamilton's Adm'r, 548.
H
Haak v. Breidenbach, (528.
Haak's Appeal, 455.
Haas V. Taylor, 020, 764.
Hacker, In re, 250.
Hackett v. Connett, 713.
V. Jones, 18<).
V. Manlove, 203, 295.
Hackley v. Draper, i)73.
Haddock v. Perham, 586.
Haden v. Goppinger, 429.
V. Walker, 945.
Hadley v. Mayor of Albany, 532.
Hadwin v. Fisk. 402.
Hagadorn v. Hart, 449.
Hagan v. Cliapmau. 407.
Hagar v. Reclamation Dist., 221.
V. Townsend, 141.
V. Wikoff, 354. '
Ilageman v. Salisberry, 119.
Hagerthy v. Bradford, 574.
Haggart v. Morgan, 52(5.
Haggerty v. Amory, 850, 891.
V. Phillips, 302.
Haggln V. Ix)rentz, 341.
Hagler v. Mercer. 118, 130.
Hagood V. Aikin, 982.
Hahl V. Sugo, 601.
Hahn v. Gates, 340.
V. Hart, 358, 368.
V. Kelly, 270. 271, 273, 277, 278,
.281, 283.
V. Miller, 742.
V. Mosely, 112.
Haight V. City of Keokuk. 611.
V. Gay. 216.
V. Ilolley. 30.
Halle V. Hill, 922.
Hailey v. Boyd's Adm'r, 590.
Haines v. Christie, 3.
V. Lytle, 349.
Hair v. Lowe, 368.
V. Moody, 306.
Halrston v. Garwood, 336.
Hake v. Coach, 24, 45.
CITED.
499 In TOl. 1; reildue in toI. S.]
Halbert v. De Bode. 250.
Haloombe v. Ijoudermilk, lOlO,
Haldeman v. Starrett, 89.
V. U. S., 690.
Hale v. Angel, 958.
V. Bank. 141, 956.
y. Bozeman, 357.
V. Finch, (KiO.
V. Hardon, 583.
V. Home, 434.
V. Lawrence, 13.
V. Robertson. 439a.
Haley v. Bank. 90.
Haleys v. Williams, 433. 449.
HaU V. Calvert, 510.
V. C^aig, 064.
V. Cralge, 214.
V. De Armond, 3.
V. Dodge. 518.
V. Green, 415.
V. Griffin, 382.
V. Hamlin. 290. 293.
V. Harrison, 677.
V. Harvey. 202.
V. Heffley, 245.
V. Henderson, 963.
V. Howd, 282.
V. Jones, 309.
v. Lanning, 237, 901.
V. Law, 238.
V. McKay, 874. 89(J.
V. Mercantile Co.. 305
V. Merrill, 157.
V. Odber, 825, 847.
V. Publishing Co., 326.
y. Richardson, 536.
y. gauntry. 245, 446, 1015.
V. SIgel, 583.
V. Taylor, 998.
V. Thayer. 174.
y. Warren. 802.
y. Williams, 211, 228, 884, 897.
900,903.
y. Young, 217.
y. Zeller, 627.
Hallack v. Gagnon, 749.
V. Loft, t581a. 700.
Halladay v. Underwood. 321.
Hallberg v. Brosseau, 142.
Halleck v. Moss. 250.
Haller y. Parrott, 551.
y. Pine, 627.
Hallett y. Righters, 281.
CASES
[BeferenceK to sections. SI 1 to
Hallock V. DomlDy, 522.
V. Jaudin, 84.
Hallowell v. Brown, 491.
Hallum V. DlckJuson, 099.
Halstead t. Black, 875.
Halter v. Soap-Works Co., 352.
Hambel v. Davis, 270, 280.
Bamberger v. Easter, 407.
Uamberlin v. Teii->*, 2t)7.
Hambleton v. Glenn, 917.
V. McGee, 2()7.
Hamblln v. Kni|;ht, 376.
Hambly v. Hnyden, 118.
Hambrick v. Dent, 80.
Hamburg-Bremen Fire Ins. Co. v. Mfg.
Co., 357.
Hamburger v. Easter, 407, 411.
Hamer v. Cook, 271.
V. Kirk wood, 981.
V. Sears, 182.
V. Trust Co., 130.
llamill V. Talbott, 907, 926.
Hamilton v. Adams, 305.
V. Burum, 282.
V. Cutts, 567, 574.
T. Dutch East India Co., 825.
V. Oilman, 197.
V. Mclean, 368*
V. Seitz, 167.
V. Ward, 114.
V. Wood. 373.
V. Wricht, 272.
Hamilton Bhig. Ass'n v. Reynolds, 694.
llamiltouK Appeal, 406.
Hamlin t. Railroad Co., 35.
Hamlln*s lessee v. Bevans, 449.
Hamm v. Bascbe, 208.
V. Beaver. 740.
Hamman v. I^wis. 115.
Hammatt v. Wyman, 995.
Hnmmer v. McConiiel, 130, 155, 160.
V. Woods, 661a.
Hammergen v. Schurmeier, 099.
Hammett v. Morris, 593, 997.
Hammock v. McBride, 293.
Hammon v. Smith, 855.
Hammond v. Ass'n, 897,
V. Carter. 655.
T. Freeman, 181.
T. Hammond, 933.
T. Place, 974.
T. Wilder, 290.
Hamner y. Boott, 36.
CITED. CI
499 in vol. 1; residue in vol. 2.]
Hampson v. Edeleu, 438.
V. Weare, 245.
Hampton v. Levy, 446.
V. McConnel, 275, 856, 857, 884.
Hampton Lumber Co. v. Van Ness,
311.
Hanchett v. Auditor General, 664.
v. Kimbark, 956.
llauchey v. Croskrey, 629.
Hancock v. Bowman, 183.
v. Flynu, 513, 680.
V. Lopez, 660.
V. Mfg. Co., 750.
V. Welsh, 729.
Hancock Nat. Bank v. Farnum, 910a,
938.
Hand v. Taylor, 588.
Handley v. Jackson, 365, 374, 393,
774.
v. Sydenstrlcker, 432.
Handrahan v. Iron Works, 583.
Handy v. Smith's Adm'r, 485.
Haneman v. Pile, 691.
Hanham v. Sherman, 697, 747.
Hanika's Estate. In re, 260.
Hanks v. Harris, 944, 948.
V. Pearce, 462.
V. Thompson, 21.
Hanley v. Donoghue, 211, 860, 914,
917.
V. Foley, 632.
V. Hanley, 370, 808.
Hauly V. Adams, 498.
Hanua v. Morrow, 387.
V. Read, 506, 543, 682, 888.
V. Savage, 587, 1006.
V. Spotts' Heirs, 197.
Hannaford v. Huun, 783.
Hanness v. Bonnell, 1008.
Hannon v. O'Dell, 671.
Hanover Fire Ins. Co. v. Tomlinson,
42.
Hanrick v. Gurley, 567, 659, 751.
Hansbrough v. Fudge, 135.
Hanscom v. Hewes, 87.
V. Tower, 907.
Hansen v. Schlesinger, 165.
Hansen's Empire Fur Factory v. Tea-
bout, 545.
Hansford v. Van Auken, 9G(J.
Hanson v. Armstrong, 553, 577.
V. Bowyer, 36.
V. Buckner's Ex'r, 571.
Cll
CASES CITED.
[References to sections. SS 1 to
Hanson v. Hanson, 354.
y. Jacks, 482a, 491.
y. Michelson, 341.
V. Wolcott, 288, 324.
Hanthorn v. Oliver, 335.
Harbaugb v. Water Co., 340a.
Harbeck v. Pupin, 58.
V. Vanderbilt, 9U9.
Harbin v. Chiles, 908.
V. Roberts, 567.
Harbolt v. State, 83.
Hard v. Shipman, 275.
Hardaway y. Drummond, 560.
Hardee v. Stovall, 128, 473.
Harden v. Campbell, 970,
Hardenbergh v. Converse, 448.
Hardin v. Blackshear, 600.
V. Clark, 600.
V. Dickey, 714.
V. Melton, 110.
V. Palmerlee, 729.
V. Ray, 180.
Harding v. Alden, 822, 926, 982, 933.
V. Cowing, 152.
V. Fiske, 357.
V. Hale, 618, 745.
V. Larkin, 567, 569.
y. R. S. Peale Co., 340.
V. Splvey, 441.
Ilardwlck v. Hook, 604.
Hardy v. Beaty, 227, 281.
y. Cathcart, 159.
y. Eagle, 548.
y. Gholson, 270.
y. Hardy, 709.
v. Nelson, 571, 574.
Hare y. Hare, 920.
Harford y. Street, 237.
Hargns y. Goodman, 504, 658, 726.
Harker y. Brink, 235.
Harkness y. Hntcherson, 253a.
Harlan y. Berry, 774.
y. Wlngate's Adm'r, 389.
Harlow y. Bartlett, 729.
Harman y. Blackstone, 23.
V. Brotherson, 211.
y. City of Lynchburg, 288.
Harmer y. Bell, 814.
Harmon y. Auditor of Public Ac-
counts, 584.
v. Bynum, 43.
y. Dedrick, 484.
y. Hope, i)4S.
499 in vol. 1; residue In vol. 2.]
Harmon y. Martin, 299.
y. Struthers, 509.
Harms y. Coryell, 664.
y. Jacobs, 340.
Hamer's Appeal, 445.
Harness y. Green's Adm*r, 863.
Hamsbarger's Adm'r v. Kinney, 378.
Harp y. Guano Co., 439.
Harper y. Baruett, 307.
y. Biles, 85.
V. Campbell, 650.
y. Cunningham, 50, 52. 57, 218,
496.
V. Drake, 308.
V. Graham, f)89.
y. Harper, 622, 938c.
y. Harvey, 986.
V. Hill, 359.
y. Kean. 299.
y. Mallory, 341.
y. Nichol, 896.
Harralson v. McArthur. 324, 339.
Harriinan y. Swift, 299, 329.
Harrington y. Bean, 1005.
y. Glenn, 981.
y. Harrington, 676, 864.
V. People, 275.
V. Sharp, 422, 432, 433.
V. Wadsworth, 604.
Harris, In re, 257, 320a.
y. Barnhart, 512, 084, 685.
y. Bradford, 135.
Harris y. City of Houston, 744.
y. Colquitt. (333.
V. Guin, 225. 374, 377.
V. Hardeman, 324.
V. Harris, 183. 609.
y. Jenkins, 55.
V. Jones. 179.
V. Leonhardt, 770.
V. Lester, 245.
V. McClanaliau. '^73.
Y. McDonald, :.79.
V. Mfg. Co., 86.
y. Martin, 165.
V. Miner, 669.
V. Mulkem, G."2.
y. Palmer, 1000.
y. Plant, 548.
y. Preston, 207, 700.
V. Keinhard, 55.
y. Sanders, 23.
V. Sargcant, 273.
CASES
LRef erencM to sections. H 1 to
Harris t. State, 153.
T. Stelner, 958.
V. Willis, 282.
y. Yonman, 197.
Harrison y. Harrison, 157, 880, 932.
V. Heatbom, 127.
y. Insurance Co., 696, 707, 938.
V. Lourle, 829.
V. McHenry, 459.
y. Pender, 246, 269.
y. Roberts, 432.
y. Rosb, 32.
y. State. 154.
y. Trust Co., 162, 962.
y. Wanton's Ex'r, 197, 898b, 664.
V. Walton's Ex'r, 504.
y. Waterworks, 22.
y. Wilson, 1009.
Harrison's Ex'x y. Taylor, 117.
Harryman y. Roberts, 729, 864, 907.
Harsbey y. Blackmarr, 374, 377, 901,
903
Eiar^bman y. Court, 253a.
Har*: v. Bank, 695, 714.
V. City of New Orleans, 985a,
985b.
y. Grigsby, 192.
y. Hiatt, 22.
y. Jewett, 513.
y. Lazaron, 361. 362.
y. McNamara, 799.
y. Moulton. 549, 600, 609.
y. O'Bourke, 307.
y. Plcard, 617.
y. Russell, 404.
y. Sansom, 906, 939.
y. Saryis, 50.
y. Steedman, 660.
y. Washburn, 352.
Harteau y. Harteau, 928.
liarter y. Harter, 958.
Hartford Pire Ins. Co. y. Green, 26.
Hartigan y. Nagle, 321.
Hartman, Ex parte, 255.
y. Hesserlcb, 201.
y. Ogbom, 190, 269, 273.
y. Olyera, :i52.
V. Plane Co., 742, 750.
y. Smith, 530.
V. Stehl, 607.
y. Welland, 604.
Hartrldge y. Wesson, 97, 121.
Hart's Lessee y. Johnson, 213.
CITED. cm
499 in vol. 1; residue in vol. 8.]
Hartzell y. Com., 644.
y. Relss, 497.
Harvey y. Branson, 44.
y. Farnie, 822.
y. Foster, 260.
y. Head. 587.
y. HugglDS, 282.
y. McAdams, 121.
y. Osborn, 599.
y. Pollock, 318.
y. Railroad Co., 754.
y. Tyler, 279.
y. Wilde, 560.
y. Wilson, 339.
Harvie v. Turner, 577, 663.
Harwood v. Railroad Co., 301.
Haseltlne v. Thrasher, 724.
Haskell y. Bowen, 102.
Haskin v. Mayor, 750.
Haskins y. Jordan, 954, 1005.
Hass v. Billings, 323.
Hassell y. Hamilton, 889.
Hassler y. Hefele, 208.
Hassler's Appeal, 162.
Hasted v. Dodge, 121.
Hastie y. Aiken, 44.
Hastings v. Cunningham, 154.
V. Land Co., 159.
Hatch V. Arnault, 109.
y. Coddington, 729.
y. Eustls, 482a, 493.
y. Ferguson, 2G5, 297a.
y. Garza's Ex'r, 292.
y. Spofford, 864, 865, 989a.
Hatcher v. Dillard's Adm*rs, 644.
Hattteld v. Cummings, 100, 583.
Hathaway v. Crocker, 206,
y. Hemingway, 143.
Hattenback v. Hoskins, 179.
Hauck V. Gundaker, 490.
Hauer's Appeal, 53, 496.
Haug V. Railroad Co., 246, 286, 709.
Haughey v. Strang, 389.
Haupt v. Burton, 482, 488, 498, 892.
Hauscheld y. Hauscheld, 329.
Hauselt y. Patterson, 703.
Hauser y. Harding, 16.
Hayard y. Atkins, 530.
Havemeyer v. Refining Co., 314.
Hayen y. Baldwin, 958.
Hayerty y. Haverty, 344.
Hawes y. Hathaway, 974.
y. Hoyt, 349.
CIV CASES
[References to sectloiui. f S 1 to
Hawes v. Petroleum Co., 583.
V. Water Co., 611.
Hawk T. Evans, 689.
Hawkes v. Phillips, 774.
Hawkeye Ins. Co, v. Liickow, 986.
Hawkins v. Depriest, 518.
V. Files, 446.
V. Glenn, 147, 583.
V. Hai-fllng, 388, 1014.
V. Hatton, 779.
V. McDougal. 261.
V. Ridenhour, 982.
V. Ringler & Co.. 750.
V. Smith, 28.
V. Taylor. 541.
V. Wills. 412, 766.
Hawkins' I>essee v. Hayes, 650, 653.
V. Lambert, 543.
Hawks V. Ti-uesdell, 682.
Hawley, Ex parte, 32.
V. Dawson, 552.
V. Fairbanks, 985b.
V. Heyman, 220.
V. Mead, 299.
V. Simons, 655, 6JW-
V. Smeiding, 420.
V. Warner, 671.
Haws V. Tiernan, 699.
Hay V. Cole, 304a.
Hay del v. Roussel, 162.
Hayden v. Boothe, 504.
V. Goppinger, 429.
V. Hayden, 321, 36a
V. Huff, 443.
V. Slaughter. 494.
V. Woods, 207.
Hayden Saddlery Hardware Co. v.
Ramsay, 92.
Hayes v. Caldwell, 29.
V. Carr, 953.
V. Collier, 174.
V. Kerr, 275.
V. Reese, 737.
V. Seaver, 589.
V. Shattuck. 613.
V. Shaw, 200, 204.
V. Solomon, 101.
Haygood v. McKoon, 513.
V. Tait, 84.
Haynes v. Aultman, Miller & Oo., 496.
V. Baekman, 116.
V. Calderwood, 550.
V. Gates, 280.
CITED.
499 in vol. 1; residue in vol. 2.3
Haynes v. Jackson, 699.
V. Meeks, 250.
V. Ordway, 510, 685, 769.
V. Wheat. 98(;.
Hays V. Cage, 847.
V. May's Heirs, 42.
V. Merkle. 857, 903.
V. Miller, 137.
V. Regar. 421.
V. lYyon. 408.
V. Ward, 996.
Hays' Appeal, 417.
Hayton v. Hope, 138.
Hayward v. Clark, 734.
V. Pimental, 247.
Haywood v. Daves, 859.
V. Nooney, 447.
V. Shieve, 55.
Hazard v. Durant, 133.
Hazard's Estate, In re, 460.
Hazelett v. Ford. 522.
Hazelrigg v, Wainwrlght, 349.
Hazeltine v. Insurance Co., 910.
V. Reusch, 367.
Hazen v. Bank. 721.
V. Reed, 751.
Hazleburst v. Morris, 21.
H. B. aaflin Co. v. De Vaughn, 518.
534.
H. C. Tack Co. v. Ayres, 446.
Head v. Daniels, 269.
v. Gervais, 941. 999.
Headley v. Roby, 958.
Heady v. Ass'n, 229.
Heald v. Bennett, 987.
Healey v. Ashbey, 430.
Healy v. Root, 871.
Heaps V. Hoopes, 342.
Heard v. Lodge. 587. 589
V. Sack, 205.
Hearfleld v. Bridges, 889.
Hearn v. Railroad Co.. 575.
Hearne v. Erhard, 117.
Heath v. Banking Co., 158.
V. Cobb, 379.
V. Frackleton, 759.
V. Halfhill, 358.
V. Wallace, 530.
Heathcote v. Haskins, 332.
Heath's Adm'r v. Ashley's Adm'r. 197.
Heaton v. Collins, 238.
V. Peterson, 339.
Hebel v. Insurance Co., 232.
CA8BS CITED.
CV
[ReferenceB to sectloiiB. IS 1 to
Heberd v. Wines, 420.
Hecht V. Motliner, (381.
Uockemann v. Young, 770.
Hecker v. Haak, 191.
V. Mourer, 438.
HeckUng v. Allen, 333.
HeckBcher v. Mlddleton, 322.
Iled^ecoxe .v. Conner, 158.
Hedges v. Meyers, 32.
Heegaard v. Trust Ckx, 21, 27.
lit?ert V. Cruger, 158.
lieff V. Cox, 205, 407.
H.»Cferfnan v. Porter, 525.
lieffuer v. Day, 45.
V. Gunz, 224, 324.
Heffron v. Knickerbocker, 534*
Ilefliug V. Van Zandt, 351.
Hefner v. Insurance Co., 204.
Ilegarty'H Appeal, 635.
Hegeler v. Henckell, 135.
Heggle V. A8s*n, 583.
Ueicliew v. Hamilton, 504.
Heid.^nhelmer v. Johnston, 984.
Heidritter v. Oil doth Co.. 794.
ilei^bway v. Pendleton, 223.
Ileikes v. Com.. (598, 727.
iiolll)ron T. Campbell, 330.
lieSlig V. I^mly, 998.
ilellman v. Krob. (^1.
Heilner v. Coal Co., 351.
Ileil's Appeal, 406.
Ileim T. Butln. 373.
lleimgartner v. Stewart, 330.
Heine t. Corners, 985e.
Heinemann v. I^ Clair, 322.
Helnlen v. Phillips, 121.
Helns V. WIcke, 92, 725.
Heintz v. Pratt, 160.
Ileisterhagen v. Garland, 337.
Hekking v. Pfaff, 939.
Helena, The, 814.
Heller v. Mfg. Co., 387.
Hellman v. Schwartz, 186.
Helm V. Gilroy. 32.
T, Hardin, 585.
V. Van Vleet, 206.
lif^lms V. Bell. 2ro.
V. KeaniK. 138.
Helmoth v. Bell. 145.
IlHprey v. Redi< k. (iOO.
Ilelvete r. Rapp. 110.
Hemmeus v. Bentley. 182.
Hemmenway t. Hickes, 84.
499 in vol. 1; residue in vol. 2.]
Hempstead v. Watkins, 378, 389.
Hemstad v. Hall, 16.
Henchman v. Roberts, 55.
Henderson, Ex parte, 256.
V. Banks, 160.
V. Coke Co., llJ9.
V. Harness, 747.
V. Henderson, 731, 829, 844, 962.
V. Heushali. 27.
V. Insurance Co., 15, 26.
V. J. B. Brown Co., 206.
V. Lange, 340.
V. McPike, 152.
V. McVay, 954.
V. Moore, 362.
V. Moss, 757.
V. Stanlford, 227, 907.
V. Vanhook, 491.
V. Williams, 585.
Hendrick v. Clouts, 699.
V. Thomas, 989.
V. Wblttemore, 224, 245, 270, 282,
286.
Hendricks v. Comstock, 892.
V. Decker, 789.
V. Wallls, 992. 994.
Hendrickson v. Bradley, 357, 583.
V. Brown, 954, 1000. 1001.
V. Hinckley, 366. 378, 388.
V. Norcross' Ex*rs, 518.
Hendrlckson's Appeal, 451. 956.
Hendrix's Heirs v. Clay, 165.
Hendron v. Kiimer, 3()7.
Hendry v. Benlisa. 086, 987.
V. Crandall, 116.
V. Cline, 173.
Henkleman v. Petenson, 368.
Henley v. Stone, 585.
Henly v. Soper, 962.
Hennessee t. Mills, 248.
Hennessy v. City of St. Paul, 247,
Henulng v. Insurance Co., 910.
Henninger v. Heald, 693.
Henrietta Nat. Bank v. BaiTett, 733.
Henriques ,v. University, 697.
Heniy v. Allen, 875, 896.
V. Brothers, 950.
V. Davis, 611.
V. Elliott, 364.
V. Estes, 282.
V. Ferguson, 671.
V. (Gibson, 206.
V. Henry, 463.
CTl CASES
[References to eecUons. H 1 to
Henry v. lusuranee Co., 35.
V. Keys, 1010.
V. Railroad Co., 536.
y. Sansom, . 759.
Henry Ulfelder Clothing Co., In re
611, 807.
Henry & Coatsworth Co. v. Halter,
484, 991.
Hensley v. Force, 884, 916.
Henson v. Taylor, 745.
Hentig V. Redden, 655.
Hepburn v. Bank, 86.
V. Griswold, 152.
Hepler v. Davis, 487, 892.
Herald v. Hargis, 349.
Herbert v. Cook, 825.
V. Hanrlck, 633.
V. Herbert, 309, 370, 383.
V. Lawrence, 344.
V. Rowles, 301.
Herbster v. State, 174.
Herbst Importing Co. v. Hogan, 338.
Herdlc v. Woodward, 314.
Hering v. Chambers, 270, 277.
Herman v. Miller, 1000.
Herman Berghoff Brewing Co. v.
Przbylskl, 98.
Hermance v. Cunningham, 340a.
Hermann v. Commission Co.. 765.
Herman's Ex'x v. Martin, 8 i.
Hernandez v. James, 358, 3(i2, 377.
Herndon v. Hawkins, 177.
Heroman v. Louisiana Inst., 104.
Herr v. Herr, 646, 660.
Herren v. Harraison, 354.
Herrick y. Bank, 299.
y. Butler, 271.
y. Smith, 255.
Herring y. Adams, 761.
y. Cherry, 135.
V. PoUey, 122.
Herriter y. Porter, 734, 738.
Herron v. Walker, 450.
Hersey v. Long, 569.
y. Turbett 550.
Hershey y. Bank, 511.
V. Dennis, 411.
Heryey y. Edmunds, 179, 318, 326.
y. Rawson, 746.
Herwick y. Supply Co., 394.
Hess y. Bollnger, 530.
y. Cole, 326, 127, 272.
y. Heebie, 621.
CITED.
499 In vol. 1; residue in vol. 2.]
Hesse y. Mann, 110, 111, 404.
Hettrlck y. Wilson, 346.
Heward y. State^ 98.
Hewetson y. City of Chicago, 154.
Hewett y. Outland, 948.
y. Williams, 714.
Hewitt y. Furman, 526.
y. Hazard, 345.
Hewlett y. Pilcher, 551.
Heydenfeldt y. Towns, 174.
Heydenfeldfs Estate, In re, 099.
Heyfron y. Bank, 13.
Heyl y. Donifelser, 536.
Heyman y. Landers, 604.
Heywood y. Thacher, 545.
H. Herman Sawmill Co. y. Martin,
432.
Hibbard y. Eastman, 366, 373.
y. Randolph, 953.
HlbbeiHl y. Smith, 406. 411.
Hibemia Sayings & Loan Soc t.
Court, 81, 593.
V. Matthai, 84, 88» 156.
y. Thornton, 141.
Hibler y. Shipp, 695, 703.
Hickey y. Smith, 233.
Hicklin y. McClear, 340a.
Hickman y. Barnes, 155.
y. Branson, 211.
y. Jones, 173.
y. Macon Co., 958.
V. Railroad Co., 90.
Hicks y. Ayer, 50.
y. Bank, 79a.
y. Riley, 213.
V. Ross, 1002.
V. Vann, 86.
Hidden y. Saunders, 1012.
Hidell y. Funkhouser, 541.
Hiestand y. Williamson, 459.
Higbee y. Bowers, 31.
Higgen's Case, 674.
Higgins, Ex parte, 770, 776.
T. Bockwith, 228.
V. Bogan, 100.
y. Bordnges, 247, 270.
y. Brown, 34.
V. Bullock, 376, 378.
V. Curtis, 641.
y. Dunkleberger, lOOS.
y. Peltzer, 188, 190.
Higginson y. Martin, 965.
High's Estate, In re, 641.
CASES
[References to BectlooB. U 1 to
Higley T. PoUock, 86.
Hildretb v. DaTis, 351.
T. Thompson, 200.
km V. Armlstead, 173, 407.
T. Bain, 574.
r. Bowyer, 387.
T. Cab Co., 275.
T. City of St Louis, 310.
y. Cooper, 655.
T. Coiirt, 253a, 983b.
T. Crump, 343, 346, 351.
T. Egan, 309.
T. Gordon, 376, 434, 446.
T Grant, 2&I.
T. Harris, 394.
T. Hoover, 134, 161, 164.
V. Hnckabee, 173, 407.
T. Joy. 735.
V. Keyes, 193.
V. Lancaster, 754.
y. Mendenball, 897, 902.
y. Morse, 773.
y. Town ot Sunderland, 298.
V. Transfer Co., 275, 973.
y. Tucker, 563.
y. U. S., 3o9.
y. Warren, 299.
y. Woodward, 270.
Hillebrant y. Barton, 13a
Htllens y. Brinstield, 137.
Hills T. Sherwood, 706.
HiU'g Ex'x T. Rogers, 365.
HUrs Heirs, In re, 38.
Hilton y. Bachman, 270.
7 Quyot, 829, 836, 844.
y. Guyott, 829, 831, 840, 844.
Hlmes y. Kiefal, 768.
Himmelmann v. Sulliyan, 632.
Hinckley v. Miles, 373.
Hindman y. Mackall, 887.
liiiids y. Allen, 567.
V. Hopkins, 61, 61a.
V Scott, 460.
y. Wallis, 240.
Hinason y Weatherill, 634.
HIne y. Hussey, 174.
Hfnesly v. Hunn*s Adm*r, 1006,
Hinrlchaen y. Reinback, 391.
Hinsdale y. Hawley, 317.
IlinfK>n y. Wall, 860.
illnton y. Bland's Adm'r, 195.
y. Insurance Co., 104, 228, 278.
y. McNeil, 660.
CITED.
CVIJ
499 in vol. 1; realdue in toI. 2. ]
Hlnton y. Odenheimer, 995.
V. Prltohard, 560.
V. Towues, 227.
Hintrager v. Sumbargo, 362.
Hbriart v. Ballon, 32.
Hirsh y. Clawson, 86.
y. Welsberger, 34, 232, 312.
mrshfeld v. Brown, 297, 318.
V. Franklin, 236.
Hirth y. Pfelfle, 593.
Hitcb y. Gray, 116.
Hitchcock V. Aicken, 828, 855.
V. Frackelton, 771, 774.
V. Herzer, 347.
Hitchiu V. Campbell, 119.
Hlte V. Fisher, 340.
V. Long, 729, 734, 738.
Hitt V. Lacey, 593.
Hittle V. Zelmer, 339.
Hittson y. Daveuport, 152.
Hix V. Davis, 774.
EUxBon V. Ogg, 504.
Hoag V. Hatch, 101.
V. Society, 346a, 354.
Hoagland v. Bell, 583.
V. Green, 443.
y. Hoagland, 271, 273, 281.
y. Way, 157, 163.
Hoare y. Nlblett, 770.
Hobart v. Frost, 217.
Hobbs V. Beckwith, 21.
y. Duff, 761, 761, 953, 954, 1004.
y. Heming. 816.
y. McMakin, 500.,
V. Mlddleton, 580.*
y. Parker, C17.
v. Slmmonds, 471.
V. Staples, 21.
HobBon v. Marksoo, 248.
V. Yancey, 589.
Hoch V. Raibroad Co., 742.
Hockaday v. Jones, 83, 362, 398.
V. Skeggs, 921.
Hockman y. Hockman, 441.
Hodgdon v. Hodgdon, 981.
Hodge y. Hodge, 549.
y. Shaw, 743.
Hodges v. Brett, 232.
y. Eastman, 236.
y. Bddy, 655.
y. Hodges, 526.
y. Kimball, 27.
y. McCabe, 454.
<;V111 CASES
[References to sectloiui. SS 1 to
Hodges y. Templer, 126.
HodsoU y. Stallebrasse, 738.
Hodson y. Tlbbetts, 232.
Hoey V. Furman, 058.
y. Jacksou, 309.
Hoffertbert y. Kllnkhardt, 123.
Hofflieimer y. Stiefel, 902.
Hoffield y. Board, 213.
Hoffman y. Hoffman, 227, 906, 927,
929.
y. Newell, 913.
V. Porter, 706.
y. Shupp, 188.
Hoffmire y. Hoffmlre, 272, 374.
Hogau y. SmMh, 050.
Hogg y. Charlton, 804, 874.
V. Link, 370.
Hoggatt, Succession of, 199.
Hoggatt*s Heirs y. Crandall, 515.
Hoghtallng y. Osborn. 182.
Hoglan V. Carpenter, 256.
Hogshead v. Carruth, 1006.
Hogton, In re, 197.
Hogue y. Corbit, 155.
Hoguet y. Wallace, 85.
Hobner v. Gratz, 841.
Hohorst V. Packet Co., 23.
Hoitt y. Skinner, 83.
Holbert'R Estate, In re, 082.
Hoibrook v. Brooks, 080.
y. Champlin, 1008.
y. Hoibrook. 320.
y. Murray, 211.
Holcomb V. Tift. 110.
Holden v. Dunn.' ;H]0.
y. Garrett. 420.
V. Haserodt. 32.
V. Lathrop, ()44.
V. O'Donohue, 029.
Holderman y. Tedford, 360.
Holdsworth y. Tucker, 33.
Hole y. Page, 85, 320.
Holland v. Assn. 201.
y. Hatch, OJm.
y. Johnson, 218.
y. Kindrogan, 16.
y. Mining Co., 583.
y. Preston, 009.
y. Trotter, 373.
Holland Bank y. Lleuallen, 322.
Hollander v. Fechheimer, 45.
Hollenbeak y. McCoy, 303.
Hollenbeck y. Stanberry, 990.
CITED.
499 in Tol. 1; residue in vol. 2.]
Holley V. Acre, 589.
HoUlda y. Shoop, 430.
Holliday y. Bank, 442> 456, 459.
y. Coleman, 720.
y. Ward, 635.
HoUiman y. Pearlstone, 338.
Holllnger y. Reeme, 374. .S87.
Hollingsworth y. Barbour, 220l
y. Patten's Adm'x. 448.
V. State, 203.
y. Thompson, 451.
Hollis y. Morris, 029.
HoUister y. Abbott, 504.
y. Barkley, 518.
y. Dillon, 1010.
V. HoHIster. 920, 967.
V. Judges, 105.
HoUoway y. Holloway, 36.
y. Jones, 655. 057.
Holly V. Cook, 954.
Holman y. Furniture Co., 32, 201, 3<'3
y. Miller. 449.
Holmes, In re. 407, 508.
y. Aery, 520.
y. Buckner, 286.
y. Campbell, 966.
y. City of Carondelet, 650.
y. Holmes, 228, 320, 929.
y. Honie, 127, 326.
V. Lewis, 89.
y. Railroad Co., 039.
y. Renisen, 307, 503, 852.
y. Robinson, 1004.
y. Steele, 367.
y. Wilson, 742.
Holmes' Appeal, 422.
Holmes* Heirs y. Gay's Heirs, 210.
Holsworth V. O'Chander. 582.
Holt y. Alloway, 227, 912, 916.
y. Johnson, 913.
y. Lamb, 638.
y. Schneider. 032.
y. Thadier, 200, 972.
Holtby y. Hodgson, 100, 191.
Holt County y. Insurance Co., 253a.
Holt County Bank y. Holt County.
271.
Holtor Lumber Co. y. Insurance Co.,
20.
Holthausen y. Kells, 749.
Holton y. Gleason, 009,
V. Towner, 211.
Holyoke Bank y. Mfg. Co., 583.
CASES
[Reference* to aectlont. if 1 to
Homan t. Fleniiug, 100.
T. Hellman, ltJ9.
Uome Friendly Soc. v. Tyler, 903.
Uome Life lua Co. v. Caulk, 303.
T. Dutiu, 37.
V. Morse, 217.
Uome Nat. Hank v. Carpenter, 291.
Homer v. Brown, 699.
V. Fish, 754.
Hood T. Bank, 160.
V. Hood, COO, 624, 803, 822, 926,
932.
V. State, 927, 929.
Hooe V. Barber, 200.
Hook T. Ricbeson, 179.
V. Trust Co., 154, 576.
Hooper v. Hardle, 197.
T. Hooper, 561.
V. Railroad Co., 740.
Hoopes* Eistate, In re, H40a.
Hooeier Stone Go. v. Railroad Co.,
725.
Hooton V. Will, 441.
Hoover t. Blnkley, 141.
V. Kilander, 751.
V. Mltcbell, 705, 706.
Hope V. Everbart, 74.
Hopkins T. Bowers, 119.
V. Cravey, 246.
T. Flynn, 161.
T. Hopkins, 354.
V. Howard, 77, 486,
r. J^dd, 80, 90.
T. Lee, 504, 611.
T. Orr, 118.
▼. Sbei^ard, 880.
y. Stockdale, 735, 944.
V. Woodward, 978.
Hopper T. Da\ie8, 388.
T. Lucas, 57.
Hopper's Estate, In re, 81a.
Hoppin Y. Arery, 537, 550, 754.
Hoppock ▼. Cray, 78.
▼. Sbober, 448.
Hoppock'B Bx*r8 r. Bamsey, 451.
Horan r. Wabrenberger, 216, 270, 282.
Horbacb v. Smiley, 425, 443, 462.
Hord y. Dlsbman, 383.
Horgan v. Pacific Mills, 740.
Horn T. Lockbart 173.
y. Queen, 386.
y. Ross. 1008.
Home y. Seisel, 44Ck
CITED. CIX
499 in vol. 1; reiidue in vol. 2.]
Horner v. Bank, 220, 261, 271.
v.* Doe, 278.
V. Dunnagan, 737.
V. Homer, 154, 158.
V. Nichols. n, 204.
Homsby v. Bank, 585.
Horn thai v. Flnellte, 352.
Hortou V. Clark, 484.
V. Crltchfleld, 835, 875.
V. Hamilton, Oil.
V. Howard, 174.
V. Mining Co., 340a, 347.
V. Railroad Co., 734.
Hosklns V. Hatteuback, 357.
T. Joliiiii«ou, 431.
Hosier v. Uursh, 16.
Hosmer v. Hoitt, 86.
V. Wallace, 530.
Hcspes V. O'Brien, 939a.
Hos8ack v. Underwood, 948.
Hostetter v. City of Pittsburgh, 526.
Hotchkiss V. Cutting, 110, 274.
V. Nichols, 611.
Hotham v. Somervllle, 436.
Hottenstein v. Conrad, 32.
V. Haverly, 991.
Hough V. Stover. 264.
V. Waters. 766.
Honlditch v. Donegal, 825.
House V. Lrckwood, 614, 786.
V. Reavis, 663.
V. Wright. 33.
Housemire y. Moulton, 504.
Houser v. Smith, 219.
Housh y. People, 589.
Houston V. Houston, 403, 440.
V. Moore. 34.
T. Musgrove, 513, 693.
V. Starr, 33.
y. Timmermau, 550.
V. Ward, 233.
Houston, E. & W. T. Ry. Co. v. BK
lisor, 363.
Hovey y. Elliott, 226, 939, 939b.
y. Middleton, 352.
V. Morrill, 954.
How y. Dorscheimer, 68.
V. MorteU, 357, 373.
Howard, Ex parte, 645.
V. City of Huron, 253a, 613, 697,
754.
y. Coon, 905.
V. De Cordova, 360.
ex CASES
• [References to Mettsiuk IS 1 to
Howard y. Howard, 860.
V. Iron Co., 207.
y. Johnson, 186.
V. KimbaU, 611.
y. Lock, 263.
T. Mitchell. 787.
y. North, 190, 430.
y. Smith, 903.
Howard-Harrison Iron Co., Bz parte,
213.
Howards v. Selden, 938c.
Howe V. Bank, 617.
V. Coldreu, 352.
V. Harding^ 747.
y. Klein. 1001.
y. Mining Co., 352.
V. Mortell, 357.
HoweU V. Barrett 210,
y. Budd, 639.
y. Campbell, 83.
y. Goodrich, 769.
V. Gordon, 906.
y. Hale, 190.
y. McCracken, 746.
y. Aifg. Co., 59.
V. Morlan, 130.
y. Thomason, 362.
y. Withers, 1005.
Howe Mach. Co. v. Hickox, 1004.
Howes y. Austin, 699.
Howeth y. Clark, 27.
Howgate y. U. S., 586.
Howie y. Lewis, 77.
Howison V. Weeden, 245, 261.
Howk y. KimbaU, 991.
Howland y. Carson, 248.
V. Knox, 455.
y. Railroad Co., 936.
Howlett V. Tarte, 697.
Howse V. Judson, 469.
Hoxie V. Bank, 599.
V. Wright, 857.
Hoyle y. McOrea. 1012.
Hoyt y. Howe, 425.
y. Hudson, 1009.
y. :Macon, 83.
V. Railroad Co., 718.
Hoyt Dry-Goods Co. y. Thomas, 33.
Hubbard v. Hobson. 3S4.
V. Hubbard, 635.
V. Investment Co., 908.
V. Martin. 381.
Hubbart v. Phillips, 374.
CITED,
tf9 In Yol. 1; residue in toI. 2.]
Hubbell y. Coudrey. 892.
y. Hubbell, 554, 926, 928, 982.
y. U. S., 512, 685, 708, 722. 733.
Huber Mfg. Co. v. Sweny, 130, 305.
Huckaby y. Sasser, 109, 905^
HuddeU, In re, 492.
Hudelmeyer y. Hughes, 766b
Hudgins y. White, 354.
Hudson v. Breeding, 93.
y. Carman, 583.
y. Daily, 880.
y. Hudson, 135, 165.
y. Kline, 364.
y. McMahon, 50.
y. Morris, W3.
y. Yost, 253.
Huebschman y. Baker, 375.
y. Cotzhausen, 633.
Huey's Adm*r v. Redden's Heirs, 491.
Huir y. Hutchinson, 261.
V. Wright, 192.
Huffman y. Knight, 671, 734.
Huggins y. King, 369.
Hugh y. HIggs, 962.
Hughes y. Alexander, 750.
y. Blake, 504.
V. Cornelius. 797, 813, 814.
y. Cummin gs, 270.
V. Davis, 939b.
y. Frum. 100.
y. Helms, 63.
y. Housel, 346a.
V. Jones, 624, 672, 802.
V. Lindsey, 211.
V. Mendocino Co., 744.
V. Moody, 77.
V. Mortgage Co., 734.
y. Pipe Lines, 581.
y. Rees, 783.
V. Shreve, 1.
V. Shingle Co., 161.
y. Trahem, 950, 953.
y. U. S., 693, 713.
y. Walker, 703.
HuklU y. Guffey, 663.
y. Railroad Co., 708.
Hulett V. Hamilton, 362.
Hull y. Blake, 598, 923.
V. Chaffln. 554.
y. Hull, 1)32.
y. Naumberg, 958.
y. Vining, 340, 354.
V. Webb, 800, 878, 806.
CASES CITBD.
CXI
[ReferaoMtOMOtlni. If 1 to 489 in toL 1; naldiie la toL tj
Holme y. Janes, 211.
Hulfle T. Mershon, 75.
HulTersoQ r. Hutchinson, 286.
Humboldt Mill & Min. Go. Y. Terry,
115.
flume T. Bank, 619.
y. Bowie, 33.
y. Schintz, 682.
Hnmes y. Scniggs, 600.
Homlston t. Smith, 482a.
T. Stainthorp, 32, 44.
Hmmnel v. Bank, 562.
y. Lilly, 486.
Hummer y. Lamphear, 958.
Humphrey y. Persons, 7.
y. Thorn, 141.
y. Tozier, 345a.
Humphreys y. Browne, 682.
V. Humphreys, 356.
y. Leggett, 390.
y. Lundy, 498.
y. Rawn, 321, 323.
Humphreys' Lessee y. Humphreys, 428.
Hnmphreyyille y. Culyer, 154.
Humphries y. Bartee, 241.
Huner y. Doolittle, 63.
Hungerford y. Oushing, 287.
y. SIgerson, 378.
Hungerford's Appeal, 627.
Hnnstock y. Hunstock, 27.
Hunt y. Anderson, 23a
y. Bates, 779.
y. Breading. 1007.
y. Brown, 757.
y. City of San Francisco, 84.
y. Coachman, 367
y. Conrad, 1004.
y. Dutchcr, 967
y. Fisher, 297a.
y. Hayen, 549.
y. Hunt. 916, 92&
y. Jenney, 354.
y. Lucas, 80. 600.
V. Lyle, 227, 85a
y. Payne, 655.
y. Russ, 560.
y. Smith, 983.
y. Standart, 206.
y. Steyens, 311.
y. Swajze, 443, 446.
y. Terrn*s Heirs, 618, 712, 773.
V. WaUis. 347.
V. Yeatman, 326.
Hunter y. Bank, 367.
y. Bryant, 88, 326.
y. Carroll, 657.
V. Davis, 615.
y. Hunter, 25.
y. Ruff, 281.
Hunter*8 Private Road, In re, 40.
Huntingdom y. Grantland. 422.
Huntington- y. Attrill, 870.
V. Crouter, 377.
v. Emery, 322, 348.
y. Finch, 326.
y. Meyer, 411.
y. Moore, 47.
Himtley y. Baker, 907.
Hunton v. Euper, 324, 354a.
Huntt y. Townshend, 436.
Hurd y. Eaton, 359.
y. Fogg, 1005.
y. McClellan, 540.
Hurford v. City of Omaha, 182.
Hurlburt y. Reed, 324.
Hurlbutt y. Butenop, 545.
v. Thomas, 222.
Hurley y. Hewett, 109.
V. Lamoreaux, 662.
Hursey y. Marty, 588.
Hurst v. Combs, C09.
y. Everett, 695, 865.
y. Fisher, 300.
y. Means, 714.
y. Sheets, 954, 1004.
Husky y. Maples, 994.
Hussey v. Culver, 947.
Husted V. Van Ness, 242.
Huston v. Ditto, 299, 378.
Huston Tp. Co. of Mut Fire Ins. Co.
V. Beale, 352.
Hutcheson v. Grubbs, 397, 398, 468.
Hutchings v. Bank, 82.
V. Weems, 99.
Hutchins v. Gerrish, 879.
v. Riddle, 1004.
Hutchinson v. Bank, 529.
v. Brown, 58, 121, 780, 950, 957.
y. Inhabitants, 96&
v. Ledlle, 318.
y. McLaughlin, 40.
Hutsonplller's Adm'r v. Stover's
Adm'r, 993.
Hutton V. Williams, 633.
Huyck V. Graham, 262.
Huyghe v. Briukman, 610.
CXU CASES
[References to sections. H 1 to
Hyatt y. Bates, 504.
V. Challiss, 707, 938.
Hyde v. Curling, 132, 135.
V. Lelsenring, 731.
V. Michelson, 120, 130, 137.
V. Noble, 745.
V. Piukard, 28.
V. Redding, 263.
Hyder v. Smith, 269.
Hyman v. Stadler, 776.
I
Iba Y. Association, 303.
Ide V. Booth, 84.
Iglehart v. Chicago Ins. Co., 61.
V. Lee, 384, 386.
V. State, 589.
• Ihmsen v. Ormsby, 646, 660.
lliorn V. Wallace, 950.
liams V. Root, 271, 281.
lies V. i^lledge. 904.
Ilg T. Burbanli, 604.
Illff V. Arnott, 180.
Illinois Cent. R. Co. V. Brown, 37.
V. City of Champaign, 534a.
V. Miller, 740.
V. People, 740.
V. jQuirk, 529.
V. Slater, 740.
V. Wilbourn. 743.
Illinois Conference of E^vangeUcaI
Ass'n V. Plagge, 555.
Illinois Live Stock Ins. Co. y. Kirk-
patrick, 100.
Illinois Steel Co. v. O'Donnell, 70.
v. Szutenbach, 326a.
Illinois Trust & Savings Bank y. Rail-
way Co., 48, 270,
Illinois & St. L. R. & Coal Oo. v.
Cobb, 613. 657.
Imlay v. Cai-pentier, 862.
Imrie v. Castrique, 819.
Independent Ins. Co. v. Thomas, 152.
Independent Order y. Paine, 97.
Independent School Dist. y. Schreiner,
311, 953.
V. Werner, 400.
Indiana, B. & W. R. Co. y. Allen, 664.
Indiana Farmers' Liye Stock Ins. Co.
v. Stratton, 761.
I
CITED.
499 in vol. 1; residue in vol. 2.}
Indianapolis, D. & W. By. Co. v.
Crockett, 303, 317.
Indianapolis & C. R. Co. y. Clark, 617,
726.
y. Risley, 970.
Indianapolis & St L. Ry. Oo. y. Harm-
less, 972.
Indiana & I. S. R. Co. y. Sampson, 97.
Ingalis v. Bank, 378, 394.
V. Morgan, 481.
Ingersoli v. Dyott, 60.
y. Jewett, 793.
V. Mangam, 194.
Ingle V. McCurry, 376, 377.
V. Thousand Islands Hotel Co.,
948.
Ingraham v. Champion, 482.
V. Gildemeester, 236, 237.
V. Hail, 734, 736.
Ingram v. Beik. 346, 482a, 487.
V. Bray, 718.
y. Phillips, 513.
V. Bobbins, 65.
Ingwaldson v. Olson, 235, 772.
Ingwersen y. Buchholz, 380, 627.
Inhabitants of Argyle y. Dwiuel, 430.
Inhabitants of Brewer y. Inhabitants.
583.
Inhabitants of Dublin y. Chadboum,
636.
Inhabitants of Embden y. Lishemess.
724,
Inhabitants of Essex County y. Berry.
368.
Inhabitants of Greenfield y. Wilson.
745.
Inhabitants of Jay v. Inhabitants, G^S).
Inhabitants of Knox v. Inhabitants.
695).
Inhabitants of Limerick, In re, 132%
163.
inhabitants of Lower AUoways Creek
v. Moore. 588.
Inhabitants of Milford y. Holbrook.
575.
Inhabitants of Shrewsbury y. Inhab-
itants, 574.
Inhabitants of Springfield y. Inhabit-
ants, 127.
Inhabitants of Stetson v. Inhabitants.
96.
Inhabitants of Stockbridge y. luhnb-
itants» 969.
CASES CIT£D.
[Beferences to secUons. §S 1 to 489 In toL 1; rMidue In vol. X.]
exiii
IiiliabltantB of Sturbridge v. Fraukliu,
600.
Inhabitants of Veazie y. Raili'oad (X».,
574, 575.
Inloe y. Harrey, 550.
Inumn v. Jenkins, 785.
V. Jones, 331.
V. Mead, G05.
luos V. Winspear, 237.
Inquirer Printing & Publishing Co. y.
Wehriy, 412.
Inslee y. Hampton, 763.
Insley y. U. S., 261.
International Bank v. Sherman, 187.
International & G. N. Uy. Co. y. Gie-
selman, 743.
y. Moore, 274.
Interstate Commerce Commission y.
Raibroad Co., 305.
Iowa Union Tel. Co. y. Boylan, 376.
Irby y. Wilson, 228, 929, 932.
Ireland y. Champueys, 127.
Irish-American Bank y. Ludlum, 609,
624.
Iroquois Furnace Co. v. Mfg. Co., 595.
irvin v. Wright, 1005.
Irvine y. Davy, 86.
y. Leyh, 356, 370.
V. Myers, 954, 1005.
y. Tarbot, 530.
Irwin y. Backus, 589.
V. McKee, 986.
y. Nixon*s Heirs, 482a.
Isaacs V. Clark, 784, 787.
y. Mintz, 116.
V. Price, 83, 224.
Isbell V. Fan-is, 525.
y. Stewart, 541.
Isett v. Lucas« 953.
Islmiel y. Potts, 84.
Isler V. Brown, 107, 127, 471.
Isley y. Boon, 273.
Israel y. Arthur, 218, 232.
Ives, In re, 248.
Y. Addison, 956.
y. Finch, 958.
y. Hulce, 130.
y. Niles, 567.
y. Phelps, 987.
Ivey v. Gilder, 154.
y. McConnell, 387.
Ivory V. Delore, 30.
Ivy Coal & Coke Co. v. Bank, 406.
1 LAW JUDG.— h
J
Jaccard y. Anderson, 100.
Jack y. Hudnall, 779.
Jackson, £x parte, 255.
y. Allen, 425, 474.
v. Bell, 391.
y. Bowen, 10O7.
y. Brunor, 81, 196.
y. Ohapin, 433.
y. Crawfords, 909.
v. Cullum, 969.
y. Fletcher, 970.
y. Gould, 341.
y. Griswold, 586.
y. Holbrook, 423, 455.
y. Jackson, 927.
y. Lodge, 504, 784.
y. Lumber Co., 59.
y. Marsh, 567.
y. Mayor of Berwick, 127.
v. Mlddleton, 428.
y. Myrick, 600.
y. Nasou, 993.
y. Olmstead, 989.
y. Parker, 439.
V. Patrick, 378.
y. Railroad Co., 27.
y. Stone, 550.
y. Summerville, 292.
y. Tift, 271.
y. Town, 420.
V. Vedder, 600.
V. West, 538.
y. Wood, 623, 787.
Jackson Co. v. GuUatt, 46.
Jackson's Lessee y. Williams, 422.
Jacksonville, T. & K. W. R. Co. y.
Const. Co., 31a.
Jacob V. Day, 009.
Jacobi V. Schloss, 36.
.Tacoble y. Mickle, 666.
Jacobs V. Burgwyn, 135, 317.
V. Hill, 586, 588.
V. Insurance Oo., 20.
y. Kastholm, 319.
V. Marks, 861.
Jacobs' Appeal, 422.
Jacobson v. Miller, 754.
V. Wernert, 360.
Jacquette v. Hugunon, 884*
Jaefror v. Koenig, 1003.
Jakobl V. Gorman, 317.
CXIV CASES
[References to sections. }( 1 to
Jamaica Co. v. Chandler, 009.
James, Ex parte, 311.
In re, 666.
V. Allen County, 752.
V. City of Ix)uisville, 584.
V. Daniels, 146.
V. Hubbard, 440.
V. James, 822.
V. Markham, 999.
V. Smith, 261, 278.
V. Trust Co., 58:i.
•lames' Adm'r v. Neal's Adm*r, 363.
James Clark Co. v. Colton, 290.
James' Estate, In re, 228, 246, 929.
James' Ex'r v. Life, 994.
Jameson v. Barber, 641, 774,
V. Smith, 23.
Jamieson v. Pomeroy, 211.
Jamison v. City of New Orleans, 809.
V. May, 375.
V. Weaver, 324, 351, 376.
Janes v. Bullard, 159.
V. Howell, 393.
Janney's Ex'r v. Stephen's Adm'r, 450.
Jansen v. Grlmshaw, 310.
V. Vamum, 207.
Janson v. Bank, 138.
Jaques v. M. E. Church, 41.
Jarboe v. Brown, 123.
V. Saverin, 655.
V. Smith, 705, 706.
Jartline v. Relchert, 911.
Jariuan v. Saunders, 373, 1014.
Jamlgan v. Fleming, 739.
J. A. Roebling Sous Co. v. Electric
Co., 362, 394.
Jarrell v. Brubaker, 534.
Jarrett v. Andrews, 54.
V. Goodnow, 391.
Jarrett'B Estate, In re, 127.
Jartman v. Insurance Co., 335.
Jarvis v. Barrett, 231.
V. Drlggs, 697.
V. Fountain Water Co., 526.
Jasper Mercantile Cq. v. O'Rear, 115.
Jay V. De Groot, ^41.
Jaynes v. Brook, 371.
J. B. Watkins Land Mortg. Co. y. Mul-
len, 278.
Jean v. Hennessy, 345.
Jefferies v. Allen, 632.
Jefferson y. Bohemian Ass'n, 32.
Jefferson Co. Bank y. Bobbins, 354.
CITED.
499 in Tol. 1; residue In vol. 2.1
Jeffersonian Pub. Co. v. Hilliard, 266.
Jeffery v. Fitch, 376.
Jeffords v. Hine, 630.
Jeffrey v. Moran, 443.
Jeffreys v. Yarborough, 483.
Jeffries v. Aaron, 348.
V. Evans, 1004.
y. Morgan, 698.
V. Sherbum, 433.
Jencks v. Smith, 288.
Jenkins v. Anderson, 4:;4.
V. Davis, 157.
v. Fahey, 660, 661.
V. Go wen, 432.
V. Harrison, 618.
V. Johnston, 720.
V. Long, 155.
V. Newman, 448.
V. Putnam, 853.
V. Robertson, 705.
V. Sup'rs, 985b.
V. Telegraph Co., 322, 347.
V. Wilkerson, 89.
Jenkinson v. Hilands, 683.
V. Wysner, 609.
Jenks v. Opp, 760.
Jenners v. Spraker, 22.'»,
Jenness v. Jenness, 928.
Jennings v. Ashley, i:,3.
v. Bartels, 22.
y. Jones, 536.
v. Parsons, 79a,
V. Pearce, 346.
v. Shiner, 376.
V. Simpson, 200.
Jennison v. Hapgood. 633.
V. Inhabitants, 611.
Jensen v. Barbom\ 340. 346, 691.
Jepson V. International Fraternal Al-
liance, 714.
Jeter v. Fellowes, 921.
V. Hewitt, 503, 811.
Jewett V. Davis, 30.
V. Land Co.. 218, 278.
V. Sundback, 287.
V. Wadleigh, 989.
Jex V. Jacob, 749.
Jilsum V. Stebbins, 367.
Jil2, Ex parte, 681.
Jinks V. Lewis, 550.
Job V. Tebbetts, 247, 809.
V. Walker, 299.
Jocelyn y. Dounel, 249.
CASES
I References to sections. H 1 to
Jochumsen y. Bank, &10.
John y. Smith, 638a.
John A. Tolman Co. y. Savage, 142.
Johns y. Frltchey, 110.
y. PaUee, 2&1.
John Sblllito Co., The, y. McClung,
534a.
Johnson, In re, 258, 259.
Y. Baker, 223.
T. Bank, 155.
V. Beazley, 284, 633.
Y. Bleaching Co., 583.
Y. Block, 219.
Y. Boice, 949, 950.
T. Bonfield, 206.
V. Butler. 7, 11, 874.
V. Carrer, 119.
V. aty of New Orleans, 699.
v. Coleman, 320, 377.
v. Delbridge, 83.
V. Dobbins, 917, 939b.
V. Dodge, 229.
V. Driver, 361.
V. Gdde, 450.
V. Eldred, 335.
V. Everett, 44, 45, 48,
Y. Fitzhugh. 977.
Y. Foreman. 158.
v. Foster, 5ri3.
v. Fry, 32G.
v. GiUett 115.
y. Girdwood, 529.
Y. Graves, 536.
V. Ha thorn, 141.
V. Hess, 406.
V. HoUey, 290.
V. Hoover, 42.
V. Huber, 390, 968.
v. Jacob, 554.
y. Johnson, 218, 504, 620.
V. Jones, 306, 377, 697.
v. Logan, 680.
y. Lnmbering Co., 530.
y. Lyon. 378.
y. McCabe, 197.
y. ifcCnrry, 352.
V. Sklantz, 92.
v. Miller, 100, 115, 261.
V. Mining Co., 261.
y. Mitchell, 449.
V. Morse, 657, 658.
V. Parrotte, 3S,
V. Pate, 655, 707.
CITED. CXV
499 In vol. 1; residue in vol. 2.]
Johnson v. Pattersou, 232.
V. Polk Co., 29.
V. Pomeroy, 205. .
v. Railway Co., 730.
v. Reed, 754.
V. Roberts, 299.
V. Robertson, 585.
V. Snyre, 524.
V. Sohlosser, 404.
V. Shnmway, 34.
V. Smith, 441, 628, GC9.
V. Stockham, 092, 801.
y. Sweeney, 322.
V. Signal Co., 29.
V. Templetciu. 356.
V. TowHley, 530.
y. Tnttle, iJ81, 993.
v. i:. S., 2.*)e3.
y. Vance. (320.
y. Van Doren, 138.
y. Vaughan, 120, 233.
v. White. 693.
V. Wright, 135, 156.
Johnson County v. Rugg, 191.
Johnson's Adm'rs y. Unversaw. 321,
373.
Johnson Steel Street R. Co. v. William
Wharton & Co., 508.
Johnston v. Brown, 091.
V. Glasgow, 52.
V. Lemmonds, 434.
V. McAuslaud, 63.
V. Osmont, 617.
V. Panl 526.
V. Saving Union, 541.
Johnston's Devisees v. Churchills, 537.
John V. Farwell Co. v. Lykins, 615.
Jolce v. Scales, 802.
JoUey V. Foltz, 282.
Jones, Ex parte, 135.
V. Acre, 118.
V. Bank, 370, 377, 506.
V. Beamau, 624, 732, 737.
V. Belt, 117.
V. Blun, 252.
V. Brinker, 641.
y. Brlttan, 321.
v. Chalfant 108.
y. Chase, 644.
y. City of Petaluma, 747.
V. City of Seattle, 740.
y. Coffey, 262.
V. Commercial Bank, 377. 506.
CXVl
CASES
[References to sectlona. f|lto
Jones
V. Culleu, 240.
V.
De Graffenreid, 650.
V.
Ellison, 701.
V.
Fenninoore, 10.
V.
George. 253, 487, 493.
V.
Glass, 1»2.
V.
Green, 437.
V.
Gregory, 034.
V.
Guthrie, 414.
V.
Hart, 154.
V.
Hillls, 726.
V.
Howard, 099.
V.
Hunter. 703.
V.
Insurance Co., 35, 300. 800, 884.
V.
Jamison, 829, 847.
V.
Jones, 197, 240, 313, 397, 905,
970.
V.
Jones* Heirs, 503.
V.
Kilbreth, 733.
V.
Kllgore, 384.
V.
I^avender, 742, 785.
V.
Leech, 341. 375.
V.
Lewis, 160.
V.
Lowell, 779.
V.
Mastin, 587.
V.
Merrill. 228.
V.
Mlnogup, 117.
V.
Myrlck's Ex'rs. 440.
V.
Perkins, 626.
V.
Pharls, 218, 250.
V.
Quayle, 20.
V.
Ransom, 976, 989.
V.
Read, 15.
V.
Reed, 233.
V.
Reynolds, 662.
V.
Richardson, 673.
V.
Ritter's Adm'r, 589.
V.
Russell, 347.
V.
Sander, 145.
V.
Schmidt, 1010. 1014.
V.
South's Adni'i-8, 'MIS,
V.
Spencer, 004, 000.
V.
Taylor, 102.
V.
Tracy, 81, 503.
V.
Underwood, 620.
V.
Wasrgoner's Adra*r, 567.
V.
Watkins, 3(57.
V.
Weathersbee, 785, 787.
V.
Webb, 15.
V.
Wetherbe?, 504.
V.
White, 520.
V.
Wllkey, 5<K), 800.
V.
Williamson, 374.
CITED.
499 in Yol. 1; residue In yol. 2.]
Jones y. Wilson. 41, 908.
V. Word, 109.
V. W^rlght, 459.
Jones* Estate, In re, 406.
Jones & Laughlins v. Sands, 35^
Jonsson v. Lindstrom, 338.
Jordahl v. Berry, 769.
Jordan v. Chester, 394.
V. Corley, 378.
y. Faircloth, 707.
y. Farthing, 055.
y. Ford, 555.
V. Huntington. 77.
V. John Ryan Co., 86^ 270.
V. Petty, 136.
Y. Robinson. 8.
V. Selfert, 696.
y. State. 109.
V. Tarver, 305. 346.
V. Thomas, 378. \
y. Van Epps. 660.
Jorgensen v. Griffin, 110, 349.
Joseph y. Boldildge, 593.
Josephi y. Clothing Co., 783.
Jospe y. Lighte, 348.
Jouett y. Gunn, 174.
Jourden y. Meier, 635.
Journe y. Hewes, 744.
Joy y. College, 37.
V. Hill, 102.
V. Hull, 143.
Joyce, Ex. parte, 256.
V. McAvoy, 197.
y. Moore, 735.
y. Perry, 423.
y. Whitney, 399.
Joyes y. Hamilton, 189.
J. S. Menken Co. v. Brinkley, 935.
Judah y. Stephenson, 220.
Judd y. Downing, 299.
V. Patton, 347.
y. Ross, 500.
Judd Linseed Sperm Oil Co. v. Hub-
bell. 210.
Judge y. Booge, 114.
V. Fillmore, 966.
Judge of Probate y. Quimby, 589.
y. Robins, 643.
Judklns V. Insurance Co., 884.
Judson V. Gage, 115, 154.
V. Lake, 036.
JuIUlard y. Gr3eimian, 152,
Julian y. Beal, 434.
CASES
[References to sectlonv. {ft 1 to
Janeman, Ex parte, 182.
Jaiiffnitach y. Iron Co., 738.
Jnnkans y. Bergin, 278.
JuBkin y. Dayis, 849.
Justice y. Scott, 357.
JiutuB, Succession ^f, 635.
J. W. Reedy Kleyator Mfg. Co. y. Pit-
yowsky, S3.
Kager y. Vickery, 190.
Kalm y. Casper, 349.
y. Kahn, 752.
y. Lesser, 58, 69, 903.
Kalne, Ex parte, 533.
Kal8» y. Brown, 89.
y. Lembeck, 447.
Kallander y. Neldhold, 390, 987.
Kalteyer y. Wipff, 252, 318.
Kaminsky y. Trantham, 458.
Kamm y. Stark, 357.
Kamman y. Otto, 324.
Kanawha Lodge No. 25 y. Swann, 45.
Kane y. Canal Co., 661.
y. City of Fond du Lac, 526.
y. Cook, 901, 906.
y. Dnlex, 662.
y. Fisher, 714, 749.
y. Hills, 128.
y. Morehouse, 737.
T. Whittick, 44.
Kane & Co. y. School Dist, 317.
Kannally y. Renner, 393b.
iCanne y. Minn. & St L. R. Co., 691.
Kann's Estate, In re, 449.
Kansas City y. Winner, 267.
Kansas City, Ft. S. & M. R. Co. y.
Morgan, 198, 251, 291, 938c.
Kansas aty, P. & G. R. Co. y. Moon,
680.
Kansas aty, St. J. & C. B. R. Oo. y.
Campbell, 194.
Kansas Pac. Ry. Co. y. McBratney,
600.
Kansas Rolling Mill Co. y. Atchison,
32.
Kansas & A. V. Ry. Co. y. Pltzhugh,
363.
Kapischke y. Koch, 738.
Karnes y. Harper, 411.
y. Lloyd, 293.
Kams y. Kunkle, 875, 967.
CITED. CXVll
499 la Yol. 1; residue hi toI. 2.]
Karr y. Barstow, 782.
y. Parks, 740.
Kashman y. Parsons, 508, 613, 617,
655.
Kasson y. People, 1011, 1012.
Kaster y. Welsh, 620.
Katz y. Moore, 367, 378.
Kauff y. Mesner, 765.
Kauffman*s Appeal, 182.
Kaufman y. Schneider, 366, 691.
y. Shain, 326.
Kaufmann y. Drexel, 307, 366, 374.
Kaukauna Water Power Co. y. Canal
Co., 938c.
Kay y. Walter, 892.
Kean y. McKinsey, 245.
y. Rice, 935.
y. Roby, 580.
Keane y. Fisher, 587.
Kearney, Ex parte, ^5, 25G. 258, 259.
y. Denn, 806.
y. Snodgrass, 33.
Keater y. Hock, 707, 733.
Keating y. Craig, 448.
y. Korfbage, 191.
V. Springer, 663.
Keaton y. Banks, 326, 327.
Keator y. Case, 346a.
Keck y. McEldowney, 86.
Keech y. Beatty, 514, G30.
Keeler v. Elston, 373.
y. King, 958.
Keen y. Coleman, 55.
y. Jordan, 125.
V. Kleckner, 69.
Keenan v. Whitehead, 981.
V. Williams, 32.
Keeue y. McDonough, 173, 255.
Keener y. Goodson, 109
Keep y. Leckie, 72.
Kees V. Maxim, 100.
Keesey y. Old, 614.
Iveesling y. Doyle, 245.
Kehler y. Insurance Co., 340.
Kehoe y. Blethen, 21.
y. aty of Philadelphia, 740.
Keifer y. Eldred Tp., 16.
y. Summers, 304.
Keigher y. Mfg. Co.. 373.
Keiper y. Helfrlcker, 55,
Keirle y. Shriyer, 104.
Keith y. BBtlll. 8.
y. Keith, 190.
CXVlll CASES
[References to sections. SS 1 to
Keith V. McCaffrey, 340.
Keith Bros. & Ck). v. Stiles, 211, 776.
Kelber v. Plow Co., 34, 352.
Kellam v. Klppey, (595.
V. Toms, 857.
Kelleher v. Boden, 366, 378.
Keller, Succession of, 645.
V. City of Mt. Vernon. 537.
y. Jordan, 23.
V. Stevens, 97.
V. Stolzenbach, 718, 723.
Kellerman v. Aultman, 425.
Kelley v. Chapman, 000.
V. Kelley, 896, 924.
V. McKibben, 123.
V. Mfg. Co.. 306.
V. Mize, 290, 514, 081.
V. Stanbery, 41.
Kellogg, Ex parte, 244.
V. Johnson, 633.
V. Keith, 52.
V. Linger, 286.
V. Schuyler, JM3.
V. Sweeney, 152.
V. Window, 82.
Kellogg, Johnson & Co. v. Gilman, 208.
Kelly V. Bandini, 236.
V. Church, 567.
V. Dill, 425.
V. Donlin, 642, 754.
V. Garvin, 1009.
V. Hamblen, 4-10, 543, 958.
T. Harrison, 203.
V. Hurt, 378, 388.
V. Lyons, 53.
V. Payne, 141.
V. Kailroad Co., 572.
V. Van Austin, 88, 235.
V. Wlmberly, 3, 532.
Kelsey v. Murphy, 720, 722.
V. Ward, 655.
Kelty V. High, 305.
Kemp v. Cook, 193, 297, 300, 313, 493.
V. Lyon, 135, 165.
V. Mundell, 884.
Kempe's Lessee v. Kennedy, 282, 283.
Kempner v. Comer, 747.
Kempton v. Burgess, 699.
Kenan v. Miller, 513.
Kenck v. Parchen, 589.
Kendal v. Talbot, 693, 7ia
Kendall v. Briley, 958.
v. Hamilton, 770.
CITED.
499 in vol. 1; residue in vol. 2.]
Kendall v. Hardenbergh, 641.
V. O'Neal, 156.
V. Winsor, 380.
Kendig v. Marble, 63.
V. North, 483. ,
Kenedy v. Jarvis, 311.
Kenmore Shoe Co., In re, 793.
Kenuard v. Alston, 985.
V. Carter, 770.
V. Mabry, 445.
Kennedy v. Bam brick, 496.
V. Baker, 263.
V. Bank, 2<0, 285.
V. Cassillis, 825.
V. Davisson, 701.
V. Evans,. 359.
v. I^we, 77.
V. Pickering, 204.
v. Scovil, 611.
V. Wachsmuth, 161.
Kennell v. Abbott, 634.
Kennerley v. Shepley, 412, 641.
Keunery*s Adm'r v. Railroad Co., 33.
Kenney v. Greer, 270.
V. Howard, 790.
V. Phillipy, 660.
V. RaUroad Co.. 981.
Kenn*8 Case, 320, 523. .
Kent V. Brown, 245.
V. Church, 564.
V. Iron Co., 251, 290.
V. Lashley, 577.
V. Railroad Co., 504.
V. Ricards, 366, 308, 373.
V. Riley, 697.
V. West, 81.
Kenum v. Henderson, 89.
Kenypn v. Baker, 158.
V. Shreck, 325.
V. Woodruff, 782.
Keokuk County v. Alexander, 616. 737.
Keokuk & H. Bridge Co. v. People.
750.
Keokuk & W. R. Co. v. Missouri, 551,
583a, 750.
Kepler v. Loan Co., 492.
Kerby v. Chadwell, 341.
Kerchner v. McEachem, 319.
Kern v. Chalfant, 63.
V. Maglnniss, 39.
V. Saul, 31.
V. Strausberger, 245, 375, 513.
V. Wilson, 616, 716.
CASES
IReferences to sections, fifi 1 to
Keman v. Railway Co., 33.
Kerr v. Blodgett, 545. 585, 681a.
y. Chess, 658.
V. Kerr, 275, 835, 894, 897, 901,
930, 1016.
T. Simmons, 747.
Y. Swallow, 229.
Kerr's Appeal, 452, 1015.
Kerry ▼. Pacific Marine C5o., 138.
Kersey v. Rash, 356, 383. 388.
Kessel t. Albetis, 942, 945.
Kessler v. Vera, 85.
Kester v. Stark, 661.
Kesterson v. Tate, 450.
Ketcham y. Elliott, 352.
Ketchum t. Ghristman, 535.
T. Edwards, 252.
V. Thatcher, 510, 685.
Key V. Dent. 604.
V. Goodwin, 127.
V. Hayden, 86.
V. Vaughn, 284.
Keyes v, Mooney, 879.
V. U. S., 250.
Keys V. Grannis, 967.
Keyser v. Sutherland, 655, 65a
Kibbe V. Howard, 687.
Kibler, Ex parte, 205.
Kidd T. Huff, 705.
V. McMillan, 306.
Kllander t. Hoover, 751.
Kllbum T. Woodworth, 904.
Kilgore v. Kllgore, 634.
Kllheffer v. Herr, 786, 787.
Kille v. Ege, 652.
Killlon V. Wright, 620.
KUlough ▼. Alford, 152.
Killpatrlck t. Rose, 154.
KlUsa T. Shermond. 593.
Kilpatrick t. Railroad Ck)., 783.
T. StroEier, 711.
Kimball y. Hilton, 657.
T. Hutchison, 378.
V. Merrick, 225, 899.
y. Randall, 209.
y. Tanner, 211.
Kimble v. Cummins, 952.
y. Short, 370.
Kimbro y. Railroad Co., 707.
Khne y. Fenner, 297, 348.
Klmmel y. Henna, 650.
y. Kimmel, 23&
Kindel y. Lithographing Co., 159.
CITED. OZIX
499 in Tol. 1; residue in yoI. 2.]
Kindt, In re, 320a.
Kindt's Appeal, 492.
King, In re. 255, 1008.
y. Aughtry, 996.
V. Baldwin, 388, 389.
y. Bank, 166.
V. Belcher, 463.
V. Briglmm, 611.
V. Brcoks, 309.
y. Burdett, 201.
y. Bumbam, 134.
y. Chase. 580, 614, 624.
y. Clarke, 563.
y. Eastou, 424.
y. Fnber. .j97.
y. French, 110.
y. Goodwhi, 1012.
y. Green, 179.
y. Harris, 472.
y. HIgglns, 76.
y. Hoare. 674, 770, 774, 778.
y. Jones, 189. 300.
y. Kerr*s Adm'rs, 567.
y. Molloban, 683.
y. Nimlck, 418.
y. Normau, 573, f)SQ.
y. Poole. 220.
y. Portls, 417.
y. Robinson. 206.
y. Ross. 633.
y. Savory, 526.
y. Smith, 633.
y. Townshend, 650, 655.
V. Vance, 593, 596.
y. Van Gilder. 829, 934.
Kingen y. Stroh, 213.
Kingman y. Cowles, 876.
y. Paulsen, 608.
Kingman y. Paulson, 868.
Kingsborough y. Tousley, 275, 902, 972.
Kingsbury y. Kingsbury, 47.
y. Yniestra, 901.
Elingsland v. Forrest, 958.
y. Koeppe, 206.
Kingsland & Douglass Mfg. Co. y.
Mitchell, 209.
Kingsley y. Gilraan, 22.
V. Miller, 284, 633.
Kinkade v. Cunningham. 488.
Kinkier y. Junlea. 207.
Ellnney y. Degman, 530.
V. O'Baunon's Ex'x, 312.
Kinnler y. Klnnier, 889, 921, 930.
CASES CITED.
[References to Beotloni. N 1 to 489 in voi. 1; residue In vol. 2.]
Klnports t. BoyntoD, 434.
V. Ra^vson, 179.
Klnsey v. Ford, 881.
Kinsler t. Holmes, 094.
Kinsley y. Rumbough, 879.
Kinsman v. Page, 978.
Kinter v. Jenks, 054.
Klntz T. McNeal, 680.
Kip V. Brlgham, 573, 574.
Klpp V. Fullerton, 287.
Kirby, In re. 510.
V. Ghilds, 191.
V. Fitzgerald, 63, 68, 78, 698.
V. Kirby, 290.
V. Runals, 411.
V. State, 255.
Kirchuer v. Wood, 29.
Kirk V. Dmen, 253.
V. Goodwin, 731.
V. Kirk, 554.
Kirkbam v. Gibson, 346a.
Kirklan v. Brown's Adm'rs, 758.
Kirkland v. Krebs, 482a.
V. Smitb. 878.
Klrkpatrlck v. Stingley, 714, 726,
775.
Kirkwood v. Koester, 4.33.
Kirscbner v. Kirsebner, 347.
KIssam v. Hamilton, 127, 133.
Klsterson v. Tate, 450, 460.
Kistier v. Mosser, 498.
Kitcben v. Bank, 53.
KItcbenman v. Skeel, 101.
Kitcbens v. Hutcblns, 211.
Kite V. Lumpkin, 298.
Kitsmiller v. Kitcben, 88, 223.
Kitson v. Blake, 340.
Kittle V. Bellegarde. 86, 88.
Klttredgo V. Emerson, 251.
V. Holt, 715.
V. Martin, 972.
V. Stevens, 87, 697.
Kitts V. Willson, 536.
Klvett V, Wynne, 339.
Klzer V. Caufleld. 273.
Kizer Lumber Co. v. Mosely, 801.
Klaes v. Klaes, 320.
Kleiber y. McManus, 22.
Klein y. Dennis, 957.
Kleinbenz v. I*helps. 1010.
Klemm v. Dewes, 225.
Klenime y. McLay, 945.
Kieyer y. Seawall, 24, 30a
774,
Kline y. Triplett 421.
Kline's Appeal, 643.
Kllnk y. Tbe Cusseta, 21.
Kloke y. Gardels, 666, <197.
Klupfcr y. Ekis, 351.
Knapp y. Abell, 211, 9ia
V. Knapp, 933.
V. Marsball, 29.
y. Town of Marllwro, 567, 571.
V. Valentine, 958.
Knappen v. Freeman, 159.
Knapp, Stout & Go. v. Standley, 916.
Knarr y. Elgren, 348.
Knauber y. Watson, 313.
Knauss* Appeal, 464.
Kneedler's Appeal, 61.
Knickerbocker y. Wilcox, 574, 5SG.
Knickerbocker Co. y. Roskopf, 29.
Knifong y. Hendricks, 357.
Knight y. Ass'u, 530.
y. Cberry. 989.
y. Church, 1010.
y. Macomber, 993.
Knights V. Martin, 76.
Knott y. Cunningham, 777, 779, 782.
y. Jarboe, 224.
y. Stephens, 747.
Knowles, Ex parte, 216.
y. Coke Co., 227, 897, 899. 901.
906.
y. Lawton, 550.
Knowlton y. Hanbury. 720, 938.
y. Railroad Co., 738.
Knox y. Bank, 58» 212.
y. Clifford, 311.
y. Flack, 54.
y. Moore, 155.
T. Moser, 157.
y. Spratt, 600.
Knox County y. Asplnwall, 985b.
Knox County Bank v. Doty, 326.
Knudson y. Curley, 183.
Koch, y. City of New York, 29.
y. Railroad Co., 137.
Koebring y. Aultman, Miller &. Co.,
540, 541.
Koelscb y. Mixer, 599.
Kohl y. Leblback, 259.
Kohn y. Haas, 308, 896.
y. Johnson, 138.
y. Loyett, 863, 381.
Kolb V. Raisor, 324, 351.
y. Swann, 608.
CASES
tResf erenow to ■ectlona. Si 1 to
Kollock T. Jackson, 400.
Konigmaker t. Brown, 467.
Koning Y. Bayard, 414.
Konltzky y. Meyer, 573, 829.
Koogler y. Huffman, 600.
Koon y. lyey, 4»3.
Koonce y. Butler, 903*
Koons y. Bryson, 26.
Kopf y. Huckins, 703.
Kopp y. Blessing, 246.
Kopperl V. Nagy, 118, 851, 8G0.
Korea y. Roemheld, 604.
Kraker y. Shields, 146.
KraU V. Mfg. Co., 332.
Kramer v. Breedlove, 271.
y. Gerlacb, 347.
y. Rebman, 1.
y. Schatzkln, 772.
Krampb's Ex*x y. natz\s Bx'rs, 092.
Kraner y. Chambers, 411.
Krapp y. Eldridge, 714.
Kratz y. Preston, 485, 487.
Krause y. Stlcbtenoth, 29.
Kranse's Appeal, 429.
Kreatz y. School Dist, 16.
Krebs y. Clark, 351.
Kreite y. Kreite, 341.
Krekeler y. Bitter, 787.
Kremer y. Haynie, 194.
Kress y. Woehrle, 183.
Krencbi y. Debler, 729.
Krickow V. Mfg. Co.. 68, 193.
Kriess y. Faron, 799.
KKMishage y. Bailroad Co., 744.
Kronskl y. Bailroad Go., 213.
Kmg, In re, 259.
V. Dayis, 253.
Kabll y. Hawkett, 34.
Kuchenbeiser v. Beckert. 197.
KueiiUng y. Leberman, 824.
Ktietme y. Goit, 61.
Knhn y. Klhner, 213.
Kimes y. McCloskey, 324.
Knnze y. Kumse, 875.
Kupferle y. Bank, 342.
Kurtz y. Railroad Co., 284, 297a, 600,
607.
Kuykendall y. Coulter, 206.
I^baree y. Colby. 192.
La Barre y. City of Waterbury, 80.
CITBD. CX2U
499 In ToL 1; residue in vol. 2.]
Lacassagne t. Chapuis, 520.
I-acey v. Waples, 986.
Lackey y. Seibert, 455.
Lacock V. White, 297.
Lacoste y. Eastland, 110.
Lacroix y. Lyons, 540.
Ladd y. Church, 497.
V. Durkin, 558, 559.
y. Jacobs, 593.
y. Mason, 307.
y. Stevenson, 334.
V. TuUy, 185.
V. Welskopf, 643.
Ladley y. Creighton, 450, 451.
I^dnier v. Ladnier, 118.
La Farge y. Herter, 976, 987.
V. Park, 661a.
Lafayette County y. Wonderly, 482a,
484, 485, 403.
Lafayette Ins. Co. v. French, 213, 910.
Lafferty y. Lafferty, 197.
Lafon's Ex'rs y. Desessart, 366.
Lagerquist y. Williams, 698. 759.
Laidley y. Kline, 409, 560.
Lalng Y. Rigney, 911.
Lair V. Jelf, 983.
Ijaird y. Campbell, 79a.
y. City of De Soto, 506, 584.
y. Morris, 723.
Laithe v. McDonald, 323.
Lake v. Hancock, 737.
V. Jones, 346, 347.
Lake Eiie & W. R. Co. y. Purcell, 743.
V. Smith, 938c.
Lakin v. C. H. McCormick & Bro., 461.
Lalor, In re, 320a.
Lamar v. Knott, 655.
V. WiUiams, 208.
Lamar Ins. Co. v. Gulick, 583.
V. Pennell, 548.
Lamasti^r v. Lair, 713.
Lamb v. Gatlin, 70G.
V. McConkey, 709.
y. Nelson, 347.
V. Shays, 423.
Lambell v. Pettyjohn. 300.
Lambert v. Ban-ett, 32.
V. Sanford, 91, 700, 702.
y. Smith, 817.
V. Wiltshire, 1012.
Lamberton v. Bank, 446.
V. Grant, 862.
Lambertvllie Bank v. Boss, 459.
CXXll CASKS
[References to section!. 8S 1 to
I.amb*s Appeal, 354.
Lambson v. Moffett, 4S4.
Lamey v. Coffman, 404, 40(;a.
Lamme v. Schilling, 450.
Lamon v. McKee, 22, 27, 35.
Lamont v. Stimson, 530.
La Motte v. Harper, 504.
Lampen v. Kedgewin, 718.
Lamping v. Hyatt, 138.
Lampkin v. Chisom, 208.
Lamprey v. Xiidd, 205.
V. Pike, 439.
Lampson v. Bradley, 299.
Lampton v. Jones, 785.
Lancaster, In re, 259.
V. Inhabitants, 971.
V. Insurance Co., 640.
V. Snow, 274, 275. 541, 603.
V. Wilson, 245, 276, 513.
Lancaster County Bank t. Stauffer,
427.
Lancaster Mfg. Co. v. Colgate, 704.
Lance v. Dugan, 900.
V. Shanghnessy, 611, 687, 787.
liand V. Elliot, 357.
V. Keirn, 611.
Landa v. McGeliee, 340.
V. Obert, 529.
Landa iier v. Kspenhain, C04.
Lander v. Arno, 536, ^5.
Landes v. Brant, 422.
Landis v. Hamilton, 539.
Landon v. Brown, 486, 402.
V. Bulkley, 731.
V. Burke, 313.
V. Towushend, 536.
Landrum v. Farmer, 362, 377.
Landry v. Bertrand, 304 a.
Landsberg v. Lewis, 752.
Lane v. Bank, 69.
v. Bommelmann, 118, 261.
V. Cook, 736.
V. EUinger, 153.
V. Gluekauf, 982.
V. Gover, 454.
V. Hardwicke, 107.
V. Inhabitants. 083.
V, Innes, 232.
V. Klngsberry, 304.
y. Lane, 518.
V. Leech, 225.
V. Ludlow, 438,
V. Nelson, 218.
CITED.
4d9 In TOl. 1; residue in vol. 2.]
Lane t. Welds, 540.
V. Wheless, :W6.
Laney v. Garbee, 277.
Lang v. Holbrook, 843.
V. Zinc Co., 23.
Langan's Estate, In re, 313.
Langdon y. Blackburn, 292.
V. Raiford, 455.
Lange, Ex. parte, 170, 258.
Langley y. Grill, 239.
Langmead y. Maple, 624.
Lang's Heirs y. Waring, 600, 721.
Langston y. Roby, 954, 1005.
Lanier y. Blount, 62.
y. Gallatas, 298.
Lanning y. Carpenter, 53, 62, 63, 401,
403.
y. Pawson, Ola, 199.
Lansing y. Eddy, :J90.
y. Quackenbush, 1010.
y. Woodworth, 71.
Lantz y. Maflfett, 560.
Lapham y. Briggs, 900.
Larimer y. Clemmer, 223.
Larimer's Appeal, 446.
Larison y. Hager, 773.
Larkin y. Larkin, 33, 34.
Larkins y. Bullard, 193, 194.
Laroussini y. Werlein, 725.
Lan-abee y. Baldwin, 8, 583.
V. Knight, 596.
Larson y! Williams, 362, 368, 370.
Lartliet y. Hogau, 445.
I^rtigue y. Baldwin, 586.
Ivarum y. Wilmer, 543.
Lash y. Hardick, 446.
y. Warren, 85.
Last Chance Min. Co. y. Mining Co.,
506, 508, 513, 600, 630, 697.
Latham y. Chafee, 939a.
y. Delany, 901.
y. Edgerton, 218, 275, 27a
y. Wiswall, 811.
Lathrop y. Brown, 433, 459.
y. O'Brien, 340a.
y. Stuart, 807, 966.
Latimer y. Dean, 372.
Latlne y. Clements, 563, 963.
Latrobe Building & Loan Ass'n y.
Fritz, 73.
Latta y. Griffith, 168.
y. Kll bourn, 45.
V. Visel, 744, 763.
CASES
[References to sections. 89 1 to
Latterett v. Cook, 876.
Lattimer t. Ryan, 306.
Lattomus v. GarmaD, 953.
Laucks V. Michael, 477.
I^uer V. Bandow, 770.
T. Ketner, 493.
I^aghlin T. Fairbanks, 950.
V. January, 81, 51)3.
V. Peckham, 179.
v. Vogelsong, 281.
Laughton V. Atkins, 637.
V. Nadeau, 218.
Ijiundry License Case, 257.
Laur V. People, 675.
Laval V. Kowley, 996.
Laverty v. Sexton, 141.
Law V. Groinmes, 270, 278.
V. Hansen, 834.
V. Jackson, 477.
Lawler y. Bashford-Burmister Co.,
346a.
Lawler's Heirs v. White, 271, 281.
Lawless T. Hackett, 63.
T. Lawless, 610.
T. Reese, 357.
I^wrance v. Borm, 80.
I-awrence v. Belger, 413.
T. Englesby, 633, 639.
r. Fast, 118.
V. Gaultney, 934.
V. Haynes, 600.
V. Hunt, M3, 600, 611.
T. Jarris, 867, 884, 897, 908, 916.
v. Lawrence, 320.
y. Martin, 943, 986.
y. Nelson, 225.
y. Pond, 95a
y. Steams, 506, 574.
y. Vernon, 726, 729.
y. Willoughby, 968.
T.awrence County y. Meade County,
27.
I-awrence Mfg. Co. v. Cotton Mills,
508.
Lawrence Say. Bank v. Stevens, 754.
Lawrence's Estate, In re, 758.
Mwaon y. Bettison, 382.
y. Conaway, 769.
y. Moore, 33.
Uwton y. Perry, 482, 482a, 509, 958,
1013.
Uwrer y. Walls, 699.
Layton y. Prewitt, 36L
CITED. CXXIU
499 in vol. 1; residue in vol. 2.]
Laznrus v. Btirrett, 141.
V. MoGiiIrk, 369.
Lazier v. Westcott, 821), 849.
Lea y. Hopkins, 432.
y. Lea, 624.
V. Yates, 118, 410.
Leach y. Kohn, 227.
V. Linde, 896.
Leadbetter v. Lake, 210.
Leader y. Dunlap, 340, 354.
League v. Scott, 901, 938.
Lea bey v. Klngon, 349.
Leake y. Ferguson, 398, 476.
V. Gallogly, 352.
Leayell y. Scale, 117.
Leavens y. Ewins, 638a.
Leavenson v. Lafontane, 1000.
Leaverton y. Leaverton, 246.
Leavitt v. Wolcctt, 599.
Lebanon v. :Mead, 569, 575.
Lebanon Mut. Ins. Co.'s Appeal, 378.
Lebeck v. Bank, 585.
Lebroke v. Damon, 250.
Le Cheveller v. Lynch, 852.
Ledbetter y. Bmbree, 671.
V. Higbee, 200.
Ledbetter & Co. Land & Loan Ass'n
V. Vinton, 89.
Ledoux y. Bank, 605.
Ledoux's Heirs v. Lavedan, 614, 644.
Le Due V. Slocomb, 313, 322, 348, 956.
Ledyard y. Brown, 959.
v. Henderson, 43.
y. Phillips, 954.
Lee y. Delehanty, 950.
V. Flgg, 68.
V. Gardiner, 199.
V. Giles, 958.
V. Harmon, 370.
V. Hai-per, 30.
y. Houston, 155.
y. Johnson, 530.
y. Kingsbury, 245, 262, 614
V. Knapp, 91.
V. Lee, 1003.
y. McKoy, 754.
V. Mortgage Co., 183.
V. Oil Co., 1010.
y. Patten, 245.
y. Ryall. 191.
y. SaUada, 351.
y. Stone, 433.
V. Terbell, 967.
CXXIV
CASES CITBD.
[References to sectlona. U 1 to
Lee V. Wllklns, 96.
Leedom v. Loiubaert, 2ri0.
Lee*8 Adm'x v. Lee, 004.
Leese t. Sherwood, 27.
Leet y. Grant, 352.
V. Leet 3(>3.
I^ee Tong, In re, 257.
Le Favour, In re, 320a.
Lefebvre v. De Montllly. 000.
Lefever t. Armstrong, 420.
Lefferson v. Dallas, 438.
Leftvvlch Lumber Co. v. Ass'n, 541.
Legal Tender Gases, 152.
Legatt V. ToUervey, 520.
Leggett Y. Doremus, 426.
V. Llppincott, 735.
y. Morris, 3S4.
y. Railroad Co., 536.
y. Ross, 543.
Legrand y. Rixey*s Adm*r, 630.
Le Grange's I^essee v. Ward, 177.
Le Guen y. Gouverneur, 378, 380.
Lehigh Zinc & Iron Co. y. Iron Co.,
600.
Lehman v. Bradley, 560.
y. Hinton, 810.
y. Stone, 605.
Lehman Mach. Co. y. Rood, 57.
Tjehmkuhl, Ex parte, 255.
Lehr y. Hall, 968.
y. Vandeyeer, 80.
Lelnkauff y. Adyanciug Co., 165.
I^eiper y. Brden, 994.
Leitch V. Wells, 550.
Leith y. Lelth, 929.
Leland y. Marsh, 747.
y. Tonsey, 052.
I^emacks v. Glover. 153.
Lemen v. Young, I'W.
Lemmon v. Herbert, 246, 269.
v. Osbom, 508.
Lemon v. Staats' Heirs, 450.
Lendall's Case, 778.
L'Engle v. Gates, 898, 939.
Lennon, Ex parte, 255.
Lenoir v. Broadhead's Adm'r, 88.
Lenoir's Adm'r v. Wilson. 745.
Lenox v. Notrebe, 194, 600.
Lente v. Clarke, 225.
Lentllhon v. City of New York, 111.
Lentz v. Lamplugh, 444.
v. Wallace, 504, 611, 612, 614.
Leonard y. Bryant, 298.
499 in vol. 1; residue in vol. 2.]
Leonard v. Ferry Co., 432.
v. Hargis, 85.
y. Insurance Co., 360.
y. Bobbins, 183.
y. Simpson, 87, 007.
V. Sparks, 263, 522.
y. Townsend, 192.
y. Whitney, 614, 615.
Leonard's Appeal, 473.
Ijeonis y. Leflingwell, 155.
Leopold y. City of Chicago, 624.
Le rage v. McCrea, 97a
Leslie v. Boaite, 555.
V. Fischer, 225.
r^essert v. Sieberling, 419, 432, 439a.
Lester v. Cloud, 138.
y. Hosklns, 306, 378.
y. Insurance Co., 100.
Le Strange v. State, 100. ^
Le Sutf y. Le Suer, 822.
Letney v. Marshall, 273.
Levan v. MllhoUand, 264.
V. Patton, 386.
Levering v. levering, 641.
Levey v. Norton, 680.
Levi V. Drudge, 160.
y. McCraney, 555.
y. Monroe, 86.
v. Thompson, 422.
Levin V. Fashion Co., 752.
I^vlston y. Swan, 160.
Levy V. Gill. 363.
y. Levy, 107.
V. Stelnbach, 391.
V. Williams. 327.
V. Winter, 553.
Levysteln v. O'Brien, a92.
Lewis, Appeal of, 611.
v. Adams, 857, 922.
V. Armstrong, 269.
V. Ash, 201.
y. Atherton, 446.
v. Baker, 508.
y. Blue, 989.
y. Campau, 32.
V. CockreU, 986.
V. Dunlop. 596.
V. Foard, 15.
V. Gunn, 192.
V. Insurance Co., 378.
v. Kean, 086.
V. Lewis, 320, 720. 990.
v. McCabe, 32.
OASBS CTTtSD.
[References to sections. H 1 to
Lewis T. Maulden, 206.
T. Billls, 588.
T. Nenzel, 756.
V. Perkins, 191.
y. Peterkin, 295.
V. Pier C5o., ^527.
Y. Railroad Co., 35.
V. Uapelyea, 60.
v. Rogers, 204.
V. Ross, 156.
V. RowlaiMl, 261.
Y. SiiDontOD, 245.
V. Sloan, 807.
V. Smith, 73, 462, 467, 763.
V. Soper, 202.
V. Spann, 1008.
V. Tarns, 507.
V. Webb, 208.
?. Welch, 641.
Y. Williams, Ul,
I^x*B Appeal. 284, 633.
lAhby y. Rosekrans, 148.
Liberty Grotto y. Meade, 58.
Llehtenberger y. Worm, 86.
Lichton y. McDongald, 455.
Liobtstein y. Insurance Co., 16.
Liohty y. Hochstetler, 485.
y. Lewis, 556.
Liddell y. Chidester, 752.
Lieberman y. Railroad Co., 745.
Lieserowltz y. Railroad Co., 196.
Life Ass'n y. Fassett, 199. 300.
Ugare y. Railroad Co., 609.
Liggett y. Glenn, 9S9a.
LIghtcap y. Bradley, 539.
Lightoer's Estate, In re, 534.
Lightsey y. Harris, 250, 286b
Liglnger y. Field, 808.
IJgon y. lJ$;on. 43.
y. McXeil. 058. 975.
y. Trtplett, 87, 697.
IJgon's Adm'rs y. Rogers, 169.
Llle y. Hopkins, 949.
Lilientbal y. Drucklleb, 826.
LiUey y. Adams, 632.
LlUis y. Ditch Co., 624, 728*
Lilly y. Larkln, 136, 165.
Linberg v. Finks, 659.
Unck y. City of Litchfield, 981.
Lincoln y. Flint, 290.
y. Tower, 220, 278, 896, 900.
Lincoln Nat Bank y. Virgin, 242.
Lincoln Say. Bank v. Ewing, 988.
489 in Tol. 1; residue In vol. 2.]
Lind y. Adams, 118.
Linden y. Leggett, 617.
LInder y. Monroe's £r*rs, 118.
Lindgren y. Lindgren, 725.
Lindh V. Crowley, 963.
Lindley y. Ross, 357.
Lindsey y. Town of DanylUe, 506, 729.
Lindsley y. Mining Co., 709.
y. Sparks, 321, 371.
y. Thompson, 731.
Line y. Cranftll, 83.
V. McCall, 944.
Lineberger y. Newkirk, 554.
Liuehan v. Hathaway, 660.
IJninger y. Glenn, 243, 393.
Link y. Link, 368.
Linn y. Carson's Adm*r, 218.
V. Pntton, 411.
Lluney v. Wood, 617.
Linton v. Hurley, 058, 975.
y. Insurance Co., 504, 009.
LIntz y. Thompson, 908.
Lion y. Burtis, 652.
Lippencott y. Wilson, 450.
LIppman y. Campbell, 578.
Lipscomb y. Grace, 1009.
y. Postell, 589.
Lirette y. Carrane, 407.
List y. Jockheck, 33.
Lister y. Vowell, 138.
LItch V. Clinch, 761, 764.
Litchfield y. City of Brooklyn, 939a.
Little y. Bnrlow. 787.
V. Blrdwell, 116.
V. City of Portland, 734.
y. Cook, 299.
V. Dyer, 50, 69.
V. Ferguson, 83.
y. Leiphton. 33.
y. McVey, 892.
y. Price, 365, 366.
V. ^^^lIte, no.
LIttletield y. Nichols, 459.
LIttlejohn y. Arbogast, 127.
Little Rock Junction Ry. v. Burke^
207a.
Little Rook & Ft. S. R. Co. T. Dyer,
09.
V. Wells, 363.
Littleton y. Richardson, 574, 675, 604.
y. Smith, 266.
Llttster V. Llttster, 297, 327.
Liveimore y. Herschell, 716, 729.
CXXYl CASES
[References to sections. §§ 1 to
liverpool Marine Credit Co. v. Hunter,
840.
Liverpool & L. & G. Ins. Ca v. Per-
rln, 341.
Livesley v. O'Brien, 354.
Livezly v. Pennock, 53.
Livingston, In re, 197.
V. Allen, 250.
V. Bishop, 777, 778, 779.
V. Jordan, 173.
V. Morgan, 152.
V. Kendall, 200.
V. Van Ingen, 285.
Llano Improvement & Furnace Co. v.
Watkins, 982.
Lloyd V. Ball, 560.
V. Bank, 1005.
V. Barr, 52C, 549, 599.
V. Klrkwood, 197.
V. Malone, 197.
y. Mansell, 356.
V. Tracy, 604.
League V. Taxing District of Browns-
ville, 253a.
Locke V. Hubbard, 110.
Lockhart v. Gillis, 599.
V. Locke, 896.
V. State, 109.
Lockridge v. Lyon, 358.
Lockwood V. Bock, 34.
V. Mitchell, 369.
V. Nye, 939a.
V. Stradley, 197.
Ix)eb V. Willis, 686.
Loeber v. Moore, 493, 496.
lioensnltz v. Seelinger, 584.
Lofland v. Jefferson, 986.
V. McDaniel, 987.
Logan V. Caffrey, 734.
V. Cloyd, 483.
V. Hale, 400.
y. Hillegass, 362, 367.
V. Ti-ayser, 539, 599.
Logan's Adm'r v. Pannill, 438.
Logansport Gaslight & Coke Co. v.
Knowles, 857.
Lohman v. Cox, 43, 85.
Lomas v. Hilliard, 864.
Lomax v. Besley, 324.
Lombard v. Bayard, 413, 415.
V. Clark, 89.
Lombard Inv. Co. v. Burton, 981.
Lomison v. Faust, 351.
CITED.
499 In vol. 1; residue In vol. 2.]
Loudon Assur. Corp. v. Lee, 86.
London & N. W. R. Co. v. Lindsay,
836.
Lonergan v. Lonergan, 882.
Loney v. Bailey, 87, 105, 236, 306.
Long y. Behan, 699.
y. Burnett, 250.
y. Eisenbeis, 362.
V. Gamett, 211.
V. Gilbert, 371.
V. Hammond, 8o5.
V. Klein, 948.
V. Long, 721.
V. Maxwell, 43.
V. Miller, 492.
V. :^[ulford, 197.
V. Kuch, 346a.
y. Shackelford, 1014.
V. Smith, 363.
y. Stafford, 127, 134.
y. Thoi-mond, 482a.
v. Trexler, 742.
V. Yonge, 585.
I^ongfeliow V. Quimby, 3, 532.
Longinette v. Shelton, 532.
Longman v. Bradford, 325.
Longstreet v. Phile, 617.
v. Rea, 208.
Longwell v. Bentley, 430.
Longworth v. Screven, 299.
Lonsdale y. Littledale, ^56.
Lookout Mountain R. Co. y. Houston,
939a.
Loomis v. Lane, 36.
y. Pulver, 758.
y. Rice, 329.
y. Robinson, 944.
Looney v. Reeves, ^4.
Loop y. Summers, 600.
Lord y. Cannon, 5(i7.
v. Chadbourne, 792.
y. Thomas, 609.
Lord Mohun's Case, 126.
Lore's Lessee v. Truman, 722.
Lorillard v. Clyde, 682, 750.
Lorimer v. Marshall, 425.
Loring v. Arnold, 635.
v. Folger, 200, 203.
V. Hildreth, 793.
v. lUsIey, 1.
V. Mansfield, 758.
y. Steineman, 643.
y. Whittemore, 067.
CASES
[References to sectioxiB. 89 1 to
Lorraine y. Long, 766.
Lorziug r. Eisenberg, 313.
Los Angeles Oounty Bank y. Raynor,
106, lOD.
Losey v. Neldig, 366.
Lothian y. Henderson, 815.
Loudenback y. CoUins, 722, 723.
Lough Y. Thornton, 16.
Louis V. Triscony, 641.
Louisiana y. Mayor of New Orleans, 9,
11, 677.
Y. U. S.. 085f.
Louisiana LeYee Co. y. State, 632.
Louisiana Nat. Bank y. Whitney, 35.
Louisiana State Bank y. NaYigation
Co., 617.
LoQlSYille. N. A. & G. B. Co. Y. Creek,
16.
Y. Johnson, 100.
Y. Nicholson, 225.
T. Parish, d36.
V. WyUe, 703,
LouisYille Trust Co. y. City of Cincin-
nati, 360, 551. 615, d38c.
Y. Springs Co., 750.
LouisYUle & N. B. Co. y. BrinckerbofT,
548.
V. Cbnley, 33.
Y. Mayfield, 16.
Y. Nash, 227.
Y. Orr, 617.
Y. Taylor, 174.
Y. Trustees, 179.
V. Ward, 100.
Lounsbury y. Purdy, 421, 438.
Louw V. DaYlB, 620.
Ijore T. Allison, 493.
Y. Fah^eld, 944, 968.
Y. Gibson, 591, 604.
Y. Harper, 471.
r. Waltz, 750.
Lorejoy y. Albee, 229.
Y. Locks Co., 354.
Y. Murray, 573, 777, 779, 782,
V. Webber, 299.
T»velace y. LoYell, 306.
I^orell v. Hammond Co., 671.
T. Habin, 105.
Ix>vett V. Cowman, 349.
Ix>rett*s Ex'rs y. Mathews, 635.
Lorins Y. Humplirles, 8.
ljo\\tt Y. Bussell, 24a
Low V. Bartlett, 503.
CITED. CXXVll
499 In vol. 1; residue in vol. 2.]
Low V. Duncan, 1000.
V. Graff, 116.
V. Low, 509.
Y. Mining Co., 24.
y. Mussey, 517, 866.
Lowber y. Mayor of New York, 317-
Lowber & Wilmer's Appeal, 200.
Lowdon Y. Flsli, 118.
Lowe, In re, 423.
Y. HamlltOB, 340.
Y. Morgan, 585.
V. Stringham, 272.
Lowenstein v. Insurance Co., 34.
V. Mcintosh, 526.
Lower v. U. S., OSSb.
Lower Latham Ditch Co. y. Canal Co.,
600.
Lownsdale y. City of Portland, 540.
Lowry y. Banli. 593, 598.
Y. Hall, 865.
Y. Inmau, 583.
Y. McMUlan, 700.
Y. McMurtry, 537.
Loy V. Kennedy, 635.
Loyd V. Waller, 250, 938c.
Lublier Y. Plow Co., 185.
Lublin Y. Stewart, Howe & May Co.,
617.
Lucan y. Cadwallader, 32.
Lucas, Succession of, 892.
Y. Cassaday, 1008.
Y. City of San Francisco, 527.
Y. Governor, 588.
Y. Le Compte, 735.
Y. Nichols, 379, 389.
Y. Spencer, 379.
Y. Todd, 261.
Y. Waul, 379.
Luce Y. Dexter, 782.
Luclcenbach y. Anderson, 909.
Luckett Y. Trust Co., 705.
Luco Y. Bank, 284.
Ludeling y. Cbaffe, 754.
Ludington v. Hand ley, 384.
Ludington*8 Petition, 549.
Ludlow V. City of Norfolk, 40.
Y. Bamsey, 367.
Y. Township, 790.
Ludlow*s Heirs y. Johnston, 135, 136.
279.
Ludwick V. Fair. 522, 970.
Ludwig V. Huck, 482.
Y. Ijnzarus, 363.
CZZYIU CASES
[It«f«rencei to Metkms. 8S 1 to
LuUe D.» The, 950, 98G.
Lumbard t. Abbey, 420.
Lumly V. Quarry, 814.
Lumpkin y. Williams, 381.
Lundberg y. Davidson, 1000.
Luscomb y. Maloy, 338.
Luse y. Rankin, 220.
Lusk v. Dayidson, 492.
Lustfleld y. Ball, 1008.
Lutes v. Alpaugb, 2^1.*
Luttrell V. Reynolds, 707.
Lutz V. Kelly, 228.
Lutz's Appeal, 485.
Lycan y. Miller, 644.
Lyday v. Douple, 378.
Lyford y. Demerritt, 296.
Lyle V. Uorstman, 273.
Lyles V. Belles, 240, 200.
y. Caldwell, 589.
Lyman y. Browne, 847.
V. Harvester Co., 767.
Lynch v. Baxter, 261, 808.
V. Insurance Co., 865.
v. Kelly, 115.
V. Rooney, 252.
v. Swanton, 506.
Lynch's Ex'x y. Tunnell, 199.
Lyode v. Lynde, 857.
V. Railroad Co., 790, 872^
Lyne v. Sanford, 284.
Lynn v. Gridley, 395, 470.
V. Lowe, 200.
Lyon V. Barney, 86.
y. Bollvin, 325.
y. Boiling, 996.
V. Cleveland, 492.
V. Ford, 487.
V. Hampton, 1008.
v. Lyon, 929, S)32.
V. Mfg. Co., 720.
v. Xorthrup, 587, 987.
y. Bobbins, 455.
v. Tallmadge, 783.
V. Vanatta, 274.
Lyons v. Green, 313.
Lysle v. Williams, 498.
liythgoe y. Lytligoe. 110, G14.
Lytle V. Arkansas, 530.
V. Black, 446.
V. Colts, 326.
V. Custead, 86.
V. Fenn, 326.
V. Forest, 325.
CITED.
499 In vol. 1; residue In toI. 2.]
Lytle v. Lytie, 933.
v. Railroad Co., 630.
v. Town of Lansing, 251, 989.
Lyttleton y. Cross, 270.
M
McAfee v. Covington, 9.
v. Patterson, 491.
V. Reynolds, 467.
McAleer v. Clay County, 9Sod.
V. Lewis, 506.
McAlexander v. Goopwood, 660.
V. Lee, 983.
McAllister v. Brooks, 593.
v. Guggenheimer, 229.
V. Mfg. Co., 879, 970.
McAllister's App?al, 77.
Mc Alpine v. Sweet ser. 294,
McAnally v. Haynie, 43.
McAnulty v. Association, 309, 355.
McAithur v. Dane. 989.
V. Slauson, 343.
V. Smith, 434.
McBane v. People, 261.
McBrayer v. Dean, 1003.
McBride v. Bank, 1008.
V. Fallon, 947, 954.
V. Harn, 228.
V. Wakefield, 366.
McBrien v. Riley. 306, 346a.
McBroom v. Gt'vemor, 588.
V. Sommerville, 375, 383.
McBryde, In re, 977.
McBurnie v. Seaton, 536.
McCabe v. Sumner, 77.
McCadden v. Slausen, 680, 867.
McCaffrey v. Carter, 738.
McCahan v. Elliott, 466.
McCain v. Railroad Co., 731.
McCall V. Harrison. GOO.
V. Hitchcock, 34.
V. Jones, 719.
' V. McCall, 354.
McCalla v. Ely, 152.
McCalla*s Adm'r v. Patterson, 589.
V. Patterson, 491.
McCalley v. Wilbum, 87, 697.
McCallister v. Bridges, 511, 578.
McCalmont v. Peters, 60.
McCamant v. Roberts, 004.
McCambridge v. Walraven, 291.
CASES CITED.
[References to Bections. |9 1 to 499 In vol. 1; residue In vol. 2.]
cxxia
McCampbell v. Durst, 252.
Y. McCampbell, 518.
V. Mason, 666.
McCance v. Taylor, 474.
McCandless v. Securities Corp., 632.
y. Smith, 269.
McOann v. State, 103.
McCardie, Ex parte, 21G.
McCargo y. Chapman, 36.
McCartee y. Chambers, 30.
McOrter v. Neil, 247.
McCarthy y. Marsh, 804.
McCartney y. Osbum, 872.
McCarty y. Ball, 461.
y. aty of New Bedford, 923.
y. Kinsey, 680.
y. O'Bryan, 98.
y. Railroad Co., 579.
y. Stock Farm, 352.
McCaskill v. Graham, 408, 439a.
McCanley y. Fulton, 273.
y. Hargroyes, 857, 909.
y. Hanrey, 284.
McCaolis y. Duyal, 386.
McCelvey y. Noble, 714.
McChesney.v. City of Chicago, 306.
McClain y. Dayls, 127.
McClarin y. Anderson, 462.
McClaskey v. Barr, 587.
McCleary y. Brewing Co., 747.
y. Faber, 803.
y. Menke, 590.
McCleary*8 Appeal, 499.
McCleery y. Thompson, 67.
McClellan y. Kennedy, 600.
y. Klnnalrd, 391.
Mcaelland y. Moore, 200.
y. Patterson, 661a.
V. Pomeroy, 354.
McClesky y. State, 270, 537.
McClish y. Manning, 70.
McCloskey y. Sweeney, 194.
y. Wingfield, 200.
McCloud y. Meehan, 311.
McOung y. Belme, 432, 440, 906.
V. Condit, 009.
y. Hobl, 709.
V. Murphy, 28.
y. Steen. 607.
Mtdure V. Bowles, 53, 61.
y. Coldough, 588.
y. McClure. 6C0.
y. Thistle's I'lx'rs, 446,
ILAWJUDG.— i
McClurg V. Schwartz, 317.
McCluskey, Ex parte, 259.
McCollum y. Prewitt, 383, 384.
V. Wood, 810.
McComb V. EUett, 278.
V. Frlnk, 620.
McConkey v. McCraney, 88.
McConnell y. Day, 285, 556.
y. Downs, 567.
McCord y. Well, 32.
McCord-Brady Co. y. Krause, 000.
McCord-ColUns Commerce Co. v. Levi,
609.
McCormlck y. Alexander, 399. 432,
463, 1005.
y. Belvin, 34.
y. Brnnnan, 534.
y. Uogan, 313.
y. McCormlck, 344.
y. Paddock, 200.
y. SulUvant, 270, 273, 285.
y. Webster, 263.
y. Wheeler, 137, 169.
McCormlck Harvesting Mach. Co. y.
Coe, 57.
y. Marchant, 240.
McCotter y. Flynn, 514, 661a.
y. McCotter, 953, 956.
McCown y. Macklin's Ex'r, 384
McCoy y. Hazlett, 987.
y. Jones, 16.
y. McCoy, 600.
y. Nichols, 560.
y. Porter, 161.
v. Van Ness, 966. .
McCracken v. Swartz, 493.
McCrady y. Jones, 44.
McCrairy y. Ware, 52.
McCravey y. Remson, 612.
McCraw y. Williams, 175.
McCray v. Clark, 492.
V. Freeman, 755.
McCready, Ex parte, 257.
McCreary y. Casey, 766.
V. Robinson, 24, 185.
McCredy v. Thrush, 780.
y. Woodcock, 314, 340a.
McCreery v. Davis, 897.
v. Everding. 199, 559, 577.
v. Fuller, 705.
McCrillls V. Harrison Co., 514, 681.
McCrory v. Parks, 599.
McCroskey v. Parks, 193.
cxxx
CASFS CITED.
[References to sections. 99 1 to 499 In yol. 1; residue In vol. 2.]
McCue V. Sharp, 117, 1U2.
McCalloch v. Dodge, 34.
y. Tapp, 349.
McCullougb, Ex parte, 255.
V. Franklin Coal Co., 4»4, 976w
y. Hellman, 740.
y. Montgomery, 644.
y. Pence, 709.
McCune v. Eaton, 15.
V. McCune, 449, 478.
McCurdy y. Baugliman, 87, 190, 097.
McCurry y. Robinson, 055.
McCutcheon v. Allen, 1014.
y. Dougherty. 982.
McDade v. Burch, 042.
McDaniel v. Correll, 218.
y. Goodall, 994.
y. McLendon, 341.
McDermott y. Clary, 229, 897, 899, 901,
904.
McDoel V. Cook, 233.
McDonald y. Badger, 425.
y. Berry, 042.
y. Butler, 958.
y. Crandall, 425.
y. Dickson, 8, 968.
y. Drew, 917.
y. Falvey, 299.
y. Hannah, 004.
y. McCoy, 019.
y. McDonald, 38, 431.
y. Matney, 000.
y. Mobile L. Ins. Co., 517.
y. Pearson, 393.
y. Raincr, 032.
y. Refrigerating Co., 639.
y. Sellgmnn, 091.
y. Simcox, 250.
y. Stark, 740.
y. Tutty, 85.
y. Wilkie, 211.
McDonough y. Nicholson, 83.
McDougal V. Downey, 749.
McDougald^s Adm*r v. Rutherford, 041,
MacDougall y. Hoes, 959.
y. Knight, 731.
y. Walling, 321, 323.
McDowall V. McDowall, 307.
y. Daniels, 03.
y. Gibson, 071.
y. Langdon, (;24.
y. McDowell 100, 176, 307.
^. Railroad Co., 707.
Mace y. Gaddis, 107.
y. O'Reilly, 170.
McEachern y. Brackett, 325.
V. Kerchner, 157.
McElfatrick y. Taft, 9^4, 936, 937.
McElmoyle v. Cohen, 850, 853, 857, 862,
803, 884, 892.
McElrath v. Butler, 223.
McElroy v. Mumford, 083.
McElwain y. Huston, 22.
McElwee y. Jeflfries, 1008.
McEvoy V, Bock, 747.
McEwan y. Zimmer, 228, 829. 837.
McEwen y. Bigelow, 705, 1001.
Macey y. Stark, 250.
McFadden v. Fritz, 071.
y. Geddis, 014.
y. liockhart, 490.
y. Ross, 071.
V. Schroeder. 703.
McFaddin v. Garrett, 377.
V. Spencer, 370.
McFall y. Association, 264^
V. Dempsey, 580.
McFarland y. Fish. 439.
V. Fricks, 870.
y. Hairs Heirs, 42, 44.
y. Irwhi, 493.
y. Stone, 639.
y. White, :to9.
McFarland*s Estate, In re, 381
McFarlane y. Cushman, 714.
y. Derbisbire, 848.
McFerran v. Davis, 434.
McGaffigan y. Jenkins, 347.
McGarvey y. Darnall, 872.
McGaughey y. Woods, 213.
McGavock y. Clark, 220.
McGee v. Overby, 725.
McGehee v. Gold, 380.
y. Shafer, 779.
y. Wllkins, 278. 282.
McGhee v. Romatka. '517.
McGIll, Ex parte, 255.
V. Rothgeb, 98.
McGillis V. Willis, 731.
MoGilvray v. Avery, 8<)4, 865.
McGiniss v. Lillard's Ex'r, 1008.
McGirk v. Chauvin, 270, 288.
McGlaughlln v. O'Rourke, 191.
McGoon y. Scales, 245.
v. Shirk, 152.
McGourkey y. Railway Co., 500L
CASES CITED.
[Referencei to sections. SS 1 to 499 in vol. 1; reildne in vol. 2.]
CXXXl
McGowan v. Kreling, 322.
HcGrady v. Monks, 625. 733.
McQrath t. Maxwell. l>58.
V. Seagrave, 124.
McGregor y. McGregor, 616.
V. Tabor, 571.
McGrew v. Insurance Co., 822.
McGolre v. Campbell, 77.
T. Gallagher, 7.
McGurry v. Wall, 153.
McUenry v. Shephard, 63.
Machon v. Handle, 100.
McUugh V. Sparks, 363.
Mcllrain v. James L. Leeds Co., 57.
McUvoy T. AIsop, 107.
Mclntlre v. Unehan, 619.
Mclntosli V. Com'rs, 322.
V. Lown, 745.
Mclntjre v. Storey, 616.
McJilton T. Lore, 857, 865, 039a, 963,
055.
McJimsey v. Traverse, 526.
McJunkin t. McJnnkin, 320.
Mack V. Doty. 369, 383.
V. Levy, 508, 612, 786.
MackaUey*s Case, 182.
Uacke v. Byrd. 22.
V. Ryan, 255.
McKean v. Jones, 707.
V. Read, 384.
V. Smoyer, 663.
McEee v. Gayle, 449.
V. Gilchrist, 423.
V. Railroad Co., 742.
V. Wbitten, 633.
McKellar v. Bowell, 586, 590.
V. Lamkin, 86.
McKenna v. Van Blarcom, 446.
McKenzle. EIk parte, 317.
V. Budd, (M3.
V. Donnell. 270.
V. Renshaw. 050.
McKeown v. Officer, 45b
Hackey v. Bell, 44.
V. Coxe, 9390.
v. Hyatt, 30.
V. Mackey. 042, 043.
^lackey's Adm'r v. Coates, 600.
McKim V. Haley, 580.
V. Odom, 809, 873, 962.
McKindley v. Buck, 300.
McKlnUy ▼. TutUe, 213.
McKlnley, In re, 320a.
V. Irvine, 44.
V. Tuttle, 342, 351.
McKinuey v. May, 86.
V. Mehaffey, 486, 940.
T. Ralh-oad Co., 219.
McKlnney's Adm'r v. Davis, 641.
McKlnnon v. McGown, 985.
Mackintosh v. Smith, 516.
McKlnzle v. Railroad, 578.
McKlssack v. Voorhees, 24.
McKissick v. McKissick, 747.
McKnlght V. Devlin, 768.
V. Dunlop, G29, 658.
V. Strong, 305.
V. Taylor, 50i.
MacLachlan v. Pease, 268.
McLaln V. Duncan, 154.
McLane v. Bovee, 656.
V. Miller, 618.
V. Spence, 695.
McLaran v. Wilhelm, 206.
McLaren v. Kehler, 861, 867.
McLaughlin v. Bank, 1014^
v. Doane, 707.
V. HUl, 736.
V. Insurance Co., 754.
V. McGee, 717.
V. Nichols, 875, 967.
McLa urine v. Monroe's Adm*rs, 774.
McLean v. Hansen, 537.
y. Hugarin, 681.
y. Meek, 563.
y. Rockey, 187, 429, 450.
y. Shields, 838.
y. State, 127.
y. Stewart, 154.
McLelland v. Ridgway, 600.
McLellan Dry-Dock Co. v. Steam-Boat
Line, 159.
McLemore v. Durlvage, 300.
V. Railroad Co., 197.
McLenachan v. Commonwealth, 644.
McLendon v. Dodge, 889.
McLennan v. McMonies, 674*
McLsod V. Lee, 614, 624.
V. Nimocks, 90.
y. Power, 770.
y. Receveur, 250.
V. Williams, 493.
Mcl^eran v. McNamara, 378it
McLure v. Bencenl, 857.
CXZXll
CASES CITED.
CReferencei to lections. || 1 to 499 in toI. 1; residue In vol. 2.]
McMahan v. Geiger, 599.
McMahon v. Ass'n, 896.
V. Macy, 583.
V. Perkins, 116.
Y. Smith, 589.
V. Tumey, 231.
McManama v. Garnett, 306.
McMechen v. Marman, 433.
McManus v. Ennis, 157.
McMaster v. Arthur, 513.
McMlcken v. Commonwealth, 588.
V. Perln, 306.
McMillan v. Baker, 299.
v. Hickman, 204.
V. Red, 490.
V. State, 37.
McMillen v. Lovejoy. 876.
V. Scott, 983.
McMlnn v. Whelan, 278.
McMullen v. Richie, 756, 829.
V. Wenner, 438.
McMurran v. Meek, 86.
McMurrny v. Mfg. Co., 59.
v. Marsh, 944, 089.
McMiirray's Heirs v. City of Erie, 352.
McMurtry v. State, 86.
McNabb v. Cllpp, 16.
McNair v. Ingraham, 993.
V. O'Fallon, 784.
McXairy v. Castleberry, 164.
V. Eastland, 377.
McNamara v. Logan, 740.
V. Railroad Co., 127, 128, 410, 419.
McNamee v. Morelaud, 541.
McXaney v. Hall, 545.
McXeal v. Banks, 351.
V. Hunt 1016.
McNeel's Ex'rs v. Auldrldge, 245.
McNeely v. Hyde, 609.
McNees v. Insurance Co., 714.
McNeil V. McNeil, 356, 360.
McNeill V. Carter, 434.
V. Edie, "288.
Macnevin v. Macnevln, 21.
McNIcholas v. Lake, 620, 769.
McNutt V. Trogdon, 536.
V. Wilcox, 1008.
McPhall V. Hyatt, 506.
McPherson v. Bank, 86.
V. Cunllff, 284. G33, 634.
V. Hamilton, 644.
V. Wood, 300.
MtPike V. Wells, GOO.
McQuean v. Fletcher, 902.
V. McQueen, 173.
McQueen's Appeal, 632.
McQuillan v. Hunter, 313.
McRae v. Adams, 342.
y. Davis, 390.
V. Mattoon, 227, 290, 917.
V. Purvis, 378.
McReady v. Rogers, 682, 774.
V. Schenck, 587.
McReynolds v. McReynolds, 5i4.
McRoberts v. Lyon, 488.
McSpadden v. Fanner, 284.
McTavlsh v. Railroad Co., 115.
McVeagh v. Little, 4M.
V. Old Dominion Bank, 486.
McVey, In re, 524.
V. Man*att, 782.
McVlcar v. Filer, 387.
V. Wolcott, 32.
McVIcker v. Beedy, 229, 904. 906.
McWhorter v. Norris, 703.
McWilliams v. Kalback, 590.
McWillle V. Martin, 317.
Macy V. Lloyd, 367.
Madden v. J^eldlng, 220.
Maddock v. Stevens, Ola.
Maddox v. Summerlin, 242, 296. 975.
Madison Tp. v. Dunckle, 677.
Magarlty v. Succop's Adm'r, 1005.
Magee, In re, 320a.
Maglll v. lYust Co.. 721.
Magnolia Metal Co. v. Supply Co., 882.
Mngnusson v. Cronholm, 246.
Magoou V. Callahan. 352.
Mngoun v. Insurance Co., 814, 818.
Magowan v. Magowan. 320, 930.
Magrath v. Hardy, 783.
Magruder v. Buck, 191.
Maguire v. Maguire, 927. 932.
V. Wooila, 29.
Magurn v. Magum. 929.
Mahftflfcy v. Rogers, 54, 624, 693.
Mahnn v. Ca vender, 321.
Mahaney v. Pan man, 225.
Mahaska County State Bank v. Christ
22.
Mahon v. Rosenkrantz, 986.
Mahoney v. Prendergast, 599.
V. Van Winkle, 656.
Mahoning Bank*s Appeal, 1.
>raliurln v. Blckford, 880, 034, 937.
Mallhouse v. Inloes, 87, 326,
CASES CITED.
[References to tections. fiS 1 to 499 in vol. 1; residue In vol. 2.]
CXXXlll
Main v. Bosworth, 421, 43Da.
V. JohUKOD, 181.
Matr V. Beck, 57.
Maize T. Bowman, 747.
Majors v. Cowell, 540.
Malcareth v. Pollard, 9€o.
Makepeace t. Ckmtee, 1000. 1004.
y. Lukens, 1(>5.
Malek y. Kodad, 337.
Maley y. Railroad Co., 23.
T. Sbattuck, 817.
Mallett y. Butcher. 379.
V. Foxcrof t, 612, WiO.
y. Parham, 100.
Mallock y. Krome, 734.
Malloney y. Horan, 617.
Mallory y. Clark, 54.
y. Xorton, 390.
y. Taylor, 26.
Mally y. Mally, 754.
Malona y. Schwing, 638a.
Malone y. Marriott 48, .'oO.
y. Mining Co., 316. 324.
Maloney y. Dewey, 205.
Mfllooy y. Horan, 732.
MaUky y. Schumacher, 600.
Man y. Drexel, 652.
Mandeyille y. Ayery, 791.
y. Holey, 77.
y. Reynolds, 290, 909.
Mandlebaum y. Gregovich, 958.
Maneyal y. Township, 54, 349.
Mangnno & Tomfocaro Co. y. Cly-
monts, 305.
Manhattan Co. y. Byertson, 413, 415,
423.
Manhattan Life Ins. Co. y. Broughton,
099.
Manigault y. Deas* Adm*rs, 559, 600.
V. Holmes. 536.
Manker y. Sine, 1014.
Mankhi y. Chandler, 792, 801.
Manley y. Hunt 438.
y. Hickle, 514.
y. Tufts, 736.
Manly y. Kidd, 537.
Mann y. Edwards, 778i.
y. Martin, 183.
y. Peck, 666.
y. Poole, 981.
y. Rogers, 656w
T. Warde, 34&
Manning v. City of Orl.^ans, 16.
y. Nelson, 158, 311, 321.
y. Norwood's Adm'rs, 981.
y. Railroad Co., 341, 613.
Mannlon y. Railroad Co., 157.
Manniz y. State, 291.
Manns y. Bank, 677.
Manny y. Harris, 623, 626.
Mansel y. Castles, 166.
Mansfield y. Gregory, 401.
y. Hoa gland, 536.
y. Mclntyre, 932.
y. Manslield, 320.
Mansfield's Case, 205.
Manson y. Duncanson, 193, 261, 585.
Mansur y. Pratt, 195.
Manufacturers' & Mechanics' Bank y.
Bank, 446.
y. Boyd, 53.
y. St John, 61a.
Manyille y. Parks, 89.
Manwaring y. Lippincott 836.
Maple y. Beach, 600, 604.
y. Havenhill, 307.
y. Railroad Co., 779.
Maples y. Mackey, 273.
Marble y. Keyes, 791.
Marbury y. Pace, 52, 488.
Marceau y. Insurance Co., 528.
March y. McCardle, 191.
y. Railroad Co., 227.
Marchal y. Hooker, 109.
Marchman y. Sewell, 370.
Marder y. Wright 141.
Marienthal y. Amburgh, 224.
Marine Bank Co. y. Mailers, 157.
Marine Ins. Co. y. Hodgson, 366, 378,
384.
y. Young, 729.
Marion y. Regenstein, 81.
Marion County y. Coler, 985a.
Marion County Com'rs y. Welch, 664.
Markham y. Angler, 373.
y. O'Conner, 576.
Markle's Estate, In re, 313.
Markley y. People, 751,
y. Rand, 359.
Marks y. Semple, 42.
y. Sigler, 87, 697.
y. Sullivan, 614.
y. Willis, 390.
Marlatt y. Clary, 572.
CXXXIV CASES
[Referencei to secUoni. tt 1 to
Marlow v. Barlew, 11)2.
v. Johnson, 434.
Marquai'dt v. Hubner, 16.
Marquez v. Frisbie, 530.
Marquis, In re, 297.
Marr v. Marr, 319.
V. Wetzel, 897.
Marriner v. Smith, 359, 426.
Marsh v. Berry, 779.
V. Edgerton, 378.
v. Uamux>nd, 699.
V. Haywood, 299.
y. Lasher, 349.
v. Mandeville, 700.
V. Masterson, 726, 733.
Y. Nordyke & Marmon Co., 350.
V. Pier, 726, 729, 787, 788.
V. Putnam, 824.
V. Synder, 115.
Marshall y. Aiken, 754.
V. Charland, 264.
V. aothlng Co., 725, 749, 750.
V. Fisher, 195, 197.
V. Holmes, 372.
V. Moore, 457, 999.
V. Morris, 1007.
V. Otto, 706.
V. Rose, 041.
y. Itough's Heirs, 600.
y. Shafter, 655.
y. Taylor, 130.
Marshall & Ilsley Bank y. Hyman, 181.
Marshmnn y. Conklin, 183.
Marsh ton y. Sweet, 787.
y. Tryon, 1014.
Martin v. Baldwin, 435, 939a.
y. Bank, 164.
y. Barnhill, 500.
y. Baugh, 315.
y. Bowie, 270.
y. Boyce, 632.
y. Burns, 271.
y. Charter, 1007.
y. Cowles, 567.
y. Crow, 23.
y. Curley, 335.
y. Darling, 794.
y. Ellerbe's Adm'r, 562.
y. Evans, 722.
y. Gilmore, 21.
y. Hewitt, 173, 407.
y. Judd, 54, 225.
V. Kennedy, 726.
CITED.
499 in vol. 1; residue in vol. 2.]
Martin y. McLean, 245.
V. Matfleld, 163.
y. Nicolls, 827.
V. Parsons, 376, 377.
y. Porter, 268, 590.
V. Price, 28.
V. Railroad Co., 9L
y. Rex, 53, Ola.
y. RobUison, 284.
y. Roney, 731.
y. Rutt, 607.
y. Skehan, 305.
v. Tally, 589.
V. Teal, 117.
y. Tobacco Co., 343.
y. AValker, 609.
y. Weyman, 193. 195, 197.
y. Williams, 233, 284.
Martina v. Muhlke, 246.
Martindalc y. Brown, 346.
V. Price, 16.
y. AVaas, 125a.
Martinez v. Lindsey, 445.
Marvel v. Manouyrler, 325, 374.
Marvin v. Dennison, 655.
y. Hampton, 600.
V. Marvin, 121.
y. Welder, 516.
V. Wilklns, 299.
Marx v. Fore, 901, 903, 916.
v. Logue. 884, 971.
y. Sanders, 498.
Marj' Anne, The, 796.
Maryland Steel Co. v. MsLvney, 323, 372.
Marj'ott V. Gardner, 261.
Mashburn v. Gouge, 190.
Mason, Ex parte, 250.
v. Alston, 622.
v. Bair, 041.
v. Bull. 969.
v. Cronlse, 985.
v. Eldred, 770.
v. House, 365.
y. .Tones, 387.
v. Kellogg, 567, 569.
v. Knowlson, 1003.
y. McLean, 304.
y. McNamara, 352.
v. Messenger, 290.
y. Miles, 376.
y. Quinn, 370.
v. Railroad Co., 326.
v. Smith, 61.
CASES CITBD.
cxxxv
[RafereneeB to sections. H 1 to
Mason County y. Dunbar, 29.
Maisachusetts Benefit Life Ass'n v.
LohmiUer, 393.
Masser v. Dewart, 4S4»
Y. Strickland, 588.
Massey v. McCoy, 715.
Y. Walker, 13.
V. Westcott. 420.
Massle y. Mann, 3(X).
Maasle's Heirs v. Donaldson, 196, 197.
MasHlnglll Y. Downs, 413, 415.
Masten v. Foundry Co., 351.
V. Oieott, U57.
Masters y. Va mar's Kx'rs, 607.
Masterson y. Cundiff, 4S2a, 483.
V. Gibson, 8.
Y. Matthews, 173, 516, 966.
Y. Williams, 23.
Mastick Y. Tborp, 366.
Martin y. Gray, 275.
Matheney y. Galloway, 260, 695.
Matber y. Mather, 63.
Matheson's Adm'rs y. Grant's Adm'r,
165.
Mathews y. Bishop, 322.
Y. llerron, 671.
Y. Lawrence, 782.
Y. Mosby, 80.
)Uto, Ex parte, 257.
Matson y. Burt, 285.
Y. Field, 362, 378.
Y. Swebson. 284.
Mattalr y. Card, 754.
Matter y. PhilUps, 986.
Matthew v. Osborne, 652.
Matthews y. l>aYis, 958.
V. Durj-ee, 617.
Y. Houghton, 106.
Y, Nance, 459.
Y. Noble, 174.
Y.Uussell, 954, 1000, 1005.
Matthews* lessee y. Thompson, 52.
Matthls Y. Inhabitants, 341.
Mattingly v. Elder, 44.
Y. Lewlsohn, 511.
Mattoon y. Hinkley, 86.
Mattox Y. Helm, 647, 663.
Matula Y. Lane, 455, 460.
MatEenbaugh v. Doyle, 69, 351.
Maolden y. Armlstead, 396.
Maund y. Loeb, 91.
Maurin y. Games, 110.
Maury v. Roberts, 28.
409 in vol. 1; residue in vol. 2.]
Maury's Trustee v. Fltzwater, 313.
MaYlty Y. Ea8trldg9, 68.
Mawhinney y. Doane, 958.
Maxfield v. Carr, 980, 1016,
Max Meadows Land & Imp. Co. y.
McGaYock, 449.
Y. Mendenhall, 22.
Maxton y. Mount, 989.
Maxwell y. Bank, 510.
V. Clarke, 714.
T. Com*rs, 532.
V. DeYallnger, 992.
Y. Owen, 941.
V. Stewart, 801, 884, 917.
V. Vaught, 437.
May Y. Ball, 48.
Y. Bank, 493.
Y. Lumber Co., 329.
Maybee y. Avery, 529.
Mayberry y. McClurg, 321.
Mayer y. Blease, 941.
Y. Brensinger, 96.
Y. Lawrence, 97.
V. Mayer, 346a.
V. Nelson, 363.
V. Sparks, 1014.
Mayes y. Woodall, 359.
Maylleld, Ex parte, OSOc.
Y. State, 114.
Mayham y. Ooombs, 446.
Maynard y. Ass'n, 185.
Mayo Y. Ah Loy, 247, 278, 809.
Y. Foley, 247. 809.
Y. Stoneum, 173, 516.
Y. Tudor's Heirs, 660.
Mayor y. Lord, 253a, 518.
Mayor, etc., of City of DaYenport y.
Lord, 985b.
Mayor, etc,, of City of Macon y. Trus-
tees, 940.
Mayor, etc., of City of New York y.
Brady, 332. 574, 575.
V. Schermerhom, 33.
Mayor of New Orleans v. IT. S., 253a.
Mayor of Norwick v. Berry, 126, 127.
Mayor of Wetumpka y. Wharf Co.,
953.
Mays Y. Compton, 600.
v. Hassell, 134.
MaysYille & B. S. R. Co. y. Ball, 972.
MaysYille & Lexington R. Co. y. Pun-
nett, 21, 32.
Meacham v. Dudley, 341,
CXXXVl CASES
CReferencei to soctions. || 1 to
Mead y. City of Boston, 529.
V. Brown, 135.
V. Mitchell, 554. 661.
V. Weaver, 251.
Meade, In re, 320a.
V. Bartlett, 271.
Meader v. Norton, 530.
Meador v. Rhyne, HMJO, 1003.
Meadowcroft v. Huguenln. 320.
Meadows v. Duchess of Kingston, 320,
523.
Meagher v. Mfg. Co., 29.
Means v. Hicks' Adm*r, 589, 591.
V. Means, 164.
Mebane v. Mebane, 585.
Mechanics* Bank v. Gorman, 450, 451.
V. Mayer, 70.
V. Mlnthorne, 159, 1(52.
Mechanics' Banking Ass'n y. Marl-
poosa Co., 703.
Meckley's Appeal, 291.
Medart v. Fasnatch, 392.
Medford v. Dorsey, 1014.
V. Harrell, 39.
Medina v. Medina, 320.
Meehan v. Valentine, 26.
Meek v. Howard, 384.
V. Mathis, 44.
v. Meek, 892.
V. Thompson, 440.
Meeker v. Sprague, 32.
Meem v. Rucke}*, 381.
Megee v. Beirne, 801.
Megerle v. Ashe, 531.
Mehaffy v. Dobba, 646.
V. Lytle, 573, 574.
Mehlin y. Ice, 939c.
Meily y. Wood, 431.
Meiners v. Brewing Co., 349, 352.
Melnweiser y. Hains, 492.
Meiss V. Gill, 783.
Meixell y. Klrkpatrick, 359.
Melde y. Reynolds, 340a, 345.
Melbop y. Doane, 904.
Melick y. Bank, 321, 386.
Mellin y. Horlick, 848.
Mellon y. Guthrie, 418.
Mellon's Appeal, 446.
Mellon y. Howard, 299.
V. Pace, 536.
Melvln V. Proprietors. 649.
Memmer v. Carey, 736.
Memphis v. Brown, 153.
CITED.
499 in vol. 1; residue in toI. 2.]
Memphis y. U. S., 985f.
Memphis City Bank y. State of Ten-
nessee, 609.
Memphis & C. R. Co. y. Orr, 13.
Memphis & L. R. R. Co. y. State, eOO.
Menard y. Sydnor, 191.
Mendenhall y. Robinson, 487.
y. Stewart, 207.
Mendenhairs Ex'rs v. Springer, 55.
Menderback y. Hopkins, 998.
Meng y. Coffee, 32.
Mengis y. Railroad CO., 183.
Menifee*s Adm^rs y. Ball. 378.
Mentzer y. Ellison, 279, 3:»9.
Mercantile Nat. Bank y. Bank, 510,
685.
y. Hubbard, 750.
Mercantile Trust Co. y. Ralkoad Co..
471.
Mercer y. James, 211, 212.
y. Watson, 654.
Merchants' Ad-Sign Co. y. BiU-Po8tins
Co., 322.
Merchants' Bank y. Ballon, 4, 399, 463.
y. Chandler, 583.
y. Kent, 32.
Merchants' Ins. Co. y. Algeo, 745.
y. De Wolf, 299.
Merchants' International Steam-Boat
Line y. Lyon, 630.
Merchants' Mut. Ins. Co. y. Hill, 486.
Merchants' Nat Bank y. Braithwaite,
482.
y. Construction Co., 938b.
y. Cotton Mills, 61, 63, 67, 73.
y. EusUs, 439.
y. Gaslin, 958.
y. Good, 500.
y. Hagemeyer, 585a.
Merchants' & Mechanics' Bank y. Br-
ans, 236.
Mercler y. Chace, 270, 278, 284.
Meredith y. Ass'n, 587, 617, 875.
Meredith Mechanic Ass'n y. Drill Co.,
715.
Meriara y. Rundlett, 593, 598, 923.
Meridian Nat. Bank y. McConica, 419.
Merkleln y. Trapnall, (U6.
Merle y. Andrews, 44, 306.
Merrlam y. Sewell, 807.
y. Whittemore, 50(?.
y. Woodcock, 729, 769.
Merrick y. City of Baltimore, 328.
CASES
[Ref areneeft to Mellons. H 1 to
Merrick y. Hill, 699.
V. Merrick, 253.
Merrifield v. Bell. 332.
MerdU v. Bank, 200, 583.
Y. Com'rs, 710.
y. Harris, Gi2,
y. Insurance Co., 5C3.
y. Roberts, 341.
y. Sherburne, 298.
y. Souther, 954.
Merriman v. Barker, 771.
y. Railroad Co., 45.
V. Walton, 362, 35J3b.
Merrin y. Lewis, 663.
Merritt y. Bagwell, 791.
y. Baldwin, 367.
y. Campbell, 706.
y. DafDn, 560.
y. Dearth, 100.
y. Fowler, 864.
y. Morse, 627.
y. Peirano, 615.
y. Putnam, 341, 354.
y. Riohey, 440.
V. White, 84.
Merrftt's Lessee y. Home, 274.
Merry v. Hallet, 429.
Mershon y. Williams, 610, 618, 652.
Mertz y. Oonstniction Co., 183.
Merrine y. Parker, 5(H, 754, 986.
Messier y. Amery, 852.
Messina y. Petrocochino, 820, 827.
Messinger y. Insurance Co., 709.
V. Kintner, 271. 277.
Messmore y. Williamson, 489.
Mestier y. Railroad Co., GOO.
Metcalf y. Gilmore, J)20.
y. Metcalf, 135, 165.
Metcalfe y. Alter, 196.
Methard y. State, 745.
Methodist Churches of New York y.
Barker, 587.
Methodist Protestant Church y. City of
Baltimore, 367.
Metropolitan £1. R. Co. y. Johnston, 27,
384.
y. Railroad Co., 509.
Metropolitan Life Ins. Co. y. Bergen,
311.
Metropolitan K. Co., In re, 619.
Metropolitan Washing Mach. Co. y.
Morris. 206.
Metz r. Bank, 112, 405, 406.
CITED. cxxxvii
499 in Tol. 1; residue In vol. 2.]
Metzgar y. Metzgar, 1005.
Metzler y. Kllgore, 450.
Mexia y. Lewis, 556.
Mayer v. Barth, 589.
V. Campbell, 407.
y. Hartman, 912.
y. Hearst, 199.
y. Kuhn, 211, 793.
V. Meyer, 517, 675.
Meyers v. Field, 102.
V. Hill, 651.
y. Smith, 362, 372, 386.
Miami Co. Nat. Bank v. Barkalow, 691.
Michael y. City of Ma: toon, 164.
V. Knapp, .421, 439n.
Michaelis y. Brawley, 205, 269.
Michaels y. Boyd, 460.
V. Post, 248, 807.
Michan y. Wyatt, 556.
Michaux's Adm'r v. Brown, 433.
Michels v. Stork, 225.
Michener y. Thrasher Co., 359.
Michigan Land& Lumber Co. y. Rust,
600.
Mickel y. Hicks, 633.
Mickey v. Stratton, 229.
Mickler y. Reddick, 307.
MIckles V. Thayer, 358.
Middlesex Bank y. Butman, 829, 895.
Middleton y. Thompson, 567. 568.
Middleton's Ex'rg v. Middleton, 490.
Miehle Printing Press & Mfg. Co. v.
Printing Co., 611.
Mifflin County Nat. Bank's Appeal,
956.
Mikeska y. Blum, 269.
Milam Co. v. Robertson, 158, 200, 300.
Milcreek Road, In re, 109.
Miles y. Caldwell, 627, 650, 654.
y. Goodwin, 225.
Milhous y. Alcardi, 248.
Millard y. Marmon, 193.
y. Parsell, 25.
y. Railroad Co., 745.
Millcreek Tp. v. Reed, 812.
Milleisen y. Sensemnn, 316.
Miller v. Albright, 106.
y. Alexander, 347.
y. Allen, 141.
y. Bailey, 632.
y. Bank, .59.
y. Barkeloo, 513.
y. Beck, 782.
OXXXYIU CASES
[References to sections. H 1 to
Miller V. Bernecker, 375, 527,
V. Blackett, 553.
y. Breubam, 892.
V. Carr, 335.
T. Clarke, 63.
V. Covert, 734.
V. Cox, 445.
V, Deaver, 630.
V. Dugan, 949.
y. Dungau, 900, 904, 949, 972.
y. Earle, 68.
V. Bwlng, 273, 897.
y. Foster, 808.
y. Oilman, 1003.
y. Glass Works, 58.
y. Qorman, 377.
y. Hardacre, 86.
V. Harrison, 373.
y. Hoc, 181.
y. Justice, 308.
y. Kosch, 63.
y. Langworthy, 719.
y. Leach, 916.
y. LfOngacre, 209.
V. Lovell, 973.
y. McGuckln, 703.
y. McGulre, 386.
y. Machine Co., 07.
y. Mnnlce, 621, 726, 729, 785, 787.
y. Mans, G99.
y. Miller, 458,
y. Morse. 300.
V, Neidzielska, 321.
y. Peters, 116.
y. Preston, 986, 1016.
y. Railroad Co., 29, 115, 950.
y. Khoades, 573.
y. Royce, 159.
y. Shackelford, 493.
V. Sherry, 423.
y. Signal Co., 022.
y. Smith's Ex'ra, 902.
V. Snyder, 218, 250, 258.
V. State, 208.
V. Vaushan. 600.
V. White, 252, 583.
y. Wills, 549.
V. Wolf, 137, 410.
Miller's Adm'r y. Cook's Adm'rs, 42.
V. :MIller, 906.
Minor's Estate, In re, 542.
Miller's Ex'rs v. Miller, 906.
Mlllett y. Lagomarsluo, 657.
CITBD.
499 in ToL 1; residue in toI. 1]
MilUgan, Ex parte, 256, 25S.
y, Browarsky, 744.
Mllligan's Appeal, 99L
MllUkan y. City of La Fayette^ 578L
V. Werts, 655.
MlUiken y. Lorlng, 596.
y. Whltehouse, 583.
Mills V. Conner, 498.
y. Dennis, 197.
y. Dickson, 57, 318.
y. Duryee, 275, 856, 857, 884, 887.
y. Garrison, 744.
y. Hoag, 44.
y. I^umber Co., 119.
y. Martin, 524.
y. Miller, 39.
y. Pettlgrew, 691. 723.
y. Scott, 374,
y. Stewart, 593, 875, 896.
V. Terry, 273.
y. Van Voorhls. 378, 386.
y. Witherlngton, 000.
Mills County y. Brown County, 611.
Mlllspaugh y. McBride, 301. 341.
Milne y. Van Busklrk, 888.
Mllnor y. Banking Co., 358.
MUtlmore y. Mlltlmore, 261.
Milwaukee Haryester Co. y. Schroeder,
322.
Milwaukee Mutual Loan & Building
Soc. y. Jagodzinski, 311, 340a, 354.
Milwaukee & M. R. Co. y. James* 419.
Mlmnaugh y. Partlln, 769.
Miner y. Clark, 567, 569.
V. Pearson, 141.
Mineral Point R. Co. y. Keep, 225.
Miners'* Ttust Co. Bank y. RosebenT;
294.
^flngay y. Lackey, 160.
Mink y. Shaflfer, 875.
Mlnkhart y. Hankler, 115.
Minna Craig S. S. Co. y. Bank, 814.
Minneapolis Trust Co. y. Verhulst,
508.
Minneapolis & St L. B, Co. y. Wilson,
438.
Minnesota Thresher Mfg. Co. v. Holz,
953.
Mlnnlch y. Shaffer, 439a.
Minor y. Stone, 378.
V. Walter, 87, 513, 697, 765.
Mlnter y. Green, 898, 972.
Mintzer y. Trust Co., 31a.
CASES
[Referencei to sectionB. H 1 to
Mi88ls8inewa Min. Co. t. Andrews,
20G.
Mississippi Valley Ck>. y. Railroad Co.,
446.
Mississippi & T. R. Co. v. Green, 87.
V. Wynne, 3(Ki.
Missouri V. Teidermaun, 544.
Missouri Glass Co. v. Gregg, 877, 968.
Missouri, K. & B. R. Co. v. Hoereth,
361.
y. Holschlag, 135.
Missouri, K. & T. R. Co. v. Fulmore,
219.
T, Haber, 995.
V. McWherter, 721.
T. Warden, 253, 367.
Missouri Pac. K. Co. v. Fitzgerald, 37.
▼. Haynes, 158, 159.
T. Heldenhelmer. 000.
T. Levy, 671.
T. Railroad Co., 617.
T. Reld, 367.
T. Scamnion, 741.
V. Smith, 116.
V. Twlss, 574.
Mitchell Y. Allen, 340.
V. A ten, 83.
V. Bank, 252.
V. Brewster, 206, 770. 775.
V. Campbell, 349.
T. Cobb, 530.
V. Cook, 719.
T. Davis, 663.
V. French, 617.
T. Garrett, 897, 901, 906.
Y. Geisendorff, 142.
Y. Greenwald, 237.
V. Hamilton, 492.
Y. Hawley, 522, 076.
Y. Hockett, W5, 956, 957. 987.
Y. Insley, 619. 687.
Y. Kinnaird, 321.
Y. Kintzer, 293.
Y. Klrby, 369.
Y. Knight, 322.
Y. Llbbey, 782.
Y. Lincoln, 165.
Y. Meuley. 271.
Y. Overman, 126, 127.
Y. Robertson, 650, 658. 659.
Y. Runklc. 279.
v. St John, 179.
V. Sanford, 75&
CITED. CXXXIX
499 in vol. 1; residue in vol. 2.]
Mitchell V. Schoonover, 200.
V. Wood. 398.
Mitchell's Adm'r v. Gray, 231.
Mitchell's Heirs v. Smith's Ilelrs, 491.
Mitchell & I^ewis Co. v. Downing, 340.
Mlze V. Mfg. Co., 320a.
Moale V. HoUins, 770, 776.
Mobley v. Mobley, 218, 261.
Mock V. City of Snirta Rosa. 208.
V. Cunditr, 383.
Modawell v. Hudson, 159.
Moercheu v. Stoll, 641.
Moffett v. Blckle, 145.
Moffitt v. Albert, 104.
V. Moffitt, 273, 282.
Mogelberg v. Clevinger, 861.
Mohler's Appeal, 949.
Moloney v. Nelson, 714.
Molyneux v. Huey, 180.
V. Marsh, 995.
V. Seymour, 229.
Monarch v. Brey, 130, 135.
Monarch Cycle Mfg. Co. y. Mueller^
752.
Monarque v. Monarque, 661.
Mondel v. Steel, 768.
Money v. Dorsey, 438.
Monger v. Jeffries, 38.
Monks Y. McGrady, 568.
Monroe v. Douglas, 813, 818, 829.
V. May, 425.
v. Monroe, 309, 691.
V. Paddock, 338.
Mouson V. Kill, 136.
Montague v. McDowell, 769.
V. Mitchell, 376.
Monteith v. Gehrig, 661a.
Montejo v. Owen, 970.
Montesquieu v. Heil. 504.
Montford v. Hunt, 938c.
Montgomery v. Baruett, 77.
V. Carlton, 193.
V. McDermott, 938c.
V. McGimpsey, 473.
V. Road, 599.
V. Samory, 811.
V. Vickery, 995.
Montgomery County v. Auchley, 135.
Montgomery Nat. Bank, Appeal of, 34.
Montreal Min. Co. v. Cuthbertson,
838.
Montrose v. Wananinker, 734, 747, 790.
Montross v. State, 216.
€Xl CASES
[References to MoUom. fiS 1 to
Moody y. Grant, 165.
V. Harper, 201, 432, 460, 1008.
T. Lyles, 233.
V. reyton, 5lK).
Moon V. Crowder, 550.
Mooney v. Byrne, 20.
V. Hinds, 917.
Moons y. De Bemales, 040.
Moon's Adm'r v. Crowder, 550.
Moor y. Roberts, 127.
y. Towle, 958.
Moore y. Adie's Adm'r, 869, 962.
y. Alexander, 590.
y. Barclay, 373.
y. Brltton, 367.
y. Byers, 438.
y. Carey, 992.
y. Cason, 600.
V. City of Albany, 648.
V. Consolidated Co., 44,
y. Council, 253a, 278.
y. Court. 311.
y. Cross, 98.
y. Dunn, 317. 709.
y. Easley, 204.
y. Ellis, 217.
y. Estes, 236.
y. Gamble, 368, 373.
y. Garner, 504.
y. Granger, 425.
y. Hill, 22.
y. Hillebrant, 641.
y. Hinnant, 306.
y. Holland, 399.
y. Horner, 341, 691.
y. Ireland, 940.
y. Jeffers, 938.
y. Johnston, 734.
y. Jordan, 460.
y. Kelly & Jones Co.. 335.
y. Kilgore, 75.
y. Letchford, 399.
y. McEwen. 193.
y. Maitin, 240.
y. Martin & Hoyt Co., 84.
y. Nowell, 11, 942, 951.
y. O'Barr, 513.
y. Pendergrasfs Heirs, 988.
y. Terry, 263, 273.
y. Phillips, 836.
y. Pitts, 426.
y. Prince, 252.
y. Railroad Co., 1016.
CITED.
499 in ToL 1; residue in vol. 2.]
Moore y. Red, 986.
y. Richardson, 326.
y. Rittenhouse, 473.
y. Robbins, 530.
y. Robison, 244.
y. Rogers, 770, 774, 775.
y. Russell, 721.
y. Smith, 951.
y. Spackman, 593, 923.
y. State, 132.
y. Tanner, 261, 635.
y. Tanner*s Adm'r, 635.
y. Thomas, 421.
y. U. S., 33.
V. Ware, 245, 513.
y. Watkins, 83.
y. Williams. 510, 685.
y. Woodside, 144.
Moorehead y. McKinney, 432.
Moorer y. Moorer, 951.
Moores v. Peycke, 412.
Moore^s Appeal, 38, 506, 944.
Moore & Handley Hardware Co. t.
Curry, 605.
Mora y. Kuzac, 217.
Moraga y. E merle, 29.
Moran y. Hagerman, 981.
y. Plankinton, 737.
Morarity y. Calloway, 064, 761.
Morch y. Raubitschek, 529.
More y. Bagley, 378.
Morehead y. Grisham, 873.
Moreland y. Coke Co.. 549.
Moreland Tp. y. Gorduer, 699.
Morenhout y. Hlguera, 660.
Morey y. Homan, 100.
V. Hoyt, 261.
y. King, 509.
y. Lockhart, 37.
Morgan, Ex parte, 167.
y. Bliss, 699.
y. Burr, 629.
y. Chester, 580, 774.
y. Flexner, 115.
y. Halsey, 638a.
y. McDonald, 347.
y. Mitchell, 624.
y. Morgan, 239, 897.
y. Neville, 593, 923-
y. Railroad Co., 308, 717.
y. Righetti, 208.
y. Scott, 376.
y. Simmons, 574.
CASES CITED.
[Referencei to sections. IS 1 to 499 In voL 1; residue in vol. 2.]
cxli
Morgan v. Sims, 442, 443.
y. Skidmore, 745.
V. Thorne, U86.
T. Town Clerk, 985b.
T. Winston, 572.
Morgan's Heirs v. Patton, 518.
Moring V. Abies, 655.
Morley v. Railroad Co., 4. 8, 11, 982.
V. Stevens, 995.
Morning Journal Ass'n v. Rutherford,
33.
Morrell Hardware Co. v. Mining Co.,
316.
Morrill y. Mfg. Co., 615.
y. Morrill, 291.
y. Smith County, 600.
Morris V. Bailey, 894.
y. BarUett, 796.
y. Boomer, 970.
y. Coleman County, 155, 163.
y. Creed, 248.
y. Curry, 970.
y. Edmonds, 196.
y. Garrison, 557.
y. Gentry, 245.
y. Hollls, 1004.
y. HorreU. 609.
y. Kahn, 347.
y. Lucas, 555.
y. Morange, 48.
y. Morris, 44, 376.
y. Mowatt, 420, 469.
y. Murpbey, 561.
y, Patchln, 878.
V. Slatery, 349.
y. Webber, 320.
Moiris' Adm*r y. Peyton's Adm'r, 159,
319.
Morris* Estote, 414.
Morrison y. Austin, 261.
y. Bank, 180.
y. Beckey, 745.
y. Bernards Tp., 125a.
y. City of Chicago, 107.
y. Clark, 657.
y. Dapman, 165.
y. Deaderlck, 199.
y. De Donato, 749.
y. L*Hommedleu, 138.
y. Loftin, 600.
V. Speer, 362.
V. Wurtz, 422.
Morrison's Adm'r v. Mullln, 600.
Morrison's Ex'r v. Ilart, 389.
Morris & E. R. Co. y. City of Orange,
40.
Morrow y. Allison, 633.
V. Geeting, 163.
y. Robinson, 992.
y. Weed, 274.
Morseh v. Besack, 186.
Morse y. Bishop, 249.
V. Callantine, 315.
v. Elms, 609.
V. Godfrey, 807.
V. Marshall, 657.
V. Pearl, 958.
y. Presby, 240, 270, 273, 279.
y. Sadler, 585.
y. Toppan, 7, 10, 188, 190.
Morsell y. Bank, 433, 434.
Morton y. Adams, 407.
V. Palmer, 958.
y. Sweetser, 716.
y. Urquhart, 1005.
V. Walker. 1008.
Morton's Case, 778.
Morton's Ex'rs y. Crogan's Terre-
Tenants, 492.
V. Nunnelly, 375.
Mosby y. Gisbom, 252, 360, 371.
y. Wall, 713, 766.
Moseley y. Cocke, 219.
Mosely y. Tuthlll, 173.
Moses y. Bradley, 529.
y. Richardson, 190.
y. U. S., 586.
Mosgrove y. HaiTis, 005.
Mosher y. Small, 238.
Mosley v. Mfg. Co., 200.
Moss y. Ashbrooks, 32, 720.
y. Jerome, 208.
y. McCuUough, 560, 583, 686.
V. Oakley, 583.
Moster v. Moster, 320.
Motley V. Harris, 726.
V. Jones, 446.
Mott y. Hospital, 409.
V. State, 267.
Motter V. Welty, 893.
Moulding y. Wllhartz, 586.
Monlin y. Insurance Cc, 898.
Moulton y. Cornish, 48.
Mount y. Manhattan Co., 248, 807.
y. Scholes, 681a, 790.
y. Slack, 644.
CXlii CASES
CReterencM to sections. 8fi 1 to
Mountain y. Rowland. 130.
Mouser ▼. Harmon, 340a.
Mousseau's Will, In re, 193.
Mowbray v. Railroad Co., 29.
Mower v. Fletcher, 34.
V. Kip, 993.
Mowry v. Chase, 227. 897, 899.
v. Cheesman, 8$r2.
V. Davenport, (506.
T. Hill, 347.
V. Nunez, 326.
Mpy V. Moy, 600.
Moye V. Petway, 16.
Moyer v. Hinman, 438.
V. Lobengeir, 593.
M. T. Jones Lumber Co. v. Rhoades,
203.
Mudd T. Rogers, 8.
Mudge y. Steinhart, 141.
Mueller v. Henning, 664.
V. McCuUoch, 312.
V. Reimer, 316.
Muffley y. Turner, 664.
Muhle y. Railway Co., 754.
Mulr y. Craig, 1010.
y. Leitch. 461.
Muirhead y. Klrkpatrlck, 620.
Mulcahey y. Dow, 393a, 80a
Mulford V. Estudillo, 1007.
y. Peterson, 423.
y. Stratton, 62.
Mulhollan v. Scoggin, 349.
Mull y. McKnight, 700.
Mullane y. Roberge, 340.
Mullen y. Scott, 588.
V. Wine, 86.
Mullendore y. Silvers, 326.
Muller V. Post, 352.
Mulligan v. Devlhi. 493.
MuUlken v. Hull, 160.
MuUins v. Johnson, 86.
Mum V. Shannon, 631.
Mumford v. Spragne, 953.
v. Stocker. 1013.
Munday v. Leeper, 250.
V. Vail, 242.
Mundine v. Brown, 462.
Munford v. Overseers, 586, 588.
Munn V. Cook, 845.
v. Won-all, 368.
Munro v. Callahan, 332.
V. Meech, 724.
Muusou V. Steamshii) Co., 508.
CITED.
499 in vol. 1; residue in vol. 2.]
Munter v. Rogers, 152.
Murdock y. De Vries, 368.
y. Ganahl, 121.
y. Stelner, 326.
Murfree's Heirs y. Carmack, 443^ 45L
Muii)hree v. Bishop, 358.
Murphy v. Cochran, 951.
v. Cuddlhy, 364.
v. De France, 250.
y. Flood, 1016.
y. Gage, 210.
v. Granger, 521.
y. Klein, 462.
v. Lyons, 278.
v. Manning, 677.
y. O'Reiley, 211.
y. Orr, 211.
v. Ti-ust Co.. 994.
y. Smith, 373.
v. Swadner, 335.
y. TiUing, 29.
y. Winter, 227.
Murray v. Ballon, 550.
V. Blackledge, 667.
y. Cooper, 130.
y. Derrick, 328.
y. Ebright, 20&
y. Green, 510.
v. Lylbum, 956.
y. Meade, 996, 1008.
y. Murray. 231. 290, 783.
y. Southerland, 15.
y. Stephens, 565.
v. Surety Co., 279.
v. Welgle, 263.
v. Yates, 39.
Murray*s Adm*r v. Baker, 491, 46%,
Murrell v. Smith. 754.
Murtland v. Floyd, 209.
Mm-zynowskl v. Railroad Co., 250.
Muscatine v. Railroad Co., 368, 370.
liluse y. Bank, 701.
v. Wafer, 363.
Musselman v. Com., 588.
Musser v. Gray, 987.
Mussey v. Bates. 732.
V. White, 785.
Mussleman's Appeal, 284, 633.
Mutual Assur. Soc. v. Stanard, 441.
Mutual Benefit Co., In re. 313.
Mutual Beu. Life Ins. Co. y. Tisdale,
600, 640.
GASES GITBD.
[BtCerenees to MCtlona. |( 1 to 4d9 in yoI. 1; residue in toI. S.]
oxliii
Mutual Fire Ins. Co. ▼. Furniture Ck).,
910a.
Mutual Goanmtee Bldg. & Loan A88*n
T. Fallen* 73.
Mutual Life Ins. Co. v. Anthony, 33.
V. Newton, 675, 9G2.
Mutual Nat Bank v. Moore, ^^il^a,
Mutual Nat Bank of New Orleans y.
Moore, 908.
Myer t. Fegaly, 406.
T. Kuhn, 232.
Myers y. Cochran, 79a.
y. Daniels, 376.
y. Hewitt 411.
T. Landrum, 34, 340.
y. McGavock, 541.
y. Manny, 48.
y. Miller, 293.
y. Sprenkle, 57.
y. iueeKy vcn^
N
Nabers' Adm*r y. Meredith, 184.
Nabors y. State, 182.
Naft^ger y. Gregg, 085, 718.
Nailer y. Stanley, 440.
Napier y. Gldlere, 8, 857, 892.
Napton y. Lea ton, 9U1.
Nardln y. Battle, 1012.
Natb y. Church, 281, 546.
y. Cutler, 660.
y. Denton, 345.
y. Hunt ^t82.
y. Whetmore, 841.
Naahyille, C. & St L. Ry. y. Jones,
207.
y. Mattingly, 867.
y. U. 8., 705.
Nashua & L. R. Corp. y. Boston & L.
R. Corp., 728.
Nason y. Blalsdel], 600.
Nathans y. Hope, 744.
National Bank y. Bryant 724.
y. Gilmer, 109.
y. Hansee, 692.
y. Heard, 963.
y. Iron A R. Co., 448.
y. Peabody. 904.
y. Peters, 801.
V. Smith, 23.
Naticmal Broadway Bank y. Hutch,
776.
National Docks A N. J. Junction Con-
necting Ry. Co. y. Railroad Co., 270.
National Exchange Bank y. Preston,
491.
National Fertilizer Co. y. Hinson, 345,
393.
National Folding Box & Paper Co. y.
Box Co., 793.
National Foundry & Pipe Works y.
Water Co., 583.
y. Water Supply Co., 146.
National Horse Importing Co. y.
Noyak, 185.
National Mut Bldg. Ass'n y. Kon-
drak, 351.
National Say. Bank y. Creswell, 440.
y. Welcker, 486.
National Security Bank y. Hunnewell,
995.
National S. S. Co. y. Tugman, 981.
National Waterworks v. School Dist,
699.
Nations y. Johnson, 232, 514, 858, 912,
962.
Nauer y. Benham, 340.
Naye ▼. Adams, 535, 543, 599, 613,
791.
V. Todd, 181.
y. WilBon, 763.
Naylor y. Mettler, 604.
Naylor's Adm'r y. Moffatt, 689.
Nazro y. Oil Co., 867.
Neafie y. Neafie, 720.
Neal y. Brockhan, 982.
V. Faggert 560.
y. Foster. 423.
y. Handley, 989.
y. Henderson, 378.
y. Pennington, 235.
y. Singleton, 239.
y. Sulliyan, 953.
Neale y. Utz. 187, 200.
Kealis y. Dicks, 373.
Neall y. Hill, 44.
Nealon y. Frisble, 29.
y. McNeal, 494.
Near v. Donnelly, 749.
Needham y. Bremmer, 682.
y. McAuley, 101.
y. Thayer, 275, 959.
CXliv CASBS
[References to sectlonB. {{ 1 to
Xeedham v. Wilsou, 246.
Neely v. Buchanan, 247.
Neenan v. City of St. Joseph, 160, 315.
NeesoD v. City of Troy, 556.
Neff V. Barr, 53.
y. Beauchamp, 929.
V. Pennoyer, 281.
V. Stone Co., 117.
Neidllnger v. Yoost, 33.
Nell V. Col well, 418.
V. McMillan, 127.
V. Slaten, 477.
NelU V. Hodge, 641.
Nellson, In re, 320a.
V. Oil Co., 614.
Nell V. Dayton, 157, 169.
Nelson v. Bank, 358.
T. BlalBdell, 321.
V. Bostwick, 235.
V. Cottingham, 159.
V. Couch, 731.
V. Donovan, 29.
T. Gill, 462.
v. Jenks, 439a,
V. Moon, 194.
V. Nelson, 651.
V. Potter, 922.
V. Rockwell, 363.
V. St. Martin's Parish, 985f.
V. Turner, 439.
Xemetty v. Naylor, 661a, 689.
Neppach v. Jones, 543.
Ncsbit V. Independent Dist., 506, 744.
V. Manro, 486.
V. School Dist., 750.
Nessler v. Neher, 420, 433.
Nestlerode v, Foster, 493.
Netzer v. City of Crookston, 16.
Neuber v. Shoel, 655.
Neusbaum v. Keim, 63, 68, 78, 698.
Nevada Nickel Syndicate t. Nickel
Co., 250.
Nevatt V. School, 260.
Nevill V. Hancock, 773.
Nevins V. McKee, 305, 366, 378.
Nevitt V. Bacon, 721.
V. Bank. 292.
V. Woodburn, 21, 554.
Newberry v. Hallway Co., 22.
Newburg v. Munshower, 211.
Newburp:h Bank v. Seymour, 156.
Xewby v. Caldwell, 720.
Xewcomb v. Dewey, 288, 377.
CITBD.
499 In vol. 1; residue In vol. S.]
Newcomb v. Drummond, 969.
V. Peck, 110, 227, 884, 900, 906.
Neweomb's Ex'r v. Newcomb, 270.
Xewcome v. Light, 174.
New Dunderberg Mln. Co. t. Old, 655.
Newell V. Carpenter, 614.
V. Neal, 731.
V. Newton, 865.
V. Smith, 205.
New England Bank v. Lewis, 714.
New England Loan & Trust Co. v.
Avery, 112, 118.
New England Mortgage Security Co.
V. Tarver, 50.
New Hampshire Strafford Bank t.
Cornell, 443.
New Haven Copper Co. v. Brown,
1005.
New Jersey Franklinite Co. y. Ames,
585.
Newlin V. Mm'ray, 395.
Newlon v. Heaton, 237.
Newman v. Bank, 861.
V. Bullock, 213.
V. City of Chicago, 247.
V. Crowls, 277.
V. Irwin, 945.
V. Jenkins, 640.
V. Manning, 282.
V. Mayer, 114.
V. Meek, 373.
V. Schueck, 378.
V. Taylor, 376.
V. Wildenstein, 22.
New Mexico & S. P. R. Co. T. Mad-
den. 116.
New nam's Lessee v. City of Cincin-
nati, 110, 245.
Newnan v. Stuart, 373.
V. Wood, 526.
New Orleans v. Bank, 609.
V. Morris. 378. 985a,
New Orleans, M. & C. B. Co. v. City
of New Orleans, 630.
New Orleans, M. & T. R. Ck). y. Cas-
tello, 744.
New Orleans & C. R. Co. v. Bosworth,
199.
Newpcirt & C. Bridge Co. v. Douglass.
737.
Newsom v. McLendon, 1008.
Newsom's Adm'r v. Ran, S40l»
Newson v. Lycan, 600,
CASES CITBD.
[References to leetloni. (} 1 to 489 in Tol. 1; residue In yol. 2.]
cxlv
New South Bulldiug & Loan A8s*n v.
Heed, 443.
Newton, In re, 256.
V. Bronson, 872.
T. Egmont, 585.
T. Field. 388.
▼. Hook, 87, 697, 750.
Newtou Mfg. Go. t. Wilgus, 624.
V. White, 624.
New York Cent. & H. R. R. Ck). v.
Brennan, 553.
New York City Baptist Mission Soc.
T. Church, 110.
New York, C. & St L. R. Co. v.
Doane, 21.
Nicklin v. Robertson, 1G5, 311.
Nickrans v. Wilk, 270.
Nickum V. Dan vers, 617.
NicoU V. Karrick, 703.
V. NicoU, 1005.
Nlday v. Hawey, 764.
Nielsen, Ex parte, 256.
Nightingale t. Scannell, 734.
Niles Y. Parks, 310.
V. Totman, 787.
Niller y. Johnson, 600.
Nlmocks v. Shingle Co., 59.
Nims T. Vaughn, 766.
Nlspel V. Laparle, 707.
Nivln V. Stevens, 742.
New York Fire Ins. Co. v. De Wolf, ; Nixon v. Nichols, 154.
815.
New York, L. B. & W. R. Co. v. Mc-
Henry, 829, 847.
New York Life Ins. Co. y. Aitkin, 906.
T. Bangs, 194.
New York Security & Trust Go. v.
Upman, 161.
New York & H. R. Co. v. Kyle, 605.
New York & T. Land Co. v. Votaw,
631. 6o9, 938.
New Zealand Ina Co. v. Maaz. 1006.
Niagara Ins. Co. t. Rodecker, 341, 349.
Niblett V. Scott, 938.
Nicely T. Boyles, 660.
Nichells T. Nichells, 344.
Nichoi y. Dunn, 23.
Nicholas y. Farwell, 86a
y. Maddox, 29.
y. Phelps, 467.
Nicholes y. City of Chicago, 3ia
Nichols. In re, 257.
y. Bnrton, 776^
y. Day. 560.
y. DibreU, 755.
T. Hewit, 69.
▼. Kribs, 63.
T. Nkrhols, 313.
T. Stevens, 583.
y. Stewart 3.
y. Winimer, 252.
Nicholson v. Nicholson, 313.
Nichoifl & Shepard Co. v. Wledmann,
146.
Nickell y. Fallen, 723.
Nickelson y. Ingram, 707, 719.
Nickerson y. Stage Co., 725.
NicklesB y. Pearson, 733.
1 LAW JUDG.-J
N. K. Fairbank & Co. v. Railroad Co.,
16.
Noble V. Bamer, 406, 406a.
y. Cullom, 407.
y. Gold, 855.
y. Merrill, 593, 970.
y. Oil Co., 593, 795, 897, 941, 950.
953.
Nodlne v. Greenfield, 646, 6G1.
Noe V. Moutray, 446.
Noel y. Modern Woodmen, 205.
Noell V. Wells, 634, 635.
NolensviUe Turnpike Co. v. Quimby,
279.
Noll y. Chattanooga Co., 368, 372.
Nolte v. Lowe, 753.
Norcross v. Hudson, 600.
Norfolk Lumber Co. v. Simmons, 782.
Norfolk State Bank v. Murphy, 443.
Norfolk & W. R. Co. v. Compress Co.,
236.
Noi-mau v. Hooker, 86, 326.
Norris v. Amos. 789.
V. Denton, 63.
V. Hume, 385.
North V. Fisher, 850.
V. Moore, 220, 278.
y. Mudge, 58, 77, 78, 211, 212,
698.
y. Pepper, 133,
y. Y^orke, 79a, 309.
Northam v. Gordon, 955.
North British & M. Ins. Co. v. Cohn.
690.
North Chicago St. R. Co. v. Ackley,
043.
Northcut y. Lemery, 279.
C3dTi OASES
[Roferencea to Mctiona. }( 1 to
Northern Bank y. Kocsa, 429.
Northern Bank of Kentucky y. Stone,
634a, 541.
Northern Pac. R. Go. y. Kurtzman,
360.
y. McCormlek, 530.
y. Railroad Co., 721.
y. Smith, 656.
Northern Pac. & P. S. S. R. Ck). y.
Black, 34, 335.
Northern Trust Co. y. Ass'n, 666, 607.
y. College, 92.
North Pacific Cycle Co. y. Thomas,
260.
North Point Irr. Co. y. Canal Co., 32.
Northwestern Bank v. Hays, 261, 731.
Northwestern Brewing Co. v. Manion,
32, 750.
Northwestern Land Co. y. Dewey, 446.
Norton y. Doherty, 729.
y. Fruit-Packing Co., 549.
y. Hood, 32.
y. House of Mercy, 872.
y. Jamison, 190.
y. Jensen, 610.
y. McLaurin, 340, 341.
y. Meader, 190.
y. Norton, 600. 783.
y. Railroad Co., 312, 324, 847, 351.
y. Sanders, 165.
T. Seaton, 320.
y. Wallace. 293, 589.
y. Wllliama, 446.
y. Woods, 385.
Norton's Estate, In re, 897.
Noryell y. Lessuenr, 635, 636.
Norwegian Plow Co. y. Boilman, 368.
Norwich Union Fire Ins. Soc. y. Stang,
362.
Norwood, In re, 910.
y. Cobb, 879, 897, 901, OlO,
y. Kirby's Adm'r, 663.
y. Norwood, 1003.
y. Thorpe, 122, 442.
Nougue y. Clapp, 297a.
Nouvion y. Freeman, 845.
Novelli V. Rossi. 83ri, 843.
Novotny y. Danforth, 183.
Nowack y. Knight, 548, 600.
>Joyes V. Belding, 506.
y. Butler, 275, 809.
y. Hall, GOO.
¥. Loeb. 321.
CITED.
189 in TOl. 1; reiidue In toI. 2.]
Noyee y. Newmarch, 118.
y. Parker, 98.
V. Phipps, 36.
Nuckolls V. Irwin, 163. 304, 34«,
Nugent y. Railroad Co., 323.
y. Traction Co., 939a.
Noll y. Moore, 999.
Nunn y. Claxton, 486.
y. Sturges. 857, 896.
Nusbaum y. Louchheim, 69.
Nutt y. Cuming, 400.
Nnttall y. Simls, 536.
Nye y. Kellam, 282.
y. Liscombe, 225.
y. Moody, 405.
y. Sochor, 383.
■y. StUlwell, 156,
Oades t. Oades, 16.
Oakes y. Ward, 138.
Oakley y. Asphiwall, 174» 772i 914.
y. Giles, 213.
y. Oakley, 644.
y. Pegler, 116.
Oates y. Munday, 445.
y. Parish, 248.
Obear, In re. 298.
O'Beirne y. Lloyd, 735.
Oberbeck y. Mayer. 586.
Oberholtzer y. Hazen, 300.
Oberkoetter y. Luebbering, 32.
Oberlin Loan, Trust & Banking Go.
y. Kitchen, 964.
Oberly y. Oberly, 351.
Obermeyer y. Einstein, 321,
Obert y. Obert, 650.
O'Brien v. Ballou, 214.
y. Browning, 545.
y. Manwaring, 614.
y. O'Brien, 157. 158.
V. Sylvester, 354.
y. Wheelock, 509, 985e,
y. Young, 8, 10.
Oceanic Steam Nay. Co. y. Compania
Transatlatica Espanola, 569, 574,
938.
Ocean Ins. Co. y. Francis, 814, 815w
y. Railroad Co., 923.
V. Rider, 1005.
Ocean Nat Bank y. Olcott 24&
CASES
[RafereneM to leetionB. 99 1 to
Ochi]tr«e y. Railroad Co., 947.
Ocbflenbein y. Papelier, 844.
Ockershausen t. Railruad Co., 91.
Ocklngton v. Rlchey, 597.
Ck!obock T. Baker, 443.
Ocoee Bank t. Hughes, 154.
O'Conuell v. O'Connell, 320.
V. Railroad Co., 584.
O'Conner v. Mullen, 159.
O'Connor t. Felix, 270.
V. Improvement Co., 590.
y. Irvine, 725.
y. Vnmey, 761, 763.
V. ^Yalter, 538.
O'Dea V. O'Dea, 929.
Odell V. Reynolds, 61. 69, 157.
V. Rogers, 638.
Odes V. Woodward, 61a, 441.
Odle y. Frost, 268.
Odom V. Burch, 297.
V. Denny. 233, 771.
Odorilla y. Baizley, 796.
Oetgen v. Ross, 655.
Off V. Trust Co., 376.
Offutt V. John, 504, 787.
Oyden V. Folllott 841.
y. Knepler, 428.
V. I^rraboe, 368.
Ogden City v. Irrigation Co., 82.
Ogsbury y. La Farge, 720.
O'Hairen v. O'Hagen, 179.
O'Haulon v. Scott, 770, 780.
O'Uarn v. Baum, 326.
V. McConnelL 188, 193.
V. I»arker, 718.
V. Railroad Co., 599, 938a.
Ohio V. Beam, 155.
Ohio Falls Car Co. v. Sweet & Clark
Co.. 346a.
Ohio, I. Sc W. R. Co. V. Dooley, 742.
Ohio & W. Mortgage & Trust Co. y.
Carter. 370. 378. 387, 393.
Ohlemacher v. Brown. 824.
Oil Well Supply Co. v. Koen, 801.
OKeefe v. Foster. 154.
V. Real-Estate Co., 721.
Olander v. Tlghe, 438.
Okinyer v. Blanchard. 152.
Olcott V. Kohlsaat, 141.
y. UtUe, 771.
Old Dominion Granite Co. y. Clarke.
112, 406.
Oldham y. .Mclyer, 614«
CITBD. CXlvil
499 in ToL 1; residue in vol. 2.]
Oldham y. Stephens, 809.
Olds y. Glaze, 889.
Oleson V. Merrihew, 714.
Oliphant v. Whitney, 326.
Oliver y. French, 2a
y. Gerstle, 340.
y. Holt, 734, 736.
v. Lansing, 407, 701.
V. Riley, 368, 393.
v. Wilson, 32.
Olmstead v. Bach, 752.
v. Hoyt, 255.
y. Webster, 770.
Olney v. Angell, 922.
v. Boyd, 318.
Olsen V. Newton, 29.
v. Whitney, 744.
Olson y. Nnnnally, 355.
Omaha Coal, Coke & Lime Co. v.
Suess. 439a.
Omaha & R. V. R. Co. v. Standen,
743.
Omaha & St L. R. Co. v. O'Neill, 666.
O'Malia y. Wentworth, 255.
O'Malley y. Fricke, 278.
O'Meara v. Bank, 46.
O'Neal y. Brown, 621, 734, 73&
y. Clymer, 50.
y. Klttredge, 958, 964.
y. Rumley Co., 16.
O'Neill's Estate, In re, 321.
Openheimer v. Robinson, 406.
Oppenheimer v. Giershofer, 62, 67.
v. Robinson, 405.
Orcutt v. Orms. 518.
V. Ranney, 227.
Order of Solon v. Gaskill, 576.
Ordinary v. McClure, 114.
Ordinary of Charleston Dist y. Con-
dy, 589.
Ordway, In re, 807.
y. Railroad Co.. 699.
y. Suchard, 308. 341.
Oregonian R. Co. v. Navigation Co.,
510, 708.
Oregon R. Co. y. Railroad Co., 87.
Orendorff v. Utz, 735.
Orman y. Railroad Co., 28.
Ormiston y. Trumbo, 33.
Ormsby y. Conrad, 352.
Oro Fino & Morning Star Min. Co. y.
Cullen, 358.
O'Rourke v. Railroad Co., 599, 928.
cxlyii^ CASES
[References to sectioni. 8§ 1 to
Orr V. Insurance Co., G98.
V. Morrow, 462.
V. Spocner, 954.
Orthwein v. Thomas, 577,
Orton V. Brown, 183.
Orvis V. Curtiss, 121.
T. Elliott, 306, 30f.
Ory V. Winter, 824.
Osage City Bank v. Jones, 599.
Osborn v. Cloud, 947.
V. Jaines, 892.
V. Lovell, 149.
V. U. S., 681.
Osborne v. Atkins, 735.
V. Com'rs, 985c.
v. Graham, 284, 633.
V. Hill, 449.
V. LincMrom, 985.
V. Williams, 761.
Osbun V. Bartram, 82.
Osgood V. President etc., 560.
V. Thurston, 4a3.
Osman v. Wisted, 324.
Osprey v. Jenkins, 86.
Osterhoudt v. Rigney. 532.
Ostrander v. Hart, 599.
V. People, 175.
V. Walters, 1008.
Oswald V. Kanipmann, 810.
Otis V. The Rio Grande. 246, 274.
V. Sweeney, 631.
Otterson t. Mlddleton, 290.
Otto V. Halff, 32.
Ouseley v. Safe Deposit Co., 836.
Outhwite V. Porter. 220, 906.
Outram v. Morewood, 503, 504, 647,
657. 729, 783, 787.
Overall v. Pero. 115.
Overby v. Gordon, 922,
V. Hart, 1006, 1008.
Overland Gold Min. Co. v. McMaster,
32.
Overstreet v. Davis, 219.
v. Shannon, 894.
Overton v. Searcy, 518.
V. Stevens, 304.
Owen V. Boenini, 526.
V. Conner, 208.
V. Gerson, 383.
V. Glover, 1012.
V. Land Co., 556.
Owens V. Alexander, 600.
V. Flynn, 143.
CITED.
499 in vol. 1; residue In vol. L]
Owens V. Gotzian, 938c.
V. Love, 44.
V. Machinery Co., 379.
V. McCloskey, 487, 499, 892.
V. Ranstead, 377.
y. Raleigh, 729.
v. Sims, 320.
Owensby v. Piatt,- 999.
Owiugsville & Mt. S. Turnpike Road
Co. V. Hamilton, 541.
Oyser v. Bank, 31a.
Pabst Brewing Co. y. Jensen, 605.
Pacific Bank v. Hannah, 661.
Pacific Milt Life Ins. Co. v. Williams,
348.
Pacific Pneumatic Gas Co. y. Wheel-
ock, 896.
Packard v. Hill, 849, 1015.
V. Matthews. 229.
y. Smith, 317.
Packer v. Owens, 36.
V. Roberts, 54, 61.
V. Thompson, 857, 921.
Packer's Appeal, 432.
Packham v. Insurance Co., 731.
Pacquette v. Pickness, 652.
Paddleford v. Bancroft, 299.
Paddock v. Insurance Co., 29, 152.
V. Palmer, 367.
V. Staley, 459.
Padgitt V. Evans, 341.
Page, Ex parte, 2.38.
v. Benson. 478, 950.
y. Chapin, 132.
y. Esty, 691.
V. Freeman, 779, 782.
y. Simpson, 69, 73.
y. Thomas. 431.
V. U. S., 285.
Page's Estate, 127.
Pajret v. Melcher, 110.
Pasrett v. Curtis, 227.
Pahlnian v. Shumway, 434.
Pain V. Kinney, 23.
Paine v. Insurance Co., 510, 621, 800.
864, 882.
V. Stone, 633.
Paine's Lessee v. Mooroland. 446.
Palethorp's Estate, In re, 38.
CASES
[References to sections. §S 1 to
Palmateer v. Meredith, 1000.
Palmer v. Bank, 149, 32U.
Y. Carlisle, 585.
T. Crane, 29.
Y. Hayes, 539.
T. Hnssey, 615.
Y. Insurance Co., 543.
Y. Laberee, 399, 463.
Y. Malone, 363.
Y. Martindell, 293.
Y. Oakley. 639.
Y. Palmer, 867.
Y. Rogers, 347.
Y. Russell, 347.
Y. Sanger, 628.
Panesi y. Boswell, 342.
Panton y. Hall, 491.
Papworth v. aty of Fitzgerald, 707.
Paragon Refining Co. t. Lee, 144.
Pard<m v. Dwire, 270, 273.
Parish Y. Parish, 278, 320.
Park Y. Edge, 206.
Y. Park, 95, 227.
Parke y. Meyer, 208.
Y. WlUianis, 876.
Parker v. Albee, 268, 761«
Y. Atwood, 248.
Y. Bacon, 945.
Y. Bank, 341.
V. Belcher, 326, 340.
• Y. Grant, 349.
Y. Harden, 22.
Y. Home, 199.
Y. HotchkJss, 657.
Y. House, 87.
Y. Kane, 261, 518.
Y. Lamb & Sons, 910a*
Y. Leggett, 657, 658.
V. Linden, 85.
Y. Mill Co.. 859. 910a.
Y. Moore, 541, 548.
Y. Obenchain, 691.
Y. Parker. 635, 636.
V. Poole, 54.
Y. Roberts. 768.
Y. Shannon, 620.
Y. Spencer, 707.
Y. Stambaugh, 655.
Y. Standish, 657.
Y. Starr, 193.
T. State. 259.
T. Steed. 189.
Y. Straat, 543.
CITED. cxlix
498 in YoL 1; residue in YOl. 2.]
Parker v. Thompson, 628.
V. Wright. 681.
Parker's Adra'r v. Abrams, 100.
Parkes v. CUf t, 694, 707.
Parkhurst v. Berdell, 510.
Y. Sumner, 586, 587.
Parks, Ex parte, 255, 250.
Y. Coffey, 173. 407.
Y. Dunlap, 703.
Y. Jackson. 438.
Y. Moore. 628, 655.
Parmele y. Schroeder, 48.
Parmelee y. Dann, 952.
Pamell y. Hahn, 609.
Parr y. Lindler, 271.
Y. State, 540.
Y. Village of Greenbusb, 726.
Parrish v. Ferris, 504.
Parrott v. Den, 347, 349.
Y. Hodgson. 691.
Y. Insurance Co.. 905.
Y. McDevitt, 130.
Parry v. Opera Co., 752,
V. Walser, 969.
V. Woodson, 218.
Parsley y. Nicholson, 183.
Parsons. Ex parte. 985b.
Y. Dennis, 979.
Y. Hoyt, 447.
Y. Johnson. 316.
V. Pierson, 363.
Y. Robinson, 44.
Y. Spencer, 190i
Y. Yenzke, 530.
Partin y. Luterloh, 376.
Partridge y. Harrow. 168, 381«
Parzyk y. Mach, 92.
Pasek Y. Vockroth, 1005.
Pasewalk y. BoUman, 587.
Pasley y. McConnell, 714.
Pasour Y. Rhyne, 461.
Passwater y. Edwards, 180.
Pasteur y. Lewis, 938. 939.
Pasthoff Y. Banendahl, 782.
Patapsco Guano Co. v. Hurst, 549.
Patrick V. Court, 620.
V. Littell, 192.
Y. Ridgaway, 91.
Y. Schaffer. 761.
Y. Shedden, 827.
Patten v. Cllley. 37.
Y. Cunningham, 237.
V. Ray, 802.
Ol CASES
rReferencei to Bectlona. 8S 1 to
Patterson v. Baxley, 465.
y. Gaines, 606.
V. Hare, 308.
V. Indiana, 69.
T. Pressey, 256.
V. Swan, 1006.
V. Walton, 401.
V. Ward, 32, 1004. 1005.
Patterson's Estate, In re, 600.
Pattlson V. Hughes. 321,
v. Jossel^ni, 306.
V. Smith, 227.
Patton T. Allison, 806.
T. Hamner, 1009.
V. Hayter, 455.
T. Shanklln, 120.
V. Stewart, 55, 61, 191.
Paul V. Eurich, 1016.
T. Hussey, 287.
V. Roy, 827, 845.
T. Smith, 245.
V. Witman, 569, 571.
PauUlsseu v. Loock, 284.
Pawling V. Willson, 229^ 828, 856, 904,
926.
Paxton V. Boyce, 407.
Payne v. Bank, 225.
V. Coles, 548.
V. O'Shea, 368, 904, 919.
y. Robinson, 61.
V. Taylor, 966.
V. Witberspoon, 229.
Paynter v. Evans^ 378.
Pay son, In re, 257.
V. Payson, 926.
Payton v. McQuown, 375.
Peabody v. Phelps, 179, 223.
V. Thatcher, 217.
Peacock v. Pembroke, 941.
Peagram v. King, 372.
Peak V. Pricer, 196.
V. Shasted, 193.
Peake v. Kedd, 329.
Peale v. Bolton, 1006.
Pearce v. At wood, 182.
y. Chastaln, 384, 386.
V. Jackson, 660.
V. Olney, 368, 370, 373, 916, 919.
V. Rice, 592.
Pearse v. Hill, 252.
Pearson v. Fishing CJo., 341.
V. Post, 682.
Pease v. Howard, 522, 985.
CITED.
499 in YOl. 1; roBldue in vol. 2.1
Peatross y. McLaughlin, 390.
Peay v. Duncan, 504.
V. Fleming, 1008.
Peck T. Hibbard, 824.
V. Tiffany, 1008.
v. Vandenberg, 23, 39.
Peddy v. Street, 125.
Peel V. January, 909, 917, 973.
Peerce v. Athey, 753.
Peet V. Hatcher. 518, 754, 861.
Peetsch v. Qulnn, 122.
Pelrce v. Bent, 954, 1000.
V. Black, 465, 477, 991.
Pelham v. Moreland, 357.
Pell V. Lander, 394.
Pells V. People, 511.
Pelton V. Mott, 705, 720.
T. Platner, 857, 860, 875, 904, 935.
Pelzer Mfg. Co. t. Insurance Co., 16&
Pemberton t. Hughes, 827.
T. Johnson, 191.
V. Pollard, 412.
Pence v. Armstrong, 677.
V. Cochran, 456.
Pender v. Felts, 270.
Pendergrass v. York Mauuf g Co., 689.
Pendexter v. Cole, 246.
Pendleton v. Weed, 275.
Penfleld v. Harris, 577.
Penfold V. Slyfleld, 82.
Penhallow v. Doane, 797. •
Peninsular Iron Co. y. Eells, 681a.
Peniston t. Somers, 3. 526.
Penn, In re, 320a.
y. Edwards, 995.
y. Remsen, 1011.
V. Tollison, 173.
Pennell v. Felch, 060.
Pennie v. Visher, 86.
Pennington v. Gibson, 517. 962. 966,.
Pennington's Adm'x v. Gibson, 349.
Pennock v. Hart, 485.
V. Kennedy, 731.
Pennoyer v. Neff, 220, 227, 228, 220,
230, 231, 792, 803, 822, 901, 904, 905,
90t), 928. 932, 938c, 939.
Pennsylvania Agricultural & Mfg.
Bank v. Crevor, 458.
Pennsylvania Co. v. Smith, 16.
Pennsylvania F^re Ins. Co. v. Wagley,
159.
Pennsylvania R. Co. v. Railroad Co.,
93Sc.
CASES
[KeCerenGM to Motknis. HI to
Penny t. Martin, 770.
Pennywit v. Foote, 173, 853, 897, 901.
PenolMoot B. Go. y. Weeks, 270, 277,
278.
Penrose y. McKenzie, 252.
Pentecost y. Magahee, 32.
PenU Y. Kuester, 660.
Penyan y. Berry, 593.
People Y. Bacon, 326, 967.
Y. Baker, 928, 929, 932.
Y. Bangs, 175.
Y. Barrett. 693.
Y. Beandry, 534a.
Y. Beebe, 477.
Y. BeeYers, 529.
Y. Brisbln, 809.
Y. Cassels, 275.
Y. Cavanagh, 258.
Y. ChlsholiD, 1007.
Y. Com'rs, 253a, 529.
Y. Common Pleas, 1001.
Y. Council, 158, 253a.
Y. Court, 155, 165, 254, 407.
Y. Dalton, 733.
Y. Dawell, 897. 901, 930.
Y. Dewey, 860. 881.
Y. Dodge, 307.
Y. Downer, 107.
Y. Downing. 246w
Y. Dunn, 324.
Y. Easton, 479.
Y. Fleming, 945.
Y. Foster, 255.
Y. Graham. 107.
Y. Hagar, 287.
Y. Harrison. 770, 775.
Y. Holladny, 534a, 618, 684.
Y. Hopson. 1006.
Y. Hovlous, 417.
Y. Huber, 232.
Y. Irrigation Dlst, 534a.
Y. Johnson, 609, 617, 619.
Y. Judge, 33, 185. 521.
Y. Judges, 313.
Y. Kenyon, 529.
Y. Lafarge. 311.
Y. Lease, 560.
Y. Leland, 529.
Y. Llngle. 247.
Y. Llacomb. 255, 256» 258.
Y. Loeffler. 534a.
Y. McLeod. 255.
V. Marsh, 985a«
CITED. Cli
409 in vol. 1; residue in vol. 2.]
People V. Medart, 284.
Y. Mullan. 232.
Y. Murray, 107.
Y. O'Counell, 334, 362.
Y. Organ, 206.
Y. Plrfenbrlnk, 118.
Y. Preston, 531.
Y. Railroad Co., 981.
Y. Rains. 340a, 341, 347. 849.
Y. Reuter, 15.
Y. Rlckert, 685, 726.
Y. Rodgers, 793.
Y. SaYings Union, 118.
Y. Smith, 703.
Y. Stephens, 710.
Y. Stevens, 256.
Y. Sturtevant, 962.
Y. Supers, 603.
Y. Temple. 302. 307, 824.
Y. Townsend. 644.
Y. Vilas, 699.
Y. Walters, 258.
Y. Warden, 256.
Y. Weber, 247.
Y. Welmer, 999.
Y. Zundel. 578.
Peoples V. Norwood, 183.
People's Ice Co. y. Schlenker, 347.
People's Mut. Ben. Soc. v. Frazer, 83.
People's Nat. Bank v. McArthur, 160.
People's Pure Ice Co. v. Trumbull,
663.
People's Sav. Bank y. Hodgdon. 656.
Peoria, D. & E. By. Co. v. Duggan,
377.
Peoria Savings. L. & T. Co. v. Eider,
674. 1008.
Pepin Y. Lachenmeyer. 173. 175, 877.
Pepper v. Donnelly, 694.
Percy v. Foote, 726.
Perdue v. Bradshaw. 169.
Perlne v. Dunn, 720.
Perisho v. Perisho, 246.
Perkins. Ex parte, 256.
Y. Brazos, 630.
Y. Cheney, 590.
Y. Coal Co., 414.
Y. Dunlavy, 132.'
Y. Fourniquet, 44.
Y. Hume. 482a.
Y. Jones. 182.
Y. Moore, 589, 693, 707, 708, 790.
Y. Oliver, 614.
Clii GASES
[References to seoUoiUk H 1 to
Perkins v. Parker, 593, 628.
V. Railroad Co., 387.
V. Walker, 613, 627, 784.
Perrine v. Carlisle, 300.
Perry v. Adams, 194.
T. Bassett, 228.
▼. Church, 29.
V. Dickerson, 752.
T. Fisher, 322.
V. Harrington, 747.
y. Insurance Co., 936w
▼. Johnston, 365.
V. Kearney, 357.
V. King, 273, 682.
V. Lewis, 729.
V. Meddowcroft, 293.
V. Morris, 418.
V. Pearee, 346.
Y. Roberts, 962.
V. Siter, 373.
T. WUson, 127.
Perryman v. State, 261.
Persinger t. Tinkle, 22.
Persons t. Simons, 21.
Perth Amboy Terra Cotta Co.'s Ap-
peal, 57.
Peru Plow & Wheel Co. t. Enterprise
Co., 29.
V. Ward, 751.
Petalka v. Fitie, 367, 393.
Peterkln v. New Orleans, 985a.
Peterman y. Huliug, 651.
T. Watklns, 513.
Peters, Es parte, 259.
T. Crittenden, 209.
V. Lawson, 990.
V. League, 392.
y. McWilliams, 996.
y. Peters, 284.
y. Warren Ins. Co., 815i.
Petersine y. Thomas, 614.
Peterson y. Albach, 655.
y. Bank, 154.
y. Gittlngs, 968.
y. Lothrop, 534.
y. Sohl, C17.
y. Warner, 543, 609.
y. Willard, 801.
Petit V. Seaman, 290.
Petley y. Carpenter, 311.
Petray y. Howell, 412.
Petrie y. Badenoch, 766.
y. Nuttall, 520.
CITED.
4M In Yol. 1; residue in yd. 2.]
Pettes y. Whitehall Bank, 366, 367.
Petticolas y. City of Richmond, 779.
Pettigrew y. City of Sioux Falls, 347,
348.
Pettit y. Shepherd, 466.
Pettus y. Ass'n, 522.
y. McClannahan, 165, 307.
y. Smith, 756.
Petty. In re, 255. 25a
Pettys y. Marsh, 13.
Peyton y. Scott, 206.
Pfaff y. Thomas, 34.
Pfau y. Lorain, 770.
Pfeltz y. Pfeltz, 661.
Pharr y. Reynolds, 383.
Phelan y. Fitzpatrick, 768.
y. Gardner, 614.
y. Tyler, 655.
Phelps y. Benson, 280.
y. Brackett, 190.
y. Brewer. 227, 901, 906. 91S.
V. Duffy. 857, 875.
y. Heaton, 346.
y. Holker, 229, 894, 904.
V. Peabody, 378.
V. Railroad Co., 703.
V. Reeder, 1004.
Phifer y. Insurance Co., 340a.
Philadelphia Bank y. Craft 40a
Philadelphia W. & B. R. Co. y. Trim-
ble. 220.
Philadelphia & R. R. y. Snowdon.
36, 304a.
Philbrick y. Andrews, 407. 425.
Philbrook y. Newman, 938c.
Philip y. Dayis, 336.
Philipowski y. Spencer. 790.
Philipson y. Egreroout, 293.
Phillips, Ex parte, 255.
y. Society, 348.
V. Bachelder, 91.
V. Behn, 990.
V. Berick, 628, 744.
V. Bossard, 737.
T. Collier, 341.
T. Dugan, 152.
y. Dusenberry, 193.
y. Eyans, 326.
y. Eyre, 174.
V. Godfrey, 859.
y. Hawley, 341.
y. Hellings, 28.
y. Hunter. 825, 826, 832.
CASES
[References to leetlona. H 1 to
PhlUlps y. Israel. 686.
T. Jamieson, 578.
Y. Knbn, 390.
V. Lewis, 514, 681.
T. McKaig, 406.
y. Mackay, 1001.
y. Kegley, 356.
y. PhiUlps, 273.
y. PuUen, 367.
y. Stewart, 189,
y. Thompson, 548.
y. Walt, 487, 40a
y. Ward, 773.
y. Winter, 660.
Philpott y. Adams, 849.
y. Brown, 703. 723.
Phillpotts y. Blasdel, 706.
Phllson y. Bampfield's Adm'r, 100.
Pbinney, In re, 255.
Pblpps y. Alford, 703.
V. Nye, 877.
Phoenix Bridge Co. y. Street 318.
Phoenix Ins. Co. y. Hedrlck, 87.
Phoenix Min. & Mill Co. y. Scott, 422.
Phoenix Mut Life Ins. Co. y. Landis,
586.
Phonoharp Co. y. Stobbe, 86.
Piatt y. Ollyer, 685.
y. St CUir, 990.
Pick y. GUckman, 346.
Pickering y. Telephone Co., 100.
Picket y. Morris, 363.
Pickett y. Ferguson, 906, 913.
y. Handy, 92.
y. Throston, 52.
Pickett's Ex'rs y. Ford, 572.
Pickett's Heirs y. Legerwood, 300.
Pl<toell y. Thompson, 44.
Pico y. Cohn, 323.
y. Sonot 367.
y. Webster, 578, 588.
Piedmont Wagon Co. y. Byrd, 576.
Piedmont & A. Ins. Co. v. Ray, 882.
Pierce y. Bowers. 266.
y. Brown, 400, 413, 445,
y. Carletou, 260, 595.
y. Court 317.
y. Dayldson, 892.
y. Hilton, 703.
y. Ollyer, 660.
y. Strickland, 293.
y. Wlmberly, 406.
CITED. cliii
499 In YoL 1; residue in vol. 2.]
Piercy v. Sabln, 789.
Pierpoint v. McGulre, 587.
Pierro v. Railroad Co., 285. 735, 738.
Pierson y. Benedict 329.
V. Catlin. 518.
y. Conley, CtM), 755.
V. School Dlst., 100.
V. Hitchner, 195.
Pierstofl V. Jorges, 790, 967.
Pike y. Bright 945.
y. Hill, 299.
Pilcher v. Graham, 909.
y. Ligon, 625, 734.
Pile V. McBratney. 606.
Pilger V. Torrence, 393.
Pillsbury's Lessee y. Dugan's Adm'r.
793.
Pirn y. Curell, 606.
y. Grazebrook, 16.
Pin y. Morris, 530.
Pinckney's Adm^r y. Singleton, 984.
Pine Momitain Iron & Coal Co. y.
Tabour, 354.
Pinger y. Vanclick, 158.
Pinkel, In re, 977.
Pinkney v. Plnkney, 232.
Pinney y. Barnes, 735.
y. Russell & Co., 406.
Plnson y. Puckett, 989.
Pioneer Land Co. y. Maddux, 278.
Pioneer Say. & Loan Co. y. Bartsch,
599.
Pionier y. Alexander, 143.
Piper y. Aldrich, 340.
Pipkin y. Adams, 461.
y. Allen, 39.
Pirie y. Hughes, 77.
V. Stem, 53.
Pishaway y. Runnells, 745.
Pitkin y. Leavltt 567.
Pitman y. Albany, 812.
y. Ijowe, 165.
y. Town of Albany, 812i
Pitner y. Flanagan, 246.
Pitt y. Freed, 864.
Pittel y. Ass'n, 560, 790.
Pitts y. Fugate, 102.
y. Spotts, 431.
Pittsburg, C. C. & St L. B. Co. y.
Beck, 157.
y. Trust Co., 038.
y. Volkert 944, 950.
Cliv CASES
CBeferences to sectionB. S8 1 to
Pittsburg, C. & St L. R. Co. v. Mar-
shall, 493.
V. Railroad Co., 45.
Pittsburg Coal Min. Co. v. Greenwood,
141.
Pittsburg, F. W. & C. R. Co. v. Chi-
cago, 118.
V. Reno, 683.
Pittsburg & C. R. Co. v. Shaw, 121.
Pittsburg & S. L. R. Co.'s Appeal, 872.
Pittsford V. Chittenden, 805.
Pitzele T. Lutkins, 343, 351.
Pitzer T. Russel, 958.
P. J. Willis & Bro. T. Sommerville,
406a.
Place V. Mfg. Co., 174.
Placer Co. v. Campbell, 532.
Plant V. Carpenter, 709.
Plate V. RaiU-oad Co., 742.
Platner t. Best, 737.
T. Johnson, 206.
V. Patchin, 192.
Piatt V. Harrison, 257,
V. Threadgill, 370.
T. Vermillion, 534a.
Platte Co. V. Marshall, 109.
Pleak V. Chambers, 657.
Pleasants t. Clements, 518.
Plemmons v. Improvement Co., 27.
Pleyte v. Pleyte, 162.
Plowman v. Henderson, 174,
Plume V. Beale. 635.
V. Saying Inst, 640.
Plummer v. Brown, 316, 530.
V. Douglas, 68,
V. Hatton, 231, 680.
V. Woodbume, 845.
Plunkett V. Black, 360.
Poe V. Darrah, 1013.
V. Decker, 371.
Poindexter v. Waddy, 368, 369.
Poirier t. Gravel, 351.
Poledori v. Newman, 141.
Poley V. Lacert, 567.
Police Jury of Jefferson v. U. S., 610,
985d.
Police Jury of Lafourche T. Police
Jury, 514, 630.
Polk V. Pendleton, 492.
Polk Co. V. Nelson, 478.
Polk County Bank v. Fleming, 898.
Pollard V. Baldwin, 901.
V. Baylors, 650.
CITED.
499 m vol. 1; residue in VOL 1]
Pollard V. Cocke, 413.
V. Eekford, 493.
V. King, 131.
V. Wegener, 277.
Pollitz V. Schell, 682.
V. Trust Co., 583a.
Pollock V. Boyd, 30a.
T. Buie, 268.
V. Cox, 536.
Y. Gilbert, 378, 386, 618L
V. Horn, 205.
Pomeroy v. Betts, 232.
V. Burnett, 16.
V. Chandler, 939^
V. Wells, 927.
Ponce V. Underwood, 240, 90^
Pond V. Davenport, 63, 68, 7(K
V. Makepeace, 563, 680#
y. Simons, 52, 901.
Ponder v. Cox, 364, 366.
V. Moseley, 513.
Pool V. Loomis, 127.
Poole V. McLeod, 164.
V. Seney, 517, 683.
Poorman v. Crane*s Adm*r, 912L
V. Mitchell, 970.
Pope V. Brandon, 122, 442.
V. Dinsmore, 84.
Porche v. Ledoux, 557.
Porges V. Cohen, 723.
Porman v. Frede, 108.
Portage Canal Co. v. Crittenden, 77.
Porter v. Bagby, 549, 953.
V. Bichard, 86.
V. Bishop, 530.
y. Bronson, 275.
y. Burton, 44.
y. Fralelgh, 709.
V. Gile, 245, 995.
V. Hitchcock, 485.
V. Hower, 85.
y. Insurance Co., 314.
y. Leache, 683.
y. Liscom, 953, 964.
y. Purdy, 287.
y. Rountree, 290.
y. Schendel, 740.
y. Vaughn, 723.
y. Wagner, 518, 720.
V. Waltz, la
Porterfleld v. Butler, 184.
Porter's Heirs v. Robinson, 195, 197.
Porter's Lessee y. Matthews, 667.
CASES CIT£D.
IRdterencM to sectloiw. H 1 to 4M in toL 1; residue in vol. 2.]
clv
l*ortJ8 V. Ennis, 987.
T. Talbot. 155, 157, 106.
Portland Const. Co. ▼. O'Neil, 986.
Portsmouth Say. Bank v. Judge, 513.
Post V. Boardman, 382.
V. Carr, 340.
Y. Charleswortb, 325.
T. Neafle, 869, 902.
V. Pearson, 707.
V. SmlUe, 624.
T. Taylor County, 986e,
Postens T. Postens. 652.
Poston ▼. Jones, 652.
Potter Y. Baker, 611, 657.
y. Beal, 41.
T. Brown, 824.
T. Eaton, 115.
y. Hartnett, 967.
y. McCormack, 97, 104.
y. Parsons, 225.
y. Talkington, 24.
y. Webb, 635.
Potts y. Ports, 29.
Potyln y. McCoryey, 29.
Potwin y. Oades, 118.
Powe y. McLeod. 122, 127, 443.
y. State, 105.
Powell y. Allred, 446.
y. Bennett 100.
y. Davis, 857, 883.
y. Geissendorff, 593.
V. Gott, 193, 195, 327.
y. Heckerman, 549.
y. Jopling, 308.
y. Knox, 433.
y. Redfield, 149.
y. Stewart, 383.
Power y. Speckman, 589.
y. Washington, 200, 204, 339.
Powers y. Bank, 518.
y. Council Bluffs, 743.
y. Irish, 211.
y. Leith, 530.
y. People, 282.
y. Trenor. 325.
P. P. Mast Buggy Co. y. Implement
06., 59.
Pratt y. Jones, 958.
y. Kells, 351.
y. McLure, 992.
y. Xortham, 371.
y. Ratliff, 726.
y. Wertheimer, 943, 948.
Piart V. Weyman, 518.
Pray y. Hegeman, 614.
v. Jenkins, 292.
Preachers' Aid Soc. v. England, 684.
Predohl v. O'SuUlvan, 085.
Preferred Ace Ins. Co. v. Barker, 789.
Prelss y. Cohen, 514.
Premier Cycle Mfg. Co., In re, 513.
Prendergast y. Searle, 609.
Prentiss v. Farnham, 526.
V. Hinton. 1012.
y. Holbrook, 552.
y. Mellen, 83.
Prescott y. Hull, 945.
President y. City of Elizabeth, 985e.
President, etc., of Bank of United
States y. Bank, 864.
President, etc., of Middlesex Bank y.
Butmau, 828, 895.
President, etc., of North Bank y.
Brown, 864.
President, etc., of Planters' Bank v.
Calyit, 473, 987.
President of O. Ct. y. Groff, 634.
Preslar v. Stallworth, 591, 995.
Press y. Mfg. Co., 84.
Preston v. Chadwick, 651.
y. Dunn, 194.
y. Fitch, 553.
V. Hutchinson, 777.
y. Klndrick, 367, 377.
y. Wright, 116.
Prewett y. Caruthers, 206L
Prewitt y. Perry, 378.
Pricard v. Farrar, 574.
Price V. Bank, 1013.
y. Boyd, 1010.
V. Dewey, 731.
y. Dewhurst, 844.
y. Dietrich, 641.
y. Gwin, 584.
y. Hickok, 227, 228, 904, 906.
y. Higgins, 1013.
y. Hopkln, 802.
y. Johnston, 872.
y. Nesbit, 25, 44.
y. Railroad Co., 138.
y. Schaffer, 901.
y. Strange, 32.
V. Thrash, 398.
V. Avail's Ex'r, 446.
Pricket y. Legerwood, 300.
Priest V. Deayer, 747, 749.
CASES CITED.
clvi
[References to sectioiM. 19 1 to
Priest V. Glenn, 751.
Prlestman v. Priestman, 311.
Prlmm y. Ransom, 8^.
Prince v. Fuller, 1004.
V. Quincy, 729.
Prlngle v. Woolworth, 874, 896.
Prltchard v. Henderson, 922.
Pritchett v. Clark, 828, 857, 900.
Proctor V. Cole, 686.
V. Lewis, 233.
V. Pettltt, 366.
Produce Bank v. Morton, 32.
Prondzinski t. Garbutt, 326, 609, 721.
Propeller Commerce, The, 796.
Propst V. Meadows, 641.
Prosser v. Warner, 933.
Prost V. More, 15.
Proulx V. Mill Co., 93.
Prout V. Lomer, 32.
Prouty V. Matheson, 643.
Providence Rubber Co. v. Goodyear,
531.
Providence Tool Co. v. Prader, 88.
Providence Washington Ins. Co. v.
Morse, 796.
Provident Loan Trust Co. v. Marks,
540, 551, 755.
Provins V. Lovi, 346a.
Provost V. Provost, 351.
Prudam v. Phillips, 320.
Prudential Ins. Co. v. Taylor, 121.
Prugh V. Bank, 360.
Pruitt V. Holly, 629.
Pryor v. Downey, 218.
V. Emerson, 367.
V. Smith, 44.
Publishing House of £)vangelical Ass'n
V. Heyl, 367.
Pucket V. Johnson, 195.
Puckett V. Investment Co., 790.
V. Pope, 898.
Puffer V. Graves, 593, 594.
Puget Mill Co. V. Brown, 530.
Puget Sound Nat. Bank v. Levy, 62,
63.
Pugh V. Good, 439.
V. Holt, 720.
V. Williamson, 731.
Pulaski Co. v. Stuart, 279.
PuUiam v. Dillard, 351.
PuUis V. Iron Co., 443.
Pullman's Palace Car Co. v. Wash-
bum, 261.
499 In VOL 1; residue In vol. S.]
Purcell V. Kleaver, 77.
V. Payton, 26.
Purdy V. Doyle, 565.
V. Upton, 64.
Purity Ice Works v. Rountree, 330.
Purser v. Cady, 510.
Pursley v. Wlckle, 159.
Purviance v. Edwards. 373.
Puryear v. Taylor, 449.
Puterbaugh v. Puterbaugh, 618.
Putman v. Lewis, 39, 44.
Putnam v. Capps, 945.
v. Clark, 518.
V. Crombie. 3, 115.
V. Man, 275.
Putney v. 0*Brien, 782.
Putt V. Rawstern, 730.
Pyke V. Crouch, 554.
Pyle V. Piercy, 723.
Quackenbush v. Ehle, 714.
Quaid V. Cornwall, 186.
Quarl V. Abbott 231.
Queen v. City of Atlanta, 532.
Queen Anne's Oo. v. Pratt, 454.
Quick V. Bank, 351.
V. Durham, 1000, 1006.
Quigley v. Birdseye, 159.
V. McEvony, 691.
V. Roberts, 198, 197.
Quimby v. Boyd, 16.
Quinby v. Conlan, 530.
Quincy v. Foot. 349.
Quinn V. Insurance Co., 29.
V. Jenks, 614.
V. Quinn, 604.
V. Wetherbee, 375.
V. Wiswall, 122, 443.
Quinn's Appeal, 55.
Quinn*s Succession, 260.
Quivey v. Hall, 984.
Rabb V. Aiken, 660.
Rabe v. Heslip, 61.
Raburn v. Shortridge, 378.
Race V. Ass*n, 86.
Rachal v. Smith, 5ia
CASES CITED.
[ReferencM to lectlonB. §§ 1 to 189 In yoL 1; residue in vol. 2.1
clvii
Racke y. Ass'n, 661a.
lUckley v. Fowlkes, 620, 659.
Uadcllff Y. Insurance Co., 815.
liadcljflTe t. Barton, 159.
Kadford v. Folsom, 500.
Uadzuweit t. Watkins, 362, 383.
Kae V. Hnlbert, 8, 10, 800, 875.
Raffanf, In re, 298.
Rafferty t. Potter, 363.
Kagland v. Calhoun, 589.
Kagsdale y. Green, 306.
Kahm y. Minis, 760.
Kailroad Equipment Co. y. Blair, 607.
Rains y. Ware, 165.
Raisin Fertilizer Co. y. Grubbs, 22.
y. McKenna, 387.
Rake's Adm'r y. Vg^, 617, 624, 751.
Ralston y. BeU, 417.
y. Field, 432, 439.
y. La bee, 197*.
y. Lotbain, 306.
y. Wood, 589.
Kamaley y. Ramaley, 110.
Raimnelsberg y. Mitchell, 192.
Ramsbottom y. Bailey, 618.
Puiinsburg y. Kline, 32G.
Ramsey y. Hemdon, 504, 621«
y. Hicks, 370.
y. Linn, 21&
y. Thomas, 982.
Ramsey County Bldg. Soc. v. Lawton,
749.
Ramsey's Appeal, 954.
Ramsonr y. Raper, 306.
Rand y. Gamer, 439.
y. Hanson, 906.
y. Nutter, 771.
Randal y. Wale, 487.
Randall y. Ass'n. 351.
V. Howard, 297a.
y. Weld, 80.
Randalls y. Wilson, 211.
Randle y. Carter. 560.
Rand, McNally & Co. v. Hombarger,
183.
Randolph y. KeUer, 90a
y. King, 892.
y. Metcalf, 11&
y. Singleton, 13.
Raney y. McRae. 236.
Ransrely y. Webster, 211, 227, 864,
906.
Ranken y. Railway Co., 788.
Rankin y. Barnes, 857, 807.
V. Goddard, 829, 844.
y. Kemp, 193.
y. Lawton, 305.
V. Scott, 459.
Kaiisdell v. Threlkeld's Adm'r, 210.
Hansford y. Maryln, 152.
Hiuisley v. Stott, 048.
Ransom v. Brlnkerhoff, 600.
y. City of Pierre, 510, 578. 685.
y. Sargent, 447.
Ransone y. Grist, 331.
Rape y. Heaton, 860, 897, 901.
Rapelye y. Prince, 573.
Rapley v. Price, 53.
Rappleye y. Bank, 423.
Rarey y. Lee, 609, 742.
Rasmussen y. Smith, 354a.
Ratcliffe y. Anderson, 298.
Rathbone y. Hooney, 536.
V. Terry, 857. 897, 906,
y. Warren, 389.
Ratliff y. Baldwin, 345.
V. Stretch, 393.
Raub y. Ass'n, 59.
Ranch y. Young, 191.
Raught y. Lewis, 399.
Rauh V. Scholl, 176.
Raun y. Reynolds, 982.
Rauwolf y. Glass, 756.
Rawdon y. Rapley, 306.
Rawlings* E[K*r y. Rawlings, 44
Ruwlins y. Rawlins, 320.
Rawson y. McJunklns, 953.
Ray y. Connor, 156.
V. Law, 48.
y. Moore, 305.
V. Rowley, 270.
y. Thompson, 173, 309.
Rayl y. Lapham, 807.
Raymond y. Butterworth, 1011»
y. Rallrcad Co., 80, 90.
y. Raymond, 939c.
y. Richmond, 605.
y. Schoonover, 419.
y. Smith, 109, 135.
y. White, 749.
Ray nor v. Rayuor, 45.
Rea y. Forrest, Ola, 953.
V. Harrington, 100.
Reab y. Sherman, 348.
Read y. Allen, 553, 556, 577.
Y. City of Buffalo, 176.
clviii
CASES CITED.
CReferences to sectiong. §§ 1 to 499 In yoI. 1; residue in vol. 1]
Bead v. French, 63, 83.
V. Jeffries, 210.
V. Sutton, 124.
Keade v. Street, 141.
Reading v. Price. 680.
V. Reading, 02.
Read's Appeal, 1016.
Ready v. Smith, 26.
Reagan t.* Fox, 100.
Reagh T. Spann, 29.
Real Estate Inv. Go. y. Roop, 55.
Realty Inv. Co. v. Porter, 36.
Ream y. Lynch, 590.
Reams v. Kearus, 174.
Reast Y. Donald, C24.
y. Hughes, 367.
Reay y. Heazelton, 985.
Reber y. Wright, 227, 877, 896, 905,
906.
Rector y. Gibbon, 530.
y. Morehouse, 994.
Redden y. Metzger, 614.
y. Tefft, 577, 663.
Reddick y. Bank, 197.
y. Meffert, 600.
Redmond y. Coffin, 548, 561, 787.
y. Collins, 638.
y. Staton, 948.
Redus y. Burnett, 897.
Redwine y. Brown. 251.
Reed, Ex parte, 250, 255, 256, 524.
y. Austin's Heirs, 440.
y. Chllson, 680, 867, 892.
y. Cross, 615, 763.
y. Douglas, 664.
y. Eldredge, 7, 152.
y. Hamet, 52.
y. Jackson. 270, 606.
y. King, 191.
V. Lane, 122, 162, 174, 180.
y. Liston, 23.
y. McGregor, 540.
V. Nicholson. 261.
y. Orton, 573.
y. Pratt, 272.
y. Prescott, 362.
y. Proprietors, 682.
y. Pruyn, 098.
y. Ross, 520.
y. Vaughan, 285.
V. Whitlow. 691.
V. Wright, 216, 513.
Reeder y. Lock wood, 84.
Reed*s Appeal, 400.
Reel y. Elder, 240, 897.
Rees y. Bank, 92.
y. Richmond, 58.
y. Watertown, 985b, 985e.
Reese y. Holmes, 660, 661.
y. Mahoney, 313, 347.
y. Meetze, 245.
y. Reese, 617.
y. Steams, 152.
Reeser y. Brenneman, 321.
Reeves y. Cooper, 394.
V. Plough, 691.
V. Townsend, 287.
Reformed Protestant Dutch Church of
Westfield y. Brown, 749.
Reg. y. Drury, 511.
y. Fontaine Ikf orean, 529.
y. Haughton, 784.
y. Inhabitants, 805.
y. Leigh. 532.
Regan y. Railroad Co., 91.
V. West, 655.
Regester y. Iron Co., 346.
Reich V. Cochran. 661a, 783.
Reid y. Boj'd, 875, 892.
y. Coal & F. Co., 363.
y. Dunklin, 142.
y. Hibbard, 976, 989.
y. Holmes, 200, 203.
y. Morton, 126, 156.
y. O'Brien. 1014.
y. Ross, 040, W9.
y. Southworth, 70.
V. Spoon, 250. '
Reid, Murdoch & Co. v. Ferris, 671.
y. Parks, 7^4.
Reldy v. Blelstift, 92.
V. Scott, 347.
Reilly V. Bader. 783.
y. Daly, 79a.
y. Paving Co.. 740.
Relly y. Lancaster. 273.
Reimers y. Druce. 826, 844.
Reinach v. Improvement Co., 541.
V. Railroad Co.. 274, 278.
Reiner v. Jones, 614.
Relnhardt v. Nealis. 247.
Relnhart y. Blackshear, 1.
y. Lugo, 83, 252, 315.
Reinig y. Hecht. 270.
Relfe V. Bibb. 440.
I y. McComb, 400.
CASES
[References to sectionB. H 1 to
Remer y. Mackay, 2;U. 872.
Remick v. Butterfleld, 169.
Remington v. Cuiumings, 211.
Remington Paper Co. v. O* Dougherty,
600.
Rrainant t. Hoffman, 326.
Renand y. Abbott ^^59, 914.
Renfroe y. Benfroe, 363.
Renfcdc V. Ladington, 600.
Renter y. Hurlbut, 923.
Renkert y. EUiott, 785.
Renner y. Marshall, 865.
Renshaw y. Bank, 723.
Renwlck y. Wbeeler, 994.
Republic Ins. Co., In re, 320a.
Republic Life Ins. Co. y. Swigert, 22.
Respnblica y. DaYis, 586, 587.
Resseqnie ▼. Byers, 769.
Rengger y. Lindenberger, 99.
ReYere Copper Co. v. Dimock, 891.
Rer ▼. Butterly, 635.
Y. Carlile, 255.
Y. Chapman, 491.
Y. Grundon, 516.
Y. Inhabitants. 805.
Y. Lolley, 822.
Y. Vincent, 635.
Reynertson y. Lumber Co., 328.
Reynolds y. Barnard. 315.
Y. Bmmagim, 2M, 633.
Y. Cobb, 401.
Y. CoUier. 404.
Y. Crook. 482.
Y. Dunlap, 360.
Y. Fenton. 83a
Y. Fleming, 272.
Y. Franklin, 744.
Y. Gamer, 699.
Y. Harris. 955.
Y. Hennessy, 701, 721«
Y. Horine, 367.
Y. Insurance Co., 600.
Y. Lincoln, 713.
Y. Lumber Co.. 955.
Y. Lyon, 225, 975.
Y. Mandel, 504, 609.
Y. Orvls, 266.
Reynolds y. Powers, 877, 880.
Y. Railroad Co., 770.
Y. Robertson, 971.
Y. Rogers* Ex'rs, 1006.
Y. Silvers, 77.
Y. SUnsbury, 326, 785.
CITED. Clix
499 in TOl. 1; residue in yoI. 2.]
Reynolds y. Stockton, 242, 417, 915.
R. Frank Williams Co. Y. Baking Co.,
32.
Khea v. Preston, 998.
Rhino V. Emery, 290.
Rhoad Y. Patrick, 412.
Rhoades y. Delaney, 680.
Y. Selin, 601.
Rhoads y. City of Metropolis, 657.
Y. Bhoads, 196, 197.
Rhode V. Green, 571.
Rhode Island y. Massachusetts, 215.
Rhodes v. De Bow, 297.
Y. Rhodes, 312.
V. Turner, 46.
Y. Williams, 47.
Rlcardo y. Garcias, 624, 827, 829.
Rlcaud Y. Tysen, 624.
Rice Y. Aiken, 660.
Y. Bank, 380.
Y. Commission Co., 285, 930.
V. Coutant, 902.
V. Griffith, 347.
V. Groff, 1009.
Y. Holmes, 834.
V. King, 604, 658, 669, T29.
V. Moore, 487. 892.
V. Rice, 600.
V. Sanger, 34.
V. Stone, 943.
V. Talmadge, 487.
V. Troup, 941.
V. Ward, 641.
V. West, 655, 657.
Rice County Com'rs v. I^wrenee, 187.
Rice's Succession, 985.
Rich Y. City of Chicago, 306.
Y. Husson, 209.
V. Railroad Co., 27.
y. Thornton. 346.
Richards y. Barlow, 868.
Y. McMillan, 67, 68.
Y. Rote, 218.
V. Walton, 211.
Richardson y. Ainsworth, 950, 066.
Y. Ass'n, 346a, 352.
Y. Bank, 587.
Y. Boston, 742.
Y. Callihan, 663.
V. City of Baltimore, ,357.
Y. aty of Eureka, 75a
V. Finney, 347.
V. Fuller, 57.
dX CASES
[References to sections. S§ 1 to
Uicliardson v. Greeii, 128.
V. Howk, 153.
y. Hunter, 217, 227, 278.
v. Jones, 208, 576.
V. Lanniug, 526.
Y. Larpeut, 585.
V. Loree, 359.
V. Machine Works, 752.
T. Melllsh, 162.
y. Hlcliardson, 29.
V. Rogers, 118.
V. Smith, 229.
V. Stowe. 326.
V. Turner, 109.
V. Watson. 576.
Richardson Drug Co. v. Dunagan, 348.
Richardson's Adm'r v. Justices, 385.
Richardson's Ex'r v. Jones, 80Q.
Richman v. Baldwin, 660.
Richmond v. Ames, 569.
V. Atwood, 32.
V. Bldch, lOOi.
V. Hays, 624.
Richmond Bldg. Ass'n v. Ass'n, 952.
Richmond & D. R. Co. v. Gorman, 917.
Richmond & P. R. Co. v. Shippen, 381,
705.
Rlchter v. Cummings, 486.
Rickard v. Fisk, 299.
Rickards v. Coon, 32.
Rickets V. Hitchens, 358.
Ricketson v. Richardson, 211.
Rickey v. Hillman, 428.
Riddle v. Baker, 587.
V. Hudgins, 48.
Riddle's Appeal, 438, 1014.
Rider v. Alexander, 122, 906.
V. Alleyne, 82.
V. Kelso, 953.
V. Rubber Co., 733.
Ridge V. Prather, 432.
Ridgely v. Gartrell, 432.
V. Spenser, 683.
Ridgely Nat. Bank v. Fairbank, 86.
Ridgeway v. Bank. 376, 377.
V. Herbert, 650.
Ridgley v. SUUwell, 611.
Rldgway V. Homer, 86.
Ridgway's Appeal, 406.
Ridley v. Railway Co., 352, 742, 748.
Rlehl V. Vockroth. 1005.
Rleker v. Doerr, 354,
Riely y. Barton, 90.
CITED.
499 In vol. 1; residue in toI. 2.]
Ries V. Rowland, 674.
Riffle's Appeal, 999.
Rigg V. Banbridge, 768.
Riggs v. Goodricli, 987.
V. Johnson County, 360, 985b.
Righter v. Thornton, 263.
Riglesberger v. Bailey, 305.
Riker v. Hooper, 529, 726.
Riley V. Bank, 541.
V. Hale, 767.
y. Jaryis, 29, 183, 790.
V. Murray, 920.
y. Riley, 975.
Riley's Adm'r y. McCord's Adm'r,
493.
Rinchey v.. Stryker, 605.
Ringgold y. Stone, 644.
Ringle y. Railroad Co., 186.
Rio Grande, The, y. Otis, 521, 795.
Rio Grande Irr. & Colonization Ca t.
Gildersleeye, 83, 387.
Rio Grande W. Ry. Co. v. Power
Transmission Co., 751.
Riott V. Blackstone, 25.
Rlsher v. Roush, 367.
Risk V. Uffelman, 110.
Risley y. Bank, 709, 942.
Risser y. Martin, 57, 126.
Ritch y. Eichelberger, 952, 955.
Ritchey.y. Buricke's Adm'rs; 467.
y. Withers, 644.
Ritchie y. McMuUen, 370, 829, 835,
838, S49.
V. Sayers, 277.
Ritter V. Cost, 956.
V. Henshaw, 1010.
y. Hoffman, 859, 861, 868.
Riyers v. Durr, 197.
y. Riyers, 714.
y. West, 321.
Riyerside Co. y. Townsend, 663,
Riyerside Land & Irr. Co. v. Jensen,
549.
Rix y. McHeury, 425.
y. Nevius, 1001.
Roach y. Bennett, 433.
y. Blakey, 116.
y. Garvan, 822.
y. Hix, 195.
y. Martin's Lessee, 633, 635.
y. Privett 908.
Roads y. Symmes, 432.
Roane y. Baker, 447.
CASES
[References to sectloni. 89 1 to
Roane t. Uamilton, 407.
Robarge v. Railroad Co., 923.
Robb Y. Anderson, 487, 892.
V. Irwin*8 Lessee, 194.
T. Robb, a06.
V. Van Horn, 009.
Robbins y. Bacon, 493.
Y. Bunn, 530.
V. Chicago, 575.
Y. CoIUer, 518.
Y. Harrison, 761.
Y. Mount, 378.
Y. Robbins, 454.
V. Wells, 710.
Y. Wcrfcott, 100.
Roberson y. Crow, 376.
Robert y. Hodges, 857.
Robert E. Lee SUYer Min. Co. y. En-
glebach, 854.
Roberts, In re, 506.
Y. CaldweU, 003.
Y. Corby, 347.
Y. Dame, 16.
Y. Hamilton, 713.
Y. Hinkle, 802.
Y. Miles, 373.
Y. Moody, 614.
Y. Xorrls, 716.
Y. Pawley, 211, 235, 348.
Y. Railway Co,, 243, 302, 825. 600.
Y. Roberts, 232.
Y. Robinson, 425.
Y. Sliarp, 70a.
Y. Stanton, 103.
Y. State, 38, 115.
Y. Stowers, 220.
Y. Yancey, 260.
Robertson, In re, 16L
Y. Bergen, 335.
Y. Caw. 685.
Y. Hay, 157.
Y. Huffman, 260l
Y. King, 156.
Y. Lane, 206.
Y. Pharr, 135.
Y. PiciEreU, 636.
Y. Smith, 770, 776.
Y. Strath, 835.
Y. Van CleaYe, 585.
Y. Winchester. 218.
T. Wright, 660.
Robewon y. Roberts, 953, 956.
Robk'haad y. Nelson, 880.
1 LAW JUDG.— k
CITED. Clxl
499 In vol. 1; residue in vol. 2.]
Robinson y. Allison, 063.
Y. Bank, 440.
Y. Belt, 29.
Y. Brown, 206.
y. City of Wilmington, 32.
Y. Com'rs, 305.
Y. Court, 29.
Y. Crownlnshield, 745.
Y. Dayls, 332, 336.
Y. Dickey, 617.
V. Floyd, 209.
Y. Govers, 115.
Y. Hodge, 589.
V. Howard, 707.
Y. Jones, 816.
V. Keys, 86.
V. Kruse, 671.
Y. Kuukleman, 1001.
Y. Lane, 592, 624.
Y. McDowell, 390.
V. Merrill, 352.
Y. Moore, 160.
Y. Morse, 526.
Y. Prescott, 934.
Y. Reld's Ex'r, 376.
Y. Snyder, 770.
Y. Stevens' Adm'r, 317.
Y. Thompson, 359.
V. Tonge, 441.
Y. Towns, 952.
Y. Ward's Ex'rs, 904, 912.
Y. Weeks, 943, 950, 98G.
V. Wiley, 761.
V. Wilson, 425.
Robinson's Adm'r y. MUby's Adm'r,
992, 993.
Robinson's Adm'x y. White, 949.
Robinson's Case, 536.
Robisson y. Miller, 420.
Robostelll Y. Railroad Co., 142.
Robrecht y. Robrecht, 82.
Robson Y. Eaton, 374.
V. Shelton, 191.
Robuck Y. Harklns, 867.
Roby Y. Eggers, 539.
V. Rainsber^er, 773.
V. Updyke, 77.
Rocco Y. Hackett, «)7, 880. 897.
Rochester y. Anderson, 210.
Rocker Spring Co. y. William D. Gib-
son Co., GIO.
Rockford Watch Co. v. Manifold. 242.
Rockhill Y. Hunna, 450, 476.
Clxii CASES
CReferences to sections. 89 1 to
Rock Islaod Nat. Bank t. Thompson^
399, 415, 473.
Rockland Water Co. v. Plllabury. 161,
164.
Rockwell V. Brown, 739.
V. CJourt, 692.
T. Langley, 629. 630.
y. Tupper, 214.
Rockwood V. Davenport, 110.
Roddy T. Elam. 439.
Roderigas v. Savings Inst., 640.
Rodgers v. Bonner, 401.
V. Evans, 513.
V. Insurance Co., 910.
V. Levy, 719.
V. McCluer's Adm'rs. 440, 469.
Rodini V. Lytle, 58a
Rodriguez v. Esplnosa, 321.
Roe V. Roe, 803.
V. Swart, 468.
Roenigk's Appeal, 77.
Rogan V. Walker, 513.
Rogers v. Beauchamp. 273.
V. Brent 422. 530.
y. Brooks, 141.
y. Bums, 857. 913.
y. Coleman, 855, 857, 904, 906.
y. Cross. 383.
y. Denham's Heirs, 486.
y. Felker, 174.
y. Grannis, 562.
V. Gwinn, 373, 916.
y. Haines, 537. {\50.
y. Harrison. 233.
y. Hatch, 510. 882.
y. Higglns, G14. 731.
V. Holden, 528.
V. Holllngsworth, 484, 40&
y. Johnson. 261.
y. Ubbey. 624.
y. McMillen, 327.
V. Miller, 274.
y. Moore, 89.
V. Odell, 864, 966.
V. Parker, 376.
y. Ratcllff, 657.
y. Rogers, 156, 162. 262, 894.
y. Russell, 27.
y. Tucker, 661.
y. Walker, 802.
v. Waller, 518.
V. Watrous, ;]06.
V. Weil, 192.
CITED.
499 In, vol. 1; reiidue in vol. 2.J
Rogers v. Welte, 999.
V. Wood, 173. 216. 278, 516.
Roggenkamp v. Hargreaves, 208.
Roh V. Vitera, 34.
Rohm V. Borland, 529.
Rohr V. Davis, 206.
Rohrbacker v. Schultz. 34.'a.
Roland v. Kreyenliiigen. 352.
Rolfs y. Shallcross, 255.
Roll V. Davison, 683.
V. Rea, 411.
Roller V. Ried, 312, 383.
V. Wooldridge, ;wr.
Rollins, Ex parte, 255, 257.
V. Casket Co., 390.
V. Henry, 109, 260.
V. Thompson, 999.
Remain v. Garth, 1016.
Roman Catholic Archbishop ▼. Ship-
man, 600.
Rome Eb[change Bank v. ESames, 14t
Rome & D. R. Co. v. Sibert, 31a.
Rooks v. Williams, 3(18.
Roosevelt v. Dale, 189.
v. Kellogg, 250.
Root V. Bank, 36.
y. Curtis. 447.
y. Davis, 261.
y. Dill, 770.
V. Fellowes, 116.
v. Woolworth, 755.
Roots V. Cohen, 387, 393.
Roper V. Rowlett, 572.
Ropes V. Eldridge, 26.
Roraback v. Stebbins, 55.
Rorer v. Ass'n, 83.
Rork V. Smith, 809.
Roscarla v. Thomas, 96.
Rose V. City of Yonkers, 714.
y. Gibson, 29. 872.
y. Hawley, 716.
y. Himely, 516. 818, 835.
y. Insurance Co., J)20, 970.
V. Turnpike Co.. 686.
Rosebrough v. Ansley. 52.
Rosenbaum v. Davis, 511.
Rosenblatt. "Ex. parte, 257.
Rosenberger v. Jones, 439.
Rosenmueller v. Lampe, 735.
Rosenow v. Gardner, 671.
Rosenthal v. McMann, 716.
v. Renick, 503.
y. Roberson, 26.
CASES CITED.
clxiii
[Befcrences to sections. || 1 to 489 in vol. 1; residue In vol. 2.]
Bottaia V. Trowbridge, 421.
Iocs Y. Banta, 357, S63, 549.
▼. City of Portland, 733.
T. finaut, 557.
T. Xoble, 90.
y. Pitts, 593.
T. Pleasants, 660.
V. Railroad Co,, 337,
T. Koss, 132. 353.
T. Sims, 13.
T. Wait, 208.
▼. Watt, 526.
T. Wcidd, 372, 681a.
Boss* Apiieal, 432.
Kosse V. Uust 723.
Rossman v. Tilleny, 733.
Retail's Heirs v. Springer, 393.
Botch v. Humboldt College, 274.
Botb T. ColYin, 526.
y. Roth, 822.
Rothchild V. Link, 85.
T. Mannesovitch,* 63.
Bother r. Monaban, 988.
Bothrock y. Insurance Co., 897.
Roalhac v. Brown, 092.
Roulstou V. Hall, 549.
Bounds t. Steamship Co., 938.
BoQDdtree, Ex parte, 340, 344.
Boandy v. Hunt. 70.
BoonsariUe v. Haxen, 1017.
Boantree, Ex parte, 336.
T. Lathrop, 99.
V. Walker, 363.
Bouse V. Peoria County, 97.
Boosillon V. Ronsillon, 836.
Boosset T. Boyle, 162.
Boutiedge v. Hislop, 729.
Bowan v. Daniel. 207.
Bowe V. Blake. 9«2.
V. Coal Co., 323.
y. Parsons, 284.
T. Smith, 697. 758.
Bowes Adm'r v. Hardy's Adm*r,
903.
Kowen V. RaUroad Co., 90.
Rowland v. Day, 600.
V. Ryans, 636.
V. Harris. 491.
T. Hobby, 029.
V. Jones, 340, 387.
T. Vcale. 9G3.
BowlandP EasUtc, 317.
UowlnndsoD. Ex parte, 775.
985,
Uowlett V. WlUiamson, 302.
Rowley v. Carron, 935.
V. Howard, 224.
Roy V. liowe, 194.
Hoyall, Ex parte, 257.
Royairs Adm'rs y. Johnson, 23.
Royal Trust Co. y. Bank, 306.
Royalty y. Shirley, 783.
Royer y. Wolf, 691.
Royse y. May, 149.
Royston y. Homer, 756.
Rubel y. Busbnell, 188.
Rubinsky y. Patrick, 473.
Rubush y. State, 246.
Ruch y. Jones, 86.
Rucker y. Steelman, 609.
Ruckman y. Cowell, 285.
V. Pitcher, 349.
Rudd y. Bank, 214.
Rudolph y. Underwood, 703.
Ruegger y. Railroad Co., 754, 938.
Ruehlmann y. Ass'n, 737.
Ruenbuhl y. Heffron, 307.
Rufe y. Bank, 943, 945.
Ruff V. Doty, 756.
y. Elkin, 156.
y. Ruff, 593.
Rufty y. Claywell, 772.
Rugg V. Parker, 135, 163, 165.
Rumsey y. Railroad Co., 742.
Rundle y. Ettweln, 432.
Runkel y. PhUlips, 566.
Rupe y. Ass'n, 206.
Rupert y. Martz, 348.
Rupp y. Swartz, 1005.
Ruppel y. Patterson, 549.
Rush y. Rusb, 130, 320, 822.
y. Valentine, 530.
Rusbwortb y. Pembroke, 554.
Russ V. Gilbert, 91.
Russel y. Field, 847.
y. Insurance Co., 817.
Russell y. Brown, 810.
y. Butler, 899.
T. Conway, 1002, 1004.
V. Durham, 263.
y. Erwin's Adm'r. 155, 160.
V. Grant. 200.
V. Hank, 170.
y. Hogan, 82.
V. Houston, 433.
y. Lathrop, 19, 28,
y. McCaU, 774.
Clxlv CASES
[Referencei to MCtions. |§ 1 to
Russell T. McDougall, 166.
V. Mcllvoy, 737.
V. Nail, 446.
y. Nelson, 1016.
V. Perry, 936.
V. Place. 624, 629, 72a
T. Pottawottamle Co,, 325.
Russell's Appeal, 439.
Russell & Ck). y. Lamb, 938c.
Russell & Erwlne Mfg. O). y. Carpen
ter, 774.
Rust V. Faust 109.
V. Ware, 384, 386.
V. Waterworks Co., 34.
Rutan V. Wolters, 214.
Ruth y. Overbrunuer, 643.
y. Wells, 461.
Ruthenberg y. Helberg, 39.
Rutherford v. Crabb, 1004.
y. Crawford, 282.
y. Pope, 305.
Ruth's Appeal, 458.
Rutledge y. Fogg, 525.
Ryan y. Boyd. 370, 377.
y. Fulghum, 699.
y. Kingsberry, 754.
y. Moouey, 352.
y. Potwin. 611, 629.
y. Railroad Co., 716.
y. Staples, 262.
y. Town of Sumner, 609.
Ryan's Adm'r y. McLeod, 44.
Ryckmau y. Parkins, 083.
Ryder y. Loom Is, 649.
y. Twiss, 313.
Ryerson y. Chapman, 571.
Ryerss y. RIppey, 577.
Ryghtmyer y. Dunham, 127.
Ryhlner v. Frank, 443.
Rynearson v. Parkhurst, 790.
Ryon y. Thomas, 153.
Sabater y. Sabater, 163.
Sabine, The, 792.
Sablns y. McCJhee, 658.
Sacket y. Ix)omIs, 758.
Sackett y. Montgomery, 513.
V. Wilson, 189.
Sacramento, P. & N. R. Co. y. Har
Ian. 40.
I
CITED.
499 In Yol. 1; residue In vol. 2.}
Sacramento Say. Bank y. Spencer,
205.
Saddler y. Apple. 738.
Sadler y. Robblns, b69, 9G2.
Safe-Deposit & Trust Co. y. Wright,
252. 294.
Saffold y, Nayarro, 211.
SafTord y. Maxwell. 947.
Sage y. Harpending. 510.
y. Matheney. 33a
Sager y. Blaln, 715.
y. Mead. 293.
y. Moy, 995.
Sagory y. Bayless, 305.
Salnsbury y. Pringle, 491.
St Clair y. Cox, 220, 910. 939.
y. Smith, 193.
St John y. Holmes, 211, 237, 315.
y. St Johns Church, 574.
St Johnsbury & L. C. R. Co. y. Hunt
707.
St Joseph Mfg. "Co. y. Daggett 40a
St Joseph Union Depot Co. y. Rail-
road Co., 615.
St. Joseph & G. I. R. Co. v. Steele.
750.
St Louis, A. & T. n. R. Co. y. Todd,
895.
St Louis, I. M. & S. R. Co. y, Rey-
nolds, 358.
y. Sweet 740.
y. Winfrey, 130.
St. Louis Mut Ins. Co. y. Cravens.
608.
St Louis Nat. Bank y. Bloch, 46.
St. I^ouls Perpetual Ins. Co. y. Cohen.
260, 595.
St Louis Smelting & Refining Co. y.
Kemp, 530.
St Louis S. W. R. vyO. y. Denson, 91.
y. Moss, 738.
St. Louis Type Foundry y. Jackson,
867, 985.
St. Louis & S. F. R. Co. y. McBride,
217.
V. Trimble, 745.
St. Louis & S. Coal Co. v. Mining Co.,
218.
St Mary's Hospital y. Benefit Co.,
354.
St. Paul Nat. Bank v. Cannon. 541.
St Paul & D. R. Co. V. Blaekmar.
349.
CASES CITED.
[References to sections. H 1 to 4M In YOl. 1; residue in yoI. 2.]
clxv
St. Romes v. Press Co., 719.
Salaman y. Warner, 21.
Sale T. Cburch, 516.
7. French, 801.
Salinas v. C. Aultman &, Co., 620.
Y. State, 213.
Salisbuy y. Morss, 560.
Salladay t. Bainhill, 972.
SaUe T. Light's Ex'rs, 572, 574.
Salliday ▼. Bainhill, 972.
Salmon y. Wootton, 865.
Salomon y. Hopkins, 206.
Saloy y. CoIUns, 32, 109.
Salter y. Hilgen, 306.
y. Salter, 197.
Saltonstall y. Rllej, 261, 642.
Salyer y. State, 589.
Sam, Ex parte, 255.
Sames' Appeal, 492, 534.
Sammis y. Wigbtman, 857, 860, 883,
889, 807, 898, 963.
Sample y. Bnmes, 379.
y. Conlson, 536.
Sampson y. Ohleyer, 550.
Samnel y. Casualty Co., 735.
y. Dinklns, 577.
San Antunio & A. P. K. Co. y. Flato,
745.
y. Glass, 363.
Sanborn y. Fellows, 279.
y. Perry, 31, 922.
Sanchez y. Carriaga, 358, 377.
Sanders y. Fisher, 387.
y. Hall. 345.
y. McAfee, 459.
y. Peck, 538.
y. Price, 272, 290.
y. Soutter. 618.
Sanderson y. Caldwell, 779.
y. Dox, 313.
y. Peabody, 614.
y. Voelcker. >58, 373.
Sandford y. McLean, 420, 454, 999.
Sandoyal y. Rosser, 541.
8andwi<^ Mfg. Co. y. Earl, 251, 939.
Sanford y. College, 504.
y. Ogden, 457.
y. Sanford, 530, 912, 917.
y. Weeks, 346a, 692.
Banger y. Roberts, 117, 262.
Sangnlimettl y. Roche, 191.
San Joaquin I^nd & Water Co. y.
West, 157, 98L
San Jose Ranch Co. v. Water Co.. 108.
San Juan & St. L. Mining & Smelting
Co. y. Finch, 376.
Sankey y. Reed, 497.
San Mateo County v. Cobum, 250.
Sanner y. Sayne, 98.
San Pedro & C. Oo. y. U. S., 530.
Sans y. City of New York, 628.
y. People, 487.
Santleben v. Cement Co., 536.
Santon v. Ballard, 217.
Sappington y. Lenz, 498.
Sarchet y. The General Isaac Dayis,
Sargeant y. Bigelow, 378.
V. French, 211.
Sargent y. Fitzpatrick, 763.
y. Hayne, 992.
y. Kindred, 311, 335, 347.
Sargent & Co. y. Steamboat Co., 625.
Sass y. Hlrschfeld, 155, 214.
Sasscer y. Walker's Efct'rs, 1008.
Sasser y. OlUff, 375, 383.
Sater y. Hunt, 28.
Satterlee y. BUss, 549, 635.
Satterwhite y. Sherley, 541.
Sauer y. City of Kansas, 365.
y. Railroad Co., 246.
y. Twining, 245.
Sauerfield y. McNiemey's Estate, 61a.
Sauls y. Freeman, 584.
Saulsbury y. Alexander, 100
Saunders y. Albritton, 367.
y. Lipscomb, 52, 76.
Sayage y. Allen, 388.
y. Benham, 639.
y. Eyerman, 976.
y. Gunter, 699.
y. Hussey, 267.
y. Stevens, 779, 782.
y. Walshe, 239.
Sayeland y. Green, 570.
Savery v. Sypher, 761.
Sayin, Ex parte, 255.
Sayings & Trust Co. y. Irrigation Oa.
4^, 475.
Sawln y. Kenny, 125a.
Sawtelle y. Muncy, 86.
V. Weymouth, 423.
Sawyer y. Boyle, 612.
y. Doane, 299.
y. Dozler's Heirs, &35.
y. Insurance Co., 818.
clXVi CASKS
[References to sections. §§ 1 to
Sawyer v. McAdle, 550.
V. Nelson, 627.
V. Vilas, 7.
V. White, 774.
V. Woodbury, 503, 504, 627, 629,
657, 658.
Sazton v. Smitli, 165.
Sayers y. Auditor General, 754.
v. Burkhardt, 300.
Sayles v. Best, 428.
V. Briggs, 282.
V. Tibbitts, 608.
Saylor v. Com., 113.
v. Hicks, 682.
Sayre v. Hewes, 72.
Sayre*s Adm'r t. Harpold, 857.
Scamahom v. Scott, 81, 503.
Seaman v. Galligan, 271.
Scamman t. Bonslett, 162.
Scanlan v. Campbell, 252.
V. Murphy, 967.
Scanlon v. Suter, 26.
Scarborough, In re, 789.
V. Dugan, 7, 11, 892.
y. Myrick, 312.
Scarritt Furniture Co. v. Moser, 598.
Schaefer y. City of Fond du Lac, 575.
Schafer y. Buck, 473.
Schaffer y. Cadwallader, 407.
Schai£er*B Estate, In re, 31a.
Scharff v. Lisso, 13.
Scharmaun, In re, 89.
Schart v. Schart, 346.
Schautz V. Kearney, 1001.
Scheible v. Slagle. 510.
Schell y. Stetson, 981.
Scheuck. In re, 255.
V. Ellingwood, 585.
Schenck's Appeal, 321.
Scherff v. Railroad Co., 707.
Sohermerhom v. Scbermerhorn, 16.
Scherr y. Uimmelmau, 1010.
Schertz y. Bank, 583.
Scblbsby y. Westeuholz. 227, 289, 835,
836.
Schindel y. Suman, 713.
Schirling y. Scites, S'JT).
Schissel y. Dickson, 281.
Schive y. Fausold, 651.
Schloss y. White, 93, 237.
Schmelzer y. Mfg. Co., 154, 206.
Schmidt V. Glade, 695.
V. Rehwinkel, 154.
CITED.
4M in vol. 1; residue in vol. 2.]
Schmidt y. Thomas, 306w
y. Zahensdorf, 616.
Sehmidtke y. Miller, 483.
Schmidt's Estate, In re, 260.
Schnaufer y. Schnaufer, 926i
Schneider v. Meyer, 987.
Schneider^^avis Co. y. Brown, 596L
Schneprs Appeal, 551.
Schnitker y. Schuitker, 1000.
Schnitzer y. Fox, 790.
Sohnitzler y. Bank, 337.
Sohoch V. Foreman, 742.
Scboellkopf y. Ohmels, 100.
School Directors y. Xewman, 118.
y. Wright, 32.
School Dist. No. 10 y. Peterson. 446.
School Dist. No. 13 v. I-ovejoy, 337.
School Dist. No. 15 y. Brown, 32.
School Dist. No. 28 y. Stocker, 613.
School Dist No. 46 y. Lund, 16.
Schoppenhast y. Bollman, 260, 595.
Schott y. McFarland, 299.
V. Youree, 587, 770.
Schreiner y. Court, 529.
Schriver y. Eckenrode. 730.
Schroeder y. Fromme, 50.
y. Gumey, 434, 446.
y. Lahrman, 540, o42.
Schroeder's Estate, In re, 641.
Schroer v. Pettibone, 370.
y. WesseU, 340, 341.
Schuffert y. Grote, 32.
Schulenburg y. Bank, 849.
Scbuler v. Collins, lUOO.
y. Israel, 674, 690.
Schultz y. McLean. 23.
V. Meiselbar, 84, 341.
V. Schultz, G35, 6:J7.
Schurnieier v. Johnson. 682.
Schuster v. Rader, 359, 600.
V. White's Adm'r, 732, 744.
Schwabacher y. Leibrook, 460.
Schwan v. Kelly, 767.
Schwartz, Ex parte, 255.
V. Schendel, :i52.
S<-hwarz v. Oppenheimer, 86, 31L
Schweinfurter v. Schmahl, 321.
Schweitzer y. Irwin's Ex'x, 33.
Schwenk y. Widemeyer, 671.
Schwenke y. Railroad Co., 530.
Sohweyer y. WAlbert, 330.
Schwinger v. Ilickok, 229.
Scoliold y. Bank, 32.
CASES
[References to uctionB. IS 1 to
Scofield Y. Moore, 940.
iScogin Y. Perry, 419.
Sconce y. Lumber Co., 671«
Scotland Oo. y. Uili, 581.
Scott Y. Bogart, 237, 913.
Y. Burton, 31. 116.
Y. CUYlt, 636.
Y. Coleman, 875.
Y. Colmesnil, 776w
Y. Drennen, 549.
T. Duun, 469.
Y. Haines, 744.
V. Hall, tK>4.
T. Harking, 953.
Y. Investment Co., 530.
Y. Mantouya, 69, 73.
V. Noble. 906, 913.
T. nikington, 827, 842, 843, 846.
Y. Pleasants, 247.
Y. Rivers, 1000.
Y. Rohman, 109.
Y. Seelye, 485.
Y. Seymour, 847-
Y. Shearman, 799.
Y. Smith, 340a.
Y. Wagner, 541.
Y. Ware, 660.
Y. Warren, 447.
Scott's Account, In re, 590.
Scottish-American Mortg. Co. T. Fol-
lansbee, 400.
Sconton y. Bender, 423.
Scriba y. Deane, 411.
Scribner y. Rutherford, 16w
Y. York, ti66.
Scrimshire v. Scrimshire, 822.
Scriven y. Hursh, 27, 373.
Scroggin v. Grocer Co., 375.
Scroggins y. Howorth, 378.
Scudder y. Jones, 302.
Scully Y. Lowenstein, 609, 6ia
V. RalU-oad Co., 720. 722.
Seale y. McLaughlin, 325.
Seals V. Weldon, 370.
Seaman y. Clarke, 992.
V. Drake, 156.
Seamster y. Blackstock, 242,
Searcy y. Creditors, 644.
Searles y. Christensen, 340a.
Bears y. Dacey, 899.
Y. McGntw, 210.
Y. Stone County, 508.
V. Terry, 279.
CITED. clxvii
499 in vol. 1; residue in vol. 2.}
Sease y. Dobson, 'iB3.
Seat Y. Cannon, 589.
Seaton y. Hlxon, 714.
Seattle Nat Bank v. School Dist., 609,
697.
Seattle & M. Ry. Co. y. Johnson, 157.
Seaver y. Siegel, 77.
Seay y. Fennell, 556.
Scckler y. Delfs, 712.
Secombe y. Railroad Co., 279, 287.
Second Nat. Bank y. Haerliug, 691.
Y. ToTvnsend, 677.
Second Nat. Bank's Appeal, 252, 293.
Second Ward Sav. Bank y. Schranck,
77.
Secor Y. Sturgis, 744.
Y. Woodward, 376, 377.
Secrlst V. Green, 245.
Y. Zimmerman, 78, 653, 698.
Security Abstract of Title Co. y. Long-
acre, 355.
Security Trust Co. v. Sullivan, 44.
Seddon v. Tutop, 620.
Sedgwick Y. Dawkins, 98.
Seeley y. City of Bridgeport, 80, 90.
Seely v. Reid, 218.
Seelye y. People, 100.
Seeman y. Weippert, 191.
Seevers y. Clement, 853, 865.
Segee y. Thomas, 225.
Seiberling v. Mortinson, 183.
v. Schuster, 338.
Seibert y. Railroad Co., 313.
Seifert v. Caverly, 83.
Seiffert v. Gaverley, 354.
Seitz V. McKenzie, 713.
Seitzinger v. Ridg\<^ay, 651.
Selders y. Boyle, 261, 482.
Selleck v. City of Janesville, 556.
Sellers y. Burk, 28, 408.
V. B^loyd, 480.
v. Lumber Co., 22.
Seller's Lessee v. Corwin, 413, 415.
Sellick V. Addams, 667.
Semler, In re, 255.
Petition of, 259.
Semple v. Bank, 619, 680.
V. Eubanks, 406, 475.
Y. Glenn, 896.
Y. Hagar, 938.
Y. McGatagan, 378.
V. Mown. 433.
Y. Scarborough, GIO.
clxviii CASES
Uleferences to BectionB. §S 1 to
Senicbka v.* Lowe« 274.
Sergeant's Ex'rs t. Ewfng, 541.
Sergeant's Heirs v. Ewlng, 5U0.
Sergeson t. Sealey, 802.
Sessions v. Johnson, 770, 775, 777, 780,
782.
T. Stevens, 593.
Seventh Day Adventist Pub. Ass'n y.
Fisher, 761.
Sever v. Russell, 633.
Sevey v. Chick, 541.
Sevier v. Roddle, 867.
V. Turner, 86.
Sewall V. Scott, 729.
V. Sewall, 927, 929.
Sewairs Falls Bridge v. Flsk, 100.
Seward v. Clark, 197.
V. Heflin, 596.
Sexton V. Bennett, 157.
V. Gee, 1003.
V. Mfg. Co., 329.
Seymour v. Greenwood, 127.
V. Haines, 986.
V. Newman, 896.
V. Seymour, 284, 633.
V. Smith, 986.
V. Street, 248.
V. Sup'rs, 354.
V. Thomas Harrow Co., 131
Shackelford v. Levy, 135, 165.
V. Miller, 180.
v. Purket, 526.
Shackleford v. Cunningham, 644.
Shadbolt v. Flndeisen, 970.
Shadrack's Adm'r v. Woolfolk, 50, 68.
Shaefer v. Gates, 194. 220, 534.
Shaeffcr's Appeal, 469.
Shafer v. Bank, 982.
V. Bushnell, 932.
Shafer v. Hewitt, 20a
Shafer's Appeal, 331.
Shaffenburg, Ex parte, 255.
Shaffer v. McCrackln, 990.
V. Scuddy, 755.
V. Sutton, 33b.
Shalnwald v. Lewis, 962, 995, 1010.
Shakman v. System Co., 127.
Shall V. Blscoe, 611.
Shallcross v. Deats, 293.
V. Smith, 55, 211.
Shamlln v. HaU, 260.
Shand v. Du Boisson, 820.
Shane v. Francis, 444.
CITED.
489 In vol. 1; residue in toI. 2.]
Shank v. Woodworth, 701«
Shanklln y. Francis, 714.
Shanks ▼. Lancaster, 004.
Shannon y. Dodge, 587.
y. Frost, 523.
y. Beese, 382.
y. Shannon, 508, 929.
y. Taylor, 660.
Share v. Becker, 299.
Sharkey v. Baukstou, 558.
Sharman v. Morton, 883, 916.
Sharon v. Hill, 510, 939a.
Sharp V. Brunuings, 271, 273.
V. Mayor of New York, 341, 875.
y. Momtt, 375.
Sharpe v. Davis, 420.
y. Earl of Scarborough, 437.
y. Fowler, 157.
y. Freeman, 560.
Shattuc y. McArthur, 15.
Shattuck y. Bascom, 551.
Shaul V. Duprey, 132.
Shaver, In re, 449.
V. Shell, 522.
Shaw, Ex parte, 255, 258.
V. Attorney-General, 822L
V. Broadbeut, 620, 680.
y. Clark, 999.
y. Dwlght, 390.
y. Gould, 822.
V. Hurd, 879.
V. Lindsay, 173.
V. McGregor, 306.
y. Railroad Co., 586.
y. Shaw, 926.
Shawhan v. Loffer, 223, 274, 287.
V. Wherritt, 807.
Shaw's Estate, In re, 639.
Shay V. Clock Co.. 88, 340.
Shaylor y. Parsons, 1014.
Shean v. Cunningham, 118.
Shearer v. Bank, 246.
y. Brlnley, 467.
Shearman v. Jorgensen, 340a, 346a.
V. State, 182.
Sheble v. Cummins, 56.
Sheehy v. Chalmers, 152.
V. Duffy, 16.
V. Mandevllle, 770.
Sheets v. Baldwin's Adm'rs. 349.
y. Hawk, 248, 807.
V. Joyner, 577,
Sheetz v. Baker, 76L
CASES CITED.
[References to sections. §§ 1 to 499 in yoL 1; residue in Tol. S.]
clxix
Sheets ▼. Hambest's Ex'rs, 2^
y. KIrtiey, 318, 633.
Sheffield ▼. Murray, 29.
Shelbina Hotel Ass'n v. Parker, 526.
Sheldon t. Arnold, 410.
T. Carpenter, 739.
T. Edwards, 696.
T. Hopkins, 875, 966.
T. Kibbe, 777. 779, 782.
T. Patterson, IS^
T. QniDlen, 211.
T. Sheldon, 89.
y. Strj'ker, 67, 78, 69a
y. Van Vleck. 6»l.
y. White, 600.
V. Wright, 287.
Sheldon's Lessee t. Newton, 215, 261.
Shell V. Carter Co., 750.
Shelley y. St Charles Co., 985b.
Shelly y. Dobbins, 160.
Shelmire y. Thompson, 38i.
Sbelton y. Alcox, 667.
y. Brown, 576.
y. GiU, 394.
y. Hadlock, 250.
y. Hamilton, lOOa
y. Hurd, 953.
y. Ketan, 530.
V. Tiffin, 220, 272.
Shenandoah Nat Bank y. Read, 176,
587.
Shepard y. Pebbles, 587.
y. Rowe, 1006, 1007.
y. Stockham, 614.
y. Wright. 829, 837.
Sbepardson y. Cary, 614.
Shephard y. Brenton, 121, 126, 130.
Shepherd y. Haryey's Adm*x, 107.
y. Maryel, 83, 345a.
y. Moodhe, 671.
y. Pepper, 721.
y. Willis, 609, 742.
y. Wood, 54, 70.
Sbepley y. Cowan, 530.
^beppard y. Kendle, 190.
Sheppard y. Wilson, 179.
i^berer y. Akers, 362.
y. lADgfoid, 744.
Sheridan y. Andrews, 550, 66S.
y. City of Chicago, 154.
y. Fleming, 985a.
Sherman y. Boyce, 99a
y. Brett, 995.
Sherman y. Bnlck, 530.
V. Christy, 78, 098.
y. DlUey, 510, 614, 655, 685.
y. Grlunell, 37, 691.
y. Nlzon, 156, 159.
y. Sherman, 613.
Sheriff y. Judge, 360.
Sherrard y. Neylns, 903.
Sherrill y. Hopkins, 824.
Sherry y. Priest, 159.
Sherwood y. Baker, 250.
V. Collier, 9€5.
Shettlesworth y. Hughey, 657.
Sheward v. Water Co., 32.
Shickle v. Watts, 880.
Shields y. Barden, 79.
y. Clement, 84.
y. Moore, 995.
y. Shiff, 558.
y. Stark, 985.
V. Taylor. 29.
y. Thomas, 225.
Shlpman y. Fletcher, 158.
V. Fletcher's Adm'r, SeXk
y. BolUns, 561.
Shlpp V. Wheeless, 378.
Shirley y. Phillips, 137.
y. Shattuck, 914.
Shlrtz y. Shirtz, 115.
Shiyers v. Wilson, 279.
Shober y. Robinson, 567.
V. Wheeler, 695.
Shockey v. Akey, 135.
Shoe Machinery Co. y. Cutlan, 609.
Sboemake y. Finlayson, 540.
Shoemaker y. Brown, 250, 641,. 644.
y. Pace, 208.
y. ^park-Arrester Co., 270.
ShoUe y. Pino, 1002.
Shores y. Hooper, 6(30.
Short y. Galway, 872.
y. Kellogg, 135.
V. Prettyman, GCO.
Shorter y. Mims, 253.
Shortz V. Qulgley, 351.
Shottenkirk v. Wheeler, 367, 5ia
Shotwell V. Murray, 4^)0.
Shrew v. Jones, 413, 415.
Shrlcker y. Field, 375, 380.
Shriyer v. Lynn, 220.
Shroyer y. Richmond, 284, 645.
Shryock y. Buckmnn, 190.
y. Waggoner, 443.
ClXX CASES
[References to MCtioni. || 1 to
Shuck y. City of Lebanon, 750.
Shufeldt Y. Gandy, 3G8.
Shufeit V. Buckley, 936.
V. Shufeit, 69, 359.
Shuford V. Cain, 211, 824.
Shultz y. Shultz, 290.
Shumake y. Nelms' Adm'r, 662.
Shumaker y. Reed, 331.
y. Stillman, 272, 856, 875, 884, 896,
897, 898, 901, 908, 9ia
Shute y. Keyser, 59.
Sibley V. Alba, 666.
V. Ratliffe, 740.
Slcard y. Railroad Co., 616.
Sldener y. White, 440.
Sldensparker y. Sidensparker, 260, 298,
605.
Sieber v. Frink, 179.
Slebold, Ex parte, 255, 267.
Sigafus y. Porter, 33.
Slgle y. Selgley, 77.
Slgmon y. Hawn, 666.
Sigoumey y. Sibley, 174,
y. Stockwell, 493.
Slkes y. Weatherly, 315.
Silberman y. Shuklansky, 308.
SUl y. Rood, 785.
y. Swackhammer, 400.
Silner y. Butterfleld, 155.
Silver y. Rhodes, 13.
Silyer Bow Mln. & Mill. Co. v. Clark,
530.
Silyer Lake Bank y. Harding, 935.
Sllverthorn v. Townsend, 485, 494.
Simcock V. Bank, 324.
Siroes.y. Zane, 763.
Simkins v. Cobb, 589.
Simmons, Ex parte, 255w
y. Church, 308.
y. Craig, 114, 163.
y. Garrett, 981.
y. Goodell, 197, 633.
y. Martin, 381.
y. McKay, 193, 194, 273.
y. Reid, 9M.
V. Saul, 251, 938c.
V. Shaw, 1004.
V. Titohe, 116.
Simms V. Freiherr, 554.
Simons V. De Bare, 282.
Simpson y. Alexander, 197.
V. Bailey, 2G1.
y. Brown, 340.
CITED.
ti» in vol. 1; residue in vol. 2.]
Simpson y. Cochran, 968L
V. Dugger. 755.
y. Fogo, 827.
y. Halt, 3G2, 378, 601. 1001,
y. Hombeck, 170, 365.
y. Huston, 1005.
y. Jones, 548, 600.
y. Mercer, 998.
y. XUes, 413.
V. Norton, 633.
y. Prather, 236.
Sims, Ex parte, 306.
V. College, 193.
V. Dane, 101.
y. Hertzf eld, 964, 970.
V. Sims, 655, 870.
y. Smith, 655.
Simson y. Hart. 691, 1000, 1001b
Sinclair y. Frazer, 825.
y. Railroad Co., 22.
y. Sinclair, 822.
y. Tallmadge, 526.
Singer, App3al of, 434.
y. Hutchinson, 583.
y. Singer, 320.
Singer Mfg. Co. y. Fleming, 860.
Singleton y. Boyle, 288.
Sintzenick y. Lucas, 614, 623.
Sioux County y. Jameson, 532.
Sipe V. Copwell, 274, 939.
V. HoUiday, 009.
Sipes y. Whitney, 868,
Sipley y. Wass, 433.
Sisk y. WoodruflP, 571.
SIter*8 Appeal, 438.
Sivers v. Sivera, 707.
Skeeles y. Shearly, 436.
Skeen y. Engine & Thresher Go., 738i.
Skelly y. Jones, 607.
Skidmore y. Bradford, 253.
V. Bricket, 529.
SkiUman v. Greenwood, 88.
Skhiker y. Smith, 954.
Skinner, In re, 585a.
y. Bryce^ 338.
T. Carter, 39.
V. Dayton, 707.
V. Deming, 378* 384.
T. Franklin Co., 546, 750.
V. Machine Co., 617.
y. Moore, 245.
y. Terry, 89, 297, 335, 346a.
CASES
[References to cecUons. SS 1 to
Skipw!th*8 Ex*r v. Cunuiughiim, 441,
442.
V. Strother, 379.
Kkirving y. Insnrance Co., 285, 36G.
Sklower t. Abbott, 404, 453.
8kolt In re, 729.
Skripe v. Simmons, lUOO.
Skjm T. Consolidated Co., 138.
Slack v. Perrine, 858, 881, 889, 922.
V. Wood, 307. 384.
Slade V. Le Page, 261.
Slade*8 Case.. 729.
Slagie V. Bodmer, 29.
T. Entrekln, 589.
Slappey r. Uodge, 381.
Slater's Appeal, 422.
SUter T. Skirving, 91, 326, 506, 620,
624, 627.
»laUer t. Glover, 644.
Siattery v. Jones, 423.
Siauter t. Chenowitli, 677.
Slarton T. SmlUe, 498.
Sledge T. £lliott, 273.
Slee T. Bloom, 583.
Sievln ▼. Brown, 650.
Slldell T. Bank. 252.
Slie V. Finch. 1007.
Sllnginff y. Slsler, 36.
SiiTltzki y. Town of Wlen, la
Sloan v. Cooper, 109.
V. I^wis, 24a
V. McKinstry, 271.
r. Thompson, 273.
Slocomb, Ex parte. 109.
V. I.izardi, 673.
Slocum y. Wheeler, 939.
y. Wilbour, 714.
Sloo v. Bank, 300.
y. Lea, 77(5.
Slndor y. Graham, 311.
Sly y. Hunt. ««.•».
SmaU y. Champeny. 802.
y. Douthltt 137.
y. Haskius, 510, 657.
y. Reeves, 337.
Smalley v. Edey, 629. 718.
SmaU's Appeal, 444, 451, 511, 683.
Smallwood v. Trenwlth, 321.
Smead Foundry Co. v. Chesbrough,
50.
Rmedes v. llsley, 372, 917.
Hmedley v. Tucker, 734.
Smith, Ex parte, 2.'>5. 258.
CITED.
499 in Yol. 1; residue in vol. 2.]
Smith y. Abbot, 291.
y. Adams, 34, 713.
y. Alexander, 998.
y. Alton, 301.
y. Armstrong, 154.
y. Ass n, 443, 444.
y. Auld, 719.
v. Bank, 510.
y. Beard, 189.
y. Berry, 761.
v. Black, 351. 770, 776.
v. Bonsall, 636.
v. Borden. 188, 681.
v. Bowditch, 325.
V. Bowes, 168.
y. Bowker, 213.
y. Brannan. 165. -
y. Briggs, 1005;
V. Butler, 367.
v. Chandler, 346.
y. Chapin, 604.
V. Chenault, 116.
v. Chichester, 180.
v. Chilton, 757.
V. City of Boston, 27.
v. City of Newbem, 317.
y. Coe, 181.
y. Compton, 507.
y. Condon, 958. 1008.
y. Coopers, 772.
y. Coray, 494.
y. Curry, 100.
y. Cuyler, 293.
y. Delanty, 472.
v. Deweese, 358.
V. Dodds, 105.
V. Durrett, 378.
v. Eaton, 493.
V. Elliott, 742, 783, 787.
v. Evans, 1005.
y. Everly, 395, 470.
y. Eyre, 417.
y. Ferris, 703.
v. P'loyd County, 699.
y. Fowle. 279.
V. Fox, 158.
y. Frankfleld, 611, 683.
y. Frost, 968.
y. Gayle, 577.
y. Gould, 999.
V. Grady, 837.
V. Gray, 2r»5.
V. Hall, 3G0.
clxxi
ClXXii GASES
[References to sections. §§ 1 to
Smith Y. Harrison, 8.
V. Hays, 368.
y. Henderson, 290.
y. Hess, 254.
y. Hogg, 442, 4G2.
V. Hood, 132, 137, 159.
y. Hughes, 1007.
y. Ingles, 433.
y. Inhabitants of Brunswick, 742.
y. Insurance Ck)., 805.
y. Iron Ck)., 958, 1>(J3.
y. Johnson, 33, 374, 162.
y. Jones, 734.
y. Kammerer, 3G2.
y. Kander, 859, 873.
y. Keen, 267.
y. Kennedy; 101.
y. Keruochen; 504.
y. Knowlton, 240.
y. Kreager, 810.
y. Lang, 99(i
y. Lathrop, 853, 865, 939a.
y. Lewis, 206, 644, 828.
y. Los Angeles & P. R. Co., 278.
y. Lowden, 1000.
y. Lowry, 372.
y. McClure, 351.
y. McGool, 682.
y. McEvoy, 29.
y. McCutchen, 231.
y. McDonald, 195, 197.
y. McLain, 378.
y. McNeil. 713.
y. May, 27.
y. Mayo, 54.
y. Meredith, 468.
y. Mill Co., 83.
y. Miller, 118, 321, 351, 992.
y. Moore, 107, 572. 867.
y. Morrill, 253, 35a
y. Morse. 423.
y. Mullins, 155.
T. Mumford, 958.
y. Myers. 220.
y. Nicolls, 838, 845. 847.
y. Noe. 324.
T. Ormsby, 253a.
y. Palmer, 291.
V. Peck, 945.
y. Perkins, 305.
V. Powell. 378.
y. Powers, 16.
y. Pringle, 70.
CITED.
489 in TOl. 1; residue In toI. 2.]
Smith y. Quarles, 368.
V. Railroad Co.. 29. 664.
V. Ramsey. 248.
y. Redus, 160.
V. Reed, 1010.
y. Rhoades, 898.
y. Rice, 282.
,y. Richards, 425.
y. Rhies, 779. 780.
y. Robinson, 159. 346.
y. Rountree. 611, 761.
y. Sahler, 32.
y. Sayage, 446.
y. Saxton, 293.
y. Bchoenberger, 993.
y. Schreiner, 510, 685.
y. Schwartz, 458.
y. Schwed. 297a, 317.
y. Shaw, 245, 513.
y. Shawano Co., 34.
y. Sherwood, 623, 647, 650.
y. Simms, 50.
y. Sims, 641.
y. Singleton, 782.
y. Smith [17 111. 482] 857.
y. Smith [22 Iowa, 5161 290.
y. Smith 113 Gray (Mass.) 209J
803.
y. Smith [20 Mo. 166] 320.
y. Smith [51 N. H. 5711 4.
V. Smith [56 N. J. Eq. 222, 37
Atl. 49] 504.
y. Smith [40 App. DIv. 251, 57 N.
Y. Supp. 1122] 158.
y. Smith [2 Johns. 285] 824.
y. Smith [2 Wend. 624] 16.
y. Smith [4 Wend. 468] 16.
y. Smith [117 N. C. 348. 23 S. E.
270] 63.
y. Smith [135 Pa. 48, 21 Atl. 168]
497.
y. Smith [55 S. C. 507. 33 S. K.
583] 610.
y. Smith [23 Tex. Civ. App. 304,
55 S. W. 541] 186.
y. So RIU, 141.
y. State. 97. 177, 220.
y. Storage Co.. 343.
y. Talbot. 620, 621,
y. Tallapoosa County. 985b.
y. Taylor. 368, 390.
y. Thomasou, 44.
y. Town of Ontario, 614.
CASES CITED.
[ReferencM to secttona. K 1 to 499 in 70l. 1; residue in yoI. 2.]
clxziii
Smith ▼. Trust Co., 857, 806.
T. Timstead, d41.
T. Tupper, 211, 237. 275.
T. Wachob, 330.
T. Walker, 6C8.
Y. Wallace, 3(rr.
T. Watson, 340a.
T. Way, 729, 738.
T. Weeks. (J07, 75a
V. Wehrly, 412, 483.
V. Wells, m.
T. Weston, 345a.
T. Whiting, 5(H. 726w
T. WUlard, 446.
T. WiUiams, 462.
T. Wilson. 155, 306, 319.
T. Wood, 152, 273.
Soilth's Adm*r y. Rollins, 211, 324.
Smith's Adm'rs y. Yanderborst, 960.
Smith's Appeal, 40a
Smith's Bstate, In re, 513.
S^mith*s Ex'r y. Miller, 992.
Sodlth's Lessee y. Trabue's Heirs, 549.
Smithson y. Dillon, 177.
y. Smithson, 297.
Smock y. Dade, 299, 989.
Smyth y. Balch, 374.
Snapp y. Commonwealth, 588.
Sneden, In re, 533.
Sneed y. Sneed. 1001.
Sneeden y. Harris, 35.
Snen y. Dwigbt, 27.
T. Faussatt, 821.
T. Iryine, 139.
y. Maddox, 946.
Snelling y. Kroger, 641.
y. Mortg. Co., 359. 585.
Sneylly y. Wagner, 250.
Snider y. Croy, 624.
y. Greatbouse, 574, 990.
y. Rinehart, 381, 386.
Snow. Kx parte, 258.
T. Oarpenter. 128.
T. Conant 16.
y. Hawpe, 312.
y. Mitchell, 883. 970.
T. Rich, 512.
T. Russell, 600.
Snowman y. Harford, 560.
Snow Steam Pump Co. y. Dunn, 744.
Snyder y. Berger. 604.
y. Botkin, 438.
y. Crltchfield. 857. 868, 883. 916.
Snyder y. Snyder, 206, 875.
y. Stafford. 401.
V. Yannoy. 378*
Snyder's Lessee y. Snyder. 642.
Sobey y. Beiler, 549, 655.
Sobolisk y. Jacobson, 617.
Society y. Hartland, 504.
Soden y. Roth, 663.
Sohier y. Merrll, 365.
Solomon y. C. M. Schneider & Co., 59.
y. Fuller, 165.
Somers y. Losey, 264.
y. Schmidt, 569.
Someryille y. Brown, 597.
T. Donaldson, 654.
Sommermeyer y. Sommermeyer, 271.
Sonnenberg y. Stelnbach, 536.
Sonnenthell y. Moody, 780.
Soper y. Fry, 57.
y. Manning, 691, 718.
S(HrreIl y. Samuels, 270.
Soulard y. Oil Co., 801.
Soursin y. Salorgne, 752.
Souter y. Baymore, 510, 686.
South American & Mexican Co.. In le^
508. 705.
South Bend Chilled Plow Co. y. Man-
ahan. 224.
Southern Bank y. Humphreys, 246.
y. Ins. Co., 475.
Southern Bank & Trust Co. y. Folsom^
549.
Southern Bell Telephone & Telegraph
Co. y. D'Alemberte, 138.
Southern Bldg. & Loan Ass*n y. Brack-
ett, 231.
Southein Ex. Co. y. Craft, 376.
Southern Ins. Co. y. Hardware Co.,
897, 939.
Southern Kansas Ry. Co. y. Brown,
155.
y. Showalter. 147.
Southern Minnesota Railway Exten-
sion Co. y. Railroad Co., 504, 630,
731.
Southern Pac. R. Co. y. U. S., 504, 606,
600, 655, 787.
V. Wiggs, 530.
Southern R. Co. y. Bouknlght, 004.
V. Brigman, 685, 790.
V. Cable Co., 40.
V. Raney, 745.
Southgate y. Montgomery, 518, 548.
clXXiv CASES
CReferences to sectloiiB. S8 1 to
South Sail Bernardino Land & Imp.
Co. V. Bank, 673.
Southside R. Co. y. Daniel, 628.
Southwestern Telegraph & Telephone
Co. v. Jennings, 339.
South & North A. R. Co. v. Donovan,
740.
V. Henlein. 734. 769.
v. Railroad Co., 29.
Soward v. Coppage, 549.
Sowles V. Witters, 1000.
Spafford v. Beach, 1006.
V. City of Janesville, 306.
Spahr V. Nicklaus, 100.
Spalding V. Congdon, 127, 12a
V. Crawford, 351.
V. Wathen, 190, 200.
Spangler t. Rambler, 636.
Spann y. Crummerford, 892.
Spargur v. Romine, 790.
Sparhawk y. Buell's Adm'r, 644.
V. Wills, 609, 747.
Sparks y. Bank, 446.
y. Etheredge, 536.
y. Walton, 651.
Sparrow y. Strong, 162.
Spaugh y. Huifei*, 941.
Spaulding y. Baldwin. 700, 966.
y. Chamberlain, 522.
y. Swift, 299.
y. Thompson, 341.
Spaur y. McBee, 655.
Speake y. Richards, 1007.
Spear y. Carter, 53.
y. Door County, 723.
y. Flint, 299.
y. Tidball, 729.
Specklemeyer y. Dailey, 875.
Speed's Bx'rs y. Hann, 155.
Speer y. McPherson, 407.
Spence y. Brown, 404.
y. Morris, 227.
y. Rutledge, 147.
Spencer y. Brockway, 227, 677, 857,
871.
y. Dearth, 504, 500, 574, 592, 604,
729.
y. Haug, 461.
T. Johnston, 1005.
y. McGonagle, 262.
y. Parsons, 190.
y. Reynolds, (J la.
V. BIppe, 399.
CITED.
499 in vol. 1; residue In vol. 2.]
Spencer y. Thistle, 347.
V. ^'igneaux, 369, 371.
Spicer y. United States, 707.
y. Waters, 295.
Spiedel Grvicery Co. y. Armstrong, 182
Spiehler y. Asiel, 178, 319.
Spier y. Corll, 897.
Spilman y. Payne, 986.
Spitley y. Frost, 691.
Spofford y. Smith. 633.
Sponsler*s Appeal, 264.
Spoouer y. Leland, 361, 362.
'Spoors y. Co wen, 619.
Sprague y. . Bond, 45.
y. Haiues, 194.
y. Jones, 160.
y. Locke, 32.
y. Tyson. 585.
y. Waite, 779.
Spraker y. Bartlett 378.
Spring y. Short, 445.
Springer y. Blen, 619.
y. Gillespie, 340a.
y. Shavender, 680.
y. Westcott, 242.
Springfield F. & M. Ins. Co. ▼. Hambgr»
185.
Spring Run Coal Co. y. Tosier, 49S.
Springfield Mfg. Co. y. West, 483.
Springsteeue y. Gillett, 966.
Sprott y. Reid, 7, 8, 11, 31.
Spurgin y. A dam son, 600.
y. Bowers, 270.
Spm'lock y. Noe, 205.
y. Railroad Co., 609.
Spurr y. Railroad Co., 782.
Squler y. Squier, 57.
Stackhonse y. Zuntz, 200.
Stacy y. Thrasher. 563.
Stadler y. Allen, 431.
Stafford y. Clark, 785, 787.
y. Cronkhite, 655.
V. McMillan, 322.
y. Maddox, 742.
V. Nutt, 208.
Stahl y. Mitchell. 283. 896.
y. Railroad Co.. 84.
V. Webster, 153.
Stahlman y. Watson, 419.
Stakke y. Chapman, 989.
Stallcup y. City of Tacoma. 546, 613.
754.
Stallings y. Gully, 83.
CASES CITED.
clxxv
tReferencei to lectionB. H 1 to
Stammers ▼. McNaugbten, 195.
Stamp V. Franklin, 556.
Stanard y. Rogers, 387.
Stanbrough v. Cook, 666, 683.
StancUl Y. Gay, 193, 194.
Y. James, 785.
Standard Distilling Co. v. Freyliau, 22.
Standard Foundry Co. v. Schloss. 581.
Standard Steam Laundry v. Dole, 21.
Standish y. Parker, 657, 742.
Standley y. Amow, 225.
Y. Manufactiu-iDg Co., 32.
Y. Roberts, 28. ti39c.
Stanford y. Connery. 957.
Stanhilber y. GraYes, 446.
Stanley y. Johnson, 577.
Y. Leahy, 782.
Y. McWhorter, 462.
Y. Stanley, 229. 275.
Y. SuUiYan, 425.
Stannard y. Hubbell, 616.
Stannis y. Nicholson, 122, 443.
Stansell y. Comiog, 185.
Stansfleid, In re, 977.
Stanton y. Bmbry, 859.
Y. Embrey, 939a.
Y. Heard, 36.
Stanton-Thompson Co. y. Crane, 325,
352.
Staples Y. Goodrich, 734.
Stapleton y. Dee, 657.
Starbird y. Moore, 299.
SUr Brewery v. Otto, 279.
Starbuck y. Dunklee, 22.
Y. Mnrray, 275, 276, 897, 901.
Stark Y. BUllngs, 115.
Y. Ratcliff, 915.
Y. SUrr. 744.
Starke y. Wilson, 560.
Starkweather y. Loom is. 985.
Starling y. Plow Co., 609.
Stames y. Loan & Banking Co., 378.
Starr y. Barton, 255.
Y. Haskins, 9a3. 956.
Y. Stark, 664.
Starr Cash & Package Car Co. Y.
Starr, 87.
Starry y. Johnson, 210.
State Y. Addison, 98.
Y. Adler, 533.
Y. Allen, 34.
Y. AlUng, 173, 516.
V. Anderson, 541, 690.
499 in Tol. 1; residue in yoI. 2.]
St^te Y. Anone, 173, 516.
Y. Appleby, 985d.
Y. Armington, 927.
V. Bank, 16, 216, 307, 750, 973.
Y. Banks, 586.
Y. BatcheJder, 530.
Y. Batt, 584.
Y. Bechdel, 533.
Y. Berry, 282.
Y. Bierwirth, 691.
Y. Billings, 83.
Y. Bloom, 255, 256.
Y. Boiler, 609.
Y. Bowen, 641, 870, 871, 967.
Y. Boyce, 939a.
Y. Bradneck, 529.
Y. Brandhorst, 246b
Y. Brown, 483, 754.
Y. Burton, 584.
Y. Carroll, 173, 516.
Y. Casey, 340.
Y. Cason, 588.
Y. Castleberry, 174.
Y. Chamber of Commerce, 516.
Y. City of Jacksonville, 985c.
Y. City of Madison, 965a.
Y. City of New Orleans, 9, 965a.
Y. Clark, 106.
Y. Com'rs, 240, 532, 583a, 783.
Y. Conoly, 2G1.
Y. Cooley, 697, 754.
Y. Cornell, 718.
Y. Coste, 589.
Y. Court, 21, 32, 297, 302, 324, 641.
Y. Currie, 113.
Y. Daniels, 283.
T. Daugherty, 153.
Y. Dickinson, 107.
Y. Donegan, 589.
Y. Douglass, 98.
Y. Duncan, 297, 346a,
Y. Elgin, 341.
V. Ely, 282.
Y. Falconer, 29.
Y. Fenderson, 255.
Y. Fleak, 897.
Y. Fosdlck, 217.
Y. Gachenhelmer, 282.
Y. George, 98.
Y. Georgia Co., 30.
Y. Gibson, 209.
Y.. Gittings, 86.
Y. Gleason, 216.
clxxyi CASES
[References to sections. §S 1 to
State V. Gloyd. 754.
V. Greeu, US.
V. Harper, 154.
y. Harrington, 981«
V. Harris, 985a.
y. Headlee, 613.
V. Hearn, 996.
V. Helmer, 857, 871.
V. Herod, 29.
y. Hincliman, 860.
y. Hoeflluger, 804.
y. Holt, 589.
y. Horton, 329.
V. Hull, 590.
y. Hunter, 107.
y. Insurance Co., 609.
y. Intoxicating Liquors, 529.
y. James, 98.
y. Johnson, 540, 790.
y. Jones, 216.
V. Judge, 27, 109, 157, 179.
y. Jumel, 109, 610, 750.
V. Justices, 29.
V. Kaye, 610.
V. Kennedy, 534a, 582.
V. Kibling, 97.
V. King, 163, 308.
V. Kinne, 483.
V. Klein, 107.
V. Knight, 180.
y. Leathers, 97.
y. Little, 290.
T. Loclchart, 346a.
y. Loye, 54.
y. McArthur, 1.
V. McBride, 758.
y. McGlynu, 635.
y. Mackin, 246.
y. Mangum, 698.
V. Metzger, 282.
y. Moran, 156.
y. Morton, 628.
y. Moss, 253a, 707.
y. Nutter, 586.
y. O'Neill, 340.
y. Ottlnger, 32.
V. Parlcer, 22.
y. Patterson, 86.
y. Penney, 804.
y. Perry, 33.
y. Porter, 173, 516.
y. Prinun, 156, 165.
y. RaUroad CJo., 107. 298, 584, 796.
CITED.
499 in Yol. 1; residue in yol. 2.]
State y. Ralney, 584.
y. Hamsburg, 514.
y. Reigart, 641.
y. Richardson, 321.
y. Roberts, 177.
y. Robinson, 486i
y. Rogers, 261.
y. Ross, 266.
y. Roth, 708.
y. St. Gemme, 261.
y. Schlachter, 932.
y. Schoonoyer, 740.
y. Shaw, 22.
y. Sheldon, 985f.
y. Smith, 165.
y. Sowders, 905.
y. Spikes, 576^ 783.
y. Staylor, 707.
y. Steen, 981.
y. Stewart, 746i,
y. Stock, 584.
y. Sup'ra, 269.
V. Swift, 103.
y. Tate, 160, 311. 327.
T. Thompson, 268.
y. Torinus, 747.
y. Tow, 261.
y. Town of Beloit, 985a.
y. Town of Union, 2ia
y. Trammel, 938.
y. Treasurer, 305.
y. Trilling, 29.
y. Vogel, 982.
V. Wear, 261.
V. White, 157, 300.
y. Williams, 176, 209.
y. Works, 22.
y. Young, 1016.
State Bank v. Bartle, 599.
y. Carson, 417, 425.
V. CJoxe, 1001.
y. Green, 22.
V. Roddy, 27.
y. Rude, 729.
y. Stanton, 381.
State Board of Agriculture ▼. Meyerii
347.
State Ins. Co. y. Waterhouse, 376.
State Line & S. R. Co., Appeal of,
439a.
State Nat. Bank y. Ellison. 284.
States y. Cromwell. 321.
State Treasurer y. Foster, 482a.
CASES
[Reference! to sections. 93 1 to
State Trust Co. v. Machine Co., 938c.
r. Mfg. Co., 830a.
Stanffer v. Remick, 677.
^^tau])ton v. Harris, 448.
Staunton Perpetual Building & Loan
Co. V. Hadeu, 83, 2U0.
Steaui-Gauge & Lantern Co. y. Mey-
roso. 728,
Steamship Richmond Ilill Go. v. Sea-
ger, 87.
Steam V. Anderson, 660.
Steams v. Lawrence, 585a. 630.
V. Steams' Adm'r, 100.
V. Wlborg, 676.
V. Wright, 271.
Stehbins t. Savage, 32.
Stedman v. Patchin, 627.
V. Poterie, 605.
Sited V. Knowles, 101.
Steel T. Long. 540.
Y. Smith. 228, 004.
Steele v. Bates, 909.
r. Dimcan, 315.
T. Hanna, 971.
r. Lineberger, 550, 560.
Y. I'almer. 184.
Y. Kenn, 635.
Y. Taylor, 432.
Y. Thompson, 945, 051.
Steele County v. Erskine, 683.
sttN'lman y. Sites' Ex'n, 620.
V. Watson, 86.
Steen y. Bennett, 250.
Y. Steen. 220, 282.
Steere y. lioagland, 038b.
V. Tenney, 173. 876.
Steers y. Daniel, 420.
St elf ens y. Cameron. 406.
stettlns Y. (iumey, inni.
strbr Y. Ollbermann. 235.
Stein Y. Burden, 376.
y. The Prairie Rose, 734.
Y. Railroad Co., 16.
Steinbach v. Insurance Co.. 678.
Steinbridge's Appeal. 355.
stMuer V. Bank, 23.
Y. I^nz. :C»8.
Y. SchoU, 3.'>1.
V. Scholze. 050.
Sr<Mnhanlt v. Baker. 273.
Strinhatier y. Colniar. 268.
SN'liiman v. Kwing. 55.
Strinjion Y. Board, 715.
I LAW.irD<i.— I
CITED. clxxvii
499 in vol. 1; residue in vol. 2.]
Stelle V. Shannon, 526.
Steltzer v. Steltzer. 494.
Stenberg v. State, 253a.
Stenhbuse y. Bouum, 211.
Stephen, Ex parte, 533.
Stepliens v. Cherokae Nation, 4.
V. Fox, 583.
V. Hewett, 252.
V. Howe, 403, 070.
V. Jack, 571, OOi.
V. Motl, 538.
V. Koby, 874.
Y. Turner, 273.
V. Wilson, les.
Stephen's BiX'rs Appeal, 407.
Stephenson y. Boody, 660.
Stepp V. Ass'n, 107.
Sterling y. Fleming, 62.
Sterling Mfg. Co. v. Early, 112, 405.
Stem Y. Bank, 620.
Y. Mayer, 63.
Sternbergh y. Schoolcraft, 205.
Sterner v. Gower, 740.
Stems Y. Marks, 592.
Stetson Y. City of Bangor, 248.
Stettauer y. Trust Co., 306.
SteYens y. Bank, 317, 449.
V. Briggs, 701.
Y. Brown, 248.
V. Damon, 737.
V. Deering, 190, 190.
V. Dubarr>', 55.
V. Fisher, 230. 071.
V. Fuller, 255.
Y. Hein, 010a.
V. Hertzler, 388.
Y. Hughes, C'O. 057.
V. Lock wood, 734.
Y. Man gum, 286.
V. Miller, 253a, 763, 085a.
V. Pendleton, 586.
Y. Pierce, 738.
V. Reynolds, 281, 511.
Y. Ross, d5.
V. Stevens, 510.
V. Stone, 058.
Y. Taft. 640.
Y. Thompson. 600.
Y. Wadlelgh, 506.
Stevens' Ex'rs y. Let», 142.
Stevenson v. Black, 467.
Y. Bonesteel, 261.
V. Kleppiuger, 611.
clxxviii CASES
[References to sections. §§ 1 to
Steveuson v. Virtue, 327.
Stevlsou V. Earnest, 124.
Stewart v. Anderson, 229, 281.
V. Aruiel, 1015.
V. Assurance Co., 906.
V. Bank, 16.
V. Beef Co., 214.
V. BocUoy. -24.
V. Bryan, 8J).
V. Cannon, ;i45.
V. Coder, 4:58.
V. Colwell. 495.
V. Dent, 735.
V. Gibson, 490.
V. Golden, 311.
V. Goode, 79.
y. Jones, 33.
V. Jury, 98of.
V. JusUeets, 485.
V. Lee, 942.
V. McHarry, rj30.
V. Martin, 069.
V. Montgomery, 536, 500.
V. Parsons, 315.
V. Perkins. 439a.
V. Peterson's Ex'rs, 484, 958.
V. Railroad Co., 100, 415, 449, 600.
V. Register. 511.
V. Robinson. 396.
V. Schaeffer, tX)7.
V. Scully, :352.
V. Spaulding. 892.
V. Stebbins, 731.
V. Stewart, 154, 857, 890. 897.
V. Thomas, 573.
• V. Thomson, 286.
V. Trust Co., 583.
V. Village of Ashtabula. 518.
V. Walters, 50.
V. Warner, 815, 820.
Stiikney v. Davis. 204.
Stifel V. Lynch, 747.
Stlgers V. Brent. 205.
Stiles V. Brown, 13S.
V. HlmnielwrlglU. 749.
V. Murphy, 432.
V. Stewart, 966.
SUll V. liombardl. 674.
Stille V. Wood, 484.
Stillwell V. McNeely, 585.
V. Stillwell. 321.
Still weirs Estate, In re, 284, 043.
CITED.
4D0 in vol. 1: residue in vol. 2.]
StIIson V. Rankin, 347.
Stllwell V. Carpenter. 367, :.70.
V. StUw^ell, 158.
r.timson v. Van Pelt, 208.
Stinerville & B, Stone Co. v. White.
159.
Stinnett v. Bank, 384.
Stites V. M(.-(;ee. 319.
Stilt V. Kurtenbach, 153. ICl. 2 r..
Stivere v. Ritt, 352.
Stockdale v. Johnson, 163, 165.
Stocking V. Hanson, 200, 313.
Stockton V. Brlggs, 367.
V. Ford, 737.
Stockton Combined Harvester & Agri-
cultural Works V. Insurance Co., -*4.
Stockton Laundry C:ise, 257.
Stock well V. Byrne. 716.
v. Coleman, 935.
V. McCracken. 8119.
V. Webster, 351.
Stoddard v. Benton, 945, 950.
V. Mcllwain, 617.
V. Thompson, 576.
Stoddard Mfg. Co. t. Mattice, 270.
958.
Stoddart v. Van Dyke, 208.
Stodghlll V. Railroad Co.. 743.
Stoetzel V. Fullerton. 200.
Stoff V. Mc(Jinn, 638a.
Stokes V. Fraley, 658.
V. Knarr, 376.
V. Maxwell, 550.
V. Morrow, 553.
V. Pottery Co., 59.
V. Stokes, 617, 703.
Stoll V. Mining Co., 21.
Stoltz V. Coward,. 509.
Stone V. Anderson, 141.
V. Bank, 534a. 537.
V. City of Augusta, 522.
V. Dickinson, 777. 779, 782.
V. Ellis, 284.
V. Lew man, 373, 973.
V. Mooily, 383.
V. Myers, 229.
V. SkeiTy, 377.
V. Stamping Co., 750.
V. Tucker, 1008.
V. V. S., 529. 726.
V. Wri'-nwright 913, 914.
V. Williams, 68.
CASES
[References to sections. §§ 1 to
Stone V. Wood, 412, 500, Wl.
Stony Island Hotel Co. v. Johnson.
165, 351.
Stoops V. Wittier, 58C.
V. Woods, 5iiU.
Stoppeubach v. Zohrlaut, 27.
Storer t. Lane, 291.
Storey v. Nichols, 79.
T. Weaver, 348.
Story V. Goiiimercial Co., G85.
V. Elliot 182.
V. Patten, 1000.
V. Ware. 80.
Story & Clark Organ Co. v. Rendle-
man. 97.
Store T. Boyce. 996.
Stotz V. Collins, 324.
Stout V. Baker, 210.
V. Lewis, 339, 343.
T. Slocum, 367.
V. Stout, 677.
T. Taul. 577.
V. Van Kirk, 953.
Stoutenborough v. Board, 313.
Stoutenburg v. Yandenburgh, 57.
Stoutimore v. Clark. 549.
StOTall T. Banks, 25, 586, 589.
T. Hibbs, 240.
V. OdeU. 446.
StOYer V. Dureu, 993.
V. Hough, 312, 351.
Stowell V. Chamberlain, 624, 693, 709,
726.
Strang v. Moog, 518. 720.
Stntton V. iJewey, 43.
Stranb v. Simpson, 364.
Straus V. Bodeker*s Ex*x, 447.
Strause v. Braunreuter, 58.
Strauss t. Ayres, 597.
V. Meertlef, 624, 752.
Straw V. Murphy, 691.
V. Railroad Co., 707.
Strawsine v. Salisbury, 1012.
Stmj-er v. Johnson, 552, 054.
V. Beckman, 501.
Street v. Banking Co., 795, 798.
Strickland v. Cox, 18.
Strl«lde V. Saroul. 577.
Strike, In re. 7M.
Striker v. Kelly, 279.
Stringer v. Adams. 618, 726.
V. Insurance Co., 814.
Strode v. Broadwell, 1012.
CITED. elxxix
499 in Yol. 1; residue in vol. 2.]
Strong V. Comer, 8G.
V. Insurance Co., 787.
V. Lawrence, 605.
V. Wheaton, 583.
Stroup V. Sullivan, 387.
Strozier v. Howes, 360.
St ruble v. Maloue, 889, 898.
Stuart V. Aumiller, 248.
V. City of Logansport, 155.
V. Hurt, 5J83.
V. Lander, 7, 058.
V. Palmer, 221, 226.
V. reay, 1016.
V. Saddlery Co., 720.
Stubbletield v. McRavou, 644.
Stubbs V. Leavitt, 376.
Studdert v. Hassell, 80.
Studebaker Bros. Mfg. Co. v. Hunt
169.
Stufflebeam y. De Lashmutt, 506.
Stults V. Forst, 720.
Stump V. Long, 319.
Stupp V. Holmes, 193.
Sturdy V. Jackaway, 655.
V. Jacoway, 250.
Sturges V. Beach, 566.
Sturgess v. Bank, 441.
Sturgis V. Rogers, 252, 527.
Sturglss V. Dart, 346.
Sturm V. School Dist, 317.
Stuyvesant v. Weil, 277.
Styles V. Harrison, 182.
V. McXeirs Heirs, 950.
.'iiarez v. City of New York, 563.
.Suber V. Chandler, 269.
Sublette V. Railroad Co., 960.
Suddarth v. Lime Co., 310.
Suesenbach v. W^agner, 939b.
Sugjr V. Thornton, 153.
Sulleuberger v. Gest, 16.
Sullivan v. Ball, 290.
V. Hendrickson, 425.
V. Lickle, 434.
V. Shell, 340, 378.
v. Sweeney, 309.
Sullivan's Sav. Inst v. Clark, 166.
Sully v. Campbell, 774.
Summar v. Jarrett, 278.
V. Owen, 15.
Summerlin v. Dowdle, 79.
Summers v. Brewing Co., 529.
v. Dame, 447.
V. Oberndcrf, 595.
ClXXX CASBS
[References to secttons. 89 1 to
Summersett v. Summersett's Adm'r,
165.
Summerslde Bank v. Ramsey, S92.
Sumner v. Marcy, 359.
V. Whitley, 378, 391.
Sumrall v. Smnrall, G41.
Suudberg v. Temple, 351.
Sun Mut. Ins. Co. v. Sesligson, 505.
Superior Consol. .Land Co. v. Dxmphy,
34<ja, 347.
Supervisors v. Randolph, 985a.
V. U. S., 2o3a.
Supervisors of Carroll County v. U. S.,
U8of.
Supervisors of Lee County v. Rogere,
985e.
Supervisors of Manitowoc County t.
Sullivan. 179.
SuperTioors cf Washington County v.
Durant, 985b.
Supplee V. Ilalfmann, 493.
Supples V. Cannon, 624, 627.
Supreme Council of Royal Arcanum v.
Carley, 917.
Siu-get V. Newman, 683.
Susquelianna Mut. Fire. Ins. Co. y.
Mardorf, 628.
Suter V. Findley, 492.
Sutherland y. De Leon, 245, 261, 513.
Sutter V. Cox, 213.
Sutton V. Dameron, 650.
V. Pollard, 650.
V. Read, 530.
V. Sutton, W7, 963.
V. Tyrrell, 299.
Suydam v. Barber, 770, 861.
V. Hoyfs Adm'rs, 960.
V. Pitcher, 225, 306.
Swafford v. Howard, 985.
Swaim V. U. S., 250, 524.
Swain v. Naglee, 126, 130, 135, 155,
im.
v. Smith, 151.
Swamseot Machine Co. v. Walker, 541.
Swan, In re, 255.
V. Horton, 193.
V. House, 641.
Swank v. Railroad Co., 787.
Swann v. Broome, 182, 441.* 442.
Swanson v. Jordan, 358.
V. Railroad Co., 701!.
Swanstrom v. Marvin, 185.
Swarts V. Stccs, 400.
CITED.
499 in vol. 1; residue In vol. 2.]
Swartz V. D. S. Morgan & Co.. 325.
Swasey v. Antram, 200.
Swayne v. Lyon, 55, 190, 191, 628.
Swearengen v. Gulick, 271. '
Sweeney v. Bailey, 1005.
V. Pratt, 439.
T. Smith, 191.
V. Stroud, 75.
Sweeny v. Delany, 157.
Sweesey v. Kitchen, 61, 354.
Sweet V. Brack ley. ^.";v MiKi, 802.
Y. Jacocks, 434, 445.
V. Maupin, 624, irM.
V. Turtle, 616, 617.
Sweetland v. Buell. 445.
V. Tuthill, 144.
Sweetser v. Davis. 585a«
Sweezy v. Jones, 429.
Swenk v. Stout, 567.
Swett V. Black, 579,
Swift V. Allen, 164.
V. Calnan, 141.
V. Green, 233.
V. Meyers, 897, 904, 939.
V. Stark, 857, 914.
V. Yanaway, 274, 275, 557*
Swift & Co. V. Fue, 101.
Swlggart V. Barber, 218, 261.
Swinford v. Teegarden, 754.
Swing V. Woodruff, 55.
Swinney v. Watkins, 253. ^
Swope V. Schwartz, 541.
Sydam v. Cannon, 99$).
Sykes v. Anderson, 79a.
V. Bonner, 769.
V. Gerber, 734, 746.
V. Thornton, 32.
Sylvester v. Downer, 101.
Syme v. Trice. 193, 321.
Symson v. Selheimer, 66.
Szerlip t. Baier, 324, ;;52.
Tabler v. Mitchell. 230.
Tabor v. The Cerro (iordo, 674.
V. Payne, 21.
Tacoma Grocery Co. v. Draham, 261.
Tacoma Lumber & Mfg. Co. v. Wolff.
321, 348.
Tadloek v. Eccles, 245.
Taggart v. Wood, 365. 366.
CASBS
[Referencef to aections. H 1 to
Talbot V. rierce, 36.
Talbott V. Suit. 248,
Taliaferro v. Steele, 329.
Taliaferro's Adm^r v. Bank, 35U.
Talley v. Curtin, 44.
TaUmadge v. Sill, 436.
Tallnian v. Farley, 445.
Tally T. Reynolds, 9(>3.
Talmage v. Chapel, 563, 677, 963.
T:im V. Shaw, 571.
Tarns V. BuUitt, 5W. 597.
V. Lewis, 611, 624.
Tanguey t. O'Connell, 556.
Tankerely v. Pettis, 681, 720.
Tannenbaum ▼. Rosswog, 296.
Tanner v. Irwin, 32.
Tanton v. Keller, 154.
Tapley t. Goodsell, 127. 587.
Tappan v. Bruen, 771.
V. Heath, 970.
T. Tappan, 320.
Tarbell t. Downer, 975, 1006.
Y. Griggs, 938b.
Tarble, In re, 256.
Tarbox t. Hays, 250, 252, 286,
rarleton v. Allhnsen, 674.
Y. Cox, 199, 204.
V. Johnson, 547.
V. Tarleton, 826, 827.
Tarplee v. Capp, 641.
Tarpley t. Hamer, 399.
Tarrant Co. t. Lively, 34L
Tanrer v. Ellison, 459.
T. Rankin, 1013.
V. Tarver, 367.
Tate V. Bank, 700.
V. Carney, 530.
Tatro T. French, 530.
i'anb y. Commission Co., 784.
lanziede v. Jumei, 543, 585.
Taxpayers v. O'Kelley, 584.
Tay V. Hawley, 963.
Taylor t. Abbott, 651.
T. Barnes, 573.
V. Barron, 563, 790, 829, 853, 857,
984.
T. Beck, 58, 82. 206.
▼. Bradshaw, 386.
T. Bryden. 829, 855.
V. Castle, 726, 729.
T. Claypool. 770.
V. Corley, 98.
CITED. clXXXi
499 In vol. 1; residue in vol. 2.]
Tayltr v. Cornelius, 434, 537.
V. Cougfalan, 348.
V. Dawson, 39.
V. Dustin, 627.
V. Ervln, 182.
V. Harris, 970.
V. Heitz, 734.
V. Hulme, 1009.
V. Hunt, 589. '
V. llutcbinson, 790.
y. Johnson, 588.
V. Larkin, 693.
V. Lewis, 377.
V. Levering, 205.
V. Lusk, 305.
V. McLaughlin, 79.
V. MacLee, 29.
V. McXairy, 86.
y. Mallory, 368.
Y. Matteson, 709.
y. Means, 604.
y. Megargee, 993.
y. Neither, 556.
y. Paper Co., 733.
y. Phelps, 598, 826, 828.
y. Place. 298.
y. Railroad Co., 740.
y. Ranney, 1006.
y. Read, 44.
y. Richman, 138.
y. Root, 7, 677.
y. Rossiter, 83.
y. Rowland, 193.
y. Runyan, 115.
y. Shew, 882, 960.
y. SindaU, 321, 526.
V. Skrine, 175.
y. Smith, 33, 88. 683. 684, 857, 877.
y. State, 290.
y. Sutton, 384, 386.
y. Sweet, 32.
V. Syme, 284.
y. Taylor, 29, 116, 506, 729.
V. Trumbull, 305.
y. Walker, 194.
y. Williams. 1002.
V. Wynne, 429.
V. Yarbrough, 720, 722.
Taylor's Adm'r v. Spindle, 398.
Teaff V. Hewitt, 44.
Teague v. Corbitt. 560.
y. Whaley, 569.
clXXXii CASES
[References to sections. $$ 1 to
Toal V. Terrell, (il(>, (US.
Teasdal? ComnilsRlon Co. v. Van Hard-
euberg, «3.
Toat V. Cocke, 181.
Tebbets v. Tllton, 634.
Tebbetta v. Tllton, 288.
Tedlle v. Dill, 211.
Teehan v. Bridge Co.. IG.
Teel V. Miles, 071.
V. Yost, 8U8.
Teetor v. Abden, M7.
Telford v. Barney, 6<X).
V. Brinkerhoff, 357, 380.
Tern pel v. Dodge, 227.
Temple v. Scott, 1000.
Templeman v. Gibbs, IG.
V. Steptoe, 39, 44.
Tennessee v. Virgin, 992.
Tennessee Goal, Iron & R. Co. y.
Hayes, 681a.
Tenney v. Taylor, 275.
V. Townsend, 875.
Tenny v. Filer, 53.
Terney v. Wilson, 954.
Terre Haute & I. R. Co. v. Baker, 936.
V. People, 740.
V. Railroad Co., 360, 518, 731.
Terr?ll v. Prestell, 433.
V. State, 86.
Terreri v. Jutte, 744.
Terrett v. Improvement Co., 03.
Territory y. Hopkins, G14.
V. I.ii8 Vegas Grant, 28.
V. Railroad Co., 731.
Terry, Ex parte, 255.
y. Briggs, 12&
y. French, 213.
V. Hammonds, 707.
y. Hughes, 36.
Terry's Ex'r y. Drabenstadt, 567.
Tessier y. Lockwood, 806.
y. Wyse, iOO.
Texas Brewing Co. y. Meyer, 186.
Texas Cent. R. Co. y. Stuart, 23.
Texas Land & Cattle Co. y. Scott, 37.
Texas Land & Loan Co. y. Winter, 29,
130, 346.
Texas Land & Mortgage Co. y. Wor-
sham, 390.
Texas-Mexican R. Co. y. Wright, 363.
Texas, S. F. & N. R. Co. y. Saxton, 14,
733.
Texas Say. Loan Ass'n y. Smith, 153.
CITED.
499 In TOl. 1; residue in toL 1]
Texas Trunk R. Co. y. Jackson, 510,
085.
Texas & V. R. Co. v. Cox, 217.
V. Nelson, 740.
V. Smith. 500.
Teynham y. Tyler, 554.
Thacker y. Chambers, 2-15.
V. Thacker, 335.
Tharpe y. Crunipler, 10«).
Thatcher v. Gammon, 87, 677, 697.
y. Ilaun, 349.
y. Lyons, U85.
y. I^owell, 279.
V. Taylor, 148.
Thaxton v. Smith, 513.
Thayer v. Cabl?. OOJ.
V. McGee, 123.
y. Mowry, 902, 9!J4.
y. Printing Co., 583.
y. Trust Co., 767.
y. Tyler, 493.
Thelen y. Thelen, 275.
Theller y. Hershey. iMO. 790.
Thelusson y. Smith. 448.
Therkelsen y. Therkelsen, 22.
Therme v. Bethenoid, 118.
Thiele y. Axell. 567.
Thigpen y. Mundlne, S4.
Third Nat Bank y. Hunsicker, 1014.
V. Stone, 750.
Thiry v. Mining Co.. 15.
Thisler y. Miller, 738.
Thom y. Wilson's Ex'r, 975.
Thomas, In re, 320a.
y. Bland, 707.
y. Chambers, 341.
y. Cliurcblll, 250.
y. Desney, 40().
y. Dunning, 585.
V. Fogarty, 177.
y. Glazener, 1010.
y. Hite, 610, 0U3.
V. Hubbell, 588.
▼. Hunsucker, 2t55.
▼. Ireland, 291.
T. Irrigation Co., 754.
V. Jones, 248.
V. Joelyn, 032.
y. Kennedy, 420, 4:«.
y. Lowry, 211.
y. McDanald, 610, 006.
y. McDaneld, 508.
y. Markmann, .'88.
CASES
[References to Bections. S§ 1 to
Tbomas y. Mohler, 770.
y. Morris, HHj.
V. Morrlsott, ^22.
V. Mortjjuge Co., Si), 307.
v. Mueller, 50.
V. Xeel. 311.
V. Pendletou, 800.
V. PliHlIps, 378.
V. riatts, 1006.
V. Porter, 945.
T. Railroad Co., 29.
V. Stems, 5<>2.
V. Tanner, 878.
T. Thomae, 790.
V. Van Meter, 462.
V. Williams, 493.
T. Wilson, 981.
Tbomason v. Odum, 15, 123, 700, 730.
Tbomasson y. KercbeYal, 802.
Thomas* WiU, In re, 612.
Thompson v. AYery, 398, 407, 414.
V. Bank, 948.
V. Berry, 384.
T. Bickford, 111.
T. Brown. 585.
V. Chnrch, 182.
V. Clark, 549.
Y. Clay, 719. 720.
Y. Connell, 322, 091.
Y. Crosby, 610.
Y. Deknm, 589.
Y. Dickinson. 352.
Y. Donaldson, 640.
Y. Emmert. 775, 903, 904, 906.
Y. Fox. 90.
Y. Giffin, 510, 685.
Y. Goulding, 341.
Y. Hammond, 358.
Y. Harlow. 335.
Y. Hintgen, 77.
Y. Hubbard. 462.
Y. Jones, 957.
Y. Kimbrougb. 99.
Y. Laugblin, 357, 362, 390.
Y. McCorkle, 252, 260.
Y. McDermott, 197.
Y. Mc<;aw, 633.
Y. McMillan. 988.
Y. Mankin, 173.
V. Monrow, 880. 981.
T. Multnomnb County, 260, 522.
Y. Myrlek, 620.
CITED. clxxxiii
499 in Yol. 1; reeldue in vol. 2.]
Thompson v. Noble, 956.
V. X. T. Bushnell Co., Bl7, 629.
V. Parker, 483.
V. Railroad Co., 544.
Y. Roberts, 543.
V. Saukey, 1)91.
V. Schuster, 703.
V. Skinner, 313.
V. State, 932.
V. Stetson, 84.
V. Thompson, 158, 509, 803.
V. Tolmie, 261.
V. Turner, 138.
Y. W^hitman, 227, 278, 289, 897,
901, 903, 906.
Y. Wineland, 718.
Thompson*s Appeal, 291, 293, 294.
Thorns V. King, 281, 924.
Thomsen v. McCormIck, 577.
Thomson v. Blanchard, 642.
V. Dean, 44.
V. Joplin, 587.
V. Lee County, 938, 958.
Thomson's Adm'r y. Chapman's Adm*r,
. 473.
Thoreson y. Hanrester Works, 768.
Thorn v. Salmonson, 835.
Thornall v. Turner, 338, 347.
Thomer v. Batory, 867.
Thornfaill y. Bank, 55.
Thornton v. Eppes, 504, 681.
V. Hogan, 248, 807.
Y. Lane, 54, 971.
Y. Perry, 115.
Thorp V. Gordon, 261.
V. Piatt, 156.
Thorpe y. Corwin, 180.
Thouvenin v. Rodrlgues, 222, 261, 275.
Thrall y. Waller, 962.
Threadgill v. Railroad Co., 176.
Thrift Y. Delaney, 656.
Throne-Franklin Shoe Co. v. Gunn, 29.
Thulemeyer y. Jones, 432.
Thum V. Pike, 335.
Thiurber v. Blackboume, 853.
Thurmond v. Andrews, 248, 807.
Y. Bank, 874, 989.
Thurston v. Spratt, 572.
Y. Thurston, 721, 722. 929.
Thwing V. Doye, 86.
TIbbetts V. Shapleigh, 771.
Tidd V. Rines, 118.
cl!xxxiy CASBs
[ReterencGB to sections. U 1 to
Tldloute & Tioua Oil Oo. v. Shear. 351.
Tlerney v. Abbott, 719.
Tiers v. Codd, 490.
Tift V. Keaton, 3.
Tilford V. Buruham, 450.
V. Oakley, 962.
Tilles V. Albright, 63.
Tillinghast v. McLeod, 16.
TilUson V. Tllllson, 7«;.
Tillotson V. Millard, 425.
Tilman y. Johnson, am,
Tilson V. Davis, 518.
Tilton V. BaiTell, 153.
V. Cofield, 518. 550.
V. Gordon, 758.
Timber lake v. Powell, 051.
Timmons v. Dunn, 768.
Tindall v. Carson, 483.
Tinley v. Martin. 46.
Tinney v. VVolston, 469.
Tinsley v. Lee. 214.
Tipton V. Wright, 225.
Tisdale y. Insurance Co., 640.
Title Ins., Trust & Safe-Deposit Co. v.
Rau, 70.
Titlemore v. Wainwright, 299.
Titus V. Larsen, 335.
y. Mabee, 32.
Tobar y. Losano, 181.
Tobias V. Dorsey, 199.
Tobin y. Meyers. 992.
Toby y. Brown, 674, 795.
Tobyhanna & L. Lumber Co. t. In-
surance Co., 79a.
Todd y. Badger, 16.
y. Crumb, 8, 892.
y. Fisk, 378.
y. Jackson, 363.
y. Kerr. 548.
y. Railroad Co., 526.
y. Todd, 127.
Toland y. Sprague, 225.
Tolbert y. Harrison, 1000.
Toledo, W. & W. R. Co. y. Gates, 347.
y. Ingraham, 99.
y. McNulty, 967.
Tolen y. Tolen, 822, 926, 928^ 932.
Toliver y. Brownell, 176.
Tome y. Stump, 38.
Tomkins y. Tomkins, 371.
Tomlinson v. Litze. 121. 35a
Tompkins v. Bank, 995.
y. Blakey, 91Ca.
CITBD.
499 in Yol. 1: residue In vol. 2.]
Tompkins y. Cooper, 867.
y. Craig, 873.
y. Dreunen, 518, 766.
y. Hyatt, 44.
y. Lang, 3i;3. 393a, 394.
y. rurc-311, 9381).
y. Tompkins, 63(», S23.
Tompson v. Lumber Co., 31a,
Toney, Ex parte, 253.
Tongue y. Morton, tW2.
Tooker v. Booth, 313.
Toomey y. Rosansky. 252.
Toope y. Prlgge, 632.
Toothaker y. Greer, 246.
Tootle y. Clifton. 16.
Topliff V. TopUff, 626, 627.
Topp y. Bank, 857, 995.
Tdrbett y. Godwin, 583.
Torrence v. Torrence, 432.
Torrey y. Pond, 643.
Toulmin y. Anderson, 127.
Tourigny y. Houle, 826, 829.
Tovey v. Young, 372.
Towe V. Felton, 995.
Towers y. Tuscarora Academy, 549.
Towle V. Gouter, 52.
y. Towle, 586, 587.
Town y. Lamphere, 615.
y. Smith, 681, 737.
Town of Andes y. Ely, 508, 681a.
Town of Bethlehem y. Town of Watei*-
town, 806.
Town of Cabot y. Town of Washing-
ton, 806.
Town of Clay y. Hart 678, 719.
Town of Cloyerdale y. Smith, 600.
Town of Fletcher y. Blair, 209.
Town of Haywaixi y. Pimental, 347.
Town of Huntington y. Town of Char-
lotte, 279, 443.
Town of Jericho y. Town of Under-
bill, 713.
Town of Lyons y, Cooledge, 578.
Town of Omro y. Ward. 337, 347.
Town of Ontario v. Bank, 251.
Town of Poplin y. Town of Hawke.
635.
Town of Poultney y. Treasurer. 295».
Town of St. Albans y. Bush. 938.
Town of Storm Lake y. Railroad Co..
209.
Town of Troy v. Rjiilroad Co., 743.
Town of Walpole v. Mario w, 100.
CASBS
[Referencee to sectlonf. H 1 to
Towns y. Nims, 504, 014.
V. Springer, 218, 278.
Townsand v. Townsand, 83.
Towusend v. Cox, 197, 1)74.
T. Gordon, 644.
V. Riddle, 774.
T. Smith, 909, 1010.
Townshend, In re, 717.
V. Chew, SOIL
v. We68on, 110.
Township of Hiawatha v. Judge, 156.
Tozer y. Jackson, 635.
Tracy v. Goodwin, 587, 588.
V. Kerr, 725.
T. Malonej, 587.
V. Merrill, 714.
V. Whitsett, 412.
Trader v. Lawrence, 404.
Traders* Nat. Bank v. Schorr, 425.
Trafton v. United States. 770.
Tralttenr t. Levingston, 352.
Trammel! y. Thurmond, 504.
V. Trammell, 156.
Trapbagen v. Lyons, 953.
Trapnall y. Richardson, 413, 415, 484,
1006. 1006.
Trapnairs Adm'z y. Bank, 1!j3.
Traak y. Green, 433.
T. Railroad Co., 738.
Trautwein y. Iron Works, 745.
Trayelers* Ins. Co. v. Weber, 34.
Travelers* Protective A8s*n v. Gilbert,
271-
Traver, In re, 388.
Travis v. Waters, 41.
V. WUlis, 56, 180.
Travis County v. Mfg. Co., 332.
Trawlck*s Heirs v. Trawick's Adm*rs.
174.
Trayhem v. Colbum, 614.
Ttaicy V. Ellis, 263.
Treadway v. E3a8tbum, 273.
Treadwell v. Pitts, 576.
v. Temples, 588.
Treasurers of State v. Bates, 588, 770.
V. Oswald's Sureties, 745.
Treat v. McCall. 2:^3.
Trebilcock v. Wilson, 152.
Tre!>noox v. MoAlpln?. 868.
Treoothjck v. Austin, ♦177.
Trenary v. Cheever. 1(K)8.
Trenholui. Ex parte. 42c).
T. Bumplicld, $^81.
CITED. clXXXV
499 In vol. 1; residue In vol. 2.]
Trescott v. Barnes, 750.
V. Lewis, (391.
Trevino v. Fernandez, 846.
Trevlvan v. Lawrence, 787.
TTeweek v. Howard, 589.
Trigg V. Harris, 987, 1007.
Trimble v. Hunter, 434.
V. Longworth, 288.
Y. Miller, 19L
Triplett V. Gill, 5ia
V. I^ke, 150.
V. Scott, 963.
Tripp Y. Potter, 496*
Y. Saunders, 212.
Y. Vincent, 341.
Trogdon v. Stone Co., 252.
Troup Y. Horbach, 22, 26,
Y. Wood, 991.
Trout Y. Marvin, 399.
Troutman v. Vernon, 650, 655.
Trow V. Messer, 13.
y. Thomas, 16, oa
Trowbridge v. Hays, 26L
Y. Spinning, 860, 867, 896.
Troy Y. Smith, 605.
Truby v. Case, 351.
True v. True. 320.
Trueheart v. Simpson, 314.
Truesdall v. McCormick, 265.
Truesdell v. Lehman, 433.
Truly V. Wanzer, 378.
Truman, In re, 255, 259.
Trumbull v. Nicholson, 989.
Truscott y. King, 71, 991.
Trustees of Amherst College v. Allen.
363, 375.
Trustees of Internal Imp. Fund v.
Bailey, 306.
Trustees of Leake & Watts Orphan
House Y. Lawrence, 5<j6.
Trustees of Tutnam Free School v.
Fisher, 600.
Trustees of School Distiict No. 28 v.
Stocker, 622.
Trustees of Village of New burgh v.
Oalatlan. ."mS.
Tucker v. Beau, 193, 197.
Y. Carr, 7.14.
Y. Gill. 73.
v. Rohrback, 693.
Y. Shade, 470.
Y. Stone, 34.
Y. Trading Co., 157.
clxXXVi CASES
[References to aectlons. §S 1 to
Tucker v. Williams. 37G.
V. Wilson, 721.
Tudor V. Taylor, 1010.
Tuffree v. Stearns Kanchos Co., 826.
Tufts V. Tufts, 4G6.
Tuggle V. Gilbert, 26.
Tullis V. Scott, 340.
Tunis V. Withrow, 232.
Tunno v. Railroad Co., 20.
Tunstall v. Robinson, 1)76.
V. Trappes, 436.
Tuppery v. Hertung, 15.
l\irley v. Dreyfus, 8C2, 922, 963.
V. Taylor, 916.
V. Turley, 683, 783.
Tuman v. Temke, 1016.
Turnbull v. Walker, 837.
Turner t. Bank, 282.
V. Brock, 745.
V. Gates, 541, 720.
▼. Christy, 158.
V. City of Houston, 116.
y. Colson, 370.
v. Coughran, 318.
V. Crebill, 43.
V. Davis, 380.
V. Donnelly, 530.
V. Dupree's Adm'r, 484.
V. Goodrich, 567.
V. Hitchcock, 777, 779.
V. Ireland, 286.
V. Jenkins, 197, 273.
V. Judge, 311.
V. Lambeth, 847.
▼. Leathern, 311.
y. Malone, 633.
y. Nachtsheim, 692.
y. Plowden, 26.
V. Roby, 966.
y. Satterlee, 1008.
Turner's Estate, In re, 46.
Tumey y. Van Gelder, 292.
Turpln y. Brannon, 607.
Turpln, y. Thomas* RepresentatiyeB,
367, 540.
Turrell y. Warren, 285.
Tuska y. O'Brien, 613.
Tute y. James, 588.
Tuthlll Spring Co. v. Smith, 290.
Tutt y. Boyer, 641.
y. Ferguson, 384.
y. Trice. 631.
Tuttle y. Clallin, 24, 31a.
CITED.
499 in vol. 1; residue In yoI. 2.]
Tuttle y. Harrill, 766.
V. Scott, 349.
y. Town of Burlington, 299.
Twambly v. Henley, 5i*»8.
Twlgg V. Hopkins, 391.
Twogood V. Pence, 78, 698.
Twohig, Ex parte, 255. 269.
Tyler y. Cartwright, 661.
y. Hamersley, 378.
y. Peatt, 220, 906.
y. Shea, 168.
Tyler's Kx'rs v. Winslow, 6.
Tynan v. Weinhard, l^o.
Tyree y. Magness, 574.
Tyres y. Kennedy, 551.
TyiTell y. Baldwin, 540.
Tyson v. Belcher, 250.
T. & H. Smith & Co. y. Taber, 923.
u
Ueland y. Johnson. 87.
y. Lynch, 352.
Uhe y. Railway Co.. 181.
Uhl V. May, 420, 4;iS.
Ullman y. Herzberg, 745.
UUmann y. Kline, 94S, 950.
Ulmer y. Frankland, 496.
Ulrich y. Drischell. 666.
Ulshafer y. Stewart, 118.
Umbria, The, 984.
Underiiill v. Collins, 749.
Und3rwood, In re, 257.
V. French, 616.
V. Sledge, 305.
V. Smith, 747.
V. Underwood, 340a.
Unfrled y. Heberer, 87.
Unger v. Lelter, 407.
Union Associated Press y. Heath, 779.
y. Publishing Co., 782.
Union Bank y. Com'rs, (>99.
y. Hodges, 770.
y. Manard, 420.
Union Cent Life Ins. Co. y. Lipscomb,
91, 340, 349.
Union Guaranty & Trust Co. y. Rolv
inson, 586.
Union Lumbering Co. y. Supers, 364.
Union MIU & M. Co. y. Dangberg. G(W.
Union Xat. Bank y. Benjamin, 352.
y. Lane, 69.
CASES
rReferences to sectiona. §} 1 to
Union Pac. Ry. Co. v. Baliv r. 804.
V. Kelley, 719.
T. Railroad Co.. 787.
L'nion R. & T. Co. v. Traube, 729. 730,
738. 747. 749.
Union Sav. Bank & Trust Co. v.
LoQDge Co.. 857.
Union Terminal R. Co. v. Com'rs, 719.
Union Trust Co. v. Railroad Co.. 882,
Union & Planters* Bank v. Allen, 611.
V. City of Memphis. 750.
United Security Life Ins. & Trust Co.
V. Ott, 321.
T. Vaughn, 63.
United Society of Shakers v. Under-
wood, 777, 7T9.
U. S. V. Ames, 770.
T. Arredondo. 215, 241.
T. Badger, 965e.
T. Beebe, 370, 371, 530.
T. Biebusch. 876.
T. Board, 085a, 985b. 985c.
7. Buchanan County, 965c, 985e.
T. Budd, 530.
T. Chung Shee, 292.
T. City of Key West 985a.
T. Clark County. 985f .
T. Council, 985b.
T. Cushman, 775, 963*
T. Dashiel, 1O08.
T. Devereux, 446.
T. Dewey. 930a.
T. Drainage Dist. 986c
V. Duncan, 415.
T. Eisenbeis. 423.
v. Gayle, 273.
V. Gleeson. 823.
V. Grimley, 250. 524.
V. Griswold, 248. 1000.
V. Houston. 490. •
V. Ingate, 586.
r. Jaedicke, 529.
T. Jefferson County, 065b.
T. Judges. 965b.
T. Keokuk. 360.
T. King. 985a. 985b.
T. Land-Grant Co.. 530.
T. I^ee County. 965b, 985e.
Y. Lewis, 448.
T. Lincoln County, 965b.
V. McDowell, 531.
T. McKnight. 328.
CITED. clxxxvii
409 In vol. 1; residue In vol. 2. J
U. S. V. Macon County, 985f.
V. MIniug Co., 580.
V. Minor, 530.
V. Montell, 149.
V. More, 216.
V. Morrison, 398.
V. Muscatine County, 985b.
V. Xew Orleans, 253a, 985b, 965f.
V. O'Grady, 5iMa.
V. Paiker, 700.
V. Patterson, 256.
V. Peters,, 216.
V. Port of Mobile, 965f.
V. Price, 774, 775.
V. Pridgeon. 2^8. 259.
V. Railroad Co., 530, 537.
V. Rand, 713.
V. Rose, 530.
V. Samperyac. 940.
V. Schneider, 520.
V. Silverman. 987)6.
V. Sturgis, 414.
V. Throckmorton, 323, 370, 874.
530.
V. Thompson, 493, 494.
V. Wlnstead, 18.
V. Tin Co., 530.
V. Township, 985a, 985d.
V. Treasurer, 98ob, 985e.
V. Wallace, 297, 341.
V. White, 530.
V. Williams, 297, 530.
United States Bank v. Winston's Bat'r.
444.
United States Electric Lighting Go. v.
Leiter, 246, 358.
United States Exp. Co. v. Smith, 585a.
United States Mut. Ace. Ins. Co. v.
Relsinger, 376.
United States Nat Bank ▼. Venner.
213.
United States Trust Co. v. Territory,
253a.
V. Trust Co., 247.
United Underwriters* Ins. Co. v. Pow-
ell, 23.
University of North Carolina v. Lassi-
ter, 325.
T. Maultsby, 747.
Unknown Heirs v. Kimball, 420, 433.
Upchuivh V. Anderson, R.")!.
Uppfalt V. Wor?manu, 7G1.
Upson V. Horn, 261.
clXXXYlii CASES
[References to sections. S9 1 to
Upton V. Betts, 504, G14.
Urbana Bank v. Baldwin, 443.
Utah Commercial & Savings Bank y.
Trumbo, 344.
Utah Nat Bank v. Sears, 67.
Utley V. Cameron, 300, 306.
V. Fee, 064.
Umle V. Vinson, 63, 302, 317.
Vahle y. Brackensieok, 66d.
Vail V. Arkell, 261.
V. Conant, 089.
V. Iglehart, 124.
V. Rinehart, 731.
Vallance v. Sawyer, 483.
Valentine v. Cooley, 211.
V. Duff, 206.
V. Mahoney, 548, 677.
y. Seiss, 445.
y. Sloss, 530.
Valsain v. Oloutier, 560, 638.
Van Alen y. Rogers, (i52.
Van Alstine y. McCarty, 577.
Van Alstyne, In re, 585a.
Van Arsdale v. King, 313.
Vanarsdelen v. Whitaker, 367.
Van Beuren, In re, 958.
Van Blarcom y. Kip, 650.
Van Brough y. Cock. 356.
Van Busklrk y. Mulock, 962.
Van Camp v. Fowler, 548.
V. Peerenboom, 439.
Vance y. Burbank, 530.
y. City of Franklin, 16.
y. Wesley, 582.
Van Court v. Moore, 568.
Vandenheuvel v. United Ins. Co., 815.
Vanderheydeii y. Younp, 524.
Vanderpoel y. Van Valkenburgh, 635.
Vanderpool y. Vanderpool, 328, 045.
Vanderveere y. Gaston, 62.
Van Deusen v. Sweet, 2vS2, 802.
Vandlyer y. Hammet, 958.
V. Roberts, 233.
Van Doren v. Horton, 522.
Vandyke v. Johns. 250.
y. Wells, 1J:0.
Van Etten v. Kosters, 144.
V. Test, 130.
Vanfleet'v. Phillips, 63.
CITED.
499 in vol. 1; residue In vol. 2.1
Van Fossen v. State, 927.
Van Gunden y. Kane, 128.
Van Gundy v. Carrlgan, 96.
Van Hagan, £x parte, 258.
Van Horn y. Van Horn. 707.
Van Home y. McLaren, 1010.
V. Montgomsry, 347.
Van Houteu v. Reily, 952.
Van Kleeck y. MeCabe, 600.
Van Koughnet y. Dennie, 541.
Vanlandlngham y. Ryan. 603, 707.
Van Lriew v. Beverage Co., 644.
Van Loon v. Smith, 993, 994.
Vanmeter's P3x'rs v. Vanmeter, 41.
Van Metre y. Wolf, 192.
Van Ness y. Corklns, 208.
Van Norman y. Gordon, 53, 859, 8^.
896.
Vanquelin y. Bouard, 827, 816.
Van Renselaer y. Whiting, 211.
Van Rensselaer y. Wright, 992.
Van Sant v. Butler, 530.
Vanscoy y. Stlnchcomb, 388.
Vanstory y. Thornton, 449.
Vantilburg y. Black, 190.
Vanuxem y. Burr, 746.
Van Valkenburgh v. City of Milwa,:
kee, 87, 629, 697.
Van Vechten y. Griffiths, 796.
y. Terry, 585.
Van Vliet y. Olin, 699.
Van Wagenen v. Carpenter, 279.
Van Wyck y. Seward, 650.
Van Zandt y. Gormley, 20.
Vamer v. Johnston, 250.
Vasse y. Ball, 816,
Vastine v. Bast, 376.
Vathir y. Zane. 383.
Vaughan v. Campbell, 834.
V. Marshall, 993.
y. Morrison, 614.
y. O'Brien, 693, 699, 719.
y. Phebe, 606.
Vaughn v. Drewry, 609.
y. Fuller, 378.
y. Johnson, 367, 389.
Vaule y. Miller, 252, 261. 972.
Vans? V. Templeton, 446.
Vedder's Estate, In re, 560.
Veite v. McFadden, 896.
Venable v. Curd, 177.
V. Dutch. 22S>.
y. McDonald, 270.
CASBS CITED.
[RefereocM to sections. 18 1 to 499 in ▼ol. 1; residue in vol. 2.]
clxxxix
Vennum v. Davis, 3«ij.
Verden v. ODleman. 32.
Verdln v. Slocum, -UiO.
Verhein v. Scbultz, aU3.
Vermllye v. Vennllye, 22,
Vermont Loan & Ttust Co. v. McGreg-
or, 986.
VenDont Marble Co. v. Black, 854.
Verner t. Bookman, 461.
T. Canon, 2U0.
Wrncuil V. Harper. 806.
Verplanck v. Van Buren, 537, 681a.
Verree v. Hughes, U^2.
Verret v. Belanger, 589.
Vwtal V. Wicko*, WO.
Vetterlein. In re, 509.
Vlck T. Baker, 340.
T. Pope, 190.
Vickery, In re, 977.
T. Scott, 246, 513.
Vicksburg Grocery Co. t. Brennan,
252.
Vicksburg, S. & P. B. Co. v. Scott 26.
Vu-ksburg & M. R. Co. t. Ragsdale,
141.
Vij^eant v. Scully, 574.
Vila V. Weston, 948.
VlJas y. Jones, 366.
y. Railroad Co., 313, 325.
Village of Cellna v. Bank, 375.
Village of Port Jervls v. Bank. 975.
VQlage of Seneca Falls y. Zalinskl, 575.
Village of Wayzata y. Railroad Co.,
Vinal V. Improvement Co., 726*
VIncennes, The, 623.
Vincent y. Davidson, 287.
y. Hansen, 551.
y. McXamara, 779.
Virgin Cotton Mills v. Abemathy, 16.
Virginia, Ex parte, 2r)5, 256.
Virginia-Carolina Chemical Co. v. Kir-
ven, «13.
Vit;:inia & T. Coal & Iron Co. t.
Klf Ids, 58, Jm.
Virpo v. Vlriro. 520.
Vimher v. VlHcher, fl2f>, 1)32.
Voell V. Kelly, lOKJ.
Vcigt v. Ticknor, 605.
Voinet y. Barrett, 836.
Volkenand v. Drum. <il.
\olland v. WUcox, ZV.Tk
Von Hoffman v. Kendall, 5-3.
V. Quiucy, 98of.
Von Puhl V. Rucker, 402.
Von Stein v. Trexler, 406.
Voogbt y. Winch, 783, 787.
Voorhees v. Gros, 10(>8.
v. Jackson, 270.
v. Seymom*, (505.
Voorhies, In ra, 4 SO.
V. Hennessy. 121.
Voorhis V. Gamble. 211.
Voris v. Association, icS.
Vosburgh v. Brown, 192.
Vose V. Morton, 260, 293, 000.
Voss V. Lewis, 599.
Vought v. Sober, 699.
Vowell y. Railway Co., 703.
Vredenbiirg y. Morris, 429.
Vredenburgh v. Snyder, 493.
Vroom v. Ditmus, 137.
w
Wabash, St L. & P. R. Co. v. Ttust
Co., 551.
Waddams v. Bumbam, 916.
Waddell y. Klmendorf, 1008.
y. Wood, 340.
Waddell's Adm'r v.^Elmendorre Ad-
m*r8, 903.
Waddlll y. Cabell, 802.
v. Payne, 224.
Waddle y. Ishe, 713.
Wade y. Bryant 135.
y. De Leyer. 313.
y. Howard, 7110.
y. Sewell, 421.
y. Watt 1008.
Wadhams v. Gay, 705.
Wadsworth v. Henderson, 8, lO*
y. Marsh, 598.
y. Murray, 558.
Wager y. Insurance Co., .')21.
Waghome y. Langmead, 441.
Wagner v. Wagner. 729, 747.
Wagner Ca.ses. The, 360.
Wagstaff y. Marcy, 509.
Wahle y. Wahle, Oil.
Waldner v. Paiily, 2'M\.
AValte y. Coaracy, 312.
V. Kllis. 12.'i3.
cxo
CASES CITED.
[References to Bectiona. §9 1 to 499 in vol. 1 ; residue In toI. 2.]
Wall, Ex parte, -^21.
V. Covington, 159.
V. Galvin, 86.
V. Heald, 88.
V. Wall, 201, 504. 638.
Wallace, In re, 807.
V. Miller, 779.
V. Rli)iK>n, 55.
Walla Walla Printing & Publishiir:
Co. V. Budd, 347.
Wnller v. Weston, 352.
Wallis V. Stuart, 193.
y. Thomas. 164.
Walls V. Endel, GC3.
Walpole V. Mario w, 100.
Walrad v. Walrad, 320.
Walrath v. Walrath. 980.
Walraven v. Bank, 666.
Walrod v. Shuler, 121.
Walser v. Sellgman, 862, 938b.
Walsh V. Diu'kln, 865, 939a.
V. Ostrander, 604.
V. Thomasson, 525.
Walter v. Ass'n, 178.
V. Erdman, 203.
V. Fees, 77.
Walters v. Defenbaugh. 434.
V. Oyster, 495.
V. Wood, 534.
W^alton V. Bethuue, 814, 815.
y. Bonham, 371.
y. Campbell, 569.
V. Coulson, 197.
V. Cox, 571.
V. I.efever, 15.
y. McKesson, 909.
y. Sugg, 857, 859.
V. Walton, 317.
Waifs Adm'rs v. Swinehart, 418.
Wampler v. Walker. 33.
Wamsley v. Robinson, 240, 680.
Wanborg v. Knrst. 663.
W^andling y. Straw, 938.
Wann v. MeXulty. 770, 775, 776» 7S3,
785, 787.
Wanzer y. De Baun. 745.
y. Self, 721.
Ward y. Bond, 574.
y. Boyce, 220, 894.
y. Chamberlain. 416.
y. Derrick, 3(8.
y. Fnunon. 297.
V. Green, 227, '2J0,
Waite
V. Teeters, 615.
AVaifs
Ex'r y. Savftge, 449.
Wakeileld y. lyes, 932.
y.
Moore, 318.
Walbridge v. Hall, 255, 282.
V.
Shaw, 716.
Walden v. Bodley, 713, 720.
V.
Craig, 490.
W^alden Nat. Bank y. Birch, 745.
Waldo
y. Thweatt, 312, 363.
Waldron y. Hendrickson, 752.
Waldrop y. I^onard. 213.
Wales
V. Bank. 384.
y.
Bogrue, 261, 432.
y.
Lyon, 504.
y.
Whitney, 255. 256, 524.
Walke
y. Moody, 445.
Walkenhorst v. Lewis, 193. 194.
Walker, In re, 993.
>.
Abt, 146.
V.
Ames, 758.
V.
Armour, 246.
y.
Arthur, 452.
y.
Carey, 114.
y.
Chase. 787.
y.
City of Philadelphia. 556w
y.
Clay, 205.
y.
Crawford, 41.
y.
Cronklte, 273.
y.
Dayis, 715.
y.
Elledge, 398.
y.
Ensign, 77.
y.
Ferrln, 572, 574.
y.
Fuller, 142. 729.
y.
Gilbert, 377.
V.
Lathrop, 227.
y.
Leslie, 657.
V.
^IcDowell, 1008.
y.
Massey. 84.
y.
Ferryman, 553, 565.
y.
Pope, 206.
V.
Powers. 951, 1006.
y.
Head, 553.
y.
Uobbin.s, 377.
y.
Uobinson. 993.
y.
Sallada, 330.
y.
Sargeant 105.
y.
Villavaso, 3(>7.
y.
W^alker, 1. 13.
V. Witter, 825.
y. Wynne. 37(J.
Walker's Ex'r v. Page, 123.
Walkley v. Muscatine, 985b.
CASES
[Referencea to secticns. SS 1 to
M'ard T. Hudspeth, 250.
T. Johnson, 770.
T. Joslin, 583.
V. Kenner, 1.
Y, McKenzie, 90L
V. Mfg. Co., 910.
V. Obenauer, GG6.
V. PhUllps. IG.
T. l»rather'8 Adm'r, 486.
V. Price. 898, 903.
T. Quinlivln, 844, 919.
T. Railway Co., 98.
T. Sire, 750.
V. Stanley. 233.
V. State, 633.
T. Tliomas, 2ia
V. Ward, 784.
V. White, 110, 273.
Warden v. Eden, 95a
Warder v. Patterson. 352^
T. Talnter, 487.
Ware v. Baldwin, 309.
T. Delaliaye, 460.
Y. Jackson, 438.
T. Kent, 135, 164.
V. ^fcCormack, 678.
V. Percival. 729, 738.
Y. Purdy, 460.
Y. Railroad Co., 951.
Ware Furniture Co., Ex parte, 53.
Warfield, In re, 250.
Y. Brewer, 488.
V. DaYis, 57a
Y. Fox, 638.
Y. Warfield. 609.
Warfleld's Will, In re, 250. •
Wame y. Irwin, 393.
Warner y. Bartle, 985.
Y. Comstoek. 578.
Y. Conant, 375, 387, 593.
Y. Crane, 299.
Y. George, 754.
Y. Helm, 1010.
Y. Mnllane, 547.
Y. Tomlinson, 29.
Y. Veltch, 434.
Warren y. Bank. 252, 279.
Y. Cominj^H, 621, 735.
Y. Flagg. 934.
Y. Kennedy. 139.
Y. Lusk, 903.
Y. McCarthy. 869. 8S0, 9G2.
V. Prewett, 138.
CITED. CXCI
499 In vol. 1; residue in vol. 2.]
Warren v. Slade, 985.
V. Van Brunt, 530.
V. Warren, 9oS.
Warrender v. Warrender, 822.
Warrener v. KingsniiU. 834, &19.
Warren Mfg. Co. v. Insurance Co., 83.
853.
Warren Sav. Bank v. Silverstein, 83.
Warrington v. Ball, 917.
V. Mfg. Co., 22.
Warwick v. Underwood, 7S7.
Washbon v. Cope, 644.
Washburn v. Osgood, 1010.
V. Palace Car Co., 285, 587.
Washington v. Hackett, 191.
Washington, A. & G. Steam Packet
Co. V. Sickles, 624, 625, 630.
Washington Bridge Co. v. Stewart.
518.
Washington Gaslight Co. v. District
of Columbia, 575.
Washington Ins. Co. v. Price, 174.
Washington Park Club v. Baldwin.
147.
Washington & B. Turnpike Road y.
State, 98.
AA'ashington & G. R. Co. v. Tobrlner.
981.
Washington .& N. O. Tel. Co. v. Hob-
son, 99.
Wassell Y. English. 54.
V. Heardon, 61a, (»9.
Water Com'rs of City of New Bruns-
wick V. Cramer, 783.
Waterhouse v. Cousins, 287.
V. Mining Co., 33.
Waterman v. Jones. 52.
V. Town of Waterloo. 985.
Waters v. Dumas, 121.
V. Perkins, 766.
V. Spofford, 809.
Waters' Appeal, 432, 439.
Water, Supply & Storage Co. v. Reser-
voir Co.. 618.
Watkins, Ex parte, 255,' 259, 285.
Y. Abrahams, 55.
V. Davis, 286.
v. Lan<}on, 372.
V. Lewis, 250.
v. State, 493.
V. Wassell. 421.
V. Wortniaii, M)2, 802.
AVatson, In re, 255.
CXCU CASES
[References to sections. 98 1 to
Watson V. Adams, 199.
V. Bank, 903.
V. Cowdrey, 715.
V. Dodd, 428.
V. Garvin, 523.
V. Hahn, 271.
V. Hopkins, 514.
V. Miller Bros., 83,
V. Newsham, 347.
V. Owens, 776.
V. Railroad Ck)., 152, 354, 740.
V. Richardson, 510, 600.
V. Skating Rink Co., 154.
V. Steinan, 913.
V. Van Meter, 738.
V. Watson. 720.
V. Williams, 251.
AVatt V. Brookover, 204.
Watts V. Everett, 958.
V. Frazer, 370.
V. Gayle, 366, 375.
V. Rice, 611.
V. Taylor's Adm'r, 560.
V. Watts, 612, 633.
Waits' Case, 98.
Way V. Howe, 248.
V. Lamb, 368.
V. iewls, 586, 587.
Wayman v. Cochrane, 082.
Wearen v. Smith, 36, 182.
Wearne v. Smith, 182.
Weatherbee v. Weatherbee, 320.
Weatherford v. James. 44.
V. Van Alstyne, 326.
Weaver v. Brenner. 265.
V. Cressman, 862.
V. English, 967.
V. Gardner, 92.
V. Laps ley, 7, 11, 298.
V. Leach, 353.
V. Poyer, 376.
y. Smith. 433.
V. Thornton, 590.
V. Toney, 269.
V. Wlble. 493.
Webb V. Bailey. 749.
V. Buckelew, 509, 695.
V. Carr, 240.
V. Den, 607.
V. Elliott, ir)8.
V. Wiltbank. 200.
Webber v. Boom Co., 530.
V. llarshbargor, 4i>2.
CITED.
499 in vol. 1 ; residue in vol. 2.]
Webber v. Mackey, 504.
V. Randall, 45.
V. Stanton, 200, 204.
Weber v. Couch, 989.
V. Detwiller, 496.
V. Lee County, 985b.
V. Railroad Co., 737.
V. Tschetter. 953, 955.
V. Yanc3% 958.
W^ebster v. Adams, 593.
V. Daniel, 286.
V. Lee, 526, 621.
V. City of Lowell, 593.
v. Mann, 549.
V. McDaniel, 1001.
v. McMahan, 341.
V. Page, 193.
V. Reld, 290.
V. Trust Co., 106, 682.
Weed V. Weed, 134. 135, 163, 164, 165.
Weeks v. Downing. 565.
V. Edwards, 660.
V. Harriman, 892.
V. Lawrence, 299.
V. Ostrander, 565.
V. Pearson, 864.
Wegg-Prosser v. Evans, 770.
Wegman Piano Co. v. Irvine, 585.
Wehn V. Fall, 438.
Wehrly v. Morfoot 747.
Weigley v. Coffman, 713.
V. Matson, 75.
W'Cikel V. Long, 78. 698.
Weil V. Casey, 445, 447.
V. Hill, 63.
V. f^wenthal, 228.
V. Simmons, 188. 190.
Weiler v. Henarle, 749.
Weill V. Fontanel, 752.
Weinberger v. Insurance Co., 719.
Weiuerth v. Trendley, 38.
AVeingnrtner v. Mining Co., 701.
Weinreich v. Hensley, 600.
Weintraute v. Solomon, 58.
Weir V. Pennington, 940, 945.
V. Vail, 857, 883, 920.
W^eire v. CItj' of Davenport, 943.
AVeis V. Aaron, 199.
v. Meyer, 725.
Weisebcrger v. Nevil, 81)2.
Welser v. Kling. 761.
V. AVoiser. 758.
Woiss v. Binulan, 13.
CASES
[References to sectiont. SS 1 to
Welch V. Challen, 341.
V. Keene, 157.
T. HflDdeville, 700.
T. May, 313.
V. Murray. 442.
V. SL Genevieve, 98oe.
T. Sargent, 583.
V. Sykes. 227. 857, 897, 898, 900,
903, 906, 916.
V. Wadsworth, 87, 097.
Weldy V. Young, 191, 297,
Wellborn V. Carr, 813.
V. Sbeppard, 84.
Weller v. Dickinson, 966, 967.
V. DlUey. 650.
Wells, In re, 954.
Kx parte, 1000.
r. Atkins, 261.
V. Baird, 986.
T. Baldwin, 43a
T. Bank, 864.
T. Benton, 445.
T. Bower, 461.
T. Coyle, 555.
V. Graham, 488.
V. Hickox, 734.
T. Mathews, 86.
T. Moore, 603, 709, 7ia
V. Xeff. 922-
V. Smith. 195, 197, 35a
T. Stevens. 282.
V. Town of Mason, 985a.
v. Town of Salina, 733.
V. Vanderwerker, 161.
Wells, Fargo St Co. v. Clarkson, 964.
V. Van Sickle, 152.
V. Wall. 332, 365, 366, 384.
Wellshear v. Kelley. 247.
^^>ll«-Stone ^(ercantile Co. T. Truax,
WWsh V. Childs. 271.'
V. Kirkpatriok. 213.
V. Lamliert, 34.
T. Undo. 785.
V. Murray. 442.
Wdsher V. Libby, McNoIU & Llbby,
l<«tl. 1002. IbOo.
W elton V. Littlejohn, 34a
Welty T. Roffner, 250.
WVndel V. North, 567.
Wfnroan v. Mackenzie, 548.
WentAvorth v. Keazer. 9<»8.
V. Ha cine County, 50G.
1 LAW .TT'DG.— m
CITED. CXClll
499 in vol. 1; residue in vol. 2.]
Wentz V. Bealor, 204.
Werborn v. Piuney, 162.
Werleln v. City of New Orleans, 613,
733.
Werner v. Council, 29.
Wemet's Appeal, 354.
Wernse v. McPike, 866.
Wernwag v. Pawling, 857, 897.
Wessell v. Gross, 489.
Wesson, In re, 495.
V. Cllamberlain, 250.
West V. Bagby, 21.
V. Carter, 379.
V. Cole. 609.
V. Fleming, 91.
V. Furbish, 771.
V. Galloway's Adm'r, 165.
V. Irwin, ^0.
V. Jordan, 200, 204.
V. Keeton, 111.
V. Magness, 36a
V. Miller, 348.
V. Moser, 628, 749.
V. Williamson, 85, 223.
Westbay v. Gray, 246.
Westbrook v. Thompson, 376, 638a.
West Buffalo v. Walker Tp., 805.
West Chester & W. Plank-Road Co.
V. Chester Coimty, 159.
West Chicago Park Com'rs v. Farber,
610.
West Chicago St. Ry. Co. v. Annis,
211.
Westcott V. Brown, 897, 900.
V. Edmunds, 518, 787.
Western Assur. Co. v. Klein, 346a.
Western Land Co. v. English, 107.
Western Min. & Mfg. Co. v. Coal Co.,
518, 614.
Western Security Co. v. Lafleur, 220.
348.
Western Union Tel. Co. v. Griffin, 345.
Western & A. R. Co. v. City of At-
lanta, 575.
V. Pitts, 343.
V. Youii^, 981.
Westervelt v. Jones, 890.
Westerwelt v. Lewis, 220, 884. 971.
West Feliciana R. Co. v. Thornton^
857.
Westfleld Gas & Milling Co. v. Abor-
natliey, 304.
V. Gravel-Road Co., 599.
CXCIV CASES
[References to BectlonB. 9§ 1 to
Westheimer v. Craig, 208, 770.
Westmoreland v. Richardson, 510, 663.
West New York SIlk-Mill Co. v.
Laubsch, 518.
Weston V. City of Cliarleston, 21.
V. Clark, 987, 995.
Westphal v. Westphal, 551.
West Philadelphia Pass. R. Co. v.
Turnpike-Road Co., 508.
West's Appeal, 417.
Wetliered v. Mays, 693.
Wetherill v. Stillman, 857, 900.
Wetmore v. Wetmore, 461.
Wetter v. Lewis, 583.
Weyand v. Railroad Co., 713.
Weyer v. Thomburgh, 770.
Whaley v. Lawton, 707.
V. Stevens, 617, 717.
Wharton v. Harlan. 328.
V. Wilson, 445.
Wheaton v. Spooner. 944.
Wheolberger v. Knights 41.
Wheeler v. Aldrich, 597.
V. Dakin, 967.
V. Foster, 183.
V. GoflPe, 164.
V. Maillot, 33.
V. Mayher, 138.
V. Miller, 583.
V. Moore, 324, 34r>n, 347.
V. Raymond, 857.
T. Riif'kman. 699, 703, 719.
V. Sweet, 291.
V. L. S., 33.
V. Van Hon ten, 526.
Wlieeler's Estate, 995.
Wheeler & Wilson Mfg. Co. v. Mona-
han. 354.
Wheeling & Belmont Bridge Co. v.
Bridge Co., 40.
Wheelock v. Godfrey, 1013.
V. Svensgaard, TM.
Wheelwright v. Depeystor, 818.
Whelan v. Wholan, rxS.").
Whelpley v. Nash, 958.
Whereatt v. Ellis, 981.
Wherry v. McCammon, 994.
V. Wherry, 488.
Whetstone v. Colley, 152.
Whidby Land & Development Co. v.
Xyo. 302.
Whiley v. Broadway, 737.
Whiliock V. Uiilc's Heirs, G;;0.
CITED.
499 In vol. 1; residue in vol. 2.]
Whitaere v. Martin, 405.
Whitaker, Ex parte, 259.
y. Bramson, 2, 682, 690, 605, 097,
698.
v. Davis, 723, 790.
V. Gee, 23.
v. Merrill, 681a.
V. Smith, 318.
V. Sparkman, 38.
Whitaker*s Adm'r v. English, 779.
Whitaker*8 Estate, 635.
Whltbeck v. Railroad Co., 311.
Whltcomb V. Hardy, 543, 790.
V. Whltcomb, 320.
y. Williams, 767.
Whltcomb's Case, 257,
White, Ex parte, 182.
In re, 256, 524.
v. Alberteon, 261. 518.
V. Baillio, 191.
V. Bank, 375.
V. Bhrd, 190.
y. Cabal's Adm*r, 378.
V. Caldwell, 98.
V. Cannon, 173.
V. Chase. 667, 658.
V. City of Decatur, 05C>a.
V. Clapp. 299.
V. Coatsworth, 787.
V. Conway, 42.
V. Crew, 618.
V. Crow, 59, 85, 2(i:i, 368, 393.
V. Cuthbert, 754.
V. Espey, 376, 412.
V. Gaines, 537.
y. Graves, lOOJi.
V. Haffaker, 9S2.
v. Harden, 487.
V. Harvey, 33.
v. Henulon,^JW.
V. Hinton. 205. rU8.
v. Kyl(»'s Lessee, 650.
V. Levy, 13.
y. McClelian, 232.
v. Mfg. Co., 188.
y. Merritt, 291, 7«9.
y. Miller, 195.
y. Moseley, 741.
v. Pease, 33.
y. Philbrlck, 782.
y. Prigmore, 587.
y. Railroad Co., 444.
y. Reagan, 80.
CASES
[References to sections. 99 1 to
White T. Rcid, 916.
v. Savage, (J07.
V. Savery. 719.
V. Simouds, G2S).
V. Smith, 743, 740.
T. Siiow, 92, 340.
T. Stage Co., 354.
y. State, 58a
y. Sydenatiick^, 108.
T. TreoD, 87a
V. Trotter, ©16.
T. Weatherbee, 589.
V. White, 31a.
T. Whiting, 717.
T. Whitman, 865.
V. Williams, 567.
Whitehead t. Henderson, 260, 596.
V. Jessap, 954, 1000.
V. Latham, 399.
WliitehlU V. Wilson, 1017.
Whitehurst v. Rogers, 504, G24.
T. Transportation Co., 297.
White River Bank v. Downer, 958,
075.
White's Adm'rs v. Williams. 810.
Whitesell V. Peck, 989, lOia
Whiteselle v. Jones, 556, 598.
White's Estate, In re, 643,
Whiteside v. Ass'n. 114.
r. Hoskins, 990.
WTiltfleld T. Howard, 351.
Whltfofd V. Crooks, 549.
Whiting T. Bank, 48.
V. Bnrger, 864.
V. Johnson, 906.
Whitley V. Electric Co., 874.
Whitlock T. Appleby, 714.
T. Crew, 526.
Whitman v. Willis, 359.
Whitman & Barnes Mfg. Co. t. Ham-
ilton, 85.
Whltmore t. Johnson's Heirs, 604.
Whrtney t. Bayer, 682.
T. Bohlen. 52.
T. Daggett. 351.
r. Kelley, 3ia
V. Nelson. 558.
T. Porter. 194, 195.
T. Silver, 299.
T. Spearman. 35.
r. Townsend, 110.
V. Walsh, 799.
W'hltney Iron Works t. Renss, 31.
CITED. cxev
499 in vol. 1; residue in vol. 2.]
Whitney's. Adm'r v. Town of Claren-
don, 738, 745.
Whittaker v. Gee, 160.
V. Stone, 771.
V. West Boylston, 33.
Whittemore v. Carkln, 958.
V. Oil Co., 944.
V. Shaw, (jGO.
V. Whittemore, 526. 628.
W^hittier v. Collins, 745.
V. Ileminway. 998.
V. Wendell, 864, 906.
Whlttlngton v. Christian, 652.
Whittlesey v. Delaney, 368.
Whitton V. Whitton. 52.
Whitwell V. Emory, 1, 3, 115, 132.
WJiltworth V. Lyons, 425.
Whorley v. Railroad Ca, 130. 15G,
158.
Whyte V. Rose, 278.
Wiant V. Hays. 434.
Wichita & W. R. Co. v. Beebe, 738.
Wicke V. Lake, 340.
Wickersham v. Comerford, 370.
V. Johnson, 790.
V. Whedon, 737.
Wlckes' Lessee v. Caulk, 282.
Wlckllffe y. Bascom, 550.
Wickmam v. Nalty. 36, 109.
Wicks V. Ludwig, 177.
Wieland t. Willcox. 752.
Wierlch v. De Zoya, 373.
Wiethanpt v. City of St Louis, 699.
Wiggins V. Chance, 426.
Y. Klienhans, 58.
V. Mayer, 85.
V. Stelner, 329.
Wiggins Ferry Co. v. Railroad Co.,
707, 715. 859.
Wight, In re, 165.
V. Mott, 63.
T. Warner, 279.
Wigwall V. Mhiing Co., 593.
Wilbur V. Abbot, 233, 859, 875, 96a
V. Abbott, 971.
V. Gilmore, 706.
Wllcher v. Robertson, 278.
Wilcox V. Balger, 720, 722.
T. Field, 89.
V. Gilchrist, 641, 731.
T. Jackson, 530.
V. Kassick, 690, 857, 865, 897,
900.
cxctI cases
[References to secUoniB. Sfi 1 to
Wilcox V. Lee, 714.
V. Morrisou, ;)r>0.
V. WellB, 156.
V. WUcox, 38, 932.
Wllcoxson V. Burton, 60.
V. Miller, 446.
Wild V. iDstitution, 550.
Wilday V. McConnel, 37(5.
Wilde V. Trainor, 16.
Wilder V. Ireland, 667, 571.
Wildmau v. Munger. 31.
V. Wlldman, 734.
Wiley V. Lewis, 116.
V. Pdvoy, 248, 261.
V. Pratt, 270, 272.
Wilhelm V. Parker, 875, 896, 899.
Wilhelmi v. Insurance CJo.. 714. •
Wllkerson v. Goldthwalte, 130.
y. Schoonmaker, 282.
Wilkes V. Davles, 784.
y. Jackson, 779.
y. Perks, 129.
Wilkie V. Howe, 600.
Wilkin V. Wilkin, 141.
Wllkins y. Bank, 116.
V. Bums, 138.
y. Dingley, 680, 588,
y. Sherwood, 323.
y. Wainwright, 202.
Wilkinson y. Bayley, 83.
y. Brlnn, 615.
y. Daniel, 97.
y. Hall, 598.
V. Holloway, 986.
y. Klrby, 652.
y. Nebraska, 37.
y. Paddock, 455, 481.
y. Rewey, 361.
y. Vorce, 613.
y. Yale, 938b.
Will y. Sinkwitz, 155.
V. Water Co., 326, 347.
Willamette Falls Transportation &
Milling Go. y. Smith, 86.
Willamette Real-Estate Co. v. Hen-
drix, 218, 231.
Willard y. Fox, 1001.
y, Ostrander, 610, 686.
y. Sperry, 734.
Willaume v. Gorges, 993.
Willems y. WiUems. 386, 393.
WlUett y. Clark. 951.
y. Millman, 354.
CITBD.
499 in TOl. 1; residue in vol. 2.]
Willett y. Otterback, 493.
Willetts, Appeal of, 639.
Willey y. Laraway, 654.
y. Paulk, 689.
y. Strickland, 966, 967.
William Deering & Co. y. CrelghtoD,
306.
Williams, Ex parte, 255.
V. Amory, 428.
y. Armroyd, 814, 819.
y. Ball, 280.
y. Bank, 880.
y. Benedict, 413.
y. Bowdon, lOOa
T. Boyce, 1008.
y. Burg, 667, 569.
V. Butcher. 299.
V. Carr, 380.
y. Chalfant, 211.
y, Clouse, 732.
V. Cooper, 540, 551.
V. Eyans, 1000.
y. Fowler. 373.
y. Gibbs, 546.
V. Ooff. 207.
V. Harris, 92.
V. Hayes, 157.
V. Hollingsworth, 722.
y. Hutchinson, 36.
V. Ives. 810.
V. Johnson, 272.
y. Jones, 57, 378, 768, 814, 831,
961.
y. Kitchen, 747.
y. Leblanc, 567.
y. Lee, ovo.
y. Lockwood, 382.
y. Luckett, 750, 752.
V. Lumber Co.. !>1.
y. Lumpkin, 321, 37a
y. McFall. 775.
y. McGrade, 781.
y. Martin, 290.
V. Merritt, 102.
y. Newcomb, 603.
y. Pile, 363.
' y. Preston, 229, 813, 826, S28, 857,
869, 875, 904, 906, mi2.
y. Railroad Co., 340, 915.
y. Reed, 633.
y. Renwlck, 888.
y. Rockwell. 89.
y. Row, 518.
CASES
CBflfereneoi to MCtlona. tt 1 to
Wmiains T. Saunders, 823.
V. Sharp, 250.
T. Sutton, 663, 777.
V. Terrell, 550.
T. Tomlln, 513, 558.
T. Tosser, 685.
T. Walt, 21.
V. Waldo, 8.
V. Walker, 48.
V. Wells, 39.
V. Whltaker, 282.
T. WUliams, 145, 185, 310, 612,
877, 878, 906.
Williams* Appeal, 56.
Willlamsburgta Say. Bank ▼. Town of
Solon, 501.
Williamson, In re, 938.
V. Cllne, 192. .
T. Cocke, 335.
T. DrlU Co., 354.
T. Hartman, 326l
T. Howtil, 589.
T. Mayer. 654.
T. Nicklln, 326.
T. Tnmio, 815.
V. White, 541.
T. Williamson. 567.
Williamson's Adm*r v. Appleberry,
363.
Williamson's Case, 256, 533.
Wm. Wolff & Co. T. Railroad Co., 811,
3ia
Willlard y. WlUiard, 430.
WlUingham y. Long, 992.
wniiogs y. Consequa, 770.
Wlllink y. Banking Co., 58B.
Willis y. Downes, 406, 400.
y. Ferguson, 246, 513.
y. Heath, 445.
y. Marks, 29.
T. Morrison. 20a
▼. Sanger, 406a.
y. Smith, 406, 44^.
y. Toaer, 613.
wnuts y. Walter, 966.
Wnioughby y. Railroad Co., 604.
y. Stockyards Co., 583.
Wills y. Chandler, 691, 986.
y. Pauly, 719.
y. Shide, 646. 661.
y. Spraggins. 197, 635.
Willsie y. Horse^Ranch Co., 321. 419.
Willson y. Cleav^and, 308.
CITBD. CXCVll
119 in TOl. 1 ; residue in vol. 2.]
Willson V. WUlson, 91.
Wilmuus V. Bank, 147.
Wllmarth v. Gatfleld, 3.30.
Wilmer v. Brlce, 906.
V. Lewis, 8G2.
Wilmington & W. R. Co. v. Alsbrook,
506.
Wllsle V. Rooney, 297.
Wilson. Ex parte, 258. 259.
V. Boiighton, 168, 381.
V. Breyfogle, 15.
V. Brookshire, 577, 1014.
y. Buchanan, 362.
V. Buell, 770, 790.
V. Coal Co., 493, 583.
V. Collins, 77.
V. Coolidge, 190.
y. Cox, 77.
y. Davol, 549.
y. Dawsoo, 89.
y. Graham, 228.
V. Hatfield, 958, 975.
y. Herbert, 192.
V. HiUinrd, 903.
y. Hoffman, 652.
y. Jackson, 900.
y. Johnson, 220.
y. Kelly, 560.
y. Kiesel, 583.
y. King, 982.
y. Lowry, 707, 709.
y. McBlwee, 667.
y. Mfg. Co., 878, 879.
y. Marsh, 983.
V. Myers. 127. 166, 157.
y. Nance, 116.
y. Panne, 144.
y. Patton. 418.
V. Railroad Co., r>29.
y. Ray, 707.
y. Rodewald. 179.
y. Scott, 340a, 343.
y. Seymour, 583.
y. Smith, 200, 206, 840a, 846.
T. State, 577.
y. Stiiwcll. 1016.
V. Stripo. 611.
y. Tieman, 483.
T. Tompkins. 551.
V. Torbert. 308.
V. Trowbridge. 376.
V. Tucker, 958.
y. Tunstall, 847.
CXCVlll CASBS
[References to sections. SS 1 to
Wilson V. Wadleigh, 941.
V. Wilson, 38C.
V. Zeigler, 225.
Wilson County Gom*rs v. Mcintosh,
691.
Wilson's Ex'r v. Deen, 624.
Wilson's Heirs v. Wilson's Adm'r,
270, 287.
Wilson S. M. Co. V. Curry, 366.
Wilson & Toms Inv. Co. t. Hillyer,
346a.
Wilt V. Ogden, 785.
Wilton V. Railroad Co., 740.
Wimberley v. Collier, 567.
AVinans v. Dunbam, 630.
y. Hassey, 152.
y. Rooecrans, 625.
Winberry y. Koonce, 915.
Winchester y. Beardln, 211, 239.
V. Coni'rs, 532.
y. Eyans, 855.
y. Gleayes, 388.
y. Grosyenor, 375.
Windecker v. Insurance Co., 1004.
Windee y. Barp, 308.
AVlndett y. Hamilton, 310.
AVindlsch y. Gussett, 152.
Windsor y. McVeigh, 215, 220, 226,
792, 790.
Windwart y. Allen, 366.
Winegard y. Fanning, 538.
Winaeld y. Bacon, 388, 766,
Wing, In re, 205.
y. De La Rionda, 461, 691.
V. Warner, 32.
Wingate y. Haywood, 270, 366, 368,
600.
Wingfleld y. Cotton, 311.
Wing V. Hooper, 002.
Winham y. Kline. 693, 725. 857, 968,
Winn y. Dry-Goods Co., 22.
y. Strickland, 872.
AVinnebrenner y. Edgerton. 63.
Winnlngham y. Tnieblood, 209, 281.
Winona & St P. Land Co. y. Minne-
sota, 613.
Winpenny y. Winpenny, 651.
Winshlp y. Jewett, 347.
Winslow y. Ancrum's Assignees, 981.
y. Anderson, 83, 326.
y. Clark, 991.
y. Lambard, 82, 211.
y. Lelaud, 938b.
CITED.
499 in TOl. 1; residue tn vol. 2.]
Winslow y. Newlan, 207.
V. Stokes, 737.
Winston, Ex parte. 257
y. Browning. 411.
y. Hodges, 440.
y. Mc Alpine, 191.
V. McLendon, 194.
V. Miller, 83.
V. Starke. 600.
y. Taylor, 906.
V. AVestfeldt. 600.
Winter v. Council, 190.
y. London, 260.
y. State, 336.
Whiterson y. Hltchingg, 1005.
Wlnthrop Iron Co. y. Meeker, 48.
Wintcm's Appeal, 956.
Wlpff y. Heder, 252.
WiTt y. Dinan, 36.
Wisdom y. Memphis, 985b.
Wise y. Hyatt, 211.
y. Loring, 946, 9^4.
y. Schloesser, 353.
y. Shepherd, 960.
y. Withers, 256.
Wise's Appeal, 350.
Wissler v. Herr..898.
Wistar y. McManes, ni>l.
W^iswall y. Sampson, 4i».% 537.
WItcher v. Oldham, 716.
Witherby t. Mann, 976.
Witherow v. Keller, 299.
Withers t. Carter, 442.
y. Patterson, 278.
Witherspoon y. Spring, 1009.
y. Twitty, 498.
Withington y. Warren, 615.
Wlthnell y. Wagon Co., 421, 433.
Witlirow V. Smithson, 206, 300.
Witt V. Henge, 243.
Wittemore v. Malcomson, 970, 971.
Witter y. Bachman, 86.
y. Dudley, 110.
y. Fisher, 671.
Witters v. Sowles, 208.
Wlttick y. Traun, 3, 672.
Wittstruck y. Temple, 494, 496.
Wbcom y. Stephens, 680.
Wixson y. Deyine, 789.
Woelf el y. Hammer, 331.
Woffenden y. Woffenden. 308.
Wofford y. Booker. 376.
Wohlford V. Compton, 706.
CASES
[References to sections. §} 1 to
Wdcott T. Ensign, 975.
T. Jones, 3!>1.
Wo Lee, In re, 257.
Wolf V. Bank, 328, 35L
T. Butler, 321.
T. Hamberg, 89.
▼. Pounsford. 482a, 486.
T. Water-Power Co., IIL
T. Yonbert, 280.
Wolfe V. Davis, 170, 328w
V. Gardner. 481.
T. Wllsey, 148.
Wolff V. City of New Orleans, 985f.
V. Van Metre, 191.
Wolffe ▼. Eberlein, 8, 951.
Wolff & Co. V. Railroad Co., 691.
Wolford T. Borwen, 143.
Wolf River Lumber Co. ▼. Brown,
671.
WoUam V. Brandt, 439a.
Wolmcrstadt v. Jacobs, 153.
Wolverton v. Baker, 514. 518, 681.
V. Glasscock, 631.
Womack v. Sanford, 134.
V. Womack. 633.
Woman's College v. Home, 42.
Wonderly v. L4ifayette County, 482a,
481, 493, M6, 985d.
Wong Yung Qny, In re, 257.
Wood V. Augustlns, 897.
V. Bagley. 78.
V. Bayard. 205. 24S.
V. Boyle, 204.
V. BuHens, 152.
V. Bylngton, 560.
V. CahiU, 020.
V. City of Mobile. 251. 939.
V. City of Xew York, 989.
V. Conrad. 1006.
V. Corl, <;2I).
V. Currey, 991.
T. Davis. .548.
V. Ellis, 61.
V. Ensel. 540.
V. Faut, 724.
V. Gamble. 847.
V. Gary. 460.
V. Harmison, 41.
V. Jackson, 511. Gil. C14, 083. 784,
785, 787.
T. Keyes, 126. 127.
V. I^nox. 383.
V. Mitchell, Oa, 77.
CITED. CXCIX
499 In Tol. 1; residue in vol. 2.]
Wood V. Newberry, 958.
V. Olney, 211.
V. Partridge, 596.
V. Payea, 306.
V. Ramond, 609.
V. Reynolds. 404.
V. Smith, 211.
V. Stanberry, 242.
V. Wallace, 944, 945.
V. Ward, 187.
V. Walkinson, 861, 906.
V. Watson, 200.
V. Wood, 835, 901, 934.
Woodbrldge v. Austin, 849.
V. Banning, 656.
Woodbrldge & Turner Engineering
Co. V. Rltter, 882.
Woodbume v. Plummer, 82d
Woodbury v. Bowman, 510.
V. District of Columbia, 981.
V. Maguire, 274.
V. Perkins, 977.
V. Society, 504.
Wood Co. V. Berry Co., 79a.
Woodfork v. Bromfleld, 487.
Woodgate v. Fleet, 428.
Woodbouse v. Duncan, 754, 938.'
V. PiUbates, 270, 271.
Woodland v. Newhall's Adm*r. 730.
Woodlief v. Logan, 109.
Woodman v. Smith. 245.
Woodrow V. O* Conner. 296.
Woodruff. Ex parte, 163.
V. Cook, 250.
V. Johnston, 372.
V. Matheney, 84.
V. Richardson, 103.
V. Rose, 36.
V. Sanders, 993, 994.
V. Taylor, 229, 635, 792, 801, 904,
V. Woodruff, 529.
Woods, Ex parte. 220.
V. Ayres. 958.
V. Bryan, 03. 278.
V. Dickinson, 325.
V. Freeman, 118.
V. Irwin, 351.
V. Llndvall, 703.
V. State, 100.
V. White, 541.
V. Woo<ls, 61a.
V. Woodson, 58.'5a.
Woodslde v. Wagg, 176.
cc
CASES
[References to sectioni. If 1 to
Woodside y. Woodside, 49.
Woodson V. Barrett. 379.
Woodward v. Backus, 347.
V. Carson, 9(30.
V. Curtis, 284.
V. Dean, 438.
V. Hill, 758.
y. Jackson, 54S.
V. Mfg. Co., 304a.
V. Moore, 592.
V. Xewhall. 82, 206.
y. Pike, 362.
y. Thomas, 560.
y. Tremere, 906.
V. Woodward. 305, 461.
Woodyard v, Polsley, 409.
Wooldridge v. Brown, 86.
Woolery y. Grayson, 289.
Wooley V. U. S., 624.
Woolfolk y. Degelos, 987.
Woolley V. Sullivan, 270, 341.
y. Woolley. 32a
Woolner y. Leyy, 445.
Woolaey y. Order, 516.
Woolyerton y. Baker, 726.
Woolworth y. Parker, 433.
Wooster y. Cooper, 725.
y. Fitzgerald, 536.
y. Gloyer, 164.
Wooters y. Smith, 772.
Wootters y. Hall, 653.
y. Kauffman, 206.
Worden y. Jones, 995.
Work y. Brown, 412.
y. Harper, 396, 470.
Worley y. Hineman. ,540.
Worman's Appeal, 498.
Wornock y. Loar, 194.
Worst y. Sgitcoylch, 723.
Wort V. Flnley, 220.
Worth y. Wetmore, 346, 346a, 351.
Wortham y. Com., 6J)9, 790.
Worthlngton. In re, 182.
y. Campbell, 153.
V. Nelson, 478.
Wortman v. Wortman, 320.
W. P. Fuller & Co. y. Hull, 406, 411.
Wray's Adm'rs y. Furniss, 371.
Wright y. Anderson, 763.
y. Andrews, 272, 542, 897, 901,
913.
y. Bank, 409.
CITED.
499 in vol. 1; residue In toI. 2.]
Wright y. Boynton, 884.
V. Broome, 671.
V. Bruschke, 42.
y. Butler, 5(H, 783. 784, 787.
y. Churchman. 353.
y. City of Cincinnati, 009.
y. Cobleigh, 1002, 1004.
y. Douglass, 275.
y. Durrett. 242,
y. Griffey, 537, 613.
y. Hazen, 280, 600.
y. Jones. 21.
y. I^throp, 779.
y. Leclaire, 758.
y. Leyy, 956.
y. McBride, 160i
y. Marsh, 245.
y. Miller, 197.
y. Mills, 122. 200.
V. Mooney. 1001.
y. Parks, 943, 947.
y. PhllUps, 500.
y. Roseben-y. 530.
y. Smith, 288.
y. Snell, 956.
y. Stanard, 548,
y. State, 109.
y. Tatham, 537.
y. Tileston, 744.
y. Wright, 246, 633, 822, 982.
V. Young, 1008.
Wrightman v. Boone County, 486.
Wronkow y. Oakley, 473.
Wuest y. .Tames, 462.
W^urzberger v. Carroll, 498.
W. W. Kimball Co. y. Brown, 221
Wyatt V. Burr, 641.
V. Fromme, 996.
Wyche v. Ross, 349.
Wyer y. Andrews, 986.
Wygant y. Brown, 313.
AVyler v. Railroad Co.. 305.
Wyuinn v. Buekstaff. 155.
V. Campbell, 513.
y. DoiT. 715.
y. Ilallock, 242.
y. Hardwick. 363, 392.
y. Mitchell, 8.
Wynn y. Frost. 341.
V. Garland, .5.30.
y. Henlnger, 288.
y. Wilson, 375, 378.
CASES
[References to secttons. 99 1 to
Wynne t. Bank, 445.
y. Newman's Adni*r, 386.
y. Spiers, 705.
V. Wynne, 441.
Wyoming Mfg. Co. y. Mobler, 917.
Wyoming Nat Bank y. Browii, 4, 8.
Wythe y. Salem, 790.
Xlqoea y. Bnjac, 584.
Vager y. Lemp, 29.
Yakima Water, Ught & Power Co. v.
Hathaway, 460.
Yancey y. Downer, 357, 387.
Yancy y. Teter, 346.
Yaple y. Titus, 200, 245.
Yarborough y. Fitzpatrick, 1005.
Yarborongh's Ex'r y. Scott's Ex'r, 155.
Yarbrougb, Ex parte, 255, 257.
Yarnell v. Brown, 958.
y. Moore, 993, 994.
Yates y. Robertson, 442, 443.
Yeager y. Dayia, 466.
Yeage^s Appeal, 489.
Yeates y. Mead, 1016.
Yeatman y. Yeatman, 250.
Yentzer y. Thayer, 85.
Yeoman y. Younger, 245.
Yerger, Bz parte, 255.
Yerkes y. McHenry, 311.
y. Richards, la
Yetter, In re, 536.
Yoakom y. Tilden, 986.
Yocnm y. Bank, 562.
Yoes y, Moore, 641.
Yoho y. McGoyem, 771, 772.
Yon y. Baldwin, 680.
Yonge y. Broxaon, 135.
y. Shepperd, 894.
Tongue y. Blllups, 378.
Yonley y. Thompson, 99.
York Bank's Appeal, 57, 58, 77, 211,
212, 40a '
York Draper Mercantile Co. y. Hutch-
iniion, 83.
Yorke T. Yorke, 346.
CITED. CCl
499 In vol. 1; residue !n vol. 2.]
Yorks V. Steele, 542.
Y'orton y. Railroad Co., 054.
Yost V. Harvester W^orks, 352.
y. Mensch, 351.
Young y. Bank, 86.
V. Bircher, 352.
V. Black, 504, 785, 787.
V. Brehi, 512, 684.
v. Byrd, 644.
V. Cleveland, 1008.
y. Conklin, 346a.
y. Connelly, 118.
y. Devries, 438, 446.
y. Farwell, 518.
V. Harrison, 604.
y. Lorain, 247.
•v. Mackall, 25.
V. O'Neal, 677.
v. People, 106.
V. Pickens, 204.
V. Pritchard, 657.
V. Read, 1007, 1009.
y. Ross, 904.
V. RmnmeU, 624, 784, 785.
V. Shallenberger, 121.
V. Sigler, 297a, 360, 393.
V. Skipwith, 39.
V. Templeton, 400.
V. Watson, 261.
V. Wickliffe, 104.
V. Young, 194, 320, 449.
Younger v. Massey, 439a.
Young's Guardian v. Sadler, 156.
Youugstown Bridge Co. v. Railroad
Co., 261.
Younkin v. Younkin, 509.
Yung Jon, Bz parte, 257.
Zabel y. Harshman, 611.
Zalesky y. Insurance Co., 680.
Zander y. Coe, 216.
Zapeda y. Rahm, 659.
Zebley y. Storey, 313.
Zecharie y. Bowers, 222.
Zelders' Appeal, 498.
Zellerbach v. Allenberg, 321.
Zepp v. Hager. 227, 857, 884, 897, 899.
Zerbe v. Railroad Co., 1005.
<C11
CASES CITED.
tReferences to tectlons. S9 1 to 499 In ▼ol. 1; residue in vol. 2.1
Zerega v. Will, 750.
Ziebold, Ex parte, 257.
Ziegler v. Evans, 54, 332.
Zimmerman, In re, 524.
V. Gaumer, 941.
T. Gerdes, 83.
Zimmerman v. Helser. STm. Su2.
Zinc Carbonate Co. v. Bank, 902.
Zink y. aty of Buffalo, 594.
Zinn V. Dawson, 391. 1000.
Zoller V. McDonald, 27.
Zumbro y. Stump, 498.
THE LAW OF JUDGMENTS.
CHAFTEBI.
THIS NATLKK AND CLASSIFICATION OF JUDGMENTS AND DECREBa
Pakt L The Natcrb of Judoments.
f 1. Definitions of Judgments, Decrees, and Orders.
Z. The Langnage of a Judgment
3. Essentials of a Judgment.
4. Consequmices of a Judgment
5. Judgment is not an Assignment
tt. Judgment is not a Specialty.
7. Judgments sometimes called Contracts.
H. The opposite View.
U. Where tbe Cause of Action Is In Tort.
10. Judgments are not Contracts. .
U. Question of Statutory Construction.
Part II. The Classification of Judomentb.
12. Methods of Classifying Judgments.
13. Judgments on an Issue of I«aw.
14. Judgments upon Verdict.
15. Judgments without Verdict
l(i Judgment against the Verdict
17. Names of Judgments in certain Special Actions.
Itl. Cross-Classifications of Judgments.
IV. Classification of Decrees.
Part I. The Nature of Judgments.
I 1. DeflaitloAs of JudzatentUf Deorees, and Orders.
As, in logic, judgment is an affirmation of a relation between a
particular predicate and a particular subject, so, in law, it is the
affirmation by the law of the legal consequences attending a proved
or admitted state of facts. It is not, however, a mere assertion of
1 LAW JUDG.-l
§ 1 LAW OF JUDGMENTS. (Cb. 1
the rules of law as applied to given conditions, nor of the legal rela-
tions of the persons concerned. It is always a declaration that a
liability, recognized as within the jural sphere, does or does not
exist. An action is instituted for the enforcement of a right or the
redress of an injury. Hence a judgment, as the culmination of the
action, declares the existence of the right, recognizes the commission
of the injury, or negatives the allegation of one or the other. But
as no right can exist without a correlative duty, nor any invasion of
it without a corresponding obligation to make amends, the judgment
necessarily affirms, or else denies, that such a duty or such a liability
rests upon the person against whom the aid of the law is invoked.
Further, a judgment is properly neither hortatory nor imperative.
It does not advise or recommend, nor, on the other hand, does it
prescribe any act or course of conduct. In respect to the latter par-
ticular the case is different, of course, with a decree in equity, but we
are now using the term "judgment" in its narrowest sense. In gen-
eral, therefore, it neither counsels nor commands, but simply asserts.
Again, although it is the affirmation of the law, it is necessarily pro-
nounced by the mouth of a court pr judge. And the decision of any
arbiter, self-constituted or chosen by the litigants, is no judgment.
The law speaks only by its appointed organs. It is only when the
deliverance comes from a true and competent court that it is entitled
to be called a judgment. Finally it must be responsive to the state
of facts laid before the tribunal. It is elementary law that no court
can travel outside the controversy presented to it, to touch other
rights or relations not involved. Hence the judgment must be an
affirmation in regard to the matters submitted to the court for deci-
sion. We may therefore define a judgment as the determination or
sentence of the law, pronounced by a competent judge or court, as
the result of an action or proceeding instituted in such court, affirm-
ing that, upon the matters submitted for its decision, a legal duty
or liability does or does not exist.*
1 "A Judgment is the final consideration and determination of a court of
^competent jurisdiction upon tbe matters submitted to it" Wbitwell y. Em-
ory, 3 Mich. 84, 59 Am. Dec. 220. *'The decision or sentence of the law, given
:by a court of justice or other competent tribunal, as tbe result of proceedings
Instituted therein for the redress of an injury." Bout. Law Diet. voc. **jQd|^-
(2)
Gil. 1) MATURE AND CLA68IPICATIOR OF JUDGMENTS. § 1
This is the definition of a judgment in its narrow and technical
sense; that is, as it is understood at common law, as distinguished
irom the modified significance of the term as used in the codes of
procedure, and also as distinguished from the definitive sentences of
courts of equity, admiralty, arbitration, and others.* The term
which, in equity practice, corresponds to judgment at common law
is "decree." But there are important differences between judgments
and decrees, such as to require a distinct definition of the latter ; and
these we now proceed to consider.
A decree, then, is the determination, sentence, or judgment of
equity, pronounced by a competent court, upon the controversy sub-
mitted for its decision. Or more specifically, it is "a sentence or
order of the court, pronounced on hearing and understanding all the
points in issue, and determining the rights of all the parties in the
suit according to equity and good conscience." • But a decree dif-
fers from a judgment both in the process which precedes and deter-
mines it and in its contents. Aside from the differences in the
courts, — in their organization, process, remedial machinery, rules
and methods of investigation, principles of decision, and the scope
of their competence, — it is to be noted that while a judgment at law
is usually, at least in contested cases, determined by the verdict, the
conclusion of law following inevitably as soon as the facts are found,
a judge in equity is called upon to decide upon the whole merits of
the controversy as it addresses itself to his conscience and sense of
fairness, of course within the established rules of equity. Hence
while a decree is, equally with a judgment, the deliverance of the law,
ment.*' "The conclnsion of law upon facts found, or admitted by the parties,
or apon their default in the course of the suit." 2 Tldd, Prac. 930. "A judg-
ment is the determination of the law as the result of proceedings instituted
fa a court of Justice. A final judgment is such as at once puts an end to the
action, by determining tbat the plaintiff is or is not entitled to recover, and
the amount in debt or damages to be recovered." Thompson, J., in Mahoning
Bank's Appeal, 32 Pa. 160.
2 A judicial sentence may be designated by a different term than judg-
ment. In the case of Cooper v. Metzger, 74 Ind. 544, It was held that the
words '^filial adjustment,*' as used in a statute, were equivalent in meaning to
**flnal judgment.'*
• 2 DanieU, Ctu Prac. MMS. "A decree in chancery is the Judgment of the
(3)
S 1 LAW OF JUDGMENTS. (Ch. 1
it IS also, to a considerable degree, the decision of the man who
frames it, as the interpreter of that moral standard which equity sets
up. Another important particular in which they differ is that a de-
cree is more pliable than a judgment. The latter proceeds upon the
determination of a narrow issue, of law or fact, and merely decides
upon the existence of an alleged liability as between two contending
persons or groups of persons. A decree may be adjusted to meet
all the exigencies of the litigation, and to settle all t!ie conflictinr;
rights and claims, however numerous and complicated may be the
interests involved. Further, a judgment has in general nothing
whatever to do with the means of enforcing the liability which it de-
clares. Certain consequences do indeed flow from it, — ^as the right
to issue execution, the attaching of a lien upon land, — ^but these arc
no part of the judgment, nor is it concerned with directions for mak-
ing its sanction effective. It is, as already stated, a bare assertion.
On the other hand, a decree may, and frequently does, contain more
or less minute and specific directions for effectuating its object
Also it may prescribe or forbid a specific act or course of conduct,
which a judgment never does. Hence it will be perceived that the
orbit of a decree in chancery, so to speak, is much wider than that
of a judgment at law.
This distinction between decrees and judgments has not always
been strictly preserved in American practice. In some of the states
there is a sort of border-land where equitable relief is administered
through common law forms, the amalgamation having occurred
through the lack of separate chancery courts. Thus in Pennsyl-
vania, where an action of ejectment may be brought to enforce the
specific performance of a contract for the sale of land, the sentence
pronounced is not regarded as an ordinary judgment at law, but as
containing the substance of a decree in equity, since it directs the
payment of money by one party and the conveyance of the land by
the other.*
In those states which have adopted codes of retormed procedure,
chancellor upon the facts ascertained and should be signed by him and entered
on the minutes of the court." Code Ga. § 4212.
«Coughanour r. Bloodgood, 27 Pa. 286,
Ch. 1) NATURE AND CLASSIFICATION OF JUDGMENTS. § 1
all distinction between law and equity, so far as relates to pleading
and practice, is abolished, and of course the difference between judg-
ments and decrees is also swept away. There being but one form of
civil action, the plaintiff may ask therein for any relief which either
law or equity would accord him, and the decision in his favor may
award him damages, specific performance, an injunction, foreclosure
of a mortgage, or any other legal remedy. Hence the final deter-
mination of any suit, whether by the proceedings formerly known as
equity, or at common law, is, under these codes, a judgment.** The
most usual definition is "the final determination of the rights of the
parties in an action or proceeding." • And the term "decree'* is no
'.onger used, except colloquially. It will be observed that the defi-
nition quoted, while it enlarges the scope of the word by making it
include decisions which were not formerly called judgments but de-
crees, also restricts it by the exclusion of those determinations which
are elsewhere known as interlocutory judgments.
It is also necessary to distinguish judgments and decrees from
orders. An order is the mandate or determination of the court upon
some subsidiary or collateral matter arising in an action, not dis-
posing of the merits, but adjudicating a preliminary point or direct-
ing some step in the proceedings. It is defined by the supreme court
of California as "a decision made during the progress of the cause
either prior or subsequent to final judgment, settling some point of
practice or some question collateral to the main issue presented by
the pleadings and necessary to be disposed of before such issue can
be passed upon by the court, or necessary to be determined in car-
rying the execution into effect." ^ It will be observed that orders,
■ SUte V. McArthur, 5 Kan. 280; Hughes v. Shreve, 3 Mete. (Ky.) 547;
Kramer v. liebmaD, 9 Iowa, 114.
• Code Civ. Froc. Oal. § 577; Code Civ. Proc. N. Y. § 1200; Code Kan.
i ay6; Code Or. § 240. MUler's Code Iowa. § 2849, declares that "ever^
final adjudication of the rights of the parties In an action is a Judgment"
iSee Walker v. Walker. 93 Iowa, 643, 61 N. W. 930. In Tennessee, the word
'-judgment" is usually applied to a determination of the rights of the parties
in an action at law, and the word '"decree" to a similar determination in
iy]iiJty; but the words are declared to be interchangeable as used in the
Cocl«>. Ward v. Kenner (Teim.) 37 S. W. 707.
7 Loring ▼. lUsley, 1 Cal. 27.
(5)
§ 2 LAW OP JUDGMENTS. (CI). I
under the codes, thus include the judgments formerly called inter-
locutory. An order is granted upon an application to the court
called a motion.® The term seems to be practically synonymous
(except for its including interlocutory judgments) with "rule." But
the latter is more commonly used in those states adhering to the
common law practice, while order is generally employed in those
which have adopted codes.*
i 2. The I*a]i«iiase of a Jndgment.
"A judgment, though pronounced or awarded by the judges, is
not their determination and sentence, but the sentence and determi-
nation of the law, which depends, not upon the arbitrary opinion of
the judge, but the settled and invariable principles of justice, and is
the remedy prescribed by law for the redress of injuries, and the suit
or action is the vehicle or means of administering it ; and therefore
the style of the judgment is not that *it is ordered or resolved by the
court,' for then the judgment might be their own, but *it is consid-
ered'— 'consideratum est per curiam,' which implies that the judg-
ment is none of their own, but the act of the law, pronounced and
declared by the court upon determination and inquiry.'' ^® At the
same time there is no magic in this formula; nor is it a conclusive
criterion whether a definitive judgment has been rendered that the
entry employs or omits the usual phrase, "it is considered." A judg-
ment may be final and subject to review on writ of efror, as well
when entered without as with that clause.*^ The usual style of a
8 Code Civ. Froc. Cal. § 1003; Code Qv. Proc. N. Y. § 767.
» The refusal of a court to Issue the writ of mandamus Is neither a judg-
ment nor a decree. Craddock v. Croghan, 1 Sneed (Ky.) 100. Neither is a
decision made by the court upon a matter addressed to its dlscretiouary au-
thority; as, an application to have a cause brought forward on the docket
and to vacate a certain Judgment therein rendered. Claggett v. Siraes, 25
X. H. 402. But in Georgia, it is said that an order passed by a judge of
the superior court, whether in term or at chambers, granting an application
presented by a trustee for leave to sell the trust property, has all the sanctity
of a formal judgment of a court of general jurisdiction, and will be sup-
ported by the same presumptions. Reinhart v. Blackshear, 105 Ga. 799, 31
S. K. 748.
10 Baker v. State, 3 Ark. 491. Dickinson, J.
11 Whitaker v. Bramson, 2 Paine, 201), Fed. Cas. No. 17,r.2G
(6)
Ch. 1) NATURE AND CLASSIFICATION OF JUDGMENTS. § 3
decree is "it is ordered, adjudged, and decreed ;" and of an order or
rule, "it is ordered," eta
i 3. EMPentialfl of a Jadememi.
We are not at present concerned with the tests by which the va-
lidity of a judgment is to be determined, such as the question of ju-
risdiction, the status of the parties, the time, place, and manner of
its rendition. But the object of this section is to indicate the essen-
tial characteristics which must appear on the face of the decision in
order to entitle it to be called a judgment for any purpose, even as a
preliminary to investigating its validity. And first, it must appear
to be the sentence of a court. As already stated, the award of arbi-
trators or of any self-constituted tribunal is not a judgment. The
decision must purport to emanate from some court of justice known
tu and organized under the laws of the particular sovereignty. At
the same time, it is usual to recognize the determinations of certain
bodies invested with minor administrative powers, and acting in a
judicial capacity in reference to their exercise,** as equivalent to
judgments of the courts. But it is only by analogy that these deci-
sions can be called judgments. And in general, a paper purporting
to be a judgment, but not stating by what court rendered, nor when,
nor for what cause of action, is a nullity.*' Again, unless in the
case of purely ex parte proceedings, it must appear to have been ren-
dered between adverse parties, or, in a certain class of actions, be-
tween a party plaintiff and some res which stands in place of a de-
fendant.** The case of a proceeding against "unknown owners" is
1* Such as road commissioners, In adjudicating upon the necessity of a
road, and in locating and making assessments for the same. Lon^ellow y.
t^uimby, */» Me. 196, 48 Am. Dec. 525. Or a town council, in auditing and
allowing a claim for a certain and ascertained amount Kelly v. Wimberly,
01 Miss. 548. Bee, infra, § 532.
IS BeviDgton y. Buck, 18 Ind. 414.
i*'nie action of a county court incorporating a town, under the statute
in Missonri, is not a judgment or cHrder, within the meaning of the act
allowing appeals. Mali y. De Armond, 46 Mo. App. 596. But a decree ad-
judging against certain persons certain amounts and ordering the same paid
into court to the credit of an estate, and proyiding for the distribution of the
fund to designated persons in fixed amounts, is such a final judgment as will
(7)
§ 3 LAW OP JUDGMENTS. {Ch. 1
no real exception to this rule, for there is always a thing or right
claimed, which may be personified as the plaintiff's adversary. And
the judgment must of course appear to be in favor of one party and
against the other. Again, the judgment must be definitive. Itmustpur-
port to be the actual and absolute sentence of the law, as distin-
guished from a mere finding that one of the parties is entitled tc a
judgment, or from a direction to the effect that a judgment may be
entered. "An order for a judgment is not the judgment, nor does
the entry of such order partake of the nature and qualities of a judg-
ment record." ^* It has been held that an order of court allowing
the plaintiff's attorney to enter up judgment for the plaintiff is in it-
self a sufficient judgment for the plaintiff for the amount sued fcnr.^'
But it may well be doubted whether this would hold good for all the
purposes of a judgment. Where an interlocutory judgment is ren-
dered by default, upon a claim for unliquidated damages, its amount
may be left for ascertainment by proper proceedings. But we may
say in general that if a judgment purports to be final, and is given
upon a money demand, the amount of the recovery must be stated in
it with certainty and precision. If the amount remains to be deter-
mined by a future contingency, or ascertained by referees, or dimin-
ished by the allowance of an unliquidated credit, or is otherwise in-
definite and uncertain, it is no proper judgment. ^^ It remains to be
stated that, in case of ambiguity, a judgment should be construed
with reference to the pleadings, and when it admits of two construc-
tions, that one will be adopted which is consonant with the judg-
ment which should have been rendered on the facts and law of the
support a writ of error, though not in favor of any person acting Individually
or In a representative capacity. Haines v. Christie, 27 Colo. 288. 60 Pao. 567.
15 Whit well V. Emory, 3 Mich. 84, 59 Am. Dec. 220. A written memo-
randum by tlie judge, of certain couchisious of fact, with a formal order for
more evidence on certain points, is not a judgment. Putnam v. Crombie, 34
Barb. (N. 1.) 232. An entry: "I find for the plaintiflC and assess his dam-
ages at," stating the amount is not a final judgment, but simply a finding
under the statute regulating the practice before referees. Demens v. Poyntz,
25 Fla. 054, 6 South. 261.
10 Tift V. Keaton, 78 Ga. 235, 2 S. B. 690.
17 Battell V, liowery, 46 Iowa, 49; Dunns v. Batchclor, 20 X. C. 46; Early
T. Moore, 4 Munf. (Va.) 262; Mudd v. Rogers, IJ La. Ann. 048; Xichols
V. Stewart, 21 111. 106. See infra, $ 118.
(8)
Cb. 1) NATURE AND CLASSIFICATION OF JUDGMENTS. § i
case,** But where a court inadvertently determines two matters
standing in such opposition as to be incapable of harmonious con-
struction^ as, for instance, that the same property belongs absolutely
to each of two persons, the decision is of no effect.**
i 4. Conseqnenoes of a Jndsment.
The first and most obvious consequence of a judgment is that it
establishes an indisputable obligation and confers upon the success-
ful party the right to issue execution or other process of the court
for its enforcement. But this, it must be repeated, is not an in-
tegral part of the judgment. The judgment is merely the affirma-
tion of a liability. The right to use the process of the court for its
enforcement is a consequence which the law attaches to it. A decree
may direct a particular act to be done; a judgment in rem may
specify the property out of which satisfaction is to be made ; a judg-
ment in replevin may require a return of the goods ; in certain cases
a judgment may be entered for a sum payable in a particular kind
of money.*® But with these exceptions, the general principle holds
good that the judgment, after performing its office of declaring the
existence of a certain liability, leaves the party to pursue the reme-
dies which the law provides.
Another important consequence of a judgment is that it creates a
lien upon real estate owned by the debtor, which endures for a cer-
tain period, follows the land into the hands of purchasers or other
lienors, and may be enforced by seizure and sale of the property sub-
ject to it. A separate chapter will be devoted to the consideration of
this subject.
A further consequence of a judgment is that it creates an estop-
pel upon the litigants ; so that a judgment rendered upon the merits
will bar any further suit upon the same cause of action, between the
same parties or their privies; and a point which was once actually
!• Peniston v. Somers, 15 La. Ann. 679. In detinue for several slaves,
a Judgment in favor of the plaintiff for all of them except one. as to whom
tile judgment-entry is entirely silent, is a Judgment In favor of the defendant
for Uiat one. WIttIck v. Traun, 25 Ala. 317.
»»Gage V. Downey, 94 Cal. 241, 29 Tac. 035.
-^iiee, Infra, S 1&2.
(0)
§ 4 IJkW OF JUDGMENTS. (Ch. 1
and necessarily litigated and decided cannot again be drawn in ques-
tion, by the same parties or their privies, in any future controversy
upon the same or a different cause of action. These topics also will
be discussed in later chapters of this work.
Another consequence flowing from the rendition of a judgment is
that it may constitute either an evidence or a source of title. This
may be illustrated by the result of a real action, by the case of a pur-
chaser at execution-sale under a judgment, by a decree quieting title
to lands or enforcing specific performance of a contract for their con-
veyance. Also in relation to chattels, it is held that satisfaction of
a judgment recovered in an action of trespass for their conversion
passes property in such chattels to the defendant, and that his title
thus acquired takes effect by relation from the time of the conver-
sion.**
It has also been said that a judgment constitutes a vested right
of property in the creditor, which cannot lawfully be diminished or
destroyed by the legislature.*- Within limits this is no doubt true.
But it appears that the right to receive interest on the amount of a
judgment, at the rate fixed by law at the time the judgment was ren-
dered, is not such a vested right of property as to be beyond the
control of the legislature; and consequently a statute reducing the
rate of interest on judgments may validly apply to those in force at
the date of its enactment, and interest on such existing judgments
can be recovered only at the reduced rate from the time of the pas-
sage of the statute.*^ Again, although there was no law allowing
an appeal from a particular judgment, at the time of its rendition, it
cannot be said that the successful party has any vested right that
his judgment shall not be made subject to review by subsequent leg-
islation.**
21 Smltn V. Smith, 51 N. H. 571.
22 Merchants' Bank v. BaUou, 98 Va. 112. 32 S. E. 481, 44 L. R. A. 306.
81 Am. St. Rep. 715.
28 Money V. l^ke Shore & M. S. Ry. Co., 146 U. S. 162, 13 Sup. Ct. 54,
3G U Ed. 925: Wyoming Nat. Bank v. Brown. 9 Wyo. 153. 61 Pac. -iiiTy,
2 4 Stephens v. Cherokee Nation, 174 U. S. 445, 19 Sup. Ct 722, 43 L. Ed.
KMl.
(10)
Cb. 1) IIATURE AMD CLABSIFIGATIUII 0¥ JUDGMENTS. § 7
i 5. Jndsmeat is not an Aislcnn&ent.
Thus far, in discussing the nature of judgments, we have spoken
only of their essential characteristics. It now becomes necessary to
distinguish them from certain other legal transactions to which they
bear a resemblance. And first, since the result of a judgment may
be to deprive the debtor of his property and transfer it (or its pro-
ceeds) to the creditor, it has been thought that the judgment, espe-
cially where it was confessed, might be construed as an assignment.
There is, however, no validity in this position. As has been said:
"A judgment is not an assignment. One is the act of the party,
the other the act of the law ; in the one case the debtor surrenders
the dominion to another, in the other he submits without opposition
to the course prescribed by law." **
i 6. Jndgment is not a Specialty.
A judgment of a domestic court of record is not a specialty, within
the meaning of a statute which provides for the limitation of "actions
upon the case, covenant, and debt; founded upon a specialty, or any
agreement, contract, or promise in writing, within fifteen years." *•
§ 7. JndgmBJktB sometinies called Contracts.
The notion that a judgment is to be considered as a contract ap-
pears to have originated with Blackstone.^^ At any rate, the pres-
tnt writer has been unable to discover any authority for such a prop-
s'HreflcUng T. Bogf?0, 20 Pa. 33, Lewis, J.
=• Trier's Kx'rs v. VVinslow. 15 Ohio St. 3W.
-• 3 BL Comm. 1(K). In speaking of such contracts as are Implied by law,
l\^ says: "Of this nature are, first, such as are necessarily implied by the
fuuuamental constitution of government, to which every man is a contracting
Uarty. And tlius it Is that every person is bound and hath virtually agreed
to psy such particular sums of money as are charged on him by the sentence,
<'r assessed by the interpretation, of the law. For it is a part of the original
coDtnct, entered into by all mankind who partake the benefits of society,
to submit in aU points to the municipal constitutions and local ordinances
of that state of which each individual is a member. Whatever, therefore,
th4' laws order any one to pay, that becomes instantly a debt, which he
hath beforehand contracted to discharge."
(11)
§ 7 LAW OP JUDQMBNTS. (Ch. 1
osition in the earlier reports or text-books. But the statement of
the learned commentator, to that effect, has been accepted without
question or demur by many of the succeeding text-writers, and put
forward as a recognized principle of law in numerous American
cases.*® Thus in New York it is said: "A judgment is a contract
of the highest nature known to the law. Actions upon judgment
are actions on contract. The cause or consideration of the judg-
ment is of no possible importance; it is merged in the judgment.
When recovered, the judgment stands as a conclusive declaration,
that the plaintiff therein is entitled to the sum of money recovered.
No matter what may have been the original cause of action, the judg-
ment forever settles the plaintiff's claim and the defendant's assent
thereto. This assent may have been reluctant, but in law it is an
assent, and the defendant is estopped by the judgment to dissent
Forever thereafter any claim on the judgment is setting up a cause
of action on contract." *• So, in a Massachusetts decision, in hold-
ing that a judgment by default against a married woman, in the ab-
sence of an enabling statute, was void, the court said: "A judgment
is in the nature of a contract; it is a specialty and creates a debt;
and to have that effect, it must betaken against one capable of con-
tracting a debt." ^® But in this country the question has chiefly
arisen in the construction of statutory provisions requiring certain
formaHties, or prescribing limitations, in actions "founded on con-
tract," and in the interpretation of that clause of the federal con-
stitution which prohibits to the states any legislation impairing the
obligation of contracts. In regard to the former class of cases, it
has been held that a judgment is a contract within the meaning of a
statute which provides that several causes of action may be united
when they arise out of contract express or implied, and hence an
action upon a judgment may be joined with an action for the breach
2 8 sawyer v. Vilas, 19 Vt. 43; Morse ▼. Toppan, 3 Gray (Mass.) 411; Mo-
Gulre V. Gallagher, 2 Sandf. (N. Y.) 402; Humphrey ▼. Persons, 23 Barb. (X. Y.)
313; Taylor v. Koot, •43 N. Y. 344; Johnson v. Butler, 2 Iowa, 535; Farmers'
Bank V. Mather, 3U Iowa, 283; Heed v. Eldredge, 27 Cal. 348; Stuart t. Lander,
1(5 Cal. 372, 76 Am. Dec. 538; Childs v. Harris Manufg Co., 68 Wi& 231, 32
M. W. 43; Weaver v. Lapsley, 43 Ala. 224; 1 Pars. Cent 7.
28 Taylor v. Koot, '43 N. Y. 335, Woodruff, J.
«o Morse V. Toppan, 3 Gray, 411, Shaw, C. J.
(12)
Ch. 1) NATUKK AND CLASSIFICATION OP JUDGMENTS. § 8
of an express contract.'* In regard to the latter class of cases,
there are decisions to be found tnai judgments are covered by the
prohibition against laws impairing the obligation of contracts.**
i 8. The Opposite View.
On the other hand, a carefully considered English case, subse-
quent in date to Blackstone, holds that a judgment is not in any
sense a contract; and this view is supported by numerous and re-
spectable American authorities.'* Thus a learned judge has re-
marked: ''The obhgation of a debt on a judgment does not arise
from any express contract made by the party charged by it. *J"^^"
cium redditur in invitum.' Upon a refined and artificial view of the
obligations imposed by law upon every individual, they may be re-
solved into a contract which he makes with society to obey the laws
by which he is protected. And the force of legal obligation has, by
some elementary writers, been attempted to be strengthened upon
»i CdUds v. Harris Aianufg Co., 68 Wis. 231, 32 N. W. 43. For other illus-
iratKms under this liead, see Sawyer v. Vilas, 19 Vt. 43; McGiiire v. Gallagher,
•^ S^andf. (N. y.) 402.
»2 Sc-arborough v. Dugan, 10 Cal. 305; Weaver v. Lapsley, 43 Ala. 224. But
In the latter c&se the question was upon the constitutionality of a certain stat-
ute entitled "an act to declare void certain judgments and to grant new trials
in certain cases therein mentioned.'' And the original cause of action in this
litigation (the judgment in which came under the act) was a contract. So
that the true ground of the Invalidity of the statute was, not that it impaired
ttie obligation of the judgment obtained on such contract, but that, by vacating
the judgment, it canceUed the remedy on the original contract itself, and so
impaired its obligation. See Black, Ck>nst Prohib. § 197. And see Sprott Y.
Keid. 3 Iowa, 481^, 56 Am. Dec. 549.
ss Hidleson v. W'hytel, 3 Burrows, 1548; Morley y. Lake Shore & M. S. Ry.
Co., 14« U. 8. lb"2, 13 Sup. Ct. 54, 36 L. Bd. 925; Wadsworth v. Henderson
(C C.) 1« Fed. 447; Todd v. Crumb, 5 McLean, 172, Fed. Cas. No. 14,073; Jor-
dan V. Koblnson, 15 Me. 168; Wyman v. Mitchell, 1 Cow. (X. Y.) 316; O'Brien
V. Young. tl5 N. Y. 428. 47 Am. Rep. 64; McDonald v. Dickson, 87 N. C. 404;
Napier v. GIdiere, Speers, *>i. (S. C.) 215, 40 Am. Dec. 613; Keith v. Estill. 9
I'ort. <Ala.) 069; Smith v. Harrison, 33 Ala. 700; Masterson v. Gibson, 56 Aln.
:»<*; Lovlns V. Humphries. 67 Ala. 437; Wolffe v. Eberlein, 74 Ala. 99, 49 Am.
Krp. WW; WiUiams v. Waldo, 3 Scam. (111.) 269; Rae v. Hulbert, 17 111. 572;
Sprott V. Keid, 3 Iowa. 489, 56 Am. Dec. 549; Larrnbee v. Baldwin, 35 Cal.
ir.i;: Wyoming Nat Bank v. Brown, 7 Wyo. 494, 53 Pac. 291, 75 Am. St. Rep.
(13)
§ 9 LAW OF JUDQMENTa (Ch. 1
this principle. (3 Bl. Comm. 160.) But contracts of this descrip-
tion are not barred by this part of the statute [of limitations]."**
So again : "A cause of action on contract or tort loses its identity
when merged in a judgment, and thereafter a new cause of action
arises out of the judgment whenever it becomes necessary to enforce
the obligation by suit. The liability of the debtor no longer rests
upon his voluntary agreement, but upon the adjudication of the
court into which the former has passed." •• The last sentence is es-
pecially significant.
f 9. Where tke Cause of Action Is in Tort.
Whatever may be said in regard to a judgment which is rendered
upon the actual contract of the parties, it must be perfectly appar-
ent that a judgment upon a cause of action sounding in tort cannot
be considered as in any sense a contract. True, the judgment
merges the cause of action. But that means that the plaintiff can-
not afterwards sue upon the original claim or use it otherwise. It
does not mean that it is metamorphosed into something diametrical-
ly opposite to what it was before. And it is held, upon the highest
authority, that a judgment in an action for a tort is not a contract
within the meaning of that provision of the federal constitution
which forbids the states to pass any law impairing the obligation of
contracts.'* "A judgment for damages, estimated in money, is
sometimes called by text-writers a specialty or contract of record,
because it establishes a legal obligation to pay the amount recovered,
and, by a fiction of law, a pfomise to pay is implied where such legal
obligation exists. But this fiction cannot convert a transaction want-
ing the assent of parties into one which necessarily implies it. Judg-
ments for torts are usually the result of violent contests, and, as ob-
served by the court below, are imposed upon the losing party by a
higher authority against his will and protest. The prohibition of the
84 Jordan v. Koblnson, 16 Me. 108.
8 5 McDonald v. Dickson, 87 N. C. 404.
88 Garrison v. City of New York, 21 Wall. 196, 22 L. Ed. 612; McAfee T. Cot-
inprton, 71 (ia. 272, 51 Am. Rep. 263; Freeland v. Williams, 131 U. S. 405, 9
Sup. Ct. 703, 33 Lr. Kd. 193; City of Slieiman v. Langham, 02 Tex. 13, 42 S.
VV. IHil.
(U)
Ch. 1) MATURE AND CLASSIFICATION OF JUDGMENTS. § 10
itderal constitution was intended to secure the observance of good
faith in the stipulation of parties against any state action. Where
a transaction is not based upon any assent of parties, it cannot be
said that any faith is pledged with respect to it, and no case arises
for the operation of the prohibition." '^
S 10. Jvdsinents are not Contrsets*
Upon the whole question, we are unable to concede that judg-
ments can properly be considered contracts under any circumstances
whatever. So far as concerns the authority of Blackstone, it is not
difficult to perceive that in dividing contracts into three classes, be-
ginning with "contracts by record," he was misled by that same love
of a neat classification which more than once led him into error.
The mistake lies in grouping under the same technical term things
which properly belong there and things which belong there only by
a remote analogy. Further, his whole argument upon this point
rests upon the assumption of an original "social contract" — a theory
long since exploded. Admit that society is a natural organism, not
a compact, and we look in vain for the implied promises supposed
to have been made by each person on entering into the social state.
Of the American decisions sharing this view (not very numerous
or very well considered), some have been content to take the state-
ment for granted, without probing the arguments advanced in its
support. Others have followed the same specious reasoning which
deceived the originator of the theory. And others, begging the
question, have decided that a particular judgment could not be valid
because it did not answer to the requirements of a contract, as in
respect to the capacity of the person to make a contract or incur a
debt.** But, as we have seen, there is a preponderance of authority
in favor of the proposition that judgments are not contracts.
•T i*lel<l, J., In Louisiana v. Mayor of New Orleans, 109 U. S. 285, 3 Sup. Ct.
'Zlh ^7 U J'^d. U36. See State v. New Orleans, 32 La. Ann. 70U, bolding tiint
claims arising from a tort,— as a city's statutory obligation to make good
damages done by a mob,~are not protected by this clause of the federal con-
stltutfoD, though reduced to Judgment.
ss As lA Morse v. Toppan, 3 Gray (Mass.) 411, a decision which is probably
wrong, and which certainly furnishes an illustration of loolclng at a legal ques-
tion npaide down.
(15)
§ 10 LAW OF JUDGMENTS. (Ch. 1
But in point of fact, the most distinctive mark of a contract is
wanting, viz.: the assent of both parties.** To this there are two
apparent exceptions, the case of judgments by confession and judg-
ments by default. But in the former instance, the agreement of the
debtor is that the creditor may take a particular means of securing
his claim. The judgment is not the agreement; it is the act of the
law, ir\voked by the parties, in executing the agreement. In the lat-
ter case, the defendant merely submits to what would, presumably,
be done with or without his assent. Nor will the theory of an im-
plied assent fill the gap. If we admit the assumption which lies at
the base of this doctrine, it is not difficult to transform any imagina-
ble right of action into a contract. For instance, it is the duty of
every good citizen to pay his taxes ; yet no one thinks that the entry
on the asscssor*s book is a contract which he has made. If the duty
of every member of society to pay the debts which are charged
against him as the result of legal proceedings can be construed into
his agreement to pay them, it is illogical to stop at causes of action
which are strictly and properly ex contractu. It is just as true that
he impliedly undertakes to make reparation for any delict which he
may commit, as it is that he impliedly promises to pay judgments
against him. But it would be rash to conclude that a tort is a con-
tract.*® Some of the cases speak of this implied assent as a "reluc-
tant assent.'* But this is practically a contradiction in terms. The
submission which is wrung from a party who has made his best de-
fense and can no longer help himself is not the movement of will
which goes to the making of a contract.
Another indispensable requisite to a contract is that the parties
should be legally capable of forming a binding agreement. And yet
80 "Tiie most Important elements of a contract are wanting. There is no
aggregatio mentium. The defendant has not voluntarily assented." O^Brien
V. I'oung. U5 X. Y. 428, 47 Am. Kep. G4.
*o **A Judgment is no more a contract than is a tort. In one sense it is true
thnt every member of society impliedly agrees to pay all Judgments which may
be regularly rendered against him; and in the same sense does he impliedly
agree to make amends for all torts whicli he may commit No one will pre-
tend tliat actions for torts are within the spirit and intent of the statute [In
regard to actions upon 'any contract or agreoment'l, and yet they certainly are
as much so as are actions ux)on Judgments." Kae v. Hulbert, 17 111. 572,
Caton, J.
(16)
Oh. 1) NATURB AND CLASilFIGATION OF JUDGMENTS. § 1 i
the immense majority of the cases hold that judgments rendered
against infants, lunatics, and other persons who are in law disabled
from contracting, are valid and conclusively binding until vacated or
reversed.** To push this argument one step further: "It is not
true that a judgment rests either upon the will or the capacity to
contract of the party against whom it is rendered. If a judgment
is a contract, and can only be rendered against one who is then
capable of contracting by the laws of the forum, there could not be a
judgment on a contract made in another state [nor on a judgment
rendered in another state], unless by the law of the forum that con-
tract would be valid. This would destroy the rule of comity and
international law which makes the validity of a contract and the
capacity of the contractor depend on the place where the contract
is made or is to be performed, or the domicile of the contractor, as
the case may be, and not upon the law of the forum." **
i 11. ^e Qmestlon oonsidered bm one of Statwtorj Comstniotion.
As already stated, the chief importance of this question arises in
connection wth the construction of constitutional and statutory pro-
visions. And we are now prepared to formulate the rules which
reason and principle seem to point out.
In the first place, a judgment is not a contract within the meaning
of the prohibition against law^s impairing the obligation of contracts.
The cases which hold that it is,*' proceed upon a misapprehension of
the constitutional principle.* It is true that statutes* have been de-
clared invalid, as obnoxious to this inhibition, which vacated judg-
ments, granted new trials, enacted shorter statutes of limitation, ex-
empted the debtor's property, gave stay of execution, and so on.
But it was not because they attacked the judgment, but because they
destroyed or desiccated the remedy on the original contract, which,
on the authorities, is vital to the maintenance of its obligation.** If
*i O'Brien v. Young, 96 N. Y. 428. 47 Am. Rep. 64.
" WadBworth v. Henderson (C. (\) 16 Fed. 451, Barr, J.
««8ee Weaver v. Lapsley. 43 Ala. 224; Scarborough v. Dugan, 10 Cal. 305.
But Me Sprott v. Held, 3 Iowa, 480, 56 Am. Dec. 549. Compare Morley v.
IJike Shore & M. S. Ry. Co., 146 U. S. 162, 13 Sup. Ct. 54, 36 L. £d. 1)2.-).
«« Blacky Const. Proliib. H 152, 157, 163, 197, 199.
1 LAW JUDG.— 2 (IT)
§12 LAW OP JUDGMENTS. (Ch. 1
the cause of action was in tort, the constitutional clause does not
apply.* ^ But it is impossible to hold that view if every judgment is
a contract.
In the next place, if a statute — for example, in prescribing limita-
tions of actions — manifestly intends, on its face, to divide all causes
of action into two classes, actions on "contract" and actions on
"tort," then a judgment must be considered as falling within the for-
mer class. Strictly it belongs to neither. But if the words are used
in this extended sense, then "contract" must include "quasi-contract."
And a judgment may reasonably be called a quasi-contract ; for al-
though it lacks some or all of the elements of a true contract, it is
more nearly assimilated thereto than it is to a delict.*' It is the
conclusive evidence of a fixed and ascertained debt, and that is suffi-
cient to distinguish it from a claim in tort.
Finally, if the statute relates only to "contracts express or im-
plied," or intends to divide possible causes of action into a larger
number of classes than those mentioned above, a judgment cannot
be considered as coming under the denomination of a "contract."
In such a case, it must stand in a class by itself, and if not specific-
ally mentioned, it is not within the purview of the act.
Part II. The Classification of Judgmknts.
§ 12. Methods of Clasiifyliis Judgments.
Several methods of classifying judgments have been proposed,
none of which, perhaps, is strictly scientific or perfectly accurate.
The difficulty is that so many complications arise in pleading and
practice that an entirely regular classification cannot well be made
without extending the number of groups beyond convenient limits.
However, as the chief thing is to obtain an orderly arrangement and
enumeration of the different varieties of judgments, the scientific
nature of the method pursued is not of prime importance. Aban-
doning the division commonly acquiesced in, as being too unwieldy,
*5 Garrison v. City of New York, 21 Wall. 196^ 22 L. Ed. 612; Louisiana v.
Mayor of Xew Orleans, 109 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. 986; Freelaud
V. Williams, 131 U. S. 405, 9 Sup. Ct 763, 33 L. Ed. 193.
46 Moore y. No well, 94 N. C« 265; Johnson v. Butler, 2 Iowa, 54^
(18)
Ch. 1) NATURE AND CLASSIFICATION OF JUDGMENTS. § 13
we propose to arrange judgments under the four following heads:
I. Judgments on an issue of law. 2. Judgments upon a verdict. 3.
Judgments without a verdict. 4. Judgments against a verdict.
S 13. Jvdsments on an Itume of Law*
These judgments are given upon the decision of a demurrer.
They are either for the plaintifl or defendant, as the case may be,
and are of the following sorts :
1. For the plaintiff, when the issue raised by a demurrer to any
of the pleadings is decided in his favor. This judgment is final and
definitive and concludes the right of action. Its style is "quod re-
cuperet," that is, "that the plaintiff do recover." *^
2. For the plaintiff, when the issue raised by his demurrer to a
dilatory plea or plea in abatement is found in his favor. This is
called judgment of "respondeat ouster," that is, that the defendant
"do answer over" or further. It is not final, since the plea did not
go to the merits, but requires the defendant, beaten on a preliminary
point, to present a more substantial defense.*®
3. For the defendant, when the issue raised by a demurrer is de-
termined in his favor. This is a final judgment, and disposes of the
case, unless leave be granted to amend the pleading or withdraw the
demurrer, as the case may be.*'
4. For the defendant, when the plaintiff's demurrer to a plea in
abatement is overruled, and the plea consequently sustained. The
language of this judgment is "quod cassetur breve," or "billam," that
is, that the writ or declaration be quashed.
«T Hale v. Lawrence, 22 N. J. Law. 72; Silver v. Rhodes, 2 Har. (Del.) 360;
Pettys V. Marsh. 24 Fla. 44» '6 South. 577. But where defendant demurred
for a variance between declaration and writ, and pending the demurrer leave
was granted to amend, whereupon the demurrer was overruled, held, that the
judgment should be respondeat ouster, and not quod recuperet Walker v.
Walker. 6 Uow. (Miss.) 500.
«« Trow V. Messer, 32 N. H. 361; Massey v. Walker, 8 Ala. 167; Hej-fron v.
Bank. 7 Smedes « M. (Miss.) 4.34; Randolph v. Singleton, 20 Miss. 430; O)oke
T. Crawford, 1 Tex. 0, 46 Am. Dec. 98.
<• Hale y. Lawrence, 22 N. J. I-aw, 72; Scharfif v. Lisso, 63 Miss. 213; Roks
r. Sim8. 27 Miss. 359; Memphis & Charleston R. Go. v. On*, 52 Miss. 541; Com-
stock V. Davis, 51 Mo. 501^; Weiss v. Binnian, 178 lU. 241. 52 N. B. 960; White
r. Levy, ua Ala. 481, 0 SouUi. 104.
(19)
§ 15 liAW OF JUDOMBNTB. (Oil. 1
§ 14. Jndsments vppn Verdiot.
We come next to such judgments as are rendered after the deter-
mhiation of an issue of fact by the verdict of a jury. They may be
either for the plaintiff or defendant, and are iii all cases final and
conclusive, if entered according to the verdict.
1. For the plaintiff, the judgment is "quod recuperet." **
2. For the defendant, if upon the merits, the judgment is "nil
capiat per breve" or "per billam," that is, that the r' '-^tiff "take
nothing" by his writ or declaration. If the plea was in ..-atement,
the judgment is "cassetur breve," as above.
S 16« ' JvdKsnents without Verdict*
This class of judgments includes numerous varieties. Those
which may be rendered for the plaintiff are as follows :
1. Judgment by default. This is a judgment entered in conse-
quence of the non-appearance of the defendant. Where the defend-
ant omits to plead within the time required, the judgment taken
against him for that cause is more properly called "nil dicit," but the
term "default" is usually extended to cover this case also. And in
the code states, the judgment entered upon the defendant's failure to
serve or file an answer within the prescribed period is called a judg-
ment by default.
2. Judgment by nil dicit, which is rendered against a defendant
for his failure to plead to the declaration.
3. Judgment by "non sum informatus." This is a judgment which
is rendered when, instead of pleading, the defendant's attorney de-
clares that he "is not informed" of any answer or defense to be made.
4. Judgment by confession. This is a judgment which is entered
for the plaintiff in case the defendant, instead of entering a plea,
confesses the action, or at any time before trial confesses the action
and withdraws his plea and other allegations. This is called, in full,
50 See Texas, S. F. & N. R. Co. r. Saxton, 3 N. M. 282 (Johns.) 6 Pae. 200.
Wbere issue has been joined on a plea in abatement (the only plea in the
case), and the issue submitted to a jury, resulting in a verdict for the plaintiff,
the court should award a peremptory judgment quod recuperet, and not a de-
fault for want of a plea. Bishop y. Camp, 39 Fla. 517, 22 South. 735.
(20)
Ch. 1) NATUKiS AND CLASSiyiCATION OF JUDGMENTS. § 15
a judgment by confession "relicta verificatione." A more usual form
oi judgment by corfession is that which is entered where the debtor,
without suit brought, gives a written instrument confessing that he
is indebted to the creditor in a certain sum, and authorizing an at-
torney to appear for him. and enter judgment against him in a court
of record.
5. Judgment on motion; a judgment authorized by statute in cer-
tain kinds of summary proceedings, rendered ex parte and without
trial. This remedy, being in derogation of the common law, must
be strictly pursued, and the judgment must show on its face all facts
necessary to give jurisdiction.*^
6. Judgment on the pleadings. This is a form of judgment not
infrequently used in the practice of the code states. It is rendered,
on motion of the plaintiff, when the answer admits or leaves undenied
all the material facts stated in the complaint.** It cannot be entered,
in a suit for unliquidated damages, over an answer stating matters in
mitigation.'*
Of this class of judgments, those which may be rendered for the
defendant are as follows : —
I. Judgment of nonsuit. This judgment, given against the plain-
tiff, is either voluntary or involuntary. It is the former, when the
plaintiflf throws up his case and consents to a judgment for defend-
ant for costs. It is the latter, when the plaintiff, on being called or
demanded, at the instance of the defendant, to be present while the
jury give their verdict, fails to appear. Also, where the court decides
that the plaintiff has given no evidence on which the jury could find a
51 Garner v. Carrol, 7 i'erg. (Tenn.) 365; Jones v. Read, 1 Humph. (Tenn.)
Si Kotto v. Vandament, 67 Cal. 332, 7 Pac. 753; Amador Co. v. Butterfield,
51 Cal. 526; Sbattuc v. McArthur (U. C.) 25 Fed. 133; Felch v. Beaudry, 40 Cal.
4»l; Finley v. City of Tucson (Ariz.) 60 Pac. 872. But where facts showing
the illegality of a contract sued on are sufficiently alleged in the answer, the
plaintiff cannot recover upon the pleadings, although such facts are not pleaded
or insisted on as, a defense. Prost v. More, 40 Cal. 347. And where an issue
is distinctly raised by the answer, and submitted to the jury without objec-
tion, and a verdict given for defendant, it is then too late for plaintiff to move
for Judgment on the pleadings. Lewis v. IToard, 112 N. C. 402, 17 S. E. 9.
•> tthattuc T. McArthur (C. C.) 25 Fed« 133.
(21)
§ 15 LAW OP JUDGMENTS. (Ch. 1
verdict in his favor, an involuntary nonsuit is entered against him.**
2. Judgment of nolle prosequi. This is a judgment entered
against the plaintiff where, after appearance and before judgment,
he declares that "he will not further prosecute his suit." It is used
as a means of abandoning one or more counts in a declaration or
parts of a cause of action, or releasing one or more of the joint de-
fendants, while holding to the rest.
3. Judgment of non prosequitur, or "non pros." A judgment
given against the plaintiff for his default or neglect to take any of
those steps in the proceedings which he is required to take in due
time ; as, a failure to file a declaration or other pleading.**
4. Judgment of retraxit. This is a judgment given against the
plaintiff when, after appearance, he voluntarily goes into court and
enters upon the record a statement that "he withdraws his suit." It
is an open and voluntary renunciation of his claim in court ; wherein
it differs from a nonsuit, which is merely his neglect or default ; and
by a retraxit the plaintiff's cause of action is forever barred.**
In this class of judgments there is one which may be entered for
either party, viz.: judgment by consent. It is well known in prac-
tice. Tbe attorneys of the respective parties to a suit, it is said, have
undoubtedly the right to agree upon terms and what kind of judg-
ment shall be entered; but the judgment must be one authorized
by law.*^
84 Where plaintiff's evidence Is excluded from the Jury, the proper Judgment
is one of nonsuit. Wilson v. Breyfogle, 11 C. C. A. 248, 63 Fed. 379. Also
where the court holds that plaintiff cannot recover on his pleadings. Murray
V. JSoiitherland, 125 X. C. 175, 34 S. E. 270. But a nonsuit does not warrant
a Judgment dismissing the complaint on the merits. Thlry v. Taylor Brewing
& M. Co., 37 App. Dlv. 391, 56 X. Y. Supp. 85; McCune v. Eaton, 77 Minn. 404,
»0 N. VV. 355.
6B A Judgment of non pros, is in effect a Judgment by default for laches.
Walton V. Lcfever (Pa.) 17 Lane. Law Rev. 203; People v. Reuter, 88 111. App.
58(>. A plea being bad, so that demurrer thereto is improperly overruled,
plaintiff is not in default for not replying, and therefore a Judgment of noo
pros, for want of replication is error. Henderson v. Maryland Home Fire Ins,
Co., 90 Md. 47, 44 Atl. 1020.
Be Thomason v. Odum, 33 Ala. 108, 68 Am. Dec. 159; 3 Bl. Comm. 296; Cun-
ningham V. JSchley, 68 Ga. 105; infra, § 700.
67 Tuppery v. llertung, 40 Mo. 135. See Jones v. Webb, 8 S. C. 202; Summar
V. Owen. 62 Teun. 26.
(22)
Ch. 1) * KATURB AND CLASSIFICATION OF JUDGMEr.TS. § 16
I 16. JndKHient agalutt tlie Verdiot*
Where the plea to the declaration confesses a cause of action in
the plaintiff and sets up matter in avoidance, and such matter, though
found true by the verdict of the jury, is insufficient in law to consti-
tute a bar or defense to the action, the court will enter a judgment
for the plaintiff non obstante veredicto, that is, notwithstanding the
verdict.** For, "the plea being substantially bad in law, of course
the verdict which merely shows it to be true in point of fact cannot
avail to entitle the defendant to judgment; while, on the other hand,
the plea, being in confession and avoidance, involves a confession of
the plaintiff's declaration, and shows that he was entitled to main-
tain his action." ^* For example, a plea of tender of rent after the
day of its falling due is insufficient, and after a verdict on such plea
in favor of the defendant, the plaintiff is entitled to judgment non ob-
stante veredicto.*® But in order that this judgment may be given, it
is essential that the plea should distinctly imply an admission of the
plaintiff's right or title.**
There are other cases beside the foregoing in which a judgment
non obstante veredicto may be rendered, or an analogous species of
judgment. Thus, in some of the states, in cases where the special
findings of the jury are in direct conflict with the general verdict, it
is the practice to grant a judgment notwithstanding the verdict.*^
»• Flm y. Grazebrook, 2 C. B. 429; Atkinson v. Davies, 11 Mees. & W. 230;
Berwick v. Duncan, 3 Kxch. 644; Roberts v. Dame, 11 N. H. 22G; Fitch v.
Scot 1 Koot (Conn.) 351; Bellows v. Shannon, 2 Hill (X. Y.) 86; Move v. Pet-
way, 7« N. C. 327; Ward v. Phillips, 89 N. C. 215; State v. Commercial Bank,
0 Smede« & M. (Miss.) 218, 45 Am. Dec. 280; Garrett v. Beaumont, 24 Miss.
377; SoUenberger v. Gest, 14 Ohio, 204; Tootle v. Clifton, 22 Ohio St. 247, 10
AnL Rep. 732; Berry v. Borden, 7 Blackf. (Ind.) 384; Pomeroy v. Burnett, 8
Blackf. (Ind.) 142; Jones v. Fennlmore, 1 G. Greene, 134; Oades v. Oades, 6
.Neb. 3(M; Houser v. Harding, 126 N. C. 295, 35 S. E. 586; O'Neal v. Rumley Co.,
iKy.) 53 S. W. 521; Friendly t. I^e, 20 Or. 202, 25 Pac. 300. See Collier v.
Jenks, 19 R. 1. 493, 34 Atl. 998.
»• Hour. Law Diet., "Judgment."
•• Dewey v. Humphrey, 5 Pick. (Mass.) 187.
•1 Pim V. Grazebrook, 2 C. B. 429.
e« Felton v. Chicago, R. I. & P. B. Co., 69 Iowa, 577, 29 N, W. 618; Tx)uls-
(23)
§16 LAW OF TUDQMENTS. (Ch. 1
But unless the special findings "are so irreconcilably in conflict with
the general verdict as that both cannot stand, the motion must be
overruled without regard to the evidence." ®* And the motion for
this judgment can be made only by the party against whom the ver-
dict goes ; hence, if the general verdict is in his favor, but the special
findings do not correspond with it, a motion in that behalf will not
avail him.**
Another instance in which this form of judgment may be rendered,
is where the decision on a "point reserved" negatives the verdict
of the jury. If a point of law is ruled provisionally at the trial, but
subject to the further consideration of the court, and if its ultimate
decision shows that the party in whose favor the verdict goes is not
entitled to judgment, the court may enter judgment notwithstanding
the verdict. But the record must show the point of law reserved and
the specific facts on which it arises.** In Pennsylvania, when the
court has reserved the question whether there is any evidence en-
titling the plaintiff to recover, and the evidence has been submitted
to the jury, and a verdict has been returned for the plaintiff, the court
ville, N. A. & C. Ry. Co. v. Creek. 130 Ind. lol>, 29 N. K. 481, 14 L. R. A. 733;
School District No. 46 v. Lund, 51 Kan. 731, 33 Pac. 51)3; X. K. Falrbank &
Co. V. Cincinnati, X. O. & T. P. R. Co. (C. C.) 66 Fed, 471.
«3 Porter v. Waltz, 108 Ind. 40, 8 X. E. 705; Cox v. Ratchffe, 105 Ind. 374, 3
X. E. 5; Pennsylvania Co. v. Smith, 98 Ind. 42; Baltimore & O. & C. R. Co. v.
Rowan, lOi Ind. 88, 3 N. E. 627; McXabb v. Cliip, 5 Ind. App. 204, 31 X. E.
858; Vance v. City of Franklin, 4 Ind. App. 515, 30 X. E. 149; Todd v. Bad;jer.
134 Ind. 204, 33 X. E. 963; Fruchey v. Eagleson, 15 Ind. App. 88, 43 X. E.
146; Stein v. Chicago & G. T. Ry. Co., 41 111. App. 38.
64 Krown v. Searle, 104 Ind. 218, 3 X. E. 871.
06 Wilde V. Italnor, .'9 Pa. 442; Fayette City Borough v. Hug-ins, 112 Pa.
1, 4 Atl. 927; Buckley v. Duff, 111 Pa. 223, 3 Atl. 823; Keifer v. Eldivd Town-
ship, 110 Pa. 1, 20 All. 592. Where, aftel- reserving a point on certain facts,
the court submits other evidence to the jury, a judgment non obstante cannot
be entered if it is uncertain whether the Jury found on tlie facts on which the
reservation was made or on the other evidence. Keifer v. Eldred Township,
supra. On a verdict in trespass awarding the plaintiff a specified amount of
damages as compensation and a specified amount of punitive damages, the
court, on appeal, may enter judgment for the amount of the compensatory
damages and Judgment non obstante for the defendant as to the punitive dam-
ages, although no point was reserved on the record. Gedusky v. Rubinsky, 8
i'a. DM. R. 10.
(2i)
Ch. 1) NATURE AND CLASSIFICATION OF JUDGMENTS. § 16
may tlien, on the reservation, enter judgment for the defendant non
obstante veredicto."
At the common law, a defendant is not entitled in any circumstan-
ces to move for judgment non obstante veredicto ; if the verdict is
for the plaintifl, and the state of the pleadings is such that the latter
might have asked for this judgment had their positions been reversed.
the only proper course for the defendant is to move that the judgment
be arrested,*^ or, in case of conflict between the general verdict and
the special findings, to move for judgment on such findings.*® But
in a number of the states, this rule has been relaxed, either by statute
or by the decisions of the courts, so as to admit of the entry of judg-
ment notwithstanding the verdict, in proper cases, in favor of the
defendant.** Thus, in -Nebraska, the code of procedure provides
that "where, on the statements in pleadings, one party is entitled
by law to judgment in his favor, judgment shall be so rendered by the
court, although a verdict has been found against such party." This
will entitle the defendant to a judgment notwithstanding a verdfct
for the plaintiff, if the plaintiff's own pleadings show that he ought
•• nsber V. Scharadin, 186 Pa. 5«5, 40 Atl. lOl^l. Compare Butts v. Armor's
tjBt&te, IW Fa. 73, 30 Atl. 357. 26 U R. A. 213; Yerkes v. Richards, 170 Pa.
346. 32 Atl. 10«9; Hosier v. Hursh, 151 Pa. 415, 25 Ati. 52.
•7 German lU8. Co. v. Frederick, 7 C. C. A. 122, 58 Fed. 144; Smith v.
I'owere, 15 X. H. 546; Bradley Fertilizer Co. v. Caswell, 65 Vt. 231, 26 Atl.
U56; Trow t. ITioraas, 7U Vt. 580, 41 Atl. 652; TlUinghast v. McLeod, 17 R. I.
2UH. 21 AU. 345; Burnhnm v. New York, P. & B. R. Co., 17 R. I. 544, 23 Ati.
638; Smith v. 8mith, 4 Wend. (X. Y.) 468; Schcrmerhom v. Schermerhorn. 5
Wend. (X. Y.) 513; Bellows v. sJhannon, 1i Hill (X. Y.) 86; Christian v. Yar-
twroueb. 124 X. C. 72, 32 S. E. 383; Bowdre r. Hampton. (5 Rich. Law (S. C.)
2tl»; Barnes v. Rodgers, 54 S. Q 115, 31 S. E. 885; Buckingham v. McCracken,
•J Ohio St. 287; Bradshaw v. Hedge, 10 Iowa, 402; Lough v. Thornton, 17
Mlun. 253 (Gil. 1'30); Shee)i5' v. Duffy, 89 W\s. 6, (51 X. W. 205; Quimby v.
Boyd, 8 Colo. 104, 6 I'ac. 462; Floyd v. Colorado Fuel & Iron Co., 10 Colo. App.
51. 50 l^ac. 864.
«• Tei'han v. Union Bridge Co.. 84 111. App. 532.
•• Martindale v. Price, 14 Ind. 115; Carl v. Granger Coal Co., 60 Iowa, 510,
'Jlf X. W. 437; Holland v. Kindregan, 155 Pa. 156, 25 Atl. 1077. A Judgment
for defendant non obstante veredicto will not be» granted where the defense is
a general denial. Virgin Cotton Mills v. Abernathy, 115 X. 0. 402, 20 S. E.
r»2:i. Xor where the pleadings and evidence raise questions of fact proper for
f 1 p Jury. Sli>itzkl v. Town of Wien, 93 Wis. 400, 67 X. W. 7oO. See Temple-
ii:an v. Gibbs (Tex. Civ. App.) 25 S. W. 736.
(25)
§ 16 LAW OF JUDGMENTS. (Ctu I
not to recover; but not merely on the ground that the verdict is
contrary to the weight of the evidence.'^® In Minnesota, the law
allows an entry of judgment for the defendant, notwithstanding a
verdict for the plaintiff, in cases where the facts stated in the plain-
tiff's pleadings are not sufficient, in point of substance, to constitute
a legal cause of action; but not on the ground of such a failure of
evidence, in weight or detail, as would warrant the court in ordering a
new trialJ^ A similar rule obtains in Oregon.^* In Pennsylvania,
where the plaintiff's evidence is so weak as to amount but to a scintilla,
judgment may be rendered for the defendant non obstante vere-
dicto.^' In Kentucky, in an action for damages caused by defend-
ant's negligence, where a plea of contributory negligence is not con-
troverted, defendant is entitled to judgment notwithstanding a ver-
dict for the plaintiff.''*
A motion for judgment non obstante veredicto is founded on the
record alone, and its determination cannot be influenced by affida-
vits or extrinsic evidence.''* In some states, it is held that a party
will not be entitled to have a judgment of this kind entered in his
favor, unless he has moved to direct a verdict at the close of the
testimony ; and moreover, after judgment, he must specifically move
for judgment non obstante veredicto, a mere motion for a new trial
70 Code Civ. Proc. Neb. § 440; Manning v. City of Orleans, 42 Neb. 712, GO
N. W. 953; Gibbon v. American Bldg. & Loan Ass'n, 43 Neb. 132. 61 N. W.
1*J6; Stewart v. American Exchange Nat. Bank, 64 Neb. 4G1, 74 N. W. 865.
71 Cniikshank v. St. Paul Fire & Marine Ins. Co., 75 Minn. 206, 77 N. W.
l>58; Kreatz v. St. Cloud School Dlst., 79 Minn. 14, 81 N. W. 533; Marquanlt
V. Hubuer, 77 Minn. 442, 80 N. W. 617; Bragg v. Chicago, M. & St. P. R. Co..
81 Minn. 130, 83 N. W. 511. Compare Baxter v. Covenant Mut. life Ass'n, 81
Minn. 1, 83 N. W. 459.
72 Benicia Agricultural Works v. Creighton, 21 Or. 495, 28 Pac. 775.
78 Holland v. Kindregan, 155 Pa. 156, 25 Atl. 1077.
7* Louisville & N. R. Co. v. Maj^lield (Ky.) 35 S. W. 924.
78 Snow v. Conant. 8 Vt. 309; Smith v. Smith, 2 Wend. (N. X.) 624; Chi-
cago & E. R. Co. V. Kreig, 22 Ind. App. 393, 53 N. E. 1033; Lichtstein v.
Northwestern Nat. Ins. Co., 23 Pa. Co. Ct. R. 471. In Ohio, the statute cou-
tines the court to a consideration of the statements in the pleadings, and the
record, outside of such statements, should not be considered in disposing of the
motion. McCoy v. Jones, 61 Ohio St, 119, 55 N. E. 219; Beetz v. Strobel <5
Ohio Dec. 143.
(20).
Cb. 1) HATURE AND CLASSIFlCATIOM OV JUDGMENTS. § 17
not being sufficient to authorize the judgment.''* The motion, in the
absence of an agreement by the parties that it may be filed and con-
sidered in vacation, cannot be considered by the court when so filed.^"
And where one judge presided at the trial of an action, another judge
has no authority, on motion for judgment notwithstanding the ver-
dict, to make findings of fact on evidence not heard by him.''®
There is one other form of judgment, entered in disregard of a
verdict, which must be mentioned in this connection. It is the judg-
ment "quod partes replacitent" (that the parties replead), or judg-
ment of repleader. This is entered in a case where issue has been
taken upon a point so immaterial that, notwithstanding the verdict,
the court is unable to decide which party should recover upon the
merits. It requires the parties to frame their pleadings anew, from
the fault which first occasioned the immaterial issue, taking issue
upon a substantial ground. A repleader differs from a judgment
non obstante veredicto in this, that the latter is granted in a case
where the pica is good in form though the matter pleaded is not avail-
able as a defense, w^hile the former is only proper where the plead-
ings do not bring the merits within the issue. Hence the latter kind
of judgment is always upon the merits, and never granted but in
a very clear case ; a repleader is upon the form and manner of plead-
ing.'•
S IT. Names of Jndsmentfl in oertain Special Actions.
Before completing our enumeration of the different kinds of judg-
ments, it is necessary to mention the special names given to the judg-
ments in certain actions. In the action for partition, the interlocu-
tory judgment whereby it is directed that partition be made, is called
judgment "quod partitio fiat;" while the style of the final judgment in
the same action, confirming the partition made, upon the return of
the writ, is "quod partitio facta firma et stabilis in perpetuum." ®*^
7«»tzer V. City of Oookston. 66 Minn. 355, 68 N. W. 1099; Ilemstad v.
UaU. m Minn. 136, 66 N. W. 306; Crane v. Knaut 65 Minn. 447, 68 N. W. 79.
" Soribner v. Rutherford. 65 Iowa, 551, 22 N. W. 670.
TSAiiltman & 'lYiylor Co. v. O'Dowd, 73 Minn. 58, 75 N. W. 756, 72 Am.
St Uep. 6rj3.
'» 2 'ndd, Frac. 922.
•• 5 ISac. Abr. 292, cited Freem. Judgiu. § 8.
(27)
§ 18 LAW OF JUDOMBNTa (^« 1
The interlocutory judgment in an action of account, whereby it is
directed that "the defendant do account," is called judgment "quod
computet."
S 18. Cnws-ClassilLeations of Jndsments.
There are certain methods of classifying judgments and decrees,
without regard to the mode of trial, stage of entry, or rendition of a
verdict, and hence running across the division above adopted, which
are important to be named. And first, they are either final or inter-
locutory. A final judgment or decree is one which puts an end to
the whole action, leaving nothing further to be done or determined
by the court. It is interlocutory, if it merely settles some preliminary'
or subordinate point, without reaching the merits, or if, though di-
rected to the main controversy, it does not dispose of the whole case,
but leaves something for the further action or consideration of the
court before the rights of the parties are definitely fixed. This dis-
tinction will form the subject of the next chapter.
Judgments and decrees are also either domestic or foreign. A
judgment is called domestic when it was rendered by a court organ-
ized by the same state or sovereignty within whose territory it is
sought to be enforced or is invoked as a defense. It is called foreign
when rendered by another or independent state or sovereignty.
In Louisiana, a judgment rendered by default is distinguished from
a "contradictory judgment •/' the latter being one which is given after
the parties have been heard either in support of their claims or in
their defense.
Judgments and orders may further be classed as absolute or nisi.
At common law a judgment nisi was one entered on the return of
the nisi prius record with the postea indorsed, which would become
absolute according to the terms of the postea, unless the court out
of which the nisi prius record proceeded should, within the first four
days, otherwise order.®^ It is otherwise defined as "one that is to
be valid unless something else should be done within a given time to
defeat it." ®* A rule or order nisi is one which is to be confirmed or
81 Bout. Law Diet, sub voce.
82 United States v. VViiistead (i>. C.) 12 Fed. 50. See Strickland v. Cox, 102
N. C. 411, 9 S. ifi. 414.
(28)
Ch. 1) NATURE AND CLASSIFICATION OF JUDGMKNTS. § 19
made absolute, unless cause be shown to the contrary, or something
be done which has been required, within a specified time.
Adjudications are also classed as either in rem or in personam.
This distinction is one of difficulty and importance, and the former
kind of judgments will form the subject of a later chapter, to which
the reader is referred for the definitions.
f 19. GlaisiilcAtion of Deoreei*
In addition to the divisions indicated in the preceding section,
decrees in equity are classed as **by default," "by consent," "on the
hearing," and "pro confesso." The last named — a decree that the
bill be taken as confessed — is entered where the defendant, by not
appearing within the time prescribed, is under tood to admit the case
made by the bill. It is intended to prepare the case for final decree ;
and its effect is like that of a default at common law, by which the
defendant is deemed to have admitted all that is well pleaded in the
declaration.^* A decree nisi is one entered upon the defendant's
failure to appear when the case is called for hearing, granting the
relief asked, but coupled with a condition that the defendant is to
have a certain time within which to show cause against the decree.
•9 Rnmell v. LAtbrop, 122 Mass. 302.
(29)
§ 20 LAW OF JUDQMENTa. (Ch. 2
CHAPTER n.
FINAL AND INTERLOCUTORY JUDGMENTS AND DECREES.
S 20. Reasons for the Disttnction.
21. Definition of Final Judgments.
22. Interlocutory and intermediate Orders.
23. Must be final as to all Parties.
24. Must settle all the Issues.
25. Uncertainty of the Amount.
26. Judgment of Nonsuit.
27. Dismissal of Suit.
28. Judgment by Default
2U. Judgment on Demun'er.
30. Judgment on Flea In Abatement
.31. Judgment for Costs.
31a. Allowance of Claims Against Fund.
32. Granting or Refusing Extraordinary Remedies.
33. On Motion for New Trial.
34. Vacating or Reversing former Judgment.
36. Orders as to Interpleader, Intervention, and Joinder of Parties.
3t>. Dissolving Attachments and Executions.
37. Order removing Cause.
38. Judgments and Orders of Probate Courts.
39. Judgment in Partition.
40. In Condemnation Proceedings.
41. Finality of Decrees.
42. Further Action necessary to settle the Equities.
43. Further Action necessary to execute the Decree,
44. Decree ordering a Refereoce.
45. Directing an Account.
46. Decree suspending Rights until further Orders.
47. Decree dissolving Partnership.
48. Foreclosure of Mortgage.
49. ISending Issue out of Chancery.
§ 20. Reaiont for the Dlitinotion.
The distinction between final judgments and decrees and such as
are merely interlocutory, is one of considerable importance, both as
a matter of practice and in respect to the consequences which follow
the entry of a final adjudication. As a general rule, it is only a final
judgment which has the efTect of creating a lien upon the debtor's
realty. So also, with certain minor exceptions, it is only a final judg-
(30)
Ch. 2) FINAL AND INTERLOCUTORY JUDGMENTS AND DECREES. § 21
ment or decree upon the merits which will sustain the plea of res
judicata. At common law, a writ of error could not be brought
until the last, or final, decision in the cause. In many of the states,
it is provided by statute that appeals may be taken to their courts of
last resort only from the final judgments of the trial courts or the
final decrees of the courts of chancery.* By the federal judiciary
act • it is enacted that error may be brought to the final judgments
at law or decrees in equity of the highest courts in the several states
for the purpose of their re-examination by the supreme court of the
United States in certain prescribed cases. Thus, for these various
reasons, it is often necessary to distinguish final decisions from the
interlocutory class of adjudications. The cases in which such a dis-
tinction is drawn are numerous, illustrating the wide range of in-
stances in which the question may arise, and not always harmonious ;
for the practice, or the statute-law, in some jurisdictions, ascribes
the character of finality to judgments ox orders which elsewhere are
considered as merely interlocutory.
f 21. Definition of Final JndKmentfl*
A final judgment is such a judgment as at once puts an end to
the action by declaring that the plaintiff has or has not entitled him-
self to recover the remedy for which he sues.^ It is sometimes said
that it is the award of the judicial consequences which the law at-
taches to the facts, and which determines the subject-matter of the
controversy between the parties.* It is evident, however, that this
description is too narrow. For a final judgment means not a final
determination of the rights of the parties with reference to the sub-
ject-matter of the litigation, but merely of their rights with reference
to the particular suit.* In other words, it is not at all necessary that
1 l^nno v. Jutematlonal K. & S. Co., 34 Fla. 300, 16 South. 180; Van Zandt
▼. Gormley, (M$ 111. App. 588; City of Bath v. Palmer, 90 Me. 407, 38 Atl. 305.
« Kev. St. U. S. S 700.
• 3B1. Comm. 398.
* West V. Bagby, 12 Tex. 34, 02 Am. Dec. 512, following Hanks t. Thomp-
son, 5 Tex. 6. And see Uobbs v. Staples, 19 Me. 219.
» Belt V. Davia, 1 Cal. 134; Weston v. City of Charleston, 2 Pet. 440, 7 L.
Kd. 481; Klink t. The Cusseta, 30 G a. 504; Williams v. Wait, 2 S. D. 210, 49
S, W. 2UM, 3U Am. St Hep. 768; State y. Superior Court of Jefferson County,
(31)
§21 LAW OF JUDGMENTS. C^h. 2
the judgment should be upon the merits, if it definitely puts the case
out of court.® A judgment of nonsuit or dismissal is final, though it
does not reach the merits. It is the termination of the individual
action which marks the finality of the judgment. But there must
be an actual judgment. An order for judgment is not a final judg-
ment; it is final only when it contains the decision or sentence of
the law upon the matter contained in the record; the order must
be followed by the sentence of the law declaring that the party may
recover the sum adjudged.^ On the other hand, a judgment is as
final when pronounced by the court as when entered and recorded by
the clerk. * Where a motion for new trial has been made and enter-
tained by the court, the judgment in the case does not become final
and effectual, for purposes of review, until the date of the overruling
of such motion.*
A judgment which is not final is called "interlocutory." That is,
an interlocutory judgment is one which determines some prelimi-
nary or subordinate point or plea, or settles some step, question, or
default arising in the prpgress of the cause, but does not adjudicate
the ultimate rights of the parties or finally put the case out of court.
•
3 Wash. St. 696, 29 Pac. 202. A Judgment in a contest to determine whether
a homestead Is subject to sale on execution is a final Judgment from which
an appeal will lie. Wright T. Jones, 103 Ala. 539, 15 South. 852, To constitute
a final Judgment for pm*po8e of appeal, it is not essential that It should
be a bar to another suit. Colorado Eastern R. Co. v. Union Pac. R. Co., 36 C.
C. A. 263, 94 Fed. 312.
« Where a verdict is returned in favor of plaintiff, and the court sustains a
motion in arrest of judgment, and subsequently orders the cause stricken tnun
the docket, the case has reached such an end that an appeal wlU lie. Daugh-
erty v. Midland Steel Co., 23 Ind. App. 78, 53 X. E. 844. W^hen a controversy
between two parties is ended, so far as the court before which It Is pending
can end It, the Judgment is then final, regardless of mere matter of form.
Heegaard v. Dakota Loan & Trust Co., 3 S. D. 569. 54 N. W. 656.
7 Alacnevin T. Macnevin, 63 Cal. 186; Eastham v. Sallis, OQ Tex, 576; Duraut
v. Comegys, 2 Idaho, 809, 26 Pac. 755, 35 Am. St. Rep. 267.
8 Kehoe V. Blethen, 10 Nev. 445.
• Brown V. Evans (C. C.) 18 Fed. 56; Danielson v.^ Northwestern Fuel Ca
(C. C.) 5o Fed. 49; New York, C. & St. L. R. Co. v. Doane, 105 Ind. 92, 4
N. E. 419; StoU v. Daily Min. Co., 19 Utah. 271, 57 Pac. 295. So where judg-
ment rendered against a party not pei-sonally served is liable, by statute, to be
vacated within three years, it does not become final until after that time.
Martin v. Gilmore, 72 la 193.
(32)
Ch. 2) FINAL AND INTERLOCUTORY JUDGMENTS AND DECREES. § 22
Thus a judgment or order passed upon any provisional or accessory
claim or contention is, in general, merely interlocutory, though it
may finally dispose of that particular matter.^®
Under the common law system, an order, made in the progress
of a suit and before judgment, will be considered final if it deter-
mines the action and prevents a judgment.^ ^ But an order which
docs not settle and conclude the rights involved in the action, and
does not deny to the party the means of further prosecuting or de-
fending the suit, is not so far final as to be a proper subject of
appeal.**
I 22. Interlooutory and Intermediate Orders.
The codes of procedure adopted in several of the states define a
judgment as "the final determination of the rights of the parties in
an action or proceeding." Under this system, therefore, there is no
such thing as an interlocutory judgment in a cause, the only judg-
ment authorized being one which finally disposes of the rights of the
parties." And the office of an interlocutory judgment at common
law is, under the code practice, filled by various orders. But as,
10 But It has been held that a decree allowing temporary alimony and
eounsel fees is, to aU legal intents and purposes, a final •judgment, from which
an appeal may be taken. Daniels v. Daniels, 9 Colo. VdS, 10 Pac. 657. Condi-
tional judgments may be final if they dispose of the case as to all parties be-
fore the court and as to the entire subject-matter of the litigation. Thus, a
Ju(]|?ment for the sale of a certain tract of land to satisfy a sum adjudged to
be a lien thereon, in the event that another tract ordered to be sold shall not
be sufllcient for that purpose, is a final order from which an appeal can be
pitwecuted. Talwr v. Payne (Ky.) 41 S. W. 557. Compare Standard Steam
Laundry t. Dole, 20 Utah, 469, 58 Pac. 1109.
11 Uobba ▼. Beckwith, 6 Ohio St. 252; Maysville & L. R. Co. v. Punnett, 15
B. M. (Ky.) 47. An unconditional order for the payment of money within a
certain time la a final order, from which an appeal lies. Nevitt v. Woodburn,
45 lll« App. 417. In England, it is said that an order is final only where
it is made upon an appUcation or proceeding which must in any event, whether
It fiucoeeds or fails, finally determine the rights of the parties. Salaman v.
Warner |1«>1J 1 Q. B. 734.
i2Hazleburst v. Morris, 28 Md. 67. An order refusing an application for
judgment on the special findings of the jury, contrary to the general verdict, is
not Una] or appealable. Persons v. Simons, 1 N. D. 243, 46 N. W. 960; Atchi-
son, T. St 8. F. B. Co. V. Brown, 57 Kan. 785, 48 Pac. 31.
19 Sellers v. Union Lumbering Co.. 36 Wis. 398. Under this definition, an
order that a petition be treated as if it had not been filed is appealable. Ilar-
1 LuVW JUDG.-3 i^y^)
§ 22 LAW OP JUDGMENTS. (Ch. 2
among the various orders which may be made in the progress of a
cause, there may be some which, without finally adjudicating "the
rights" of the parties, may determine some claim or contention which,
from its independence and meritorious nature, ought to be the sub-
ject of an appeal, therefore in these states the statutes usually allow
appeals from "an order affecting a substantial right" of one of the
parties.^* The qualifying adjective is used to exclude rulings on
merely formal or technical points. The code practice is, generally
speaking, more liberal in allowing appeals than the common law.
Thus in California,- "an appeal may be taken * * ♦ from an or-
der granting or refusing a new trial, from an order granting or dis-
solving an injunction, from an order refusing to grant or dissolve an
injunction, from an order dissolving or refusing to dissolve an at-
tachment, from an order granting or refusing to grant a change of the
place of trial." ^'
An order setting aside a sale of property made in disregard of an
injunction issued in the same suit is a final order and appealable.**
So also is an order in an equity cause committing a witness, not a
party to the suit, for contempt in refusing to testify ; ^^ and an order
confirming a sale; ** and an order vacating an arrest; *• and an or-
der directing a sheriff who has possession of warrants, by virtue of
rlson V. Lebanon Waterworks, 91 Ky. 255, 15 S. W. 522, 34 Am. St. Rep. 180.
In South Carolina, the statute gives the supreme court appellate Jurisdfcti(m
of **any intermediate Judgment, order, or decree Involving the merits," Code
av. Proc. S. C. § 11. See Du Pont v. Du Bos, 33 S. C. 389, 11 S. E. 1073. An
order void as an act in excess of the court's jurisdiction is final in its legal
significance, so as to be appealable. Therkelsen v. Therkelsen, 35 Or. 75, 54
Pac. 885. In Pennsylvania, the act allowing appeals from interlocutory orders
was Intended to reach only clear cases of error in law, and thus prevent the
delay of a trial. Max Meadows Land & Imp. Co. v. Mendenhall, 4 Pa. Super.
Ct. 398.
i« For Illustrations of orders affecting substantial rights, see Gllb^t v.
Thayer, 104 N. Y. 200. 10 N. E. 148; State Bank of Nebraska v. Green, 8 Neb.
297. 1 N. W. 210; Starbuck v. Dunklee, 10 Minn. 168 (Gil. 136), 88 Am. Dec.
68; KIngsley v. Oilman, 12 Minn. 515 (Gil. 425); Vermilye v. VermUye, 32
Minn. 499, 18 N. W. 832.
IB Code Civ. Proc. Cal. § 939.
16 Grant v. Lowe, 32 C. C. A. 379, 89 Fed. 881.
17 Butler V. Fayerweather, 33 C. C. A. 625. 91 Fed. 45&
18 Edwards v. Maupiu, 7 Mackey (D. C) 39.
io Kaisin Fertilizer Co. v. Grubbs, 114 X. C. 470, 19 S. E. 597.
. (31)
Ol. 2) FINAL AND INTERLOCUTORY JUDGBHSNTS AND DECREES. § 22
certain replevin proceedings, to deliver them to a certain person,
made in another suit to which the sheriff is not a party.** An appeal
will also lie from a judgment sustaining exceptions to a referee's
report, and an order thereafter overruling a motion for a new trial; *^
and from an order directing the receiver of an insolvent corporation
to sue the stockholders.-- An order of the trial court, refusing to
proceed with the trial of a case, is an interlocutory judgment.*'
And an order overruling a motion to correct the date of a judgment
is a final order and appealable.^^
But an order quashing the service of process in a case is not con-
sidered final in such sense as to be appealable.*"* Nor can an. appeal
be taken from an order granting or refusing leave to amend the
pleadings ; *• nor from a judgment allowing a garnishee to file an
answer after default ; *^ nor from an order granting a change of
venue ; ** nor from a refusal to grant a continuance.*^ An order
denying a motion to set aside an order contained in the judgment,
that execution issue as well against the defendant's person as against
his property, is not final nor appealable.** And the same is true of
«o KlweU V. Goodnow, 71 Minn. 390, 73 N. W. 1095.
ai Hart V. Hlatt, 2 Ind. T. 245. 48 S. W. 1038.
22 UepnbUc Life ins. Co. ▼. Swlgert, 135 lU. 150, 25 N. E. 680, 12 U R. A.
«a Kleiber v. McManus, 66 Tex. 48, 17 S. W. 240.
«* Warrington t. Upham Manuf g Co., 18 Ohio Clr. Ct. R. 311.
«» Winn T. Carter Dry-Goods Co., 102 Ky. 370, 43 S. W. 436; Brown v.
Kice. ;J0 Neb. 236, 46 N. W. 480; Persinger v. Tinltle, 34 Neb. 5. 51 N. W. 209;
8tandard DlstUllng Co. T. Freyhan, 34 Neb. 434, 51 N. W. 976. But In Kansas,
sucb an order is final and appealable. Newberry v. Arkansas, K. & G. Ry. Co.,
S2 Kan. 613, 35 Pac. 210.
2« Sinclair v. Western N. C. R. Co., Ill N. C. 507, 16 S. E. 336; State v. Cara-
leigb Phosphate & Fertilizer Works, 123 N. C. 162, 31 S. E. 373; Parker v.
Harden, 122 N. C. Ill, 28 S. E. 902; Gunn v. Donoghue, 135 lU. 479, 25 N. E.
75U; Lamon v. McKee, 7 Mackey (D. C.) 446; Troup v. Horbach, 57 Neb. 644,
71* N. W. 286; McElwaiu v. Huston, 1 Wash. St. 359, 25 Pac. 465. But iu
Iowa, an order striking out a cross bill is appealable. Mahaska County State
Bank v. Christ. 82 Iowa. 56, 47 N. W. 886.
«T Moore v. Hill, 87 Ga. 91, 13 S. E. 259.
«• Edgerly v. Stewart, 86 Iowa, 87, 52 N. W. 1121; State v. Shaw, 21 Nev.
222. 21> I'ac. 321. Compare Code Civ. Proc. Cal. § 939.
:• Newman y. Wildenstein, 42 La. Ann. 925, 8 South. 607,
*• Jennings ▼. Bartels, 2 W^ash. T. 306, 24 Pac. 678.
(35)
§ 23 LAW OP JUDGMENTS. (Ch. 2
an order, appointing an assignee in insolvency in place of the one
named by the assignor in his deed.'^ Nor will an appeal lie from an
interlocutory judgment reassigning a homestead and appointing com-
missioners to admeasure the same ; •' nor from an order in insol-
vency proceedings, provisionally passing upon the amount a creditor
is entitled to pay on a purchase of the insolvent's assets.**
I 23. Mnit be final as to »11 Partiei.
As a general rule, a judgment must possess the character of finality
in disposing of the rights of all the parties concerned, before it can
be considered final with respect to any of them.** Thus when suit
is instituted against two or more defendants, and judgment is entered
for or against all of them except one, who is not mentioned or refer-
red to in the decision, there is no final judgment from which an ap- .
peal can be taken, no order appearing for the disposal of the cause
as to the defendant omitted from the judgment.*** For the same
reason, a decree dismissing a bill in equity as to one of several de-
»i State V. Parker, 6 Wash. 411, 34 Pac. 149.
«2 Macke V. JByrd, 109 Mo. 487, 19 S. W. 70.
«8 Brown v. Minnesota Thresher Manuf'g Co., 44 Minn. 322, 46 N. W. 560.
»4 Baker v. Old x\at. Bank, 33 C. C. A. 570, 91 Fed. 449; Deadwyler v. Bank
of the University, 110 Ga. 511, 35 S. E. 779; Martin v. Crow, 28 Tex. 614:
Whltaker v. Gee, 61 Tex. 217; Gulf City Street Ry. & Real-Estate Co. y. Beck-
er (Tex. Oiv. App.) 23 S. W. 1015; Reed v. Liston, 8 Tex. Civ. App. 118, 27 S.
W. 913; Caldwell v. Bryan (Tex. Civ. App.) 37 S W. 335; Burrows v. Cox
(Tex. Civ. App.) 38 S. W. 50; Delap v. Hunter, 1 Sneed (Tenn.) 101; Champ v.
Kendrick, 130 Ind. 545, 30 N. E. 635; Keller v. Jordan, 147 Ind. 113, 46 N. E:
343; Sater v. Hunt, 1 Mo. App. Kep'r, 365, 61 Mo. App. 228; Harman v.
Blackstone, 1 Mo. App. Rep'r, 391, 61 Mo. App. 254; Peek v. Vandenberg, 30
Cal. 11. But in Georgia, by statute, an order is final and appealable If it is
"final as to some material party" to the action; and this allows an appeal
by such a party when his rights are finally adjudged, though the action re-
mains pending as to others. United Underwriters' Ins. Co. v. Powell, 94 Ga.
359, 21 S. E. 565; Deadwyler v. Bank of the University, 110 Ga. 511. 35 S. E.
779. And see Connell v. Brumback, 18 Ohio Cir. Ct. R. 502.
«5\vhitaker v. Gee, 61 Tex. 217; Masterson v. Williams (Tex.) 11 S. W.
531; Cit>' of Texarkana v. Rodgers (Tex. Civ. App.) 20 S. W. 447; Maley v.
Lake Erie & W. R. Co., 84 111. App. 55; Case v. Ingle, 2 Ind. T. 309, 51 S.
VV. 958; JSchuitz v. McLean, 76 Cal. 606, 18 Pac. 775. In Connecticut, the prac-
tice act, by authorizing one action against defendants with adverse inter-
ests, and authorizing the court in such cases to order separate trials, permits
of the entry of a final and appealable Judgment as to one defendant, although
(3G)
Ch. 2) FINAL AND INTERLOCUTORY JUDGMENTS AND DECREES. § 24
fendants sought to be jointly charged is not a final decree from
which an appeal may be taken.** But these rules do not apply where
there are parties who are merely formal parties to the record, or as
to whom there are separable controversies. For example, an order
dismissing an interpleader,*^ or discharging a garnishee,** may be
final and appealable. So, the right of appeal is not affected by the
fact that there is no decree against one of the respondents, who was
not served with process, and who, though a proper, was not a neces-
sary, party to the suit.** And a judgment in an action by an infant
for personal injuries may be final, though it does not in express terms
dispose of his next friend.** The same is true of a judgment against
one of the members of a firm separately sued on the firm indorsement
of a note.*^ And where several actions to enforce mechanics' liens
ag^ainst the same defendant are consolidated, a judgment against one
of the plaintiffs is final as to him and may be appealed.*'
f 24. Muit fettle all the Iiiuei*
It is also requisite that a judgment, in order to be final, should
determine all the issues involved in the cause. The decision on an
issue of law which does not put the case out of court is not of this
character. So if there are several issues of fact in the same contro-
versy, the decision of one of them, leaving the others undetermined,
tbe action remains pending as to tbe other parties. Bunnell v. Berlin Iron
Bridge Co.. 06 Conn. 24, 33 AU. 'y'.iS.
«• Holioret T. Hamburg-American Packet Co., 148 U. S. 262, 13 Sup. Ct. 500,
37 Ll Kd. 443; National Bank of Rondout v. Smith, 156 U. S. 330, 15 Sup. Ct.
:«58. 39 L. Kd. 441; Dreyer v. Goldy, 171 111. 434, 4l> X. E. 560; Lang v. IngaUs
Zinc Co., 119 Tenn. 476. 42 S. W. 198. In Illinois, it appears that an appeal may
be allowed in such a case If it is shown that "peculiar hardship*' would result
from refusing to allow it. See Pain v. Kinney, 73 111. App. 115, affirmed, 175
JU. 2IH, 51 X. E. 621, And see Royall's Adm'rs v. Johnson. 1 Rand. (Va.) 421;
Nir-hol V. Dunn. 25 Ark. 129.
37 standley v. Roberts, 8 C. C. A. 305, 50 Fed. 836.
a« Steiner v. l-lrst Sat Bank. 115 Ala. 379. 22 South. 30.
>» Bradsbaw v. Miners* Bank, 26 C. C. A. 673, 81 Fed. 902. See Harris v.
i«andert (Tex. Civ. App.) 45 S. W. 29; Davis & Rankin Bldg. & Manufg Co.
r. UJIlsboro Cteamery Co., 9 Ind. App. 553, 37 N. E. 294.
*• Texas Cent. Ry. Co. v. Stilhrt, 1 Tex. Civ. App. 642, 20 S. W. 962.
«i Jameson v. Smith, 19 Tex. Civ. App. 90, 46 S. W. 804.
4a urman t. Crystal Klver Ry. Co., 5 Colo. App. 4t):j, 39 Pac. 434.
(37)
§ 25 LAW OP JUDGMENTS. (Ch. 2
is not a final •adjudication. For there cannot be two final judgments
in the same action.** But this rule does not apply where several dis-
tinct causes of action are united in the same suit,** or where subordi-
nate or ancillary matters arise in the course of the action, each capa-
ble of final determination by itself and independently of the main
controversy.**
S 26. TJnoertainty of the Amount.
An uncertainty as to the amount of the recovery will often prevent
a judgment from becoming final until such amount is liquidated and
declared.*® The test in these cases seems to be, whether the judi-
cial action of the court is necessary to be directed to the question
before the amount of the judgment can be settled, or whether, though
at present uncertain, it can be determined or computed without the
intervention of the court. Thus a judgment by default is interlocu-
tory if the damages remain to be ascertained by writ of inquiry or
other judicial proceeding. So a decree which settles the rights of the
48 Brown v. Cranberry Iron & Coal Cp., 25 U. S. App. 107, 13 C. C. A. 66, 65
Fed. 636; Frank v. Tatum (Tex. Civ. App.) 20 S. W. 869; Stockton Combined
Harvester & Agricultural Works v. Glen*s Falls Ins. Co.. 98 Cal. 557, 33
l»ac. 633; McKissack v. Voorhees, 119 Ala. 101, 24 South. 523; Potter v. Talk-
iugton (idabo) 49 Pac. 14; Low v. Crown Point Min. Co., 2 Xev. 75. Compare
Hake v. Coach, 105 Mich. 425, 63 N. W. 306. A judgment for plaintiff is not
final unless it disposes of matters pleaded by way of cross-bill or counterclaim.
Gulf, C. & S. F. R. Co. V. Stephenson (Tex. Civ. App.) 26 S. W. 236; Cloplon v.
Herring (Tex. Civ. App.) 26 S. W. 1104.
*4 Klever v. Seawall, 12 C. C. A. 653, 65 Fed. 373. In an action for the
recovery of real estate, of personalty, and of moneys received, a judgment for
the recovery of a certain sum is final and appealable, though no disi)osition of
the real estate is made therein. Davies v. Thomson, 92 Tex. 391, 49 S. W.
215.
*B A decree entered in a proceeding by attorneys to enforce a lien for their
fees, which adjudges that they are entitled to compensation to a definite
amount and have a lien therefor on a fund in court, and directs payment there-
of, is a final and appealable decree, although the residue of the fund may not
have been finally disposed of. inittle v. Clafiin, 31 C. C. A. 419, 88 Fed. 122, A
judgment, in an action to establish plaintiff's right under a will, fixing an al-
lowance for his support during the pendency of the suit, and ordering execution
therefor, is final; and an appeal may be prosecuted during the pendency of the
suit. McUreary v. Robinson, 92 Tex. 408, 49 iS. W. 212.
46 Millard v. Parsell, 57 Neb. 178, 77 X. W. 390; Riott v. Blackstone, 10
I'a. Super. Ct. 591.
(38)
Ch. 2) PINAL. AND INTERLOCUTORY JUDGMENTS AND DECREES. . § 26
parties, but does not find the amount to be paid, leaving that for
iuttire determination, is not final.*^ The same is true of a decree
which, after finding the equities to be in one of the parties, sends the
case to a referee or master to ascertain and report the sum which he
is entitled to recover.** For the report must be examined and con-
firmed by the court, before there is a final judgment for such sum.
On* the other hand, where a judgment is entered against one of the
parties, to be released on payment of such sum as a third person shall
say is due, it is a final judgment ; because, to make it absolute so far
as regards the amount, no further action of the court is necessary,
but only the certificate of the referee."** So a decree in chancery
which adjudges a certain sum of money to be due from the defendant,
and awards execution to collect it, is a final decree, notwithstanding
it also allows as payment to be deducted from the amount therein
adjudged any note held by the defendant against the complainant.*®
Also, a decree is final, although an order is added to it suspending
the decree as to one item of the account, until the decision of another
suit, in which that item is in litigation.***
S 26. JudKmeiit of If oniiili.
This species of judgment is clearly final, since it completely dis-
poses of the action, though without passing upon the merits. "By
a final judgment is to be understood not a final determination of the
rights of the parties, but merely of the particular suit. Thus, for
instance, a judgment of nonsuit, other than where the plaintiff sub-
mits to a voluntary nonsuit, is a final judgment, even though no costs
be awarded against the plaintiff, inasmuch as he is aggrieved by being
(fcfeated of his right of action in that suit and of his costs in prosecut-
41 Follansbee v. Ballard Fa v. Co.. 154 U. S. 051, 14 Sup. Ct. 1189, 25 L.
t'ja. 8U2; Hunter v. Hunter. 100 111. 519.
*• BelmoDt T. Ponvert. 3 Rob. (N. Y.) 693; Price v. Nesbit, 1 Hill, Eq. (S.
<;.) 445: Tuggle v. (Jilbert, 1 Duv. (Ky.) 340; Delckhart v. Rutgers, 45 Mo.
132. But see Ayer v. Termatt. 8 Minn. 90 (Gil. 71).
*• Turner v. Plowdcn, 5 Gill & J. (Md.) 52, 23 Am. Dec. 596; Young v.
Mackail, 3 Md. Ch. Dec. 398.
»o stovaA V. Banks. 10 Wall. 583. 19 L. Ed. 1036.
•1 Fleming v. Boiling, 8 Grat. (Va.)^292.
(39)
§ 27 . LAW OP JUDGMENTS. (Ch. 2
ing it." °* For similar reasons a judgment of non pros, is appealable,
being final as to the plaintiff.*® But no appeal is ordinarily allowed
from the plaintiff's voluntary entry of a nonsuit,*** nor, unless the
statute specially grants it, from an order setting aside a nonsuit.'*
§ 27. DUmiMal of Suit.
The dismissal of a bill in chancery or of a suit at law, since it fully
disposes of that action, is a final judgment ; it is a final decision of
the case as against all claims made by it, although it may not be
a final determination of the rights of the parties, as they may be
presented in some other action. °® Thus a judgment dismissing a
52 Belt V. Davis, 1 Cal. 134; Meehan v. Valentine, 145 U. S. 611, 12 Sup.
Ct. 972, 36 L. Ed, 835; Koona v. Bryson, 16 C. C. A. 227, 69 Fed. 207; Vlcks-
burg, 8. & P. R. Ck). v. Scott, 47 La. Ann. 706, 17 South. 249; Hoiter Lumber
Uo. V. Fireman's Fund Ins. Co., 18 Mont. 282, 45 Pac. 207; De Graf v. Seat-
tle & T. Nav. Ck)., 10 Wash. 468, 38 Pac. 1006. But In Pennsylvania, under
Act March 11, 1875, providing for a review by the supreme court where a
nonsuit has been entered and a motion to set aside the Judgment of nonsuit
has been denied, error does not lie to the entry of a Judgment of nonsuit, but
only to a refusal to set such Judgment aside. Scanlon y. Suter, 158 Pa. 275,
27 Atl. 963.
B3 Hartford Fire Ins. Co. v. Green, 52 Miss. 332; Henderson v. Maryland
Home Fire Ins. Co., 90 Md. 47, 44 Atl. 1020; Purcell v. Payton, 58 Mo. App. 442.
54 Mallory v. Taylor, 90 Va. 348, 18 S. E. 438i Rosenthal v. Roberson, 114
N. C. 594, 19 S. E. 667; Ropes v. Eldridge. 39 Fla. 47, 21 South. 570. An order
refusing a party permission to dismiss his action Is not final so as to be ap-
pealable. Troup v. Horbach, 57 Neb. 644, 78 N. W. 286.
66 Ready v. Smith, 141 Mo. 305, 42 S. W. 727.
60 Dowling V. l*olack, 18 Cal. 625; ZoUer v. McDonald, 23 Cal. 130; Leese
V. Sherwood, 21 Cal. 151; Stoppenbach v. Zohrlaut, 21 Wis. 385; Bowie v. Kan-
sas City, 51 Mo. 454; Gill v. Jones, 57 Miss. 367; Scriven v. Hursh, 35»
Mich. 98; Snell v. Dwipht, 121 Mass. 348; Bowler v. Palmer, 2 Gray (Mass.)
5.j3; Eddleman v. McCilathery, 74 Tex. 280, 11 S. W. 1100; Rogers v. Rus-
sell, 11 Xeb. 361, 9 X. W. 547; Brush Electric Co. v. Electric Imp. Co., 7 U.
S. App. 208, 2 0. C. A. 373, 51 Fed. 557; Hodges v. Kimball, .34 C. C. A.
103, 91 Fed. 845; Colorado i^Iastem K. Co. v. Union Pac. R. Co.. 36 C. C. A.
2{JS. 94 Fed. 312; Huns took v. Huiistock, 43 La. Ann. 375, 8 South. 922:
Howeth V. Clark (Tex.) 16 S. W. 175; Fuerman v. Ruble (Tex.) 16 S. W. 53G:
Hecgaard v. Dakota Loan & T. Co., 3 S. D. 569, 54 N. W. 656; Lawrence
County V. Meade County, 6 S. D. 026, 62 N. W. 957; Byrne v. E^udson, 127
Cal. 254, 59 Pac. 597; Smith v. Mayor oi Boston, 1 Gray (Mass.) 72. Where
one of several defendants pleads to the action and the plaintiff replies, and on
motion of a co-defendant the original writ of summons is quashed, and
(40)
Ch. 2) riNAL AND INTERLOCUTORY JUDGMENTS AND DECREES. . § 28
suit for want of prosecution, in which a temporary injunction had
been granted, amounts to a determination by the court that the in-
junction was improperly granted, and is in effect a final judgment in
favor of the defendant.*^ So a judgment discharging a garnishee is
a final and complete disposition of the cause, and the court has
thereafter no jurisdiction over it; so that a judgment against the
garnishee for costs, at a subsequent term, is void.*^* But an appeal
does not lie from an order directing the dismissal of the suit, but
only from the judgment entered on such order.^* Nor is a judg-
ment appealable which dismisses the suit only as to some among
the defendants,** nor one which dismisses it conditionally,*^ nor an
order dismissing a cross-bill in equity.** Where a motion to dismiss
is denied, this does not constitute such a final judgment as will be
appealable.** Nor can plaintiff appeal from an order refusing to
reinstate an action which he has himself dismissed.** It has also
been held that the action of replevin is an extraordinary remedy, and
that in such action a judgment dismissing the suit is not final, and
error cannot be assigned upon such an order until after final judg-
ment.**
i 28. Jndsment by Default.
The rule in regard to a judgment by default is, that if such a judg-
ment is rendered for a fixed and liquidated sum, or if the amount
can be ascertained by mere calculation from the pleadings, it is final ;
but if the amount of the recovery or damages remaiqs to be ascer-
jiidgment "that he go hence," that is no final Judgment In favor of the de-
fendant pleading. State Bank v. Koddy, 15 Ark. 401.
67 DowUng V. Polack, 18 Cal. 625.
»• Jackson v. St. Louts & S. F. K. Co., m Mo. 104, 1 S. W. 224.
»• Metropolitan Kl. Ky. Co. v. Johnston, 84 Hun, 83, 32 X. Y. Supp. 49.
•• Beck & I'auli LIth. Co. v. Wacker & Birk B. & M. Co., 22 C. C. A. 11, 70
Fed. 10.
•1 KIch T. Manhattan R. Co., 138 X. Y. 668, 34 X. E. 402.
•« Lamon v. McKee, 7 Mackey (D. U.) 440; Fleece v. Russell, 13 111. 31. Sec
SState T. Judge of Civil District Court, 35 La. Ann. 705.
«» Flenimons v. Southern Imp. Co., 108 X..C. 614, 13 S. E. 188; Cameron v.
Beooett 110 N. C. 277. 14 S. E. 779; Bach v. Burke, 141 Pa. 049, 21 Ati. 779.
Compare Henderson v. Henshall, 4 C. C. A. 357, 54 Fed. 320.
«« Smith V. May, 20 D. C. 07.
«3 Branch ▼. Branch, 5 Fhi. 447.
(41)
§ 28 LAW OF JUDGMENTS. (Cfa. 2
tained by a writ of inquiry or other judicial method of computation,
then the judgment is merely interlocutory, until such amount is set-
tled and entered on the record.®* "A judgment by default is inter-
locutory or final. When the action sounds in damages, as covenant,
trover, trespass, etc., it is only interlocutory, that the plaintiff ought
to recover his damages, leaving the amount of them to be after-
wards ascertained. But where the amount of the judgment is en-
tered by the calculation of the clerk, no further steps being necessary,
by a jury or otherwise, to ascertain the amount, the judgment is
final." '^ Where suit is brought against two defendants who are
jointly and severally liable, and one suffers a default, and the other
puts in a plea and goes to trial, the judgment entered against the
former defendant, on his default, is merely interlocutory until the
case is disposed of as to the other.*'
"An order that a bill be taken pro confesso is interlocutory and in-
tended to prepare the case for a final decree. Its effect is similar
to that of a default in an action at common law, by which the defend-
ant is deemed to have admitted all that is well pleaded in the dec-
laration. The defendant has lost his standing in court, and is not
entitled to notice of its further proceedings, but the matters set forth
in the bill do not pass in rem judicatam until the final decree." ••
«• Sellers v. Burk. 47 Pa. 844; McClun^ v. Murphy, 2 Miles (Pa.) 177; Belt-
ler V. Zeigler, 1 Pen. & W. (Pa.) 135; Martin v. Price, Minor (Ala.) 68; Manty
V. Roberts, 27 Miss. 225; Hyde v. Pinkard, 25 Ark. 163. See Dorsey v.
Thompson, 37 Md. 25; Daniel v. Cooper, 2 Houst (Del.) 506; Phillips v. Hel-
lings, 5 Watts & S. (Pa.) 44. In New York, no appeal can be taken from a
Judgment by default Code Civ. Proc. X. Y. § 1294; Oliver v. French, 80 Hun,
175, 30 N. Y. Supp. 52; Hawkins v. Smith, 91 Hun, 299, 36 N. Y. Supp. 333.
in Minnesota, no appeal lies from a Judgment by default, until an applica>
tion for relief has been made in the court below. G«derholm v. Davies, 59
Minn. 1, 60 X. W. 676. An order setting aside a default and allowing defend-
ant to plead is not appealable. Territory v. Las Vegas Grant, 6 N. M, 87, 27
Pac. 414.
e7 aements v. Berry, 11 How. 398, 13 L. Ed. 745, McLean, J.
•8 Commonwealth v. McCleary, 92 Pa. 188.
«o liusseU V. Lathrop, 122 Mass. 300.
(42)
Ch. 2) FIKAIi AND INTERLOCUTORY JUDGMENTS AND DECREES. § 29
S 29. Judgment on Demurrer.
When the issue of law raised by a demurrer is decided in favor of
the plaintiflF, and judgment is entered quod recuperet, such judgment
is of course final if the amount of the recovery is fixed. Similarly,
where such an issue is found for the defendant, and judgment for
his discharge is given, it is final ; ^® for the decision has the eflfect of
disposing of that particular suit. But all the authorities agree that
a decision or order of the court sustaining or overruling a demurrer,
but not entering judgment thereon so as to dispose of the case, is
merely interlocutory.^* Hence no appeal will lie from an order sus-
taining a demurrer, where leave is granted to the party to amend
his pleading, or to plead to the merits, as the case may be, unless
he elects to stand upon his pleading as it is, or unless the time limited
for amendment or new plea elapses without action on his part, and
judgment is entered accordingly.^* Nor can an appeal be taken from
T rem Plow & Wheel Co. v. Sandwich Enterprise Co., 77 lU. App. 653;
Mctiolas T. Maddox. 52 La. Ann. 490, 2G South. 994. A Judgment for defend-
ant on demurrer to part of the counts of a declaration is not reviewable on
error l)efore the case is determined as to the remaining counts. Riley v. Jar-
via, 43 W. Va. 43, 26 S. E. 366.
11 Warner t. Tomllnson, 1 Root (Conn.) 201; Paddock v. Springfield Fire
^ Marine Ins. Co., 12 N. Y. 591 ; Elwell v. Johnson, 74 N. Y. 80; Johnson v.
I'olk Co.. 24 Fla. 28, 3 South. 414; Rose v. Gibson, 71 Ala. 35; Shields v. Tay-
lor. IIJ Snedes A M. (Miss.) 127; State v. Falconer (Ark.) 5 S. W. 193; Slagle
V. Bodmer, 58 Ind. 465; Hayes v. Caldwell, 5 Gllman (111.) 33; Knapp v. Mar-
ahaU, 2« 111. 6:i; Gage v. Elch, 56 111. 297; Palmer v. Crane, 8 Mo. 619; Rob-
in«ni T. County Court, 32 Mo. 428; State v. Justices, 58 Mo. 583; Kirchner
\, Wood, 48 Mich. 199, 12 N. W. 44; Moraga v. Emerlc, 4 Cal. 308; Miller v.
Burlington & M. R. R. Co., 7 Xeb. 227; Cambridge Valley Nat. Bank v. Lynch,
7« N. Y. 514: Sheffield v. Murray, 80 Hun, 555, 30 N. Y. Supp. 799; Denslow
T. Busb, 9 Misc. Rep. :«7, 29 N. Y. Supp. 705; State v. Herod, 21 Ind. App.
177. 51 N. K. 952; Murphy v. Tilling, 2 App. D. C. 130; Gillespie v. Coleman,
««8 Va. 276, 36 S. E. 377; State v. Trilling (Tex. Civ. App.) 57 S. W. 311;
Olnon V. Xewton, 3 Wash. St. 429, 30 Pac. 450; Potvin v. McCorvey, 1 Wash.
Ht. 38y. 25 Pac. 330; Smith v. Seattle & M. Ry. Co., 6 Wash. 295, 32 Pac.
1U73. Compare Willis v. Marks, 29 Or. 493, 45 Pac. 293.
Ts Cambridge Valley Xat. Bank v. Lynch, 76 N. Y. 514; Taylor v. MacLec,
1» av. Proc. R. 429, 11 N. Y. Supp. (MO; Knickerbocker Co. v. Roskopf, 19
>'. y. Supp. 391; Mooney v. Byrne. 1 App. Div. 316, 37 >V Y. Supp. 388;
Koch V. City of New York, 5 App. Div. 276, 39 N. Y. Supp. 164; Potts v. Potts,
(43)
§ 29 LAW OP JUDOMBNTS. (Oh. 2
an order overruling a demurrer with leave to plead. There is no
finality in such an order, though there would be in a judgment entered
upon the demurrant's election to stand upon his demurrer or on his
failure to plead, and finally disposing of the case.'* It is to be noted
that the general rule is subject to certain exceptions depending on
the peculiar nature of the action or the local rules of practice. Thus,
a final judgment, in an action to recover a penalty imposed by stat-
ute, to be recovered "on conviction," cannot be entered on demur-
rer, but only on a trial upon the merits.'* So, in Mississippi, it is
said that, under the statute, judgments on demurrers are not final
«8 Md. (MO, 42 Atl. 214; Throne-Franklin Shoe Co. v. Gunn. 123 Ala. 040, 20
South. ll>8; Texas Land & Loan Co. v. Winter (Tex. Sup.) 57 S. W. 39; Fergu-
son V. Mason (Ky.) 50 S. W. 15; Gnrley v. Newport News & M. V. R. Co., 91
Tenn. 480, 19 S. W. 571; Thomas v. Chicago & E. Ry. Co., 139 Ind. 402. 39
N. K, 44; Maguire v. Woods, 33 111. App. 638; Peru Plow & Wheel Co. v.
^Sandwich Knterprlse Co., 77 111. App. G53; Clark v. Village of North Muskegon,
86 Mich. 29, 48 N. W. 647; Perry v. Church, 107 Mich. 480. 65 N. W. 273;
Mowbray v. Denver & R. G. R. Co., 2 Colo. App. 128, 29 Pac. 1016; Yager v.
Lemp, 39 Neb. 93. 58 N. W. 285; Mason County v. Dunbar, 10 Wash. 163, 38
Pac. 1003; Case v. Ingle. 2 Ind. T. 309, 51 S. W. 958. See Johnson v. Union
Switch & Signal Co., 125 N. Y. 720, 26 N. E. 455. It has been hrfd that an
order sustaining a demurrer to a petition for the removal of an assignee is
appealable, as it affects a substantial right of both the petitioners and the
assignee. Biirtt v. Barnes, 87 Wis. 519, 58 N. W. 790.
T8 Mengher v. Minnesota Thresher Mfg. Co., 145 U. S. 608. 12 Sup. Ct. 876.
36 L. Ed. 834; Werner v. City Council of Charleston. 151 U. S. 360, 14 Sup.
Ct. 356, 38 L. Ed. 192; Robinson v. Belt. 5 C. C. A. 521. 56 Fed. 328; Bdelin
V. Lyon, 1 App. D. C. 87; Richardson v. Richardson, 193 Pa. 279. 44 Atl, 445:
Ncalon v. Frisbie, 9 Misc. Rep. GOO, 20 N. Y. Supp. 551; Ackerly v. Osborc,
13 Misc. Rep. 323, 34 N. Y. Supp. 459; Cameron v. Bennett 110 N. C. 277, 14
«. E. 779; Festorazzl v. St. Joseph's Catholic Church, 96 Ala. 178, 10 South.
521; Krause v. Stichtenoth, 15 Oliio Cir. Ct. R. 199; Foster v. Lindley, 2i)
Ind. App. 155, 50 N. E. 367; French v. Bellows Falls Sav. Inst., 67 111. App.
179; Chicago & N. \V. Ky. Co. v. Andrews, 148 III. 27, 35 N. E. 617; Gold-
smith V. Wilson, 82 Iowa, 720, 47 N. W. 1016; Quinn v. (^apital Ins. Co., S2
Iowa, 550, 48 N. W. 935; Taylor v. Taylor, 87 Mich. G4. 49 N. W. 510: Fits-
Simmons v, Milwaukee, L, S. & W. Ky. Co., 98 Mich. 257, 57 N. W. 127:
Nelson v. Donovan, 14 Mont. 78, 35 I*ac. 227; (Raines v. Cyrus, 23 Or. 403. 31
l*ac. 8:^3: Smith v. McEvoy, 8 Utah, 58, 29 Pac. 10:30; Jones v. Quayle < Idaho)
32 l*ac. 1134. See South & N. A. R. Co. v. Highland Ave. & B. R. Co., liM
Ala. 233, 16 South. 112.
T4 Keagh v. Spanu, 3 Stew. (Ala.) 100.
(44)
Ch. 2) FINAL AND INTERLOCUTORY JUDGMENTS AND DECREES. § 3l
until the end of the term, until which time, on proper showing, they
may be set aside.'' •
S 30. Jndcmest on Plea Ia Abaten&ent.
Where issue is joined upon a matter of a plea in abatement and
found against the defendant, the judgment for the plaintiff is final.^'
It is different in regard to the decision of a preliminary question of
jurisdiction. Thus, in a litigation respecting the distribution of a
testator's property, a question arose as to his domicile, and after hear-
ing testimony the court decided that "his domicile was in the city of
W.," and "this court has original jurisdiction in the matter of his
estate/' It was held that this was not a final judgment.' *
S 31. Jndement for Costa.
A judgment which merely awards costs to the defendant, without
more, is not a final judgment.' ■ In order to have that character, it
must profess to terminate and completely dispose of the action.
Hence, if for the defendant, the final judgment must state that he is
dismissed without day, or that it is considered that the plaintiff
take nothing by his suit, or otherwise refer to the disposition made of
T» ShieldB V. l^ylor, 13 Smedes & M. 127; Jacobs v. New York Life Ins. Co.,
71 Mills. ($56, 658» 15 South. 639.
»« Jewett V. Davis. « X. H. 518; McCartee v. Chambers. 6 Wend. (N. Y.) 649.
21! Am. Dec. 556; Halght v. Holley, 3 Wend. (X. Y.) 258; Guild v. Bonne-
mort, 156 Mass. 522, 31 X. E. 645. Compare Lee v. Harper, 90 Ala. 548. 8
tkrath. 685. For the rule In Missouri, see Mackey v. Hj-att, 42 Mo. App. 443;
D. M. Osborne ik Co. v. Farmers* Mach. Co., 114 Mo. 579, 21 S. W. 837. No
appeal lies from an order orerruling a plea in abatement. Bartels v. Son-
Denschein, 54 Xeb. 68, 74 X. W\ 417.
T7 Benjamin v. Dubois. 118 U. S. 46, 6 Sup. Ct. 925, 30 L. Ed. 52; ftate v.
Georgia Co.. 109 X. C. 310, 13 S. E. 861.
7> Scott V. Burton. 6 Tex. 322, 55 Am. Dec. 782; Green v. Banks, ^ Tex.
ihTi: Whitney Iron Works Co. t. Heuss, 40 La. Ann. 112. 3 South. 500; Dusing
T. Xeison, 7 Colo. 184, 2 Pac. 922; Higbee v. Bowers, 9 Mo. 354; Bick v. Seal,
39 Mo. App. 567; Kern v. Saul, 14 Ind. App. 72, 42 X. E. 496. Compare
Hantwm v. I'erry. 86 Wis. 361, 66 X. W. 337; Sprott v. Reid, 3 G. Greene
aowa> 489. 56 Am. Dec. 549. An order denylnj? a motion for costs, on the
ground that the cause had been withdrawn before the return day, and before
it had been entered on tlie docket of the court, is a final and appealable
Jndgment. Wlldraan t. Munger, 70 Conn. 380, 39 Atl. 599.
(45)
§ 31a LAW OP JUDGMENTS. (Ch. 2
the subject-matter. "The form of the judgment," say the court in
Texas, "is immaterial, but in substance it must show intrinsically
and distinctly, and not inferentially, that the matters in the record had
been determined in favor of one of the litigants, or that the rights of
the parties in litigation had been adjudicated. The costs are regulat-
ed by statute, and are an incident or appendage of the judgment, and
generally are recoverable by the victor in the contest. But, as an
incident, they cannot be substituted for the principal; and a judg-
ment for their recovery is not a decision of the matter at issue ; and
it is therefore no such final judgment as can, by law, come within
the revisory power of this court."^*
§ 31a. Allowance of Claims aKainst Fund.
An application for the allowance of a claim against a fund which
is before the court, or for a distributive share of such fund, is gen-
erally so far separable from the main controversy as to constitute a
distinct, though subordinate, proceeding. Where this is the case,
the decision of the court on such an application is to be regarded as
final, quoad hoc, and therefore appealable. This rule applies to a
decree or order allowing attorneys' fees out of a fund in course of
administration by the court,*® to an order granting or denying ali-
mony or an allowance pending the suit,'^ to an order fixing the com-
pensation of a receiver,®^ or directing him to pay certain claims out
of the proceeds of a sale of the property,** or to pay a certain rate
of wages to his employes.** Again, an order of a court of bank-
ruptcy allowing a claim in bankruptcy is a final decision and appeal-
able,** and the same is true of an order of the probate court fixing
7» Scott V. Burton, 6 Tex. 322, 55 Am. Dec. 782.
80 Jacksonville, T. & K. W. R. Co. v. American Const Ca, 6 C. C. A.
249. 67 Fed. 66; Tuttle v. Clafiln, 31 C. Q A. 419, 88 Fed. 122; Oyster t.
Bank, 107 Iowa, 39. 77 N. W. 523. Compare Fraser v. District of Columbia,
7 Alackey (D. C.) 150.
81 Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657; White t. Wliite, 86 CaL
212, 24 Pac. 1030; CampbeU v. Campbell (Ky.) 50 S, W. 849.
82Tomp8on v. Huron Lumber Co., 5 Wash. 527, 32 Pac. 536.
88 Rome & D. R. Co. v. Sibert, 97 Ala. 393, 12 South. 69.
84 Guarantee 'lYust & Safe-Deposit Co, v. Philadelphia, R. & N, E. R. Co..
69 Conn. 709, 38 Atl. 792, 38 L. R. A. 804.
85 Duff V. Carrier, 5 C. C. A. 177, 55 Fed. 433.
(46)
Ch. 2) FINAL AKD INTERLOCUTORY JUDGMENTS AND DECREES. § 82
and determining the rights and estate of a surviving husband or wife
in the homestead.'* But it seems that the refusal of a court to dis-
tribute a fund before it,'^ or to strike off a mechanic's lien,** is, at
least in some states, not an appealable order.
S 32. OrABtiiic or Refvsins Eztraordliutry Beatedieo.
According to the general consensus of judicial opinion, an order
or decree granting a provisional or temporary injunction, with a
reference to ascertain facts, or directing a trial at law, or otherwise
reserving the merits , or a decree refusing to grant, or dissolving, a
temporary injunction which is merely an incident of the relief sought,
is interlocutory only, not final.** But a decree in favor of the com-
plainant for a perpetual injunction, with costs, is final ; for that com-
pletely adjudicates the relief asked and speaks the last word in the
case.** And so, generally, is a decree dissolving an injunction, or
•« Mintxer t. St. Faul Trust Co., 45 Minn. 323. 47 N. W. 973.
•Y ui re Hopper's Estate, 192 Pa. 287. 43 Atl. 1020.
•• Carter v. CaldweU, 147 Pa. 370, 23 Atl. 575. And see In re Schalfer's
Instate, 155 Pa. 250, 25 Atl. 607.
••Gibbons v. Ogden, 0 Wbeat 448, 5 L. Ed. 302; Barnard y. Gibson,
7 «ow. tS50, 12 Ia Kd. 857; Verden t. Coleman, 18 How. 86, 15 L. Ed. 272;
Norton v. Hood ((;. C.) 12 Fed. 763; Hmniston v. Stalnthorp, 2 Wall. 106,
17 U Kd. «U5; Price v. Strange, 2 Hen. ft M. (Va.) 615; Ewing t. FnUw,
7 U. C. 3; Duianey v. Murphy (Ky.) 15 S. W. 7; Cottam v. Currie, 42 La.
Ann. 875, 8 Sonth. 000; Otto v. Halff (Tex. Civ. App.) 32 S. W. 1052; Green
▼. Hanks, 24 Tex. 522; Ex parte Hawley, 24 Ark. 586; Moss t. Ashbrooks,
15 Arte. IW; Pentecost v. Magahee, 4 Scam. (111.) 326; Lucan y. Cadwallader,
114 lU. 285. 7 N. E. 286; Jefferson t. Bohemian Ass'n, 5 III. App. 230;
Greve r. Goodson, 142 lU. 355, 31 X. E. 677; School Directors v. Wright,
43 ItL App. 270; Keenan y. Williams, 45 111. App. 530; Clabby y. Sheldon,
47 Ul. App. 166; Harrison y. Uush, 15 Mo. 175; Tanner y. Irwin, 1 Mo.
65; Wing y. Warner, 2 Doug. (Mich.) 288; Chouteau y. Rice, 1 Minn. 24
IGIL 8): School Dist. y. Brown, 10 Neb. 440, 6 N. W. 770; Smith y. Sahler,
1 Neb. 31o: Scofleld y. State Nat. Bank. 8 Neb. IG; Clark y. Fitch, 32 Neb.
511, 49 N. W. 374; Mcng y. Coffee, 52 Neb. 44, 71 N. W. 975; Schufferl
V. Grote. 83 Mich. 263, 47 N. W. 254; State V; First Judicial District Court,
.'•2 Miuu. 283. 53 N. W 1157; North Point Irr. Cto. y. Utnh & S. L. Onnal
I'o., 14 LTtah, 155, 46 Pac. 824. But where the court not only refuses a
preliminary injunction, bnt enters a decree settling the rights of the parties,
an appeal lies. Helm y. Gilroy, 20 Or. 517, 26 Pac. 851.
•♦French v. Shoemaker, 12 Wall. 86, 20 L. Ed. 270; Merchants* Bank
▼. Kent, 43 Mich. 292, 5 N. W. 627; Rickards y. Coon, 13 Neb. 419. 14 N.
(47)
§ 32 LAW OF JUDGMENTS. (Ch. 2
refusing to dissolve it, where that is the sole or the main object of
the bill.®^ It must be noted, however, that these rules may not apply
in some of the states where the code practice obtains. In those
jurisdictions, orders granting or dissolving an injunction, or overrul-
ing a motion to that effect, are frequently found in the enumerated
classes of appealable orders ; •^ or they may be considered as orders
"affecting a substantial right" and hence subject to the revisory
power of the upper courts.
On analogous principles, it must be held that an order of the court
granting or refusing the writ of mandamus in the alternative, is not
a final judgment. But its action in allowing or denying a peremptory-
mandamus, or in making the interlocutory writ absolute, is final to all
legal intents and purposes.** And so where the parties to a proceed-
ing for this writ dispense, by agreement, with a return or answer
and other formal pleadings authorized by statute, and submit the
case upon the petition and an agreed statement of facts in lieu of
such pleading, and the case is heard as an application for a peremp-
tory mandamus, and a judgment is rendered thereon dismissing the
petition, this is a final judgment reviewable on error.**
W. 1U2; Klchmond v. Atwood, 2 C. C. A. 596, 52 Fed. 10, 17 L. R. A.
tJlO; Carondelet Canal Nav. Co. v. City of New Orleans. 44 La. Ann. 3JM.
10 SSouth. 871; Davis v. Faslg, 128 Ind. 271, 27 N. E. 726; Sheward v.
Citizens' Water Co., 90 Oal. 635, 27 Pac. 439; Sprague v. Locke, 1 Colo.
App. 171, 28 rac. 142. But see Brown v. Swanu, 9 Pet. 1, 9 L. Ed. 29.
oiJSaloy V. CoIUns, 30 La. Ann. 63; Titns v. Mabee, 25 lU. 257; Front
V. Lomer, 79 111. 331; Hedges v. Meyers, 5 111. App. 347; Obrrkoetter v.
Luebberlng, 4 Mo. App. 481; McVlckar v. Wolcott, 4 Johns. (X. Y.) 510;
Cors V. Tonapklns, 46 111. App. 322; Northwestern Brewing Co. v. Manion.
67 111. App. 316; Donahue v. Johnson, » Wash. 187, 37 Pac. 322. But see
Uirlart v. Ballon, 9 Pet. 156, 9 L. Ed. 85.
0 2 See Code Civ. Proc. Cal. § 939; Code Civ. Proc. Kan. § &42; Andrexrs
V. Love, 46 Kan. 26i, 20 Pac. 746. The act of congress establishing the
circuit courts of appeals (Act March 3, 1891, § 7) authorizes an appeal to those
courts from an "interlocutory order or decree granting or contiimfng an
injunction." On the construction of this clause, see Richmond t. Atwood,
2 C. C. A. Syc, 52 Fed. 10, 17 L. R. A. 615; Robinson v. City of WllmlugtOD,
9 C. C. A. 84, 60 Fed. 469; Andrews v. National Foundry & Pipe Works,
10 C. C. A. 60, 61 Fed. 782.
88 Holden v. Hnscrodt, 2 S. D. 220, 49 X. W. 07; Oliver v. Wilson. 8 N.
D. 590, 80 N. W. 757, 73 Am. St. Rep. 784.
»4 State V. Ottinger, 43 Ohio St. 457, 3 N. E. 298.
(48)
Cb. 2} FINAL AND INTERLOCUTORY JUDGMENTS AND DECREES. § 32
A judgment or decree appointing a receiver, to take charge of the
property in litigation, or to administer the revenues of the defend-
ant, subject to the direction of the court, during the pendency of the
suit, is not considered a final judgment."' And an order removing
a receiver is likewise interlocutory. •* In a few states, nevertheless,
it is held that orders appointing receivers are final and appealable.*^
This is a variance of local practice. But in the system of procedure
under the codes, where proceedings of this character are classed as
"special proceedings," and an order made in such proceedings which
affects a substantial right is final and appealable, it seems reason-
able that a decision granting or refusing a receiver should be con-
sidered as final for this purpose, since it does not turn upon a
formal or technical point, but goes to the claim of the party to secure
the property in litigation in the most efficacious manner.** An order
confirming a sale of property made by a receiver is final and appeal-
able,** and so is an order granting or denying an application for
leave to sue the receiver,*®** an order authorizing receiver's certificates
to issue for past and future expenses and making them a lien superior
•sjf'nller t. Adams. 12 Ind. 559; Produce Bank v. Morton, 40 N. Y. Super.
Ct 328; KatOD & H. R. Co. v. Vamum, 10 Ohio St 622; Hottenstein v. Con-
rad, 5 Kan. 249; MaysvlUe & L. R. Co. v. Punnett, 15 B. Mon. (Ky.) 47;
Kansas HoUing Mill Co. t. Atchison, T. & S. F. R. Co., 31 Kan. 90, 1 Pno.
Zi4; i>ewi« V. McCabe, 16 Mo. App. 398; Stebbins y. Savage, 5 Mont. 253,
5 Fac. :r78; Bayor v. Ewart, 37 ill. App. 318; Braehtendorf v. Kehm, 72
lU. App. 228; Robrecht v. Robrecht, 46 W. Va. 738, 34 S. K 801.
••Farson v. Gorham, 117 111. 137, 7 N. B. 104; Dufour v. Lang, 4 C.
C. A. 663, 54 Fed. 913.
•» Lewis V. Campau, 14 Mich. 458, 90 Am. Dec. 245; Taylor v. Sweet,
40 Mich. 736; In re Graeff, 30 Minn. 3o8, 16 X. W. 396; Clark v. Raymond,
W Iowa. 251, 50 N. W. 1068; City of Ogden v. Bear Lake & River Water-
Works A Irrigation Co., 16 Utah, 440, 52 Pac. 697, 41 L. R. A. 305. Com-
jwre Brown t. Vandermeulen, 41 Mich. 418, 49 N. W. 920. In ^laryland.
Use statute allows an appeal from an order appointing a receiver, but not
from an order refusing to rescind the api)ointment. R. Frank Williams Co.
V. t'Dited States Baking Co., 86 Md. 475, 38 Atl. 990.
•« Cincinnati, 8. & C. R. Co. v. Sloan, 31 Ohio St. 1; McCord v. Weil,
33 Xeb. 8tt8» 51 N. W. 300; Anderson v. Matthews, 8 Wyo. 307, 57 Pac.
156.
••City of New Orleans v. Peake, 2 U. 8. App. 403, 2 C. C. A. 626, 52
ppd. 74.
100 >'oekor v. Simiguo, 5 Wash. 242, 31 Pac. 628w
1 L.\W JUDG.— 4 ^49)
§ 33 LAW OF JUDGMENTS. (Ch. 2
to the claims of interveners/*** and an order requiring payment of
the receiver's compensation and other expenses out of funds in his
hands.*®^ An order settling the accounts of the receiver, which
embraces all the transactions of the receivership during the entire
period of his appointment, is in the nature of a final judgment;***
but not an order merely directing the receiver to make a partial dis-
tribution of the funds in his hands.****
An order of a superior court granting a writ of certiorari is not
appealable,*®' but if the court, on such writ, dismisses the case and
orders execution and a writ of procedendo, this is a final and ap-
pealable judgment.*®* So, also, an appeal will lie from a judgment
of a superior court dismissing an application for a writ of prohibi-
tion.*®^ But an order denying an application for the writ of habeas
corpus is not a final judgment from which an appeal may be taken.***
f 33. On Motion for New Trial*
It IS generally held that a judgment or order granting a new
trial in an action at law is not a final judgment, and an appeal can-
not be taken until the judgment is rendered which terminates the
suit.*®* So also, an order overruling a motion to set aside the vcr-
101 Standley v. Hendrle & Bolthoff Mfg. Co., 25 Colo. 376, 55 Pae. 723.
102 Ogden City v. Bear Lake & River Waterworks & Irrigatton Co^ 18
Utah, 279, 55 Pac. 385.
108 Patterson v. Ward, « X. D. 359, 71 N. W. 543.
lOiSykes V. Thornton, 152 Pa. 94, 25 Atl. 174.
105 Bank v. Burns, 107 N. C. 465, 12 S. E. 252.
106 Holman v. G. A. Stowers Furniture Co. (Tex. Qv. App.) 30 S. W, 1120.
lOT Fayerweather v. Monson, 61 Conn. 431, 23 Atl. 878; Overland Gold
Min. Co. V. McMaster, 19 Utah, 177, 56 Pac. 977.
108 Lambert v. Barrett, 157 U. S. 697, 15 Sup. Ct 722. 39 L. Ed. 865.
See Commonwealth v. Blatt, 165 Pa. 213, 30 Atl. 674,
109 Hume v. Bowie, 148 U. S. 245, 13 Sup. Ct. 582, 37 L. Ed. 438; Morn-
ing Journal Ass'n v. Rutherford, 1 U. S. App. 296, 2 C. C. A. 354, 61 Fed,
513, 16 U R. A. 803; Baker v. Remington, 45 N. Y. 323; Lawson Y. Moore,
44 Ala. 274; Fuller v. Boggs, 49 Ala. 127; Wheeler v. Maillot, 15 La. Ann
059; Brown v. Carraway, 47 Miss. 668; Houston v. Starr, 12 Tex. 424:
tStewart v. Jones, 9 Tex. 469; Wampler v. Walker, 28 Tex. 598; Schweitaer
T. Irwin's Ex'x, 101 Ky. 401, 41 S. W. 265; Hennery's Adm'r y. LoulsYille
JSc N. R. Co., 21 Ky. Law Rep. 532, 51 S. W. 804; State v. Perry, 4 Baxt.
tTenn.) 438; Louisville & N, R. Co. v. Conley, 10 Lea CToul) 631; Hoyt
(50)
Gh. 2) FINAL AND INTERLOCUTORY JUDGMENTS AND DECREES. § 83
diet of a jury and refusing to grant a new trial, is interlocutory only,
and an appeal or writ of error must be addressed to the judgment en-
tered on the verdict.^ ^^ The same remark is true of an order denying
an application for a rehearing.^ ^^ And in a case where the report of
a referee appointed by the special term to take proofs and determine
as to rival claims to surplus money in foreclosure had been confirmed
at special term, and that adjudication was reversed at general term,
the latter court ordering a new hearing before another referee to be
appointed by the special term, it was held that such order of the
general term was not a final order, and therefore not appealable to
the court of appeals.^** But in a few states, it is held that an appeal
may be maintained from an order refusing a new trial, although no
judgment has been entered on the verdict.**' And in some other
states, it is provided by statute that an appeal may be taken from an
order granting or refusing a new trial.*** But where an order re-
fusing a new trial and dismissing the motion therefor is itself appeal-
Dry Goods Co. T. Tbomas, 19 Ohio Cir. Ct, E. 638; House v. Wright, 22
iDd. 383; AVhite r. Harvey, 23 Ind. 55; By era v. Bntterfidd, 33 Mo. 376;
McDonough r. Nicholson, 46 Mo. 35; Burden v. Homsby, 50 Mo. 238; People
T. Judge of Circolt Court, 41 Mich. 5, 2 N. W. 181; Johnson v. Parrotte,
4« Neb. 51, m N. W. 363; Bear niv&c Valley Orchard Oo. y. Hanley, 15
Utah. 506, 50 Pac. 611.
110 Waterhouse v. Kock Island Alaska Mln. Co., 38 C. 0. A. 281, 97 Fed.
466; NeldUnger t. Yoost, 39 G. a A. 494, 99 Fed. 240; Moore t. United
States. 150 U. S. 57, 14 Sup. Ct. 26^ 37 L. Ed. 996; Wheeler y. United
SUtes. 159 U.' 8. 523, 16 Sup. Ct. 93, 40 L. Ed. 244; SIgafus v. Porter, 51
U. 8. App. 693. 28 C. C. A. 443, 84 Fed. 430; Whlttaker y. West Boylston,
yn Mass. 273; Holdsworth y. Tucker, 147 Mass. 572, 18 N. E. 430; Taylor v.
Smith, 24 App. Diy. 519, 49 N. Y. Supp. 41; Damron y. Ferguson. 32 W.
Va. 33. 9 8. E. 39; Roberts v. State, 3 Tex. App. 47; Conord v. Runnels,
23 Ohio 8t 601; J. W. Reedy Elevator Manuf'g Co. y. Pitvowsky, 35 111.
App. 361: Little y. l^elghton. 46 Minn. 201, 48 N. W. 778; Smith v. John-
son, 37 Neb. 675. 56 X. W. 323; Kearney v. Snodgrass, 12 Or. 311, 7 Pac.
3UU; White V. Pease, 15 Utah, 170, 49 Pac. 416; Bacon v. Thornton, 16
ttah, 138, 51 Pac. 153.
1" Mayor of New York y. Schermerhorn, 1 N. Y. 423.
ii»3fntual Ufe Ins. Co, v. Anthony, 106 N. Y. 57, 11 N. E. 281.
in Baldwin v. Foss, 71 Iowa, 3W), 32 N. W. 389; Atkinson v. Williams,
ir»l ind. 431. 51 N. E. 721. And see Keman v. St. Paul City Ry. Co., 64
Miiin. 312, 67 N. W. 71.
11* Code Civ. l*roo. (>nl. § {KJO: Code Civ. Proc. Kan. S 542; List y. Jock-
heck, 45 Kau. 349, 748, 27 Vac, 184; Ormiston y. Trumbo, 77 Mo. App. 310.
(51)
§ 34 LAW OP JUDGMENTS. (Ch. 2
able, no appeal will lie from an order refusing to revoke a prior order
to that effect."*
S 34. Vaoatinc or RoTersiiis former Jndement.
Where, under the code system of procedure, an independent action
is brought for the purpose of vacating a former judgment between
the same parties and procuring a new trial of the action, and the re-
lief is granted as asked, it seems that the judgment to that effect
must be considered as final and appealable. For the issues in the
independent suit having been determined and the reHef accorded, the
decision puts an end to that controversy.^^* But where the applica-
tion comes in the form of a motion made in the same cause, and
the court grants an order opening or vacating the judgment already
entered, it is clear that such an order is no final judgment; on the
contrary, it merely suspends the finality of the original judgment un-
til the case has been heard and decided anew.^^^ Nor is the case
otherwise where the court denies the application. A refusal to open
a judgment is not a judgment, sentence, or decree ; it concludes noth-
iiBLarkin y. LArkin, 76 Gal. 323, 18 Pac. 396; Griess y. State Iny. &
Ins. Co., «3 Cal. 411, 28 Pac. 10«.
iieMcCall V. Hitchcock, 7 Bush (Ky.) 615; Belt y. Dayla, 1 Oal. 134;
State y. Allen, 92 Mo. 20, 4 S. W. 414. A Judgment of a federal circuit
court denying a petition of a receiver of a corporation against which Judg-
ment was entered, to have the Judgment opened and for leave to answer,
is reviewable on error. Rust v, United Waterworks Co., 17 C. C. A, 3r.,
70 Fed. 129. And so Is a decree taking from one party the right of re-
demption given to him by a former decree in the same suit, and conferriDg
such right on another party. Biu*gess y. Ruggles, 146 IlL 506, 34 N. K.
1036.
117 McCulloch y. Dodge, 8 Kan. 476; Hlgglns y. Brown, 5 Colo. 34r»-
Brown v. Edgerton, 14 Neb. 453, 16 N. W. 474; Dorsey y. Thompson, 37
Md. 25; Koh v. Vitera, 38 Neb. 333, 56 X. W. 977; Hirsh y. Welsberger. 44
Mo. App. 506. In i'ennsj'lvania, under the act of May 20, 1891, an appeal
may be taken from an order of the court opening a Judgment. Pfaff v.
Thomas, 3 Pa. Super. Ct. 419; Kelber v. Pittsburg Nat. Plow Co., 146 Pa.
485, 23 Atl, 335. But not from an order refusing to vacate a former order.
Lowenstein y. North Schuylkill Ins. Co., 132 Pa. 410, 20 Atl. 688. Nor from
an order of the orphans' court opening a decree of confirmation of tiie
sale of land and setting aside the sale, since that Is a matter of Judicial
discretion. Appeal of Montgomery Nat. Bank, 140 Pa. 187, 21 Atl. 242.
(52)
Oh. 2) FINAL AND INTKRLOCUTORY JUDQMENTS AND DECREES. § 86
ing, and is not assignable for error.^^' "It is settled that when a
judgment or order is itself appealable, the appeal must be taken from
such judgment or order, and not from a subsequent order refusing to
set it aside." *^* A writ of error cannot be taken from the supfeme
court of the United States to the appellate court of a state on a judg-
ment of the latter court which merely reverses that of the trial court
and orders a new trial, such judgment not being final.*** But a
judgment of a superior court remanding a case to an inferior court
for entry of judgment, and leaving no judicial discretion in the latter
as to further proceedings, is final.***
I 35. Orders as to Interpleader, Interrentton, and Joinder of Parties.
An order of court requiring parties to interplead is in general
merely interlocutory, since it settles no rights, and merely serves
to prepare the case for examination and decision.*** So an order
directing the payment into court of a garnishee fund claimed by a
third person, pending the determination of the right to it, is not a
final judgment.*** An order refusing leave to intervene in a pending
suit, where such intervention is not essential to the preservation of
the petitioner's rights, but such rights may be asserted in an inde-
"• Evans* Adm'r v. Clover, 1 Grant, Cas. (Fa.) Itt4; Lowensteln v. North
SchuylkiJl Jns. Co., 132 Pa. 410. 20 Atl. 688; Lockwood v. Bock, 46 Minn.
73. 48 N. W. 458; Smith v. Shawano Co., 77 Wis. 672, 47 N. W. 95; Travel-
ers' Ins. Co. V. Weber, 2 X. D. 239, 50 N. W. 703; Kubli v. Hawkett, 80
Cai. 638, 27 Pae. 57; Welsh v, Lambert, 18 Utah, 1, 54 Pac. 975. But
compare McConnIck v. Belvin, 96 Cal. 182, 31 Pac. 16; Northern Pac. &
F. 8, s. K, Co. V. Black, 3 Wash. St. 327, 28 Pac. 538; Myers v. Landrum,
4 Wash. St. 702, 31 Pac. 33; In re Davis* Estate, 11 Mont. 196, 28 Pac.
C4r>; Tuoker v. Stone, 92 Mich. 298, 52 N. W. 302. In Vermont, where an
application to set aside a Judgment is denied as a matter of law, the pro-
<*e«Hling8 may be reviewed on appeal. Johnson v. Shmnway, 65 Yt 389, 26
AU. .Vju.
i»»Coyhinech v. Goyhinech, 80 Cal. 409, 410, 22 Pac. 175.
1 20 Houston V. Moore. 3 Wheat. 433, 4 L. Ed. 428; Smith v. Adams, 130
r. .s. 167. 9 Sup. Ct. 5UG. 32 L. Ed. 895; Rice v. Sanger, 144 U. S. 197, 12
Sup. Ct. WW. 36 L. Ed. 403.
121 Mower V. Kletrher. 114 U. S. 127, 5 Sup. Ct. 799. 29 L. Ed. 117.
»" Barth v. Uoscnfeid. 36 Md. 604.
i23LouiKiana Nat Bank y. Whitney, 121 U. S. 284, 7 Sup. Ct 897, 30
U Kd. 9UL
(53)
V
§ 36 LAW OP JUDGMENTS. (Ch. 2
pendent suit, is not a final order from which an appeal lies.*=* Nor
is an order permitting a party to intervene/** nor an order striking
out a petition of intervention because not filed in time.^** Nor can
an appeal be taken from an interlocutory order joining parties de-
fendant in a cause.^*^
S 36. "Dimuolvine Attaelunents and Ezeovtlonfl.
It IS held, by the almost universal agreement of the authorities,
that judgments, orders, or decrees, quashing or dissolving attach-
ments, or refusing to do so, are merely interlocutory.^** For an
attachment is, in general, only an incident of the suit, and a decision
upon its validity or applicability is no more than the settlement of a
preliminary and subordinate question, leaving untouched the ultimate
rights of the parties and not disposing of the main controversy. Still,
in one state at least, a contrary view is maintained, and it is thought
that a judgment dismissing an attachment is in its nature final, and
error will lie on it, notwithstanding the cause may still be pending
below on the declaration to have a recovery on the merits, as if the
suit had been brought by ordinary process.^ ^® There is something
124 Credits Commutation Co. v. United States, 34 C. C. A. 12, 01 Fed
570; Liewis v. Baltimore & L. R. Co., 10 a C. A. 446, 62 Fed. 218; Jones
& JLauglilins v. Sands, 25 C. C. A. 233, 79 Fed. 913; Hamlin v. Toledo. St.
L.. & K. C. R. Co., 24 C. C. A. 271, 78 Fed. 6^4, 36 L. R. A. 826. Compare
Henry v. lYavelers' Ins. Co., 16 Colo. 179, 26 Pac. 318.
125 Jones V. New York Life Ins. Co.. 11 Utah, 401, 40 Pac. 702.
126 Whitney v. Spearman, 50 Neb. 617, 70 N. W. 240.
i27jsneeden v. Harris, 107 X. C. 311, 12 S. E. 205; Lamon v. McKee. 7
Mackey (D. C.) 446.
128 Hamner v. Scott, 8 C. C. A. 655, 60 Fed. 343; Atlantic Limiber Co. t.
Bucki & Son Lumber Co., 35 C. C. A. 59. 92 Fed. 8t>4; Philadelphia & R.
K. K. V. Snowdon, 161 Pa. 201, 28 Atl. 1067; Sllngluff v. Sisler. 1^5 Pa.
264, 44 Atl. 423; Stanton v. Heard, 100 Ala. 515, 14 South. 359; Realty Inr.
C3o. V. Porter, 58 Kan. 817, 50 Pac. 879; Noyes v. Phipps, 9 Kan. App. 887,
58 I'ac. 1007; Wirt v. DInan, 41 Mo. App. 230; Root v. State Bank. 30
Neb. 772, 47 N. W. 82; Jacobl v. Schloss, 7 Cold. (Tenn.) 385; Cutter v,
Gumberts, 8 Ark. 449; Butcher v. Taylor, 18 Kan. 558; Abbott v. Zei^ler.
9 Ind. 611; Woodruff v. Rose, 43 Ala. 382; Bray v. Laird, 44 Ala. 295;
Wearen v. Smith, 80 Ky. 216; Baldwin v. Wright, 3 Gill (Md.) 241; Talbot
V. Pierce, 14 B. Mon. (Ky.) 11>5; Hanson v. Bowyer. 4 Mete. (Ky.) 108;
WIckman t. Nalty, 41 I^. Ann. 284, 6 South. 123.
120 Bruce V. Couyers, 54 Ga. 678. And see Chappell v. Comins, 44 Kan.
(54)
Ch. 2) FINAL AND INTEBLOCUTORY JUDGMENTS AND DECREES, § 37
to be said for this position. For, as the court observed, the whole
attachment element is disposed of by the order for its dismissal. Any
judgment which may be thereafter recovered will have no aid from
the levy of the attachment. Its lien will rank only from the date
of the judgment, and the security of the replevy bond will be lost.
'To maintain his attachment, it was the right of the plaintiff to have
the judgment dismissing it reviewed by a separate writ of error." ^'®
Similarly it has been held that a decision of the court upon a rule or.
motion to quash an execution is merely interlocutory, not a final
judgment."* But this view also has been denied.***
f 37. Order remoTing Cause.
An order for the removal of a cause from a state court to the cir-
cuit court of the United States, for trial, under the various acts of con-
gress in that behalf, is without question a final order.**' "An order
removing or refusing to remove a cause, civil or criminal, to another
court for trial, finally adjudicates a constitutional right of the party
affected by the order. And it is regarded as a judgment, from which,
according to the nature of the case, an appeal or writ of error may
be immediately prosecuted." *'* Conversely, the decision of the fed-
eral court upon a motion to remand the cause to the state court
from which it came, on the ground of its irregular or improper re-
moval, or for want of jurisdiction, is in its nature final and appealable.
But the right of appeal in such cases was taken away by the act of
congress of March 3, 1887, which provides that "whenever any cause
shall be removed from any state court into any circuit court of the
United States, and the circuit court shall decide that the cause was
improperly removed, and order the same to be remanded to the
state court from whence it came, such remand shall be immediately
T43, 25 Pac. 216; WiHIams v. Hutchinson, 20 Fla. 513, 7 South. 852; Code
Ut, Ptoc. CaL S SXJD.
»»• Bmoe T. Conyers, 54 Ga. 678.
isi McOargo v. Chapman, 20 How. 555, 15 L. Ed. 1021; Terry v. Hughes,
W Ala. 432, 8 South. 086; Bond v. Charleen, 1 Dak. 224, 46 X. W. 585.
"* Loomis V. Lane, 29 Pa. 242, 72 Am. Dec. 625; Pucker v. Owens, 164
i*t. 1H5. 30 Atl. 314.
"a Home Wfe Inn. Co. v. Dunn. 20 Ohio St. 175, 5 Am. Rep. 642.
»** McAlilUiu V. State, 68 Md. 307, 12 Aa 8.
(55)
g 88 LAW OF JUDGMENTS. (Ch. 2
carried into execution, and no appeal or writ of error from the deci-
sion of the circuit court so remanding such cause shall be al-
lowed." ^** Nor will any appeal lie when the circuit court denies the
motion to remand, and decides to retain jurisdiction; for this, it is
considered, is not a final judgment or decree, but merely an interlocu-
tory decision.^**
S 38. Judgments and Orders of Probate Conrto*
Orders made by a surrogate or probate court, in the course of tbc
administration or settlement of an estate before it, such as an order
appointing or removing an executor, administrator, guardian, or
trustee, are interlocutory in their nature and not generally appeal-
able.^^^ But when the final stage of the case is reached, and a decree
is made for the distribution of the funds or estate under the control
of the court, and the discharge of the executor or trustee, this is a
final judgment, from which an appeal is generally allowed.^** An
1SB24 IStat. 553; Black, Dill. Rem. Causes, § 223; Sherman t. GrinnelU
123 U. S. 679, 8 Sup. Ct 260, 31 L. Ed. 278; Morey v. Lockhart. 123 U.
S. 56, 8 Sup. Ct. 03, 31 L. Ed. 68; Wilkinson v. Nebraska. 123 U. S. 28a
8 Sup. Ct. 120, 31 L. Ed. 152; Blrdseye v. Schaeffer, 140 U. S. 117, 11
Sup. Ct. 885, 35 L. ^. 402; Missouri Pac. R. Co. v. Fitzgerald. 160 U. S.
556, 16 Sup. Ct. 389. 40 L. Ed. 536; Illinois Cent. R. Co. v. Brown, 156 U.
S. 386, 15 Sup. Ct. 656, 39 L. Ed. 461. A later statute (25 Stat. 603> al-
lowed an appeal from a "final Judgment or decree" .of a circuit court in-
volving the question of its jurisdiction. But it is held that an order of the
circuit court remanding a cause to the state court on the ground of want
of Jurisdiction is not a **final judgment or decree," and hence this statute
does not help the party objecting to tbe remand to procure a review of the
order. Texas Land & Cattle Co. v. Scott, 137 U. S. 436, 11 Sup. Ct 140.
34 L. Ed. 730; Joy v. Adelbert College. 146 U. S. 355. 13 Sup. Ct 186, 36
L. Ed. 1003. The act a*eating the circuit courts of appeals does not give
those courts jurisdiction to review, on appeal from a circuit court, an order
of the latter court remanding a cause to a state coiu-t. In re Coe, 5 U. S.
App. 6, 1 C. C. A. 326. 49 Fed. 481.
136 Bender v. Pennsylvania Co., 148 U. S. 502, 13 Sup. Ct 640, 37 L.
Ed. 537; Tatten v. Cilley, 1 C. C. A. 522. 50 Fed. 337.
137 Mon^'or v. Jeffries, 62 Ohio St. 149. 56 N. E. 654; Grimes v. Barratt.
60 Kan. 2o9. 56 Fac. 472. Compare Tome v. Stump. 89 Md. 264. 42 Atl.
902. An order of the probate court amercing a sheriflC is a final and ap-
pealable judgment Fenton v. White, 4 Okl. 472, 47 Pac. 472.
i3« NViiitaker v. Spnrknian, 30 Fla. 347, 11 South. 542; In re McFarland's
Estate, 10 Mont 445, 26 Pac. 185.
Ch. 2) PINAL AND INTERLOCUTORY JUDGMENTS AND DECREES. § 39
I
order of such a court merely requiring a personal representative,
guardian, or trustee to file an account, is not in its nature final,^'**
nor is an order settling and allowing an annual or partial account of
an executor or administrator.**® But the case is otherwise when
settlement is made of the final accounts of such fiduciaries, especially
vehen distribution is ordered and the discharge of the trustee allowed.
This is such a final decree as will be the proper subject of an ap-
141
S 30. Judgment in Partition.
According to the usual practice in proceedings for partition of land,
a preliminary judgment or decree is rendered, directing that partition
be made, quod partitio fiat, and nominating certain persons to effect
a division and report to the court. When the report is confirmed, or
the method of apportionment otherwise fixed, and all the rights of the
parties adjusted and settled, another judgment is entered declaring
that the partition shall stand as approved. Now the first decree in
these proceedings, establishing the existence of a co-tenancy, order-
ing that partition be made, and appointing commissioners, is gener-
ally interlocutory.*** But the first decree in partition may be final,
and it will have that character, if it settles all the rights of the parties
!«• In re CaUahan's Estate, 139 X. Y. 51, 34 N. E. 756; Wilcox v. Wilcox,
«3 Vt 137, 21 Atl. 423; In re Palethorp's Estate, 160 Pa. 316, 28 Atl. 689.
1*0 iiaker V. S?<?hoeneman, 41 Mo. 392; In re Barnes,' 43 Mo. App. 295.
Hot if a partial distribution is ordered, it seems the decree may be con-
sidered Una! quoad hoc. McDonald v. McDonald, 68 Miss. 689, 9 South.
1*1 Moore's Appeal, 10 Pa. 435; Weinerth v. Trendley, 39 Mo. App. 333;
In re Hlirg Ueirs, 7 Wash. 421, 35 Pac. 131; In re Blgge, 52 Kan. 184, 34
Pac. 782.
1*2 Green v. Flsk, 103 U. S. 518, 26 L. Ed. 485; Id., 154 U. S. 668. 14
Sup. Ct. 1193, 26 I.. Bd. 486; Elder v. McClaskey. 17 G C. A. 251, 70 Fed.
529: Beebe v. Gritting, 6 N. Y. 465; Gesells Appeal, 84 Pa. 238; Temple-
man V. Stoptoe, 1 Munf. (Va.) 339; Young v. Skipwith, 2 Wash. (Va.) 300;
i'utman v. Liewls. 1 FIbl. 455; Medford v. Marrell, 10 N. C. 41; Clester v.
Gibfton, 15 Ind. lO; Davis v. Davis, 36 Ind. 160; Kern t. Maglnniss, 41
ind. 'Jim; Pipkin v. Allen, 29 Mo. 229; Durham v. Darby, 34 Mo. 447; Ivory
V. Delore, 26 Mo. 505; Gates v. Salmon, 28 Cal. 320; Peck t. Vandenberg,
30 Cal. 11; 311118 v. Miller. 2 Neb. 299; Murray v. Yates. 73 Mo. 13. Com-
pare CapeU V. Moseft. 36 S. G. 559, 15 S. E. 711; Skinner v. Garter, 108 X.
<:. 100, 12 2$. E. 908.
(57)
§ 40 LAW OP JUDOMBNT8. (Oh. 2
and leaves nothing for the future consideration or judicial action of
the court.^** Thus a decree declaring that the plaintiff is entitled
to one undivided third of the land in question, and appointing com-
missioners to make partition, is held to be a final decree and appeal-
able before the subsequent proceedings are had.^** And so, where
a judgment was passed for the partition of realty among the heirs
who were entitled to it, and commissioners were appointed to make
the division without further orders of the court, it was considered to
be a final determination of the rights of the parties and therefore
appealable.^*" But an unauthorized declaration, in the order for par-
tition, that the plaintiff's share of the rents and profits received by
defendant as tenant in possession shall constitute a special lien, and
that a special execution shall issue therefor, cannot have the effect
to convert an otherwise interlocutory order into a final and appealable
judgment.***
§ 40. In Condemmttioii Prooeedlnso.
A judgment rendered in proceedings for the condemnation of land
under the power of eminent domain, where^ adversary proceedings
have been had between the petitioner and the parties whose interests
are to be affected, and the court has confirmed a report of commis-
sioners appointed to assess the value of the land taken, and it is
adjudged that the petitioner has complied with the statutory require-
ments, is a final judgment.**^ And so, it seems, is a judgment for
condemnation, wliere the right to condemn is contested, although the
amount of compensation remains still to be determined.*** But
an order in condemnation proceedings merely appointing commis-
i*8An8ley v. Robinson, 16 Ala. 793; Banton v. GampbelFs Heirs, 2 Dana
(Ky.) 421; Damouth v. Klock, 28 Mich. 163; Ruthenberg v. Uelberg, 43 La.
Ann. 410, 9 South. 99.
1** Williams v. Wells, 62 Iowa, 740, 16 N. W. 513. See Cannon t. Hemp-
hill, 7 Tex. 184; Taylor v. Dawson, 65 III. App. 232.
i*oBeatty y. Beatty's Adm'r (Ky.) 5 S. W. 771; Ames v. Ames, 148 111.
321, 30 N. E. 110.
1*0 HoUoway v. Holloway, 97 Mo. 628, 11 S. W. 233, 10 Am. St. Rep, 339.
1*7 Sacramento, F. & N. R. Co. v. Harlan, 24 Gal. 337; Hutchinson t.
McLaughlin, 15 Colo. 492, 25 Pac. 317, 11 L. R. A. 287. See City of Johns-
town V. Wade, 157 N. Y. 50. 51 N. B. 397.
1*8 Wheeling & Belmont Bridge Oo. v. Wheeling Bridge Co., 138 U. S.
287, 11 Sup. Ct 301, <^4 U Ed. 967.
(58)
Ch. 2) FINAL AND INTERLOCUTORY JUDGMENTS AND DECREES. § 41
sioners to assess the damages is not a final or appealable order.^**
On similar principles, a decree of confirmation of a report of viewers
laying out a road is final until reversed on certiorari; ^"® and so is
a judgment setting aside the award of commissioners for the assess-
ment of damages upon the opening of a highway.^**
i 41. FiBAlity of Decrees*
In drawing the distinction between final and interlocutory adjudi-
cations, the greatest difficulty has been experienced in the case of
decrees in equity, the confusion arising principally from the peculiar
nature of these decisions and the wide range of means which chancery
possesses both for informing the mind of the judge and for acting
upon the parties concerned. Many tests of finality have been pro-
posed, some proceeding upon opposite principles, some viewing the
same principle in different aspects. Thus, several cases hold that a
decree is final when it terminates the litigation between the parties
on the merits of the case, and leaves nothing to be done but to en-
force by execution what has been determined.*"* This is perhaps a
little too broad. For, as we shall see, it does not impair the finality
of a decree that it has to pass through the hands of a master, for min-
isterial acts to be done in relation to it, before it is ready for execu-
tion. Other cases define a final decree as that which is made when
all the material facts in the cause have been ascertained, so as to
enable the court to understand and decide on the merits of the case.**^*
According to another authority, any decree is final which renders
the equities incapable of change in the further progress of the
cause.*** Or where nothing remains to be done which may be the
i4» Southern R. Co. t. Postal Tel. Cable Co., 35 C. C. A. 360, 93 Fed.
3KJ; L«dlow T. City of Norfolk, 87 Va. 319, 12 S. E. 612.
!*• In re Hunter's Private Koad, 46 Pa. 'SiO,
»»i Morris & K. K. Co. v. City of Orange, 63 N. J. Law, 252, 43 Atl.
TJO, 47 AU. 3<S3.
i»« Kallroad Co. v. Southern Exp. Co., 108 U. S. 24, 2 Sup. Ct. 6, 27 L. Ed.
<S8: Grant y. Phoenix Mut. Life Ins. Co., 106 U. S. 429, 1 Sup. Ct. 414, 27
1^ Jbld. 237; Cook's Heirs v. Bay, 4 How. (Miss.) 485; Vanmeter's Ex'rs v.
Vttjuneter, 3 Grat. (Va.) 148.
> »» JnMues v. Methodist Episcopal Church, 17 Johns. (N. Y.) 548, 8 Auk
I><H*. 447.
&»« Jones V. Wilson, 54 Ala. 50.
(59)
§ 42 LAW OF JUDOMENT& (Ch. 2
subject of exception or appeal.^'* Or where the decree "completely
and finally disposes of some branch or part of the cause which is
separate and distinct from the other parts of the case." ^** Another
case, coming much nearer to a satisfactory definition, holds that the
final decree is not necessarily the last decree rendered, by which all
proceedings in the case are terminated, and nothing is left open for
the future judgment or action of the court ; but it is a decree which
determines the substantial merits of the controversy, — all the equities
of the case, — ^though there may remain a reference to be had, or the
adjustment of some incidental or dependent matter.^'^
The difficulty appears to arise in relation to those decrees which,
while settling the general equities of the cause, leave something for
future action or determination. And the true rule seems to be, that
if that which remains to be done or decided will require the action
or consideration of the court before the rights involved in the cause
can be fully and finally disposed of, the decree is interlocutory; but
it is none the less final if, after settling the equities, it leaves a neces-
sity for some further action or direction of the court in execution of
the decree as it stands.^ "^^
I 42. Further Action neceiiary to settle tlie Equltios.
Adopting the rule set forth in the preceding section, it will now be
desirable to give some illustrations of cases in which the decree has
been held interlocutory merely, because some further act or decision
was necessary before the equities could be completely settled and
IBB Bellamy v. Bellamy, 4 Fla. 242.
166 Kvans v. Dunn, 2G Ohio St. 439. See Grant v. East Sc West R Co.,
1 C C. A. GSl, 50 Fell. TDo. Where discovery by answer is the only relief
prayed in the bill, a rule to answer is, in effect, a final decree, and is there-
fore appealable. Grimes v. Hilliary, 38 111. App. 246.
1B7 Walker v. Crawford, 70 Ala. 567. See Travis v. Waters, 1 Johns. C3l
UN. X'.) 8o; Champlin v. Memphis & O. R. Co., 9 Heisk. (Tenn.) 683.
188 Kelley v. Stanbery, 13 Ohio, 408; Desvergers v. Parsons. 8 O. C. A.
526, 60 Fed. 143; Chase v. Driver, 34 C. C. A. 668, 92 Fed. 780; Wood t.
HarmiBon, 41 W. Va. 376, 23 S. E. 500; Wheelberger v. Knights, 71 111.
App. 331. The question whether a decree is final and appealable is not de>
termiued by the name which the court below gives It, but is to be decided by
the appellate court on a consideration of the essence of what Is done by the
decree. Potter v. Beal, 2 a 0. A. 60, 50 Fed. 860.
(60)
Ch. 2) FINAL AND INTERLOCUTORY JUDGMENTS AND DECREES. § 42
disposed of. And first, when the further action of the court in the
cause is necessary to give completely the relief contemplated by the
court, the decree upon which the question arises is not to be regarded
as final.*** Thus, a judgment of foreclosure, directing the sale of
the mortgaged premises, and the payment by the defendant of any
deficiency which may arise on such sale, is not such a final judgment
as that an action will lie upon it, because, on such a judgment, fur-
ther proceedings, such as the confirmation of the referee's report,
etc., must be had before a personal judgment can be entered.^ •^
So a judgment dissolving a partnership, ascertaining the sum of
money due by the copartners to the plaintiff, ordering a sale of the
copartnership property and effects, and decreeing payment therefrom
of the amount due plaintiff, but providing that in case the amount
realized from such sale is not sufficient to pay the judgment, that the
plaintiff shall be entitled to a personal judgment against the individ-
ual members of the firm for the deficiency, is not a final judgment, but
merely an interlocutory decree.^** So also, a reservation of the ques-
tion of costs, in a decree which in other respects disposes of the sub-
ject-matter of the suit, renders such decree interlocutory.^** Again,
a decree ordering an act to be done before the decree itself can be
effectual is interlocutory. *•• And a decree which decides definitely
in favor of the complainant in respect to one of the claims presented,
but reserves the consideration of another claim, constituting an in-
tegral part of the case, is not final. ^•^ So if it directs an act to be
i5»Mnier'8 Adni'r t. Cook's Adm'rs. 77 Va. 806; Cocke's Adm'r v. Gilpin,
1 Hob. (Va.) 2U.
!«• Hanover Fire Ins. Co. v. Tomllnson, 3 Hun (N. Y.) 630.
16 1 White T. Conway. 66 Cal. 383, 5 Pac. 672.
i«a Dickenson v. Cod wise, 11 Talge (N. Y.) 189; Johnson v. Hoover, 75
Md. 48«». :a Atl. U03. Compare McFarland v. HaH's Heirs, 17 Tex. 691. An
order directing a receiver to turn over money collected by him, with leave
to apply to the (t>urt for the payment of his charges, and to have the same
taxed as costs against the complainant. Is not a final determination of his
rights, and is not appealable. French y. Genoa Junction Ice Co., 82 III.
App. 318.
i«»Hays V. May's Heirs, 1 J. J. Marsh. (Ky.) 497.
»««Bond V. Marx, ^^S Ala. 177; Woman's College v. Home (Tenn. Ch.)
Q3 », \V. WO: Marks v. Semple. Ill Ala. 637, 20 South. 791. Compare
M'rfght ▼. Bmsctake^ 62 111. App. 35&
(61)
§ 43 LAW OP JUDGMENTS, (Ch. 2
done, but requires a report to be made of the manner of its per-
formance; as where the decree authorizes an executor to sell the
real estate of his testator for the payment of debts, and to report his
proceedings in execution thereof to the court.^** But it has been
held, by a high authority, that when a decree passes for a certain
sum of money, and the complainant is entitled to have it immediately
carried into execution, it must be regarded as final to that extent, and
appealable, although so much of the bill is retained in the court be-
low as is necessary for the purpose of adjusting by a further decree
the accounts between the parties pursuant to the decree passed.* •*
i 43. Further Action neceisary to ezeovte the Deoree.
The second branch of the rule above stated is, that although fur-
ther acts or directions may be necessary to carry the decree into
effect, it is still final if it settles the equities. Thus, a decree that
defendants should assign a certificate of lands to the plaintiff, pro-
vided he should, before a given day and after a tender of the assign-
ment, pay a certain sum of money to them, is a final decree.**^ So
where certain of the stockholders in a corporation filed their bill in
equity, praying that the proceedings of a meeting of stockholders,
and of the directors in accordance therewith, might be set aside as
void for fraud, and for the appointment of a receiver, and the court
granted the relief prayed in the bill, but added a clause to the decree
reserving such further directions, as to costs, etc., as might be neces-
sary to carry the decree into execution, it was held that this was a
final decree.^ •• Again, a decree which ascertains the sum in the
i«B Goodwin v. Miller, 2 Munf. (Va.) 42. And see Donaldson v. Fhrmere"
& Kxcbange Bank, 4 S. C. 106.
166 Forgay v. Conrad, 6 How. 201, 12 L. Ed. 404.
i«7 Turner v. CreblU, 1 Hammond (Ohio) 308. And see Harmon v. Bynum.
40 Tex. 324. But the general rule appears to be that a decree which makes
the relief granted conditional upon the performance of certain acts by the
successful party is not final unless It is shown that the conditions have been
complied with. See Stratton v. Dewey, 24 C. C. A. 435, 79 Fed. 32; Ugon
V. l.igou, 105 Ala. 460, 17 South. 89; McAnally v. Haynle, 17 Tex. Civ.
A pp. 521, 42 S. W. 1049. Compare Dow v. Blake, 148 111. 76. 35 N. E. 761.
3l> Am. St. Rep. ir)6.
los wiuthrop Iron Uo. v. Meeker, 109 U. S. 180, 3 Sup. Ct 111, 27 L. Kd.
CIJ2)
Ch« 2) FINAL AND INTERLOCUTORY JUDGMKNTS AND DECBEEB. § 44
hands of a party to be accounted for, and those who are entitled to
it, and orders it to be paid over to the parties entitled, and directs the
costs of the suit to be paid first out of the fund, and makes no refer-
ence to a master, and seeks to ascertain no new fact, but assumes that
the court is in full possession of all the facts, so as to adjudicate be-
tween the contestants according to equity and conscience, is a final
decree, although it also requires the accountant to report to the court
his distribution and dealing with the fund.^** It is also held that a
decree for specific performance, requiring a conveyance, is final,
although it directs the submission of the conveyance to the judges
for their approval.^^*
I 44. Deeree orderins a Ref erenee*
The most difficult cases in which to draw the line between final
and interlocutory decrees, are those in which the decree, after find-
ing the general equities, orders a reference to a master for some spe-
cific purpose. Yet there are not wanting principles upon which to
base a reasonable and accurate distinction in these cases. As the
condensed result of the numerous authorities on the subject, we may
formulate the following specific rules. First, where a decree is made
disposing of the general equities of the case, but ordering a reference
to a master to ascertain damages, or to find certain facts, or to do
anything else necessary to be done before a final adjustment of the
rights of tlie parties can be had, if the functions of the master are to
be judicial, and not merely ministerial, and the provisions depending
on his report are not already incorporated in the decree, then the de-
cree is interlocutory and not final.^^* Second, where a decree ascer-
•
i«*L«dyarcl v. Henderson, 46 Miss. 260; Bank of Lewisburg y. Sheffey,
140 U. S. 445, 11 Sup. Ct. 755, 35 L. Ed. 493; Lohman y. Cox, 9 N. M.
903, 56 Fac. 286.
!?• Long y. MaxweU, 8 G. C. A. 410, 59 Fed. 948.
i»i Cbace ▼. Vasqnez, 11 Wheat. 429, 6 L. EH. 511; Perkins y. Fonmiqnet,
e Uow. 2U6, 12 L. Ed. 406; Craighead y. Wilson, 18 How. 199, 15 L. Ed.
'J32; Uomlston y. Stainthorp, 2 Wall. 106, 17 L. Ed. 905; Beebe y. Russell,
IV Uow. 283, 15 U Ed. 668; Parsons y. Robinson, 122 U. S. 112, 7 Sup.
Ct 1153. 30 U Ed. 1122; Talley y. Curtain, 7 C. C. A. 1, 58 Fed. 4; Gunn
y. BUudi, 8 a C. A. 542, 60 Fed. 159; Security Trust Co. y. Sullivan, 23 C.
O. A. 45H, 77 Fed. 778; PIckrell y. Thompson, 12 App. D. C. 449; Kane
(68)
§44 LAW OF JUDGMBNTS. (Ch. 2
tains and fixes all the rights of the parties, but a reference is ordered
to a master to do or ascertain something that is necessary to carry
the decree into effect, if the functions of the master are to be merely
ministerial and not judicial, or if all the consequential directions de-
pending on the result of the proceedings before him are giv^n in
the decree itself, then the decree is final and not interlocutory.*^*
V. Whlttlck, 8 Wend. (N. Y.) 219; Johnson v. Everett, 9 Paige (N. Y.) 636:
Chittenden v. Missionary Society of Methodist Episcopal Church, 8 How.
Frac. (xN. Y.) 327; Cruger v. Douglass, 2 N. Y. 571; Tompkins v. Hyatt,
19 N. Y. 534; Moore v. Lincoln Park & Steamboat Gousol. Ck>., 196 Pa.
519, 46 Atl. 857; Templeman v. Steptoe, 1 Munf. (Va.) 339; Ryan's Adm'r
V. McLieod, 32 Grat. (Va.) 367; Maekey v. Bell, 2 Munf. (Va.) 523; Price v.
Nesblt, 1 Hill, Eq. (S. C.) 445; McCrady v. Jones, 36 S. C. 136, 15 S. E. 430;
Smith V. Thomason, 2G S. C. 607, 12 S. E. 96; Putman v. Lewis, 1 Fla. 455;
Griffin v. Orman, 9 Fla. 22; Owens v. Love, 9 Fla. 325; Garrard v. Webb,
4 Port. (Ala.) 73; Garner v. Prewltt, 32 Ala. 13; Broughton v. Wimberly,
65 Ala. 649; Cook's Heirs v. Bay, 4 How. (Miss.) 4S5; Pryor v. Smith, 4
Bush (Ky.) 379; BerryhlU v. McKee, 3 Yerg. (Tenn.) 157; Porter v. Burton.
10 Heisk. (Tenn.) 584; Gaines v. Patton, 8 Ark. 67; Morris v. Morris, 5
Mich. 171; Caswell v. Comstock, 6 Mich. 391; Enos v. Sutherland, 9 Mich,
148; Gates v. Salmon, 28 Cal. 320.
i72Forgay v. Conrad, 6 How. 201, 12 L. Ed. 404; Beebe v. Russell, 19
How. 283. 15 L. Ed. 668; Thomson v. Dean, 7 WnU. 342, 19 L. Ed. 94:
Mills V. Hoag, 7 Paige (N. Y.) 18, 31 Am. Dec. 271; Taylor v. Read, 4 Paige
(X. Y.) 561; Dickenson v. Cod wise, 11 Paige (N. Y.) 189; Coithe v. Crane,
1 Barb. Ch. (N. Y.) 21; Harvey v. Branson. 1 Leigh (Va.) 108; Rawlings*
Ex'r V. Rawlings, 75 Va. 76; Fleming v. Boiling, 8 Grat. (Va.) 292; Weather-
ford V. James, 2 Ala. 170; Bank of Mobile v. Hall, 6 Ala. 141, 41 Am. Dee. 41;
McKinley v. Irvine, 13 Ala. 681; Hastie v. Aiken, 67 Ala. 313; Bradford v.
Bradley's Adm'rs, 37 Ala. 453; Cochran v. Miller. 74 Ala. 50; Ex parte
Elyton Land Co., 104 Ala. 88, 15 South. 939; Garry v. Jenkins. 109 Ala.
471, 20 South. 8; Mattiugly v. Elder (Ky.) 44 S. W. 215; McFarland v. HalPs
Heirs, 17 Tex. 676; Merle v. Andrews, 4 Tex. 200; Meek v. Mathls, 1 Heisk.
(Tenn.) 534; Ex parte Crittenden, 10 Ark. 333; Tejiff v. Hewitt, 1 Ohio St.
511, 59 Am. Dec. 634; Guardian Savings Bank v. Reilly, 8 Mo. App. 514;
Damouth v. Klock. 28 Mich. 163; Neall v. Hill, 16 Cal. 145, 76 Am. Dec.
508. The distinction above formulated is well brought out in a decision of
Chancellor Walworth, from which we quote as follows: "A decree never can
be said to be final when it is Impossible for the party in whose favor the
decision is made ever to obtain any benefit therefrom without again setting
the cause down for hearing before the court, upon the equity reserved, upon
the coming in and confirmation of the report of the master, to whom it is
referred to ascertain certain facts which are absolutely necessary to be as-
certained before the case is finally disposed of by the com"t, or which the
chaucellor thinks proper to have ascertained before he grants any relief what-
(G4)
Ch. 2) FINAL AND INTERLOCUTORY JUDGMENTS AMD DECREES. § 45
To take a single illustration, — the reference of a case to a master, to
take an account upon evidence, and for the examination of the par-
ties, and to make or refuse allowances affecting the rights of the par-
ties, and to report his results to the court, is not a final decree. For
his report is subject to exceptions from either side, which must be
brought to the notice of the court before it can be available. It can
only be made so by the court's overruling the exceptions, or by an
order confirming the report, with a final decree for its appropriation
and payment.*'*
i 45. Dlreotias an Aooonnt.
According to the rules just stated, a decree directing an account
to be taken is generally interlocutory; *^* that is, unless all the steps
ever to the complainant. But if the decree not only settles the rights of the
ptrties, bnt gives all the consequential directions which will be necessary
to a final disposition of the cause, upon the mere confirmation of the report
of the master by a common order in the register's otUce, it is a final decree
and may he em*oiled at the expiration of thirty days, although the amount
to which the complainant may be entitled under such decree is still to be as-
certained upon a reference to a master for that purpose. Thus, in the ordi-
nary case oi a bill for the foreclosure of a mortgage, if the decree merely
decides or declares the rights of the complainant by virtue of his bond and
iDortfage, and refers it to a master to compute and ascertain the amount
due to him, reserving ail further questions and directions until the coming
in and confirmation of the master's report, it is an interlocutory decree merely,
as the complainant cannot obtain the benefit of his suit until he brings the
cause on to be heard again upon the equity reserved and for further di-
rections as to a sale of the mortgaged premises and the payment of his debt
tnd costs oat of the proceeds of such sale. But if the decree, in addition
to the reference to the master to compute the amount due upon the bond
and mortgage, proceeds further and gives the usual directions in such cases,
that upon tlie coming in and confirmation of the report of the master, the
premises shall be sold, and that the master who makes such sale shall pay
the amoont so r^)orted due, together with the interest and costs, out of the
proceeds of such sale, and directing the mortgagor to pay the deficiency re-
ported dne upon such sale, the decree is final, although the mortgagor may
have the right to exc^t to the master's report of the amount due. For the
questions arising upon the exceptions to the master's report, in such a case,
are merely incidental to the carrying of the final decree in the cause into
full effect." Johnson v. Everett, 9 Paige (N. Y.) U3«.
iTtBeebe v. RusseU, 19 How. 283, 15 L. Ed. 668.
iTiLstta V. Kilboum, 150 U. 8. 524, 14 Sup. Ct. 201, 37 L. Ed. 1160;
Motlander v. Fechheimer, 162 U. B. 826, 16 Sup. Gt. 705, 40 L. Ed. 9S5;
Ouarantee Co. of North America v. Mechanics' Savings Bank & Trust Co.,
ilawjcdg:-5 (05)
5 46 LAW OP JUDGMENTS. (Ch. 2
to be taken after the account is ascertained are specifically prescribed
in the decree, with no equities or questions reserved and no further
directions needed.^'* Thus, where a judgment appointed a referee
who was to take an account of rents and profits and improvements
upon land, and ascertain the present value of dower, and upon pay-
ment by the plaintiff of a certain sum to be ascertained by the referee
in the mode specified in the judgment, the referee was to admeasure
her dower, and he was to report the evidence taken by him with his
findings thereon to the court, and all other questions were reserved
until the coming in of such report and the final hearing thereon, it
was held that this was not a final but an interlocutory judgment.*'*
§ 46. Decree suipendliic Bishtg until further Orders.
Another class of interlocutory decrees comprises those which pro-
hibit a certain act to be done, or hold the rights of the parties in
statu quo, until the court shall give further orders or directions.*'^
Thus an order that a party is not to pay a sum adjudged against
him "until further ordered" is not final.*'* So a decree rendered by
the probate court, upon the application of an executor, by which a
certain amount is ascertained to be in his hands, a portion of which
he is ordered to pay over to those entitled to it, and to retain the
balance until the further order of the court, is not a final decree.*'*
•
173 U. S. 582, 1» Sup. Ot. 551, 43 L. Ed. 818; Pittsburg, C. & St Lw R. Co.
V. Baltimore & O. R. Co., 10 C. C. A. 20, 61 Fed, 705; Merriman ▼. Chicago
6 E. 1. R. Co., 12 C. C. A. 275, 64 Fed. 535; McKeown v. Officer, 127 X.
Y. 687, 28 N. E. 401; C. & C. Electric Motor Co. v. Lewis, 47 IlL App.
576; Kanawha Lodge No. 25 v. Swann, 37 W. Va. 176, 16 S. E. 462; Heffner
V. Day, 54 Ark. 79, 14 S. W. 1000. Compare Sprague v. Bond, 113 N. C.
551, 18 8. E. 701.
iTo Webber v. Randall, 80 Mich. 531, 50 N. W. 877; Hake ▼. Coach, lOo
Mich. 425, 63 N. W. 306; Decatur Land Co. v. Oook (Ala.) 27 South. 559:
AlUson y. Drake, 145 111. 500, 32 N. E. 537.
1T6 Raynor v. Raynor, 04 N. Y. 248. And see Jackson County v. Gullatt.
M Ala. 243, 3 South. 906; Beebe v. Russell, 19 How. 283, 15 L. Ed. 66S:
Johnson v. Everett, 9 Paige (X. Y.) 636.
ITT In re Turner's Estate, 183 Pa. 543, 38 Atl. 1040; O'Meara v. First Xat
Bank (i<^y.) 37 S. W. 266. See St. Louis Nat Bank T. Bloch, 44 La. Ann.
^93, 11 South. 466.
iTSTlnley v. Martin, 80 Ky. 463.
[ 1T9 Khodes V. Turner, 21 Ala. 210.
Ch. 2) FINAL AND INTERLOCUTORY JUDGMENTS AND DECREES. § 48
§ 47. Deereo dlssolTins PavtaerBlUp.
Where a bill in equity is brought for an accounting between part-
ners and for a termination of the partnership, the first decree, dis-
solving the partnership and directing accounts to be taken, is gen-
erally only interlocutory.^** But a decree dissolving a partnership,
which directs an accounting and a sale of the firm's assets, and specif-
ically states the manner of their distribution, is final.*** Where,
upon a bill for the settlement of partnership accounts, the decree
leaves unsettled the equities as to two items of account, as to which
a reference is ordered, it cannot be considered a final decree.***
i 48. Foreclosure of Morts^Be.
Upon a bill for the foreclosure of a mortgage, if the decree ascer-
tains the validity of the mortgage and the amount of the debt, orders
a sale of the mortgaged premises, describing them, for satisfaction
of such debt, directs that the sum due on the mortgage with interest
and costs be paid over to the mortgagee out of the proceeds of the
sale, and adjudges that the defendant make good any deficiency
which may be found to exist after the sale, then the decree is final
and complete ; for it leaves nothing to be adjudicated or reviewed by
the court.*" But if the decree does not ascertain the amount due;
or if it orders a sale but does not give any direction as to the dispo-
sition of the proceeds ; or if it reserves the question of the distribu-
tion of the fund, in order to adjust conflicting claims or liens; or if,
without ordering a sale, it directs the cause to stand continued for
•
iBOGray v. Palmer. 9 Cal. 616; Kingsbury v. Kingsbury, 20 Mich. 212;
Ktiodes V. WllUaius. 12 Xev. 20; Huntington v. Moore, 1 N. M. 471; Cocke's
Admr y. GUpln, 1 Rob. (Va.) 20.
1*1 Clark v. I>unnam, 46 Cal. 204; Evans v. Dunn, 26 Oliio St. 439; Ar-
nold v. Sinclair, 11 Mont. 556, 29 Pac. 340, 28 Am. St Rep. 489.
i»« Gamer v. l»rewltt, 32 Ala. 13.
i»»Myer« v. Manny. 63 111. 211; Morris r. Morange, 38 N. Y. 172; Baker
T. Lehman, Wrlgbt K>hlo) 522; Ray v. Law, 3 Crancb, 179, 2 L. Ed. 4(M;
wnitlng V. Bank of United States, 13 Pet. 6, 10 L. Ed. 33; Bronson y. La
Crosse Sc M. U. R. Co., 2 Black, 524, 17 L. Ed. 347; Jobnson v. Everett,
» Paige iS. y.) 636: May v. Ball (Ky.) 56 S. W. 7. Compare Allen v.
BHclies, 2 Uen. Hl M. (Va.) 595; Malone v. Marriott, 64 Ala. 486.
(67)
§ 49 LAW OP JUDGMENTS. (Ch 2
further order and decree upon the coming in of a master's report,
then, and in any such case, it is merely interlocutory.^®* It is to be
observed that the judgment for the deficiency arising on a sale of the
property, and directing that execution may issue therefor, is not final,
so as to be appealable, until there has been a judicial determination
of the amount of the deficiency after the sale.*®* But where a peti-
tion of intervention is filed, claiming priority over the mortgage or
other rights in the property, a decree which settles the rights of the
intervener, and directs provision to be made for their satisfaction
in the sale or in the distribution of the proceeds, is final and appeal-
able, although the main suit has not reached a final decree.***
§ 49. Sendins Iisue out of Chancery.
An order in equity sending an issue of fact to be tried in the law
court is of course interlocutory. In itself it determines nothing. It
is merely preparatory to a final decree.*®^ And the same is true of
a judgment rendered on a feigned issue directed out of chancery.***
And on similar principles, an order of a probate court adjudging that
parties have the right to have issues to determine the validity of a will
transmitted to a law court for trial by jury, and framing and trans-
mitting such issues, is not a final order.***
18* Burlington, C. R. & N. R. Co. v. Simmons, 123 U. S. 52, 8 Sup. Ct.
58, 31 U Ed. 73; Johnson v. Everett, 9 Paige (N. Y.) 636; WilUams v.
Walker, 107 N. C. 334, 12 S. E. 43; Illinois Trust & Savings Bank v. Pacific
Ry. Co., y» Cal. 407, 33 Pac. 1132. An order denying an application for the
appointment of a special master to sell mortgaged premises is not appealable
before rendition of a linal decree of foreclosure. American Inv. Co. v. Xye,
40 Neb. 720, 59 N. W. 355, 42 Am. «t. Rep. 692. See Riddle v. Hudgins,
7 C. C. A. 335, 58 Fed. 490.
185 Kggieston V. Morrison, 185 111. 577, 57 N. B. 775; Parmele ▼. Schroeder,
59 Neb. 553, 81 N. W. 506.
i8« Central lYust Co. v. Marietta & N. G. R. Co., 1 C. O. A. 116, 48 Fed.
850; Central Trust Co. v. Madden, 17 C. C. A. 236, 70 Fed, 451; Moulton
V. Cornish, 138 N. Y. 133, 33 N. E. 842, 20 L. R. A. 370.
18T Dabbs V. Dabbs, 27 Ala. 646; Eames v. Eames, 16 Pick. (Mass.) 141.
laswoodside v. Woodslde, 21 111. 207.
189 Dugan V. Northcutt, 7 App. D. C. 351.
^68)
Oh. 3) JUDGMENTS BY OONFESBIOM. S 50
JUDGMENTS BY CONFESSION.
i 50. Confession of Judgment in Pending Suit
51. Confession of Judgment without Action.
52. Authorized by Statutes.
53. Court must have Jurisdiction.
M. Who may confess Judgment.
' 55. Confession by Married Woman.
56. Married Woman as Creditor.
57. Confession by Partner. •
5H. Joint Defendants.
59. By Officers of a Corporation.
tiO. Consent of Creditor is necessary.
()1. Requisites of Warrant of Attorney.
«la. Revocation or Expiration of Warrant.
(&!. Affidavit that Debt is due.
(53. Statement of the Indebtedness.
64. Signature to Statement.
65. Verification of Statement.
66i Amendment of Statement
67. Judgment voidable for Failure to comply with Statute.
68. Valid between Parties.
69. For what Judgment may be confessed.
70. Debt not yet due.
71. For Future Advances.
72. For contingent Lriabilities.
73. Amount of the Judgment.
74. Liquidation of Amount by Cleric.
75. inclusion of Attorney's Fees.
76. Recording the Judgment.
77. Reversing and Vacating Judgments by Confession.
78. Effects of confessed Judgment
i 50. Conf euion of Jvdsment in Pendins Suit*
All judgments rendered upon the confession of the defendant may
be divided into two classes : I. Those entered in an action regularly
commenced by the issuance and service of process; 2. Those en-
tered upon the confession of the defendant, or his warrant of attor-
ney, without the institution of an action. The former class of judg-
ments are well known to the common law and must be tested and
(69)
'
§ 50 LAW OP JUDGMENTS. (Ch. 3
sustained by rules and principles existing independently of statutes,
while judgments of the latter class derive all their efficacy from posi-
tive law and must conform, in order to be valid, to all the requirements
and formalities set up by the legislature. It is frequently a matter
of importance to determine whether a particular judgment belongs
to one class or the other, because, if not covered by the statute, it
is not impeachable for lack of an affidavit, statement of indebtedness,
or other support required by the act. This distinction is recognized
by the authorities. Thus a statute which provides that any person
may, without process, appear in person or by attorney and confess
judgment for any bona fide debt, but in such case a petition shall be
filed, and other acts be done, does not apply to cases where the part}'
is regularly cited, but only to cases of voluntary appearance without
process.* So where a defendant accepts service of process and after-
wards confesses judgment, the plaintiff's affidavit of the justness of
the claim, required in the' case of confession without action, is held
to be unnecessary.^ Now judgments entered for the plaintiff upon
the defendant's admission of the facts and law, as the same are
known to the common law and exist independently of statutes, are
of two varieties; first, judgment by cognovit actionem, and second,
by confession relicta verificatione. In the former case the defendant,
after service, instead of entering a plea, acknowledges and confesses
that the plaintiff's cause of action is just and rightful. In the lat-
ter case, ^fter pleading and before trial, the defendant both confesses
the plaintiff's cause of action and withdraws or abandons his plea or
other allegations, whereupon judgment is entered against him with-
out proceeding to trial.^ In order to sustain a judgment of either of
these sorts, it is essential that process, regularly issued, should have
been served upon the defendant (though he may accept service with
the same effect as if the writ had been served as it usually is *) ; and
an agreement in w-riting made out of court, authorizing the clerk to
1 Schroeder v. PYomme, 31 Tex. 602, And see Grouse v. Derbyshire. 10
Mich. 479, 82 Am. Dec. 51; Goodwill v. Elkins. 51 I^. Ann. 521, 25 South, 317.
2 Gerald v. Burthee, 29 Tex. 202.
8 Bouv. Law Diet. voc. Judgment. As to judgments by consent, see Ed-
wards V. inimer (Tenn.) 47 S. W. 144; Goodrich v. Alfred, 72 Conn. 257, 43
Ati. 1041.
4 Gerald v. Burthee, 29 Tex. 202; Hart v. Sarvis, 3 Ohio N. P. 316w
(70)
Ch. 3) JUDGMENTS BY CONFESSION. § 51
enter up such a judgment, will not sustain it, where there has been
no appearance by the defendant.* A judgment by cognovit, after
process has been served, may be entered in vacation, without a
judge's or commissioner's order, and without affidavits.* The other
species of judgment by confession, relicta verificatione, is also not
unknown to modern practice. Thus, where a judgment recited that
**the defendants, by leave of court, withdraw their pleas and say that
they cannot deny the plaintiff's cause of action against them, for debt
and interest in plaintiff's petition claimed," it was held that this was
in effect a confession of judgment, and a jury was not required to
ascertain the amount.^ It is also said that where a party confesses
judgment against himseff under a mistake of fact as to what the
pleadings contain, he may, upon discovering his error, retract the
confession, provided it has not been recorded.*
i kl. Confession of Jndsment withovt Action*
One method of confessing a judgment without action or process is
by a warrant of attorney. This is an authority given by the debtor
to a named attorney, or to any attorney of a given court or in a given
jurisdiction, empowering him to appear for the defendant and con-
» Craig V. Glass, Smith (Ind.) 27. See O'Neal v. Clymer, 21 Tex. Civ. App. 3»G,
52 S. W. «19; Hudson v. McMahon (Ky.) 50 S. W. 259. Compare Shadrack's
Adm'r v. WoolfoUE, 32 Grat. (Va.) 707.
• Stewart v. Walters, 38 N. J. Law, 274. A Judgment by agreement may
be entered In open oourt by the judge on consent of the attorney, orally ex-
pressed, or may be entered on the record without express sanction of the court
from the written agreement between counsel, duly filed, in which latter case
tbe court's assent Is presumed. Beliveau v. Amoskeag Mfg. Co., 68 N. H.
:J25, 40 Atl. 734, 44 L». R. A. 167, 73 Am. St. Rep. 577. Where a Judgment
is confessed In open court, it must be presumed that the authority to confess
was Judicially passed upon by tbe court. Chicago Tip & T. Co. v. Chicago
Nat. Hank, 74 111. App. 430. As to presumption of authority on the part of
defendant's attorney to confess Judgment, see Harper v. Cunningham, 5 App.
11. C. 2U3.
T Burton r. Lawrence, 4 Tex. 373. And see Hicks v. Ayer, 5 Ga. 298. The
wltbdrawal of a plea In abatement on the day set for trial, and the filing of
an answer admitting plaintiff*s claim, and consenting to Judgment, does not
render tbe Judgment entered one by confession. Adler v. Anderson, 42 Ma
App. 180.
« tfmith r. Kimms« 9 Ga. 418. But see New EIngland Mortgage Security Co.
y. Tarrcr, 0 C. C. A. 100, GO Fed. 660; Little v. Dyer, 35 111. App. 85.
(71)
§ 62 LAW OP JUDGMENTS. (Ch. 3
fess judgment for a designated amount. This differs from a cognovit
in that an action must be commenced before a cognovit can be given,
but not before the execution of a warrant of attorney.* In so far as
this procedure may be regulated by statute in any jurisdiction, it
must of course comply strictly with the requirements of the law. But
in most of the states there are statutes which authorize a judgment
to be entered upon the confession of the defendant, without action,
upon the filing of a verified statement showing the facts out of which
the indebtedness arose, and an affidavit that the debt is just and
actual, and sometimes upon the observance of certain additional for-
malities. This is by far the most usual method of confessing judg-
ments, and therefore will principally engage our attention in this
chapter.
§ 52. Authorised by Statutes.
Inasmuch as the proceeding last adverted to depjends entirely
upon statute for its validity, it is evident that a strict construction
must be applied to the statute and that its provisions must be strictly
complied with in using the authority it grants.^® But on the other
hand, the judgment must stand or fall by the statute alone, and for-
malities not therein required are not essential to its validity. For
instance, it is not necessary to sustain such a judgment that a decla-
ration should have been filed ; the statement required by the statute
is sufficient.^^ Again, neither a citation of the defendant nor a pre-
vious judgment of default is needed as a preliminary to the entry ot
judgment on his confession." But in some states it is required that
an office confession of judgment be confirmed by the court before it
becomes a judgment ; and under this rule its incidents as a judgment
9 Bouv. Law Diet, voc. "Judgment."
10 Kdgar v. Greer, 7 Iowa, 13G; Cliapin v. Thompson. 20 Cal. G86; Mf-
Crairy v. Ware, G Kan. App. 155, 51 Pac. 293; Burr v. Mathers, 51 Mo. App.
470; Harper v. Uimningham, 5 App. D. C. 203. In Virginia, the statute provid-
ing for Judgments by confession being merely declaratory of the common law,
only substantial compliance therewith is required. Saunders y. Lipscomb, SK>
Va. (U7, 19 S. El 450.
11 Johnston v. Glasgow, 5 Ark. 311; Choat v. Bennett 11 Ark. 313; Gayle r.
Foster, Minor (Ala.) i:i5; Matthews' Lessee v. Thompson. 3 Ohio, 272.
12 Marbury v. Pace, 29 La. Ann. 557. A power of attorney given with a
note, authorizing Judgment thereon by confession without process, is valid.
Wliitton V. Whitton, 04 lU. App. 53.
(72)
Ch. 8) JUDGMENTS BY CONFESSION. § 53
do not attach until the date of such confirmation.^* So, again, a
provision that the confession must be signed by the party and by
witnesses does not admit of evasion.^* And the same is true of a
requirement that the debtor shall appear in person and confess the
judgment.*' Since a judgment upon confession is not in the nature
of an adversary proceeding, it is theoretically immaterial whether it
is entered during a session of the court or in vacation. And it may
be stated as the rule, unless modified by the particular statute, that
a judgment of this character may as well be entered in vacation as in
term-time.** So a warrant of attorney attached to a note authorizing
confession of judgment thereon at any time after its date, will sup-
port a judgment entered in vacation before the note was due.*^ And
a judgment confessed in the clerk's 'office on the morning of the
first day of the term of court, before the court was opened, is a valid
judgment**
i 53. Court must ItAve Jnriidiotloii*
Although a judgment by confession is to a certain extent founded
on the agreement of the parties, instead of a direct adjudication by
the court, it is none the less, on that account, a judicial act. And
since their consent cannot create a jurisdiction in excess or contra-
vention of that conferred by law, it is equally essential to the validity
of a judgment of this character as to any other that it be entered in a
court having jurisdiction of the subject-matter. As it is to have all
IS Bass T. Kstlil, 50 Miss. 300. Miner's Code Iowa. S§ 176, 177, providing
that judgments by confession shall be signed by the judge, is merely directory,
and a failure to sign does not vitiate the judgment. Dullard v. Phelan, 83
Iowa, 471, 50 N. \V. 204.
1* Beach v. Botsford, 1 Doug. (Mich.) 199, 40 Am. Dec. 145.
laRonehrough v. Ansley, 35 Ohio St 107. See Reed v. Hamet. 4 Watts
(Pa.) 441.
!• Pickett v. Thruston. 7 Ark. 397; Kellogg v. Keith, 4 111. App. 380. Com-
pare Pond V. Simons, 17 Ind. App. 84, 45 N. E. 48. A power of attorney au-
thorizing confession of judgment "as of any term" does not authorize the entry
of judgment In vacation. Graves v. Whitney, 49 111. App. 435; Whitney v.
Bohlvn, 157 111. 571, 42 N. E. 162.
17 Towle V. Gonter, 5 IlL App. 409. But it is said that a judgment cannot be
roof(>«iHed on the day a warrant of attorney and note bear date, although the
note is payable on demand. Waterman v. Jones, 28 111. 54.
I* Brown v. Hume, 1« Grat (Va.) 45tJ.
(73)
§ 53 LAW OP JUDOMBNT8. (Ch. 3
the incidents and consequences of any other judgment, and to have
the sanction of the law and the authority of the couft behind it, it
will be invalid unless the court where it is entered might lawfully
have rendered the same judgment in a contested action.^* And
where the authority of an inferior court, as that of a justice of the
peace, to enter judgments upon confession, is limited by law or
hedged round with prescribed formalities, it must clearly appear upon
the face of his record that the particular confession came within the
limitations and that the requirements of the statute were distinctly
met and complied with.*® Yet after a confession of judgment with-
out exception to the jurisdiction of the particular court (the subject-
matter being within its general competence), the judgment rendered
is valid.*^ And a judgment entered in the district court, by virtue of
a warrant of attorney authorizing the entry of such judgment in the
court of common pleas, those courts having concurrent jurisdiction,
cannot be set aside as erroneous at the instance of a subsequent judg-
ment-creditor.** Such authority, however, will not run into another
state. Thus a warrant of attorney to confess a judgment, executed
in one state between parties residing there and by its terms to be ren-
dered there, will not support a judgment entered in another state.**
i» Lanning v. Carpenter, 23 Barb. (N. Y.) 402. So where it is required by
law that the execution of a power of attorney to confess Judgment be proved
before the Judgment Is confessed, such proof must affirmatively appear of
record; otherwise the court would have no Jurisdiction of the person of tbe
maker, and the Judgment would be invalid. Rapley v. Price, 9 Ark. 428. In
some states it is held that a Judgment by confession can be entered only in a
court having Jurisdiction of the county or district where the defendant resides^
and where alone a personal Judgment might be recovered against him In a
contested action. Ex parte Ware Furniture Co., 49 S. C. 20, 27 S. K 9; Mc-
Clure V. Bowles, 5 Ohio N. P. 327. But elsewhere the doctrine prevails that a
confessed Judgment is valid if entered in a court having Jurisdiction of the
subject-matter, and within the state where the note and warrant were made,
without regard to the defendant's place of residence* and even though he
may have removed from the state. Kitchen v. Bellefontaine Nat. Bank, 5&
Kan. 242, 36 Pac. 344, 42 Am. St. Rep. 282.
20 Spear v. Carter, 1 Mich. 19, 48 Am. Dec. 688; Tenny v. Filer, 8 Wend,
(N. y.) 569; Camp v. Wood, 10 Watts (Pa.) 118.
21 Kelly V. Lyons, 40 La. Ann. 498, 4 South. 480.
22 Hauer's Appeal, 5 Watts & S. (Pa.) 473.
28 Manufacturers* & Mechanics' Bank v. Boyd, 3 Denio (N. Y.) 257. Bnt a
Judgment upon the confession of the defendant which is valid In the state
(74)
Ch. 3) JUDGMENTS BY CONFESSION. § 54
Authority to confess judgment under a power of attorney is not ex-
hausted by a confession of a judgment which is subsequently re-
versed, but another may be confessed under the same power. "The
intention of the power had not been carried out, consequently the
object was not accomplished, and the authority was not exhausted
by the first act." ** A more difficult question arises in the case where
a judgment by confession is entered upon a bond and warrant of at-
torney in one county, and afterwards, such judgment remaining in
force and unsatisfied, a second judgment upon the same bond and
warrant is entered in another county. Here it would seem that the
authority conferred by the warrant was fully satisfied by the first
confession and nothing remained to sustain the second. But since
this would not appear upon the face of the proceedings, the second
judgment would not be absolutely void, but at most irregular. It
would be vacated or set aside upon application to the court in which
it was entered, but the want of authority to enter the second judg-
ment could not be taken advantage of on a writ of error. In the
meantime, if a sheriff's sale was had. under the second judgment, the
purchaser would no doubt take a good title ; but in that case the at-
torney who entered the judgment, or the obligee of the bond, if it
was entered bv him, would be answerable.**
S 54. WHo Miaj oonfeu Judgment.
As a general rule, any person may give a confession of judgment
against whom the same judgment might lawfully have been pro-
nounced by the court as the result of a suit regularly instituted and
where it Is entered Is equally valid in every other state. Coleman v. Waters,
13 W. Va. 278. And a warrant of attorney may be so drawn as to authorize
a confession of judgment in a foreign state. Van Norman v. Gordon, 172
Mass. 57(5, 53 N. E. 2(J7, 44 L. R. A. 840, 70 Am. St. Rep. 304. Thus, it is
held that if the authority is to confess judgment **in any court of record,"
it may be executed in any state in the Union. Pirie v. Stem, 97 Wis. :150, 72
X. W. 370. «5 Am. St. Rep. 103; First Nat Bank v. McKinney. 16 Ohio Cir.
(\, R. 80. See First Xat. Bank v. (larland, 109 Mich. 515. 67 N. W. 5r)9, 33
L. R. A, 83, 63 Am. St. Rep. 697. Compare Davis v. Packer, 8 Ohio Cir. Ct.
R. 107.
«• Uuner v. i>oolittle, 3 (}. (ireene (Iowa) 76, 54 Am. Dec. 489.
» Martin v. Rex, H Serg. & R. (l»a.) 296; Neff v. Barr, 14 Serg. & R. (Pa.)
KjU; and see also Livezly v. Pennock, 2 Browne (Pa.) 321.
(75)
§ 54 LAW OP JUDGMENTS. (Ch. 3
contested. The only difficulty occurs in the case of persons who are
under disabilities ; and here it must be remarked that if the disability
of infancy or coverture is merely a personal privilege which may be
waived, then the confession of a judgment is as explicit a waiver as
could well be imagined, but if, on the other hand, it is regarded as
an absolute incapacity to contract debts, or certain kinds of debts,
then a confession of judgment is merely a futile attempt to give valid-
ity to that which by law can have none. It has been said that a war-
rant of attorney to confess judgment executed by a minor is under
all circumstances entirely void.** But this statement U probably too
strong. The marked tendency of the authorities, as we shall see
hereafter,*^ is to regard a judgment agaiilst an infant duly before the
court as valid and effectual for all purposes, unless indeed time is
given to him to show cause against it after his majority. And if his
defense of infancy is taken away by his failure duly to plead it when
sued, it is certain that it is equally waived by his voluntary confession
of judgment. The case of confessions by married women we reserve
for the succeeding section.
In regard to parties plaintiff in confessions of judgment the parallel
rule appHes.** In cases where the debtor is an officer of the court
in which the confession is entered, no difficulty has been experienced
in sustaining the judgment. Thus, under a statute providing that
judgments may be confessed in the clerk's office, and when recorded
by him shall be valid, the clerk, acting as a ministerial officer, may
enter a judgment by confession against himself.** And it is even
held that a judge, in a suit in his own court to which he is a party,
26 Knox v. Flack, 22 Pa. 337. Compare Ziogler v. Evans, 8 Kulp (Pa.)
ISO.
27 See infra, §§ 193, 196.
28 A warrant of attorney In a note to confess judgment In favor of the payee
Is available to his administrator. Drake v. Simpson (Ohio) 30 Wkly. Law
Bui. 23G. If the warrant does not specify the person in whose favor Judg-
ment is to be entered, it may be in favor of the legal holder of the note at the
time of entry. Shepherd v. Wood, 73 111. App. 486. A a to confessions in
favor of partners, see Mahaffey v. Rogers, 10 Ohio Cir. Ct. R. 24. A person
may confess Judgment for money due the state as well as to an IndlviduaL
State V. Love, 23 X. C. 264.
2» Smith V. Mayo, 83 Va. 910, 5 S. E. 276w
(7G)
Ch. 8} JUDGMENTS BY CONFESSION. § 55
may confess a judgment against himself. •^ Of course any person
who may himself give a valid confession of judgment may delegate
his power to that intent to another. Such authorization of a third
person is commonly seen in warrants of attorney, but may also be
otherwise conferred. The authority of an attorney appearing in
open court, it is said, will be presumed to be regular until the con-
trary is shown, but in vacation his authority to confess judgment
must affirmatively appear and no presumption will be indulged in
favor of it.*^ On the same general principle, an agent, within the
scope of his authority, may confess judgment against his principal.'*
If the agent transcends his authority and confesses judgment for a
sum greater than is actually due, it may be a question whether the
principal is bound at all. But it has been held that in such a case,
the judgment is valid for the real debt and void only as to the ex-
cess.'* It is also held that a trustee cannot bind the trust estate by
a confession of judgment.**
{ 55. Conf eflitoB bj Married Womuiii*
In regard to the power of a married woman to bind herself by a
confession of judgment, we find the greatest difference of opinion in
the authorities. In fact it is impossible to formulate a general rule ;
the question must ultimately be referred to the statutes in the several
states regulating her status and rights. In proportion as the feme
covert is emancipated from the rigors of the common law, her power
to confess judgment increases in respect to the variety of obligations
upon which it may be exercised. The only safe generalization seems
8* Hiomton T. Lane, 11 Ga. 459.
^i Martin v. Judd, dO lU. 78. See Jarrett v. Andrews, 19 Ind. 403.
<3 Parker v. Poole, 12 Tex. 86. A municipal officer, liable to suit on a con-
tract made by him on behalf of the public, may confess Judgment for the
amount due. Gere v. Cayuga County Sup'rs, 7 How. Prac. 237; Maneval v.
Jackson Tt>.. 9 Pa. Co. Ct. R. 28. A Judgment against a vessel as a sub-
ttantive party and her owners, by confession of the master of the boat, Is
erroneous. Waas^ v. English, 17 Ark. 480.
«» Davenport v. Wright, 51 Pa. 292.
»* Malloiy V. Clark, 20 How. Prac. 418. As to confessions by executors, see
In re (lagbom*s Estate, 181 Pa, 600, 37 Atl. 918, 59 Am. St. Rep. 680. By
attignees for benefit of creditors, see Packer v. Roberts, 140 lU. 9, 671, 29
N. E. 668t
(77)
§ 65 LAW OP JUDGMENTS. (Ch. 3
to be, that she cannot confess a judgment for any debt for which she
could not be made liable by judgment rendered in invitum. In Penn-
sylvania, the bond of a married woman, though she join in it with her
husband, is held to be absolutely void, and a judgment entered on
such bond by virtue of a warrant of attorney annexed thereto, ex-
ecuted by the wife together with her husband, is also void as respects
the wife and her estate." According to the late authorities, there
is but one exception to this rule, viz.: In the case where the note
upon which the judgment is confessed is given for the purchase-
money of land conveyed to her, and forms part of the transaction;
the judgment will then be a valid lien against the land, though not a
charge against the woman personally.'* On the other hand, where
a statute gives to married women the right to sue and be sued in the
same manner as if sole, a married woman may confess a judgment
to secure a debt contracted by her, and for her use and benefit, in
carrying on her separate business.*^ In other jurisdictions, the stat-
8 6 Dorrance v. Scott, 3 Whart. (Pa.) 309. 31 Am. Dec. 509; Graham v. Long.
65 Pa. 383; Caldwell v. Walters. 18 Pa. 79, 55 Am. Dec. 592; Helper v,
Helfricker, 42 Pa. 325; Keen v. Coleman, 39 Pa. 299, 80 Am. Dee. 524; Bnin-
ner's Appeal, 47 Pa. 67; Finley's Appeal, 67 Pa. 453; Swayne v. I-yon, 67
Pa. 436; Steinman v. Ewlng, 43 Pa. 63; Glyde v. Kelster, 32 Pa. 85:
8hallcros8 t. Smith, 81 Pa. 132. But now in Pennsylvania by the Act of
June 3, 1887, { 2 (P. L. p. 333), "a married woman shall be capable of enter-
ing into and rendering herself liable upon any contract relating to any trade
or business in which she may engage, or for necessaries, and for the use,
enjoyment, and improvement of her separate estate, and for suing and being
sued, either upon such contracts or for torts done to or committed by her,
in all respects as if she were a feme sole, and her husband need not be
Joined with her as plaintiff or defendant, or be made a party to any ac^
tion, suit, or legal proceeding of any kind brought by or against her in her
Individual right." This statute is construed, with reference to confessicMis
of Judgment, in Real-Estate Inv. Co. v. Roop, 132 Pa. 496, 19 Atl. 278, 7 I*
R. A. 211. And see Harris v. Reinhard, 165 Pa. 36, 30 Atl. 510.
aoChrlstner v. Hochstetler, 109 Pa. 27; Quiuu's Appeal 80 Pa. 447; Brun-
ner's Appeal, 47 Pa. 67. See, also, Tbornhill v. State Nat. Bank, 34 La. Ann.
1171.
3T First Xat. Bank v. Oarllnghouse, 53 Barb. (X. Y.) 615. See Code Civ.
Proc. N. Y. § 1273. Compare Watkins v. Abrahams, 24 X. Y. 72. A Judg-
ment confessed by a married woman Is not void but voidable merelj% and
her husband, if he assented to the sale of property under an execution there-
on, is estopped from afterwards claiiuiug it adverselj*. Roraback v. Steb-
bins, 4 Abb. Dec. 100, 33 How. Prac. 278.
(78)
Oh. 3) JUDGMENTS BY CONFESSION, § 55
utc, while enabling a married woman to enter into certain classes of
engagements, forbids her to make agreements or contract debts of
other kinds. Under this system, "if the contract of the married
woman be such as a married woman is still incapacitated from enter-
ing into, her warrant of attorney to enter judgment upon it is a nul-
lity, because the obligation to which the warrant of attorney is an-
nexed is invalid, and judgment entered in pursuance of it will be va-
cated.** But if the contract be one that the married woman is en-
abled to make, and on which she may be sued at law, I think a differ-
ent result must be reached. With respect to such contracts, any ac-
tion, suit, or proceeding which is adopted for the enforcement of the
obligation is within the reason and spirit of the statutes which confer
the capacity to contract and impose liability to actions at law thereon.
The obligation being valid, the warrant of attorney is simply a part
of the procedure to enforce it — ^as much so as a suit by summons or a
cognovit." •• A confession of judgment by a married woman, which
condemos her to pay her husband's debt, is void. Such a confession
is but the complement or consummation of a pontract which the law
prohibits, and which was consequently null.*®
It has been held that although a judgment entered upon the con-
fession of a married woman may be invalid, yet it is too late to raise
that objection to the judgment after the same has been duly revived
by proper proceedings. For the defendant had an opportunity to
show cause against the judgment at the time of its revival, and its
validity was impliedly adjudicated in that proceeding; for there can
be no judgment of revival until it is determined that there is a valid
judgment.** This proposition, however, has been denied.** And
indeed, if the particular judgment was one which the woman had ab-
•• Swiiis ▼. Woodmff, 41 X. J. Law, 460.
»• Haywood v. Shreve, 44 N. J. Law, 94. See further Stevens v. Dubarry,
Minor (Ala.) 370; Baines v. Burbrldge, 15 La. Ann. 628; Dancy v. Martin,
23 La. Ann. 323; Henchman v. Roberts, 2 Har. (Del.) 74; Mendenhall's £x*rs
T. Springer, 3 Har. (Del.) 87; Patton v. Stewart, 19 Ind. 233; Harris T. Jen-
Wna. 72 N. C. 183; WaUace v. Rippon, 2 Bay (S. C.) 112.
«• Baines ▼. Burbrldge, 15 La. Ann. 628; £dwards v. Edwards, 29 La. Ann.
£07.
«i Crenshaw t. Julian, 26 S. C. 283, 2 S. E. 133, 4 Am. St. Rep. 719.
«> Dormnce ▼. Scott, 3 Whart (Pa.) 300, 31 Am. Dec. 509.
(79)
§ 66 LAW OP JUDGMENTS. (Ch. 3
solutely no power to confess, so that it must be held to be a mere
nullity, it is difficult to see how any vitality could be imparted to it
by the mere fact of revival. No action will lie upon a void judgment.
And a judgment of revival, passed upon a nugatory cause of action,
is, equally with the judgment revived, merely void.
Another question not without difficulty, which arises in reference
to this subject, is in relation to a judgment entered against both hus-
band and wife upon a warrant of attorney executed by them jointly.
It has been held that such a judgment, though void as to the wife,
will stand valid as against the husband.*' But there are numerous
cases holding that a judgment is an entirety, and if void as to one
defendant is void as to all ; ** and these decisions would seem to ap-
ply with equal weight whatever may be the ground of the invalidity.
It seems certain, however, that a married woman may confess a
judgment for a valid ante-nuptial debt, and such judgment will be
conclusive and enforceable against her as if rendered by default or
upon a verdict.**^ And a warrant of attorney to confess judgment,
given by a feme sole, is not revoked by her subsequent marriage, and
after such marriage judgment may be entered up on it against the
husband and wife jointly, leave being obtained on motion.**
§ 56. Married Woman ai Creditor*
A married woman may take a cor.'ession of judgment, as sole
plaintiff, in any case where she could sue for the debt alone, or joint-
ly with her husband in a case where they have a joint right of action.
Thus, where a bond and warrant of attorney was given to a woman
dum sola, and she afterwards married, the court, upon affidavit of
the fact, allowed judgment to be entered in favor of husband and
wife together.*^ The indebtedness of a husband to his wife, by note
or for money or property, is a sufficient consideration to support a
48 Sliallcross v. Smith, 81 Pa. 132; Wallace v. Rippon, 2 Bay (S. C.) 112.
4« See infra, § 211. And see, as to Judf^meuts by confession, specifically,
Mendenhall's Ex*rs v. Springer, 3 Har. (Del.) 87.
45 Travis V. Willis, 55 Miss. 557.
4« Baker v. Lultens, 35 Pa. 146; Bneu v. Clark, 2 Pa. 234, 44 Am. Dec
VJl; Bering v. Burnet, 2 Clark (Pa.) 399.
*T sheble v. Cummins, 1 Browne (Pa.) 253.
(80)
Ch. 3) JUDGMENTS BY CONFESSION. § 57
judgment confessed by him in the wife's favor as against his other
creditors, when not impeached for fraud,*® And such a judgment,
admitted to be honest, will not be treated as void in law or equity
because of the legal unity of the parties; and the relation not ap-
pearing in the record, the court will n^t, at the instance of creditors,
inquire into the fact of coverture, when no fraud is alleged.**
f 57. Confession bj "Pmrtner,
A member of a firm has no authority, by virtue of his mere rela-
tion to the partnership or his general power to act as its agent, to
confess a judgment against the firm; and if judgment be entered on
such a confession, it will be void as against his co-partners, though
binding as a personal charge upon himself. ^'^ And a confession of
"Thomas v. Mueller, 106 111. 36. Per contra, Countz v. Markling, 30
Ark. 17.
^•WUUains' Appeal, 47 Pa. 307.
50 Biteer v. Shunk, 1 Watts & S. (Pa.) 340, 37 Am. Dec. 460; York Bank's
Appeal, 3(S Pa. 458; Myers v. Sprenkle, 13 York Leg. Rec. 181; Squier v.
Squler, 1 Lack. Leg. N. 103; Williams v. Jones, 7 Kulp (Pa.) 386; Lehman
Mach. Co. T. Rood, 8 Kulp (Pa.) 264; Crane v. French, 1 Wend. (N. Y.)
311; 8toutenburgh v. Vandenburgh, 7 How. Prac. (N. Y.) 220; Harper v.
Omningham, 8 App. D. C. 430; Mills v. Dickson, 6 Rich. Law (S. C.) 487;
EUlott V. Holbrook, 33 Ala. 650; Hopper v. Lucas, 86 Ind. 43; Davenport
Mills Co. V. Chambers, 146 Ind. 156, 44 N. B. 1100; Chicago Trust & Sav.
Bank t. Kinnare, 67 HI. App. 186; Christy v. Sherman, 10 Iowa. 535; Risser
V. Martin. 86 Iowa. 302, 53 X. W. 270; Fairbanks v. Kraft, 43 Mo. App.
m; Burr v. Matbei-a, 51 Mo. App. 470; Soper v. Fry, 37 Mich. 236; Rich-
ardson V. FuUer, 2 Or, 170; Buchanan v. Scandia Plow Co., 6 Colo. App. 34,
30 Pac. 800. In some states, however, the late decisions show a tendency
to relax this rule. Thus, in Pennsylvania, while a Judgment confessed
against a tlrm by one partner without explicit authority from his copartners
wriU not bind the other members of the firm personally, yet an execution
issued under it may be levied on property of the partnership. Adams v.
James L. Leeds Co., 105 Pa. 70, 45 Atl. 666; Mcllvain v. James L. Leeds Co.,
180 Pa. 638, 42 AU. 307; Budd v. Shock, 11 Pa. Co. Ct. R. 480. And the
debt for which a judgment is confessed by one of the partners in the name
of the firm will be presumed to be that of the firm. Evans v. Watts, 102
Ta. 112, 43 Atl. 461. In Illinois and Ohio, a Judgment against a firm con-
fessed by one partner without authority can be impeached or questioned
only by the other partners, not by creditors of the firm, unless, perhaps,
where the judgment is fraudulent. McCormick Harvesting Mach. Co. v.
«'oe. ?» 111. App. 488; Browne v. Cassem, 74 111. App. 305; Berg v. Com-
luercial Xat. Bank. HI 111. App. 614; George W. McAlpin Co. v. Finsterwald,
1I-AWJUDG.-6 ijai)
§ 58 LAW OP JUDGMENTS. (Ch. 3
judgment under seal, in the name of a partnership and of a member
of the firm, is binding only upon such member.'^ So a confession
pf judgment by a former partner against the firm, while good as
against the partner confessing it, will not bind property assigned by
the firm to a remaining partner under terms of agreement to pay
firm debts.'*
§ 58. Joint Defendants.
In a pending action against two defendants, one of them cannot
in the absence of the other, confess judgment against both; and a
judgment rendered against both on the confession of one only, with-
out evidence, will be set aside.'' And where one of several joint
defendants confesses judgment so far as concerns himself, such judg-
ment is only interlocutory until the final decision of the cause as to
the rest ; and the confessing defendant must ultimately receive the
same judgment as his co-defendants."* In the case of a confession
of judgment v^ithout action, a question has sometimes arisen as to
the effect of an authority for such judgment — whether a warrant of
attorney or a statement of indebtedness — ^which i« signed by only a
part of the defendants against whom it directs the judgment to be
entered. As against those not signing the authority, the judgment
is certainly of no force whatever.**^ But whether it may stand as a
57 Ohio St. 524, 49 N. E. 784. When a warrant of attorney expressly ath
thorizes any attorney of any court of record to appear for the maker of a
note and confess Judgment, the fact that one member of a firm signs the
declaration, and the other the cognovit, does not render the judgment void.
Blanck v. Medley, 63 111. App. 211.
61 Appeal of Jb'erth Amboy Terra-Cotta Co., 124 Pa. 367. 17 Ati. 4.
82 Mair v. Beck (Pa.) 2 Atl. 218; McCleery v. Thompson, 130 Pa. 443, 18
Atl. 735.
68 Wiggins V. Klienhans, 9 N. J. Law, 249; Ballinger v. Sherron. 14 N.
J. Law, 144; Hutchinson v. Brown, 19 D. C. 136; Rees v. Richmond. iTJ
Law T. (N. S.) 427. Compare Virginia & T. Coal & Iron Co. v. Fields.
94 Va. 102, 26 S. E. 426.
84 Taylor v. Beck, 3 Rand. (Va.) 316; Strause v. Braunreuter, 21 Pa. Co.
Ct. K. 228. In New York, the Code of Civil Procedure (section 1278). provides
that a judgment by confession against one joint debtor shaU not bar an
:action against all the joint debtora upon the same demand. See Harbeck
V. Pupln, 123 N. Y. 115. 25 X. E. 311.
A5 A joint judgment cannot be entered on a several warrant of attorney.
Welntraute v. Solomon, 2 Marv. (Del.) 371, 43 Atl. 267; Liberty Grotto v.
(82)
Ch. 3) JUDGMENTS BY CONFESSION. § 59
valid obligation against those who did sign, is not so clear. In one
state it is held, on the principle that a judgment is an entirety, that
if the warrant authorizes the entry of judgment against a certain
number, no judgment can be entered against a less number, and it
is void as to all.** But other cases hold, and we think with better
reason, that the judgment entered will bind those who subscribed
the warrant, though nugatory as to the others.*^
{ 59. Bj OAoeri of a Oorporation,
A private corporation has a right to confess judgment, as an inci-
dent to its power to sue and be sued.'** But the trend of the modern
decisions is to the effect that no officer of such a corporation —
whether it be the president, secretary, treasurer, or manager — has
authority, merely 4>y virtue of his office, to confess a judgment
against the company or sign a warrant of attorney for that purpose.
To do this, he must receive authority from the board of directors,
or, according to some of the cases, from a majority of the stock-
holders at a regular meeting.** But, in special circumstances, such
authority may be inferred from the knowledge and acquiescence of
Mettde. 11 Pa. Co. Ct. R. 340. And under a Joint warrant of attorney an-
nexed to a joint note, a Judgment cannot be entered against one of the
makers alone. Kahn v. Lesser, 97 Wis. 217, 72 N. W. 739. See Frank v.
Thomas, 35 lU. App. 547.
'•Chapin y. Thompson, 20 Cal. 681.
»» North V. Mudge, 13 Iowa, 496^ 81 Am. Dec. 441; Knox t. Wlnsted Sav.
Bank, 57 111. 330; York Bank's Appeal, 36 Pa. 458. The statute In Penn-
vylTania, requiring the prothonotary to enter a Judgment by confession on
a warrant of attorney "against the person or persons who executed the
same,** does not restrict him to the names appearing In full on the face
of the warrant, but he may Inquire who are the legal makers of the In-
ffUnment liable thereon, though they did not put their own hands to it, and
their names do not appear on its face. Miller v. Royal Flint Glass Works,
172 Pa. 70, 33 Atl. 350.
*»Shute V. Ke3'8er (Ariz.) 29 Pac. 386; Solomon v. C. M. Schneider & Co.,
TMJ Xeb. «JSr). 77 X. W. Cm.
••Stokes V- Xew Jersey I'ottei-y Co., 46 N. J. Law, 237; Raub v. Blairs-
town Creamery Ass'n, 56 X. J. I^w, 262, 28 Atl. 384; McMurray v. St. Louis
<H1 Mamifg Co.. 33 Mo. 377; Jackson v. Cartwrlght Lumber Co., 2 Pa. Dist.
U. m); Ximocks v. Cape Fear Shingle Co., 110 N. C. 20, 14 S. B. 622; P.
I*. Mast Buggy Co. v. Litchfield Furniture, Hardware & Implement Co., 55
lU. App. U8; Bailey v. Snyder, 61 111. App. 472; Howell v. Gilt-Edge Manuf g
(83)
1
§ 60 LAW OF JUDGMENTS. (Ch. 3
the directors/' or the action of the officer signing the confession
may be ratified by a subsequent vote of the directors or stockhold-
ers.®^ If a judgment note executed by an officer of a corporation
is otherwise valid and binding on the company, it is not avoided by
the fact that the corporate seal is not attached.** Upon a confes-
sion of judgment by a corporation, the court in which the action is
pending must judge of the authority of the person appearing for the
corporation in that behalf ; and its decision on the point is final and
conclusive.**
S 60. Consent of Creditor ti neeessary.
A judgment based upon a confession made without any request
on the part of the creditor, and without his knowledge and consent,
or against his consent, and entered at the instance of the debtor
alone, will have no effect in advance of the creditor's acceptance of
it; it is voidable, it will not bar an action brought by the creditor,
nor will it estop the debtor from denying the facts set forth.** This
rule proceeds upon the very obvious consideration that if the assent
of the creditor were not necessary to a confessed judgment, the debt-
or might, by confessing for only a part of the real debt, preclude his
creditor from recovering the residue. For a judgment by confes-
sion is as conclusive as any other ; ** and if it include only a portion
of an indivisible demand, no action will lie for the balance. A judg-
ment so entered, unknown to the creditor or against his will, is there-
fore voidable at hfs option, and will be vacated on his motion.** But
on the other hand, he may ratify the debtor's action and accept the
judgment, and when he does this, it will have the effect to validate
Co.. 32 Xeb. G127, 49 N. W. 701. Compare Miller v. Bank of British Co-
lumbia^ 2 Or. 291.
00 Ford V. HiU, 92 Wis. 188, 66 N. W. 115, 53 Am. St. Rep. 902; Chicagro
Tip & T. Co. V. Chicago Xat. Bank, 74 111. App. 439.
«i Smead Foundry Co. v. Chesbrough, 18 Ohio Glr. Ct. R. 783.
•2 Chicago Tip & T. Co. V. Chicago Nat. Bank, 74 111. App. 439.
08 White V. Crow (C. C.) 17 Foil. 08.
04 Wllcoxson v. Burton, 27 Cal. 228, 87 Am. Dec. 66; Farmers* & Mechau-
ics' Bank v. Mather, 30 Iowa. 283; IngergoH v. Dyott 1 Miles (PjW 24o;
Cliapin V. McLaren, 105 Ind. 563, 5 N. E. 688.
05 See infra, vol. 2. § 698.
00 Farmers* & Mechanics' Bank v. Mather, 30 Iowa, 283.
(84)
Ch. 3) JUDGMENTS BY CONFESSION. § 61
the judgment and place it on the same footing in all respects with
one sanctioned by his previous knowledge and consent. The vali-
dation of the judgment, however, dates only from its acceptance by
the creditor, and it will not affect the priority of other creditors who
came in between the entry of the judgment and its ratification.®^
The creditor's assent to the entry of judgment may also be con-
structive. Thus it is sufficient if done with the knowledge and con-
sent of his attorney in whose hands he has placed the matter.*' So
also, if an action is already pending. Where the creditor has
brought suit for a specified sum of money upon a certain claim, and
the debtor appears in court and confesses judgment for the amount
claimed and costs, the assent of the plaintiff will be presumed ; and
to entitle him to have the judgment set aside, he must make it ap-
pear to the court that he has been prejudiced by such confession.' °
It is held that the confession of a judgment by the defendant in a
pending suit, after the death of the plaintiff and before substitution
of his representatives, is void, both as regards the representatives of
the plaintiff and any third person who may be collaterally interested
in the payment of the same.^®
§ 61. Reqntsttei of Warrant of Attomej.
As already stated, it is the practice in some states to enter con-
fessed judgments upon a written authority, called a warrant or letter
of attorney, by which the debtor empowers an attorney to enter an
appearance for him, waive process, and confess judgment against
him for a designated sum. This warrant should contain the grant of
authority clearly and distinctly given, and a designation of the per-
son by whom it is to be exercised, either by name or description.^^
It is usual, however, to confer the authority upon "any attorney" of
•TWilcoxson V. Burton. 27 Cal. 228, 87 Am. Dec. 66; Buchanan v. Scaudla
Plow Co., 6 Colo. App. 34, 30 Pac. 890.
«» Chapln V. Mcl^ren, 105 Ind. 563, 5 N. E. 688.
«» I-lanagan v. Continental lus. Co., 22 Neb. 235, 34 N. W. 367; McCalmont
T. Peters, 13 Serg, & R. (Pa.) 106.
'• Finney v. Ferguson, 3 Watts & S. (Pa.) 413. Compare Ijewis v. Rapelyea,
1 Barb. (X. Y.) 2J).
"» Rabe v. llcslip. 4 Pa. 139. See Grubbs v. Blum, 62 Tpx. 426. Au-
thority to confess a Judgment on a note, or waive the benefit of excmp-
(So)
§61 LAW OP JUDGMENTS. (Ch. 3
a particular court or "any attorney of any court of record" in the
particular state.^" Where the warrant authorizes A., or any other
attorney of the court in which the judgment is to be confessed, to
appear and make the confession, and A. and B., both attorneys of
that court, appear together, the judgment will be valid.^' The war-
rant should name or describe, with reasonable certainty, the person
in whose favor judgment is to be entered,^* and state the time of
entry, though this is usually done by authorizing a confession **at
any term" of court, or "at any time." '" The warrant should spe-
cifically state its purpose. But the words used are not of the least
importance, and it is held that a warrant to "enter" judgment will
be considered as equivalent to a warrant to "confess" judgment.'*
And in a case where the warrant was written upon a printed form of
a judgment-note, and the blanks in that part of the note which re-
lated to the entry of judgment were not filled out, but the note was
otherwise regular, it was held that the warrant was not void.^^ It
also appears that a warrant of attorney to confess judgment need
not be under seal/® Of course if the warrant is annexed to or in-
corporated in a note or bond, the debt on which it is based will be
tlon or inquisition laws, cannot be implied from authority to execute tlie
note. Payne v. Robinson, 11 Pa. Co. Ct. R. 544.
72 See McClure v. Bowles, 5 Ohio N. P. 327.
78 Patton V. Stewart, 19 lud. 233; Kuehne v. Goit, 54 111. App. 596.
7 4 See Packer v. Roberts, 140 111. 9, 071, 29 N. E. 668; McClure v. Bowles,
5 Ohio X. P. 327. Where a note and warrant of attorney are written to-
gether, over one signature, the warrant, though not stating in whose favor
Judgment may be confessed, is not void for uncertainty, but the Instrument
as a whole will be construed to authorize confession In favor of the payee.
Drake v. Simpson, 30 VVkly. Law Bui. (Ohio) 236.
7 6 Where a warrant of attorney authorizes a confession of Judgment ui)on
a note **at any time," Judgment may be confessed at any time after the de-
livery of the note. Elkins v. Wolfe, 44 111. App. 376. This is true eveu
though the note is postdated. Volkcnand v. Drum, 143 ^a. 525, 22 Atl. 8i^l.
7 6 Mason v. Smith, 8 Ind. 72.
7 7 Sweesey v. Kitchen. 80 I'a. 100. As to the effect of failure to fill out
blanks in the warrant, see, further, t^rst Nat. Bank v. Trout, 58 Ohio St.
347, 51 N. E. 27; Packer v. Roberts, 140 111. 9, 671, 29 X. E. 608. The cap-
tion of a cognovit upon which a Judgment is confessed in vacation is not
an essential part of the instrument, and, if defective, may be treated as
surplusage. Browne v. Cassem, 74 111. Ai)p. 305.
7 8 Kneedler's Appeal, 92 Pa. 428.
(8©)
Ch. 3) JUDGMENTS BY CONFESSION. § 61a
sufficiently disclosed. But in any other case the cause of action
must be described either in a declaration, a sworn statement, or in
the warrant of attorney itself.^* This is required as an evidence of
good faith and for the information of other creditors. A judgment
so confessed is not necessarily void although the warrant of attor-
ney be void; and such a judgment, it is held, after it has been re-
vived against the debtor's administrator, cannot be set aside for that
cause, although the defect in the warrant might have been pleaded in
avoidance or given in evidence under a plea of nul tiel record.*®
The warrant of attorney, as the basis of the judgment, must also be
placed on file in the clerk's office, and no judgment can be entered
on it before it is actually so filed.®* In some of the states, it is nec-
essary that proof should have been made of the execution of the
warrant of attorney before the judgment is confessed, and in the
case of a confession out of court, this must affirmatively appear of
record, but where the confession is in open court, the evidence of
that fact need not be presented in the record, but it will be presumed
to have been done unless it appears to have been omitted.®'
S 61a. ReTOoation or Ezptration €»f Warrant.
A warrant of attorney to confess a judgment is not revocable at
the pleasure of the principal ; though he endeavors to revoke it, yet
the court will grant leave to the plaintiff to enter up the judgment.®^
But no judgment can be entered on such a warrant after the death
7* Gambia v. Howe, 8 Blackf. (Ind.) 133. Where several obligations or
installments, all between the same parties and all due, are covered by sep-
arate warrants of atti)mey, or by one warrant authorizing confession of
judgment "from time to time," a single Judgment may be entered by con-
fession for the gross amount then due. Odell v. Reynolds, 17 C. C. A. 317,
70 Fed. 65(J; Fortune v. Bartolomel, 104 111. 31, 45 N. E. 274.
•• Wood V. Kills. 10 Mo, 382.
•1 Chambers v. Denle, 2 Pa. 421. But compare Merchants' Nat. Bank v.
Newton Cotton Mills, 115 N. C. 507, 20 S. E. 765.
•»Iglehart v. Chicago Marine & Fire Ins. Co., 35 111. 514; Anderson v.
Field, 6 m. App. 307; Uambia v. Howe, 8 Blackf. (Ind.) 133.
"Odes V. Woodward, 2 Ld. Raym. 849; WasseU v. Reardon, 11 Ark.
7<l5. 44 Am. Dec. 245. But in Evans v. Fearne, 16 Ala. G89, 50 Am. Dec.
l<'7. It is said that a simple power from a principal to his attorney to
•-onfera Judgment In favor of a tlilrd person, which Is not supported by
t consideration and Is not given as a security for a debt, or to render
(S7)
§ 61a LAW OF* JUDGMENTS. , (Ch. 3
of the defendant. While the latter event may not operate exactly
as a revocation of the power, yet there can be no valid judgment
rendered against a dead man.®* Entry of the judgment, however,
is not prevented by the supervening insanity of the defendant; for
this disability does not revoke any power of attorney which the prin-
cipal could not have revoked had he remained sane.'*
It was the settled practice under the common law, founded on a
rule of the court of King's Bench (and still operative in this country
except where changed by statute or a rule of court), that a judgment
could not be confessed on a warrant of attorney executed more than
a year and a day before, unless an affidavit was filed showing that
the maker was alive, and that the debt or some portion of it was still
due, and a rule of court, or order of a judge in vacation, must be
obtained granting leave to enter judgment.^® But entry of the judg-
ment will not be prevented by the fact that the statute of limitations
has run against the debt (or which the confession was made, since
the subject-matter of the power is hot extinguished by the limita-
tion.®^ But payment of the debt will cancel the power, A warrant
a security effectual, is not properly speaking a warrant of attorney, and is
revocable at the pleasure of the maker, so long as it remains unexecuted.
8 4 Lanning v. Pawson, 38 Pa. 480; Sauerfleld v. McXierney's Pllstate. 30
Pittsb. Leg. J. (N. S.) 283. In New York, this rule is establisheil by statute.
Code Civ. Proc. N. Y. § 1275; Maddock v. Stevens, 15 Civ. Proc. R. 248. 3
X. Y. Supp. 528.
8 5 Spencer v. Reynolds, 0 Pa. Co. Ct. R. 249.
86 Hinds V. Hopkins, 28 111. 344; Alldritt v. First Nat. Bank, 22 111. App.
24; Manufacturers' & Mechanics' Bank v. St. John, 5 Hill (X. Y.) 497. in
Pennsylvania, a rule of court provides that **if a warrant of attorney to con-
fess judgment be above ten years [old] and under twenty, the court, or a
judge thereof in vacation, must be moved for leave to enter judgment.
which motion must be grounded on an atfidavlt that the warrant was duly
executed and that the money is unpaid and the party living. When the war-
rant is above twenty years old, there must be a rule to show cause serveJ
on the defendant, if he can be found within the county.'* But the court
may, in a proper case, after the entry of judgment, grant leave to file the
required affidavit nunc pro tunc. Woods v. Woods, 126 Pa. 396, 17 Atl. 662.
8 7 Wassell V. Reardon, 11 Ark. 705, 44 Am. Dec. 245; Cross v. Moffat, II
Colo. 210, 17 Pac. 771. But a judgment on a judgment note not under seal.
entered more than six years after the execution of the note, may In* opened
to allow a plea of the statute of limitations. Bennett v. Allen, 10 I'a. Co.
Ct. I{. 256. See, infra, § 69.
(88)
Cb. 8) JUDGMENTS BY CONFESSION. § 62
of attorney contained in a note to confess judgment thereon, for
example, remains in force only so long as the note remains unpaid ;
and where the payee, after receiving satisfaction thereof, fraudulent-
ly conceals the fact, and procures an attorney to appear and con-
fess judgment without the maker's knowledge or consent, such ap-
pearance confers no jurisdiction on the court, and the judgment is
void."* It is held, however, that judgment may be entered on a note
under a warrant of attorney duly executed, but lost or stolen.*®
Strictly speaking the authority of the warrant is exhausted by the
entry of one judgment; yet if another judgment is entered on the
same obligation under the same warrant, in another county, it will
not be absolutely void, but merely irregular, insomuch that a pur-
chaser at a judicial sale under the second judgment may acquire a
good title.**
I 62. Affidavit tl&at Debt is due.
Under the various statutes regulating the practice in confessing
judgments, it is almost invariably required that the debtor's confes-
sion be accompanied by an affidavit showing the bona fides of the
transaction. In some jurisdictions this is directed to be incorpo-
rated in the statement which forms the basis of the judgment; in
others it is to be a separate document. The statute usually pre-
scribes the form of words, as that the debt is "justly due and owing,"
or is '^justly due or to become due." A provision of this character,
howc\ er, is satisfied by a substantial compliance with the meaning of
the law, and if the affidavit details facts which show that the debt is
really just and actually due, it is enough, though the words of the
statute be not employed. Thus, the affidavit is sufficient in form in
stating that Jhe debt is "justly and honestly due," instead of "due
and owing" in the words of the statute, when a present indebtedness
is shown.** Nor is it required that the affidavit go beyond the stat-
«• First Xat Bank v. Cunningham (C. C.) 48 Fed. 510; Rea v. Forrest, 88
IIL 276.
• » Bauer r. Rihs, 4 Pa. Dist. R. 583.
•0 Martin v. Rex, 6 Serg. & R. (Pa.) 296; supra, § 53..
•1 Mulford V. Stratton, 41 N. J. Law, 460; Reading v. Reading, 24 N. J.
Ijw. 35S. The requirement of an atlidavlt that the debt is "justly and
booestly doe and owing*' will prevent an accommodation indorser of notes,
(89)
§ 63 LAW OF JUDGMENTS. (Ch. 3
ute. Hence it is not necessary for the debtor to deny, in specific
terms, that the debt has been paid, released, barred, or discharged.**
A judgment entered upon confession without the afHdavit required
by statute is voidable only, not void, and it cannot on that ground be
collaterally attacked by a stranger to the record.** Where the stat-
ute requires an affidavit to the justness of the debt only upon a con-
fession of judgment without process, it does not apply where the
defendant files an answer admitting the debt, and consents to the
judgment.**
§ 63. Statement of the Indebtedness.
In many of the states, statutes require a person confessing a judg-
ment to file a written statement, signed and sworn to, designating
the amount for which the judgment is to be entered, and "stating
concisely the facts out of which the indebtedness arose." This re-
quirement is imperative.** The designation of the amount of the
debt, in particular, is a vital part of a valid confession; it must be
set forth explicitly and not be left to inference; and the omission
of it is a fatal defect.** The requirement that the facts be stated is
secured by bond and warrant of attorney, from entering up Judgment be-
fore he has paid the notes, although he has assumed their payment, when
the payee has not released the maker. Sterling y. I^leming, 53 X. J. Law,
052, 24 Atl. 1001.
»2 Lanning v. Carpenter, 20 N. Y. 447. See Oppenheim« v. Giershofer,
54 Ul. App. 38.
83 Vauderveere v. Gaston, 24 N. J. Law, 818; Bible v. Voris, 141 Did.
5G», 40 N. E. 070. Compare Fuget Sound Nat Bank v. Levy, 10 Wash. 499,
39 Pac. 142, 45 Am. St. Rep. 803.
04 Lanier v. Blount (Tex. Civ. App.) 45 S. W. 202.
»5 Winnebrenner v. Edgerton, 30 Barb. (N. Y.) 185; Lanning v. Carpenter,
20 N. Y. 447; Smith v. Smith, 117 N. C. 348, 23 S. E. 270. Compare
Hughes v. Helms (Teun.) 52 S. W. 4G0. A judgment confessed without such
a statement is voidable at the instance of other creditors (Puget Soiuid Nat.
Bank v. Levy, 10 Wash. 499, 39 Pac. 142, 45 Am. St. Rep. 803), and cannot
be validated as to one not a party or privy by renewals of execution thereon,
or by revival of the judgment. Woods v. Bryan, 41 S. C. 74, 19 S. E. 218^
44 Am. St. Rep. (>88. A warrant of attorney reciting a bond which is on
the same sheet of paper, may be detached from the bond, and entered up
without any statement. United Security Life Ins. & Tnist Co. v. Vaughn,
22 Pa. Co. Ct. R. 167. •
»6 Clements v. Gerow, 30 Barb. (N. Y.) 325. A statement tlisU no part of
the note or interest has been paid, and that the full amount tlioreuf, with
(90)
Ch. 3) JUDGMRNTS BY C0.NF£SS10N. § 63
intended to enable other creditors to test the bona fides of the trans-
action by which a particular debt is preferred; and it is said tjiat
ihe statement is sufficient if it sets forth a consideration such as the
law recognizes as valuable; and is definite enough to prevent the
parties from shifting it, and to furnish other creditors with a basis
for inquiry if they desire to attack it."' To come to specific illus-
trations, it is held that a recital in the statement that the indebted-
ness accrued for "borrowed money" or "money loaned," to the debt-
or, sufficiently states the facts out of which the indebtedness arose.**
Another authority, drawing the line more strictly, holds that a state-
ment that the indebtedness "is for a debt justly due from me to said
plaintiff for moneys to that amount loaned and advanced to me by
said plaintiff," is sufficient as between the parties, though it might
be voidable at the instance of a junior judgment-creditor or bona
fide purchaser.** Probably it is necessary to state the date of the
loan. But if the whole sum is made up of various items advanced at
different times, the cases rule that the statement is sufficiently ex-
plicit in describing the money as loaned to defendant at divers times
after a specified day.*°^ A confession of judgment for a certain
sum for **goods, wares, and merchandises" of a specified value, is
held by some of the authorities to be too indefinite ; it should state
Inten^t since the date of the note, Ib due and owing thereon, is sufficleDt to
include interest. Kothchild v. Mannesovltch, 29 App. Dlv. 580, 51 N. Y.
Snpp. 253. See Tilles v. AlbriKbt. (53 Hun, 633, 18 X. Y. Siipp. 493.
•^Teasidale Commission Co. v. Van Hardenberg, 53 Mo. App. 326; At-
watcr V. Manchester ?av. Banlc, 45 Minn. 341, 48 N. W. 187, 12 L. R. A.
741; McDowell v. Daniels, 38 Barb. (X. Y.) 143; Wight v. Mott, Kirby (Conn.)
ir»2.
•-Kern v. Chalfaut, 7 Minn. 487 (Gil. 393); Kendig v. Marble, 58 Iowa,
r»29. 12 X. W. 584. citing Van Fleet v. PhiUips, 11 Iowa, 558; Miller v.
Clarke. 37 Iowa. 325.
»» Terrett t. Brooklyn Imp. Co., 18 Hun, 6; Miller v. Kosch, 74 Hun, 50,
2« X. Y. Supp. 183. .See Wood v. Mitchell, 117 X. Y. 4»), 22 X. E. 1125.
looKrost V. Koon, 30 X. Y. 428; Johnston v. McAiislaml, 9 Abb. Prac.
iS. Y.» 214. See Davis v. Morris, 21 Barb. (X. Y.) 152. A statement that
plaintiff performed services for and loaned money to defendant, and tliat
thereafter, at a certain time, tliere was an adjustment of accounts betNveen
them concerning said matters, and a certain sum was found due plaintiff.
which defendant promised to pay, sntticiently shows an account staterl, so
ns to sustain an entry of a judgment by confession. Crltten v. Vredenbiirgh,
4 App. DiT. 210, 38 X, Y. Supp. 542.
(91)
«
§ H3 law op judgments. ifih. 3
the nature and quantity of the goods sold, the time of sale, and the
aggregate price, if not even the price of the several items.^*^ But
in New York a much looser rule obtains. It is there held to be well
enough if the indebtedness is stated to be for goods, wares, and mer-
chandise sold and delivered, with an approximate description of the
period at or within which the sale took place.**** A statement is not
sufficient if it merely states and sets out a promissory note executed
by the defendant to the plaintiff as the consideration of the indebt-
edness ; for the facts out of which the indebtedness evidenced by the
note arose should be clearly stated.*®* But a statement which sets
out the execution and delivery "for value" of a negotiate note for
$1500, "for money which" the creditor "then and there gave" the
debtor "for said note, as a loan, which sum of $1500 is justly due
and owing according to the tenor and effect of said note herein de-
scribed," is sufficient to satisfy the statute.*®* But a statement that
the note was "given for goods sold and delivered and money had
and received" is not sufficient.*®* And an allegation that the consid-
eration of the judgment is a promissory note given by the debtor for
value received, but not specifying the amount or consideration of the
101 Nichols V. Krlbs, 10 Wis. 76, 78 Am. Dec. 2»4; Lawless v. Hackett,
16 Johns. (N. Y.) 149; Bryan v. Miller, 28 Mo. 32, 75 Am. Dec. 107. Com-
pare Ex parte Graham, 54 S, C. 163, 32 S. E. 67.
102 Kead v. French, 28 N. Y. 285; Neusbaum v. Kelm, 24 N. Y. 325;
Delaware v. Ensign, 21 Barb. (N. Y.) 85; Weil v. Hill, 71 Hun, 133, 24
N. Y. Snpp. 521.
108 Chappel v. Chappol, 12 N. Y. 215, 6i Am. Dec. 496; Davidson v. Alex-
ander, 84 N. 0. 621; Pond v. Davenport, 44 Cal. 481; McHenry v. Shephard.
2 Mo. App. 378; Woods v. Bryan, 41 S. C. 74, 19 S. E. 218, 44 Am. St. Rep.
688. But a confession stating the amount of Indebtedness, and anthorizing
entry of judgment therefor, with interest from a certain date, and further
stating that it is for the amount due on a bond under seal executed by de-
fendant on a given date, and that it is justly due for borrowed money, is
sufficient. Uzzle v. Vinson, 111 N. C. 138, 16 S. E. 6.
104 Stem V. Mayer, 19 Mo. App. 511.
105 Cordier v. Schloss, 18 Cal. 576. But compare Merchants' Xat Bank
V. Newton Cotton Mills, 115 X. C. 507, 20 S. E. 765. Where the state-
ment sets out that the promissory note annexed was given "for value re-
ceived in one Sweepstakes separator," the judgment Is not invalid for want
of a showing as to how the Indebtedness arose. Brown v. Barngrover, ^
Iowa, 204, 47 X. W. 1082.
(92)
Ch. 3) JUDGMENTS BY WNFESSION, § M
•
note, is defective.***" So if it is merely stated that the note was for
''money due," the judgment entered upon it is prima facie fraudu-
lent as to the creditors of the defendant, though not so fatally de-
fective as to be void.***^ On the other hand, a statement, in effect,
that the defendant had purchased of the plaintiff a certain indebted-
ness (describing it), due to the plaintiff, for which he had given to
the plaintiff the promissory notes (describing them) upon which and
for the amount of which he confessed the judgment, is a sufficient
statement.*®' So the statement is sufficient if it sets forth that the
judgment is confessed to secure the plaintiff for a debt justly to be-
come due upon his indorsement, as the surety of the defendant and
for his benefit, of bills and notes which are fully described as to
names, dates, amounts, and times of payment.*®*
I 64. Sicnatnre to Statement.
The statutes require the statement of indebtedness and confession
of judgment to be "made and signed by the defendant." This is con-
strued to mean a signature by the debtor in person. A signature by
the defendant's attorney in the case is not sufficient; and where a
judgment was entered upon a statement signed by two of the defend-
ants in person and by the attorney of the third, it was held that the
consent of those signing was only that judgment might be entered
ag^ainst all; and as there was no authority to enter judgment as to
the third party, the judgment was unauthorized and void as to all.**®
In another case, where the defendant had signed the verification,
but not the statement, which was written upon the same page, this
!•« Norrifl v. Denton, 30 Barb. (N. Y.) 117.
!•? Fond V. Davenport. 44 Cal. 481. But see Mather v. Mather, 38 App.
Dtv. 32, 55 X. y. Supp. 973; Claflin v. Dodson, 111 Mo. 195, 19 S. W. 711.
!•« Klrby v. Fitzgerald, 31 N. Y. 417.
!•• Dow V. Platner. 16 X. Y. 562; First Nat. Bank v. Carleton, 43 App.
IHt. G. Z» N. Y. Supp. 635; Dullard v. Phelan, 83 Iowa, 471, 50 N. W. 204. A
statement which sets out a eertlflcnte of deposit and then states that on the
tnck of the certificate Is the following, "We hereby guaranty payment of
tlie within," is sufficient to support a judgment against the guarantors. Briggs
▼. Tetzer, 103 Iowa, 342, 72 N. W. 647.
"•French v. Edwards, 5 Sawy. 206, Fed. Cas. No. 5,098.
(93)
§ 67 LAW OF JUDGMENTS. (Ch. 3
was considered sufficient, as being a substantial compliance with the
law.* 11
I 65. Verifloation of Statement.
The requirement of the statute, that the statement of facts accom-
panying a judgment by confession be properly verified by the oath
of the party, intends that in so far as it relates to things within his
own knowledge, he should affirm it to be true in unequivocal terms.
In regard to other matters he may disclose his information and add
a declaration of his belief in its truth. But where the party merely
swears that he ^'believes the above statement of confession is true/'
the affidavit is insufficient, and the judgment, if entered thereon, will
be vacated.^** The jurat of the notary should also be in due form;
but a. formal defect in the jurat will not so far invalidate the judg-
ment as to lay it open to collateral attack.* *' The verification of the
statement, if faulty but not wholly void, is susceptible of amend-
ment.***
S 66. Amendaient of Statement.
A motion by plaintiff to amend the statement of a confession of
judgment is addressed to the discretion of the trial court. It is not
an amendment which he has a legal right to demand, but is one
which the court may in its discretion refuse or grant upon such
terms as to it may seem to be just.*** If the defect in the statement
arose through mere inadvertence, an amendment may be permitted
as against creditors who have not sought to vacate the judgment; **•
but not against a creditor who has taken steps to have it set aside.**'
§ 67. Judgment Toidable for Failure to comply with Statute.
A judgment upon confession, though it does not conform exactly
to the statutory requirements, is at most voidable, and not absoluie-
111 Purdy V. Upton, 10 How. Prac. (N. Y.) 494.
112 lugrarn v. Kobbins, 33 X. X, 40«, 88 Am. Dec. 3U3.
113 Grattan v. Matteson, 54 Iowa, 229, 6 N. W. 298.
11* Cook V. Whipple, 55 N. Y. 150, 14 Am. Rep. 202.
115 Symson v. Selheimer, 105 N. Y. 600, 12 X. E. 31.
110 Bradley v. CJlass, 20 App. Div. 200, 4G X. Y. Supp. 790.
117 Blackmer v, Greene, 4 N. Y. Ann. Cas. 395, 47 X. Y. Supp. 113.
Ch. 3) JUDGMENTS BY OOKFESSIuN. § 67
\y void as against creditors.^" Thus, if it fails to set out all the facts
required by the statute, it is for that reason irregular and prima facie
fraudulent, but it is not a nullity ; the presumption of fraud may be
rebutted by proof that the judgment was fair and for a bona fide
debt."* It has also been held that such a judgment is not void be-
cause it does not appear that an affidavit, as required by the statute,
had been made.**^ But the true rule appears to be, that if there
has been an attempt to fulfil all the requirements of the law, the
judgment is at most only voidable, although the execution of such
attempt be informal or defective; but, on the other hand, the total
omission of any of the steps prescribed by the statute (as where no
statement at all is filed) will render the judgment entirely inoper-
ative and void.^**
lis Sheldon v. Stryker, 34 Barb. (N. Y.) 116. But in some other decisions
It is held that a judgment by confession which does not conform to the re-
quirements of the statute is absolutely void and a mere nullity. Edgar ▼.
Greer, 10 Iowa, 279; Utah Nat. Bank v. Sears, 13 Utah, 172, 44 Pac. 832.
And see Aiosworth y. Mobile Fruit & Trading Co., 102 Ga. 123, 29 S. E. 142.
11* Richards ▼. McMUlan, 6 Cal. 419, 65 Am. Dec. 521; Grouse T. Johnson,
65 Hnn, 337, 20 N. Y. Supp. 177. That a judgment by confession fails to
state the facts out of which the indebtedness arose, or to show that the sum
confessed is Justly due, is a defect of which a subsequent judgment creditot-
mty STail himself. Bradley v. Glass, 20 App. Dlv. 200, 46 N. Y, Supp. 790.
"• Dean v. Thatcher, 32 N. J. Law, 470.
i» Irregularities in a judgment by confession, which do not make It void,
may be amended. Merchants' Nat. Bank y. Newton Cotton Mills, 115 2^.
C. 507, 20 S. E. 765. In imnois, it is said that, without proof of the execu-
tion of the power of attorney to enter judgment by confession, the clerk ac-
quires no jurisdiction of the debtor, and therefore the judgment, being void,
may be attacked collaterally. Oppenheimer v. Giershofer, 54 111. App. 38. In
Bacon r. Raybould, 4 Utah, 357, 10 Pac. 481, Boreman, J., observed: "The
aotiiorities go to the extent of holding that where there is an incomplete or
insufficient statement of such facts [the facts out of which the indebtedness
arose), the failure to make a complete statement will be only prima facie
evidence of fraud as to creditors, and that it cannot be attacked collaterall3^
But no case has been called to our attention where a court has held that a
uoofession of judgment is merely prima facie fraudulent as to creditors,
uid not liable to be attacked collaterally, where there was a total absence
of the statement of any facts whatever. We know of no instance in which
norfa a case has reached an appellate court The statement of such facts is
a prerequisite to the confession of judgment— it is not a confession of judg-
ment without It" Compare Utah Nat Bank v. Sears, 13 Utah, 172, 44
Pte 832.
(95)
§ 68 LAW OF JUDGMENTS. (Ch. 3
S 68. Valid between Partiei.
A judgment upon confession, founded on a statement of facts
which is defective or insufficient to answer the requirements of the
statute, will nevertheless be valid and effectual as between the par-
ties to it, though voidable at the instance of other creditors.*** The
judgment-debtor himself cannot avoid it, nor can one do so who
claims rights of property under him, but whose interests are not
prejudiced thereby.^*^ And such a judgment, upon proof of its
honesty and good faith, authorizes the creditor to impeach a fraud-
ulent transfer made by the debtor, for the purpose of making the
lien of the judgment effectual.^** Where the property of the de-
fendant has been sold under an execution upon a judgment con-
fessed without a sufficient statement, the purchaser's title cannot be
impeached by a creditor having no judgment or lien on the prop-
erty at the time of the levy.*** At the same time, if another creditor
attacks a confessed judgment founded upon a defective or insuffi-
cient statement, it devolves upon the plaintiff therein to negative the
idea of fraud or collusion, and to show that the judgment is war-
ranted by facts actually existing, although such facts were not in-
cluded in the statement.**' The same rule holds true of a judg-
ment confessed without the affidavit to the justness of the debt re-
quired by statute; it is valid between the parties, though void or
voidable as to other creditors.**^
122 Coolbangh v. Koemer, 30 Minn. 424, 15 N. W. 869; Miller t. Earle. 24
N. Y. 110; Xeusbaum v. Keim, 24 N. Y. 325; Kirby v. Fitzgerald, 31 N. X.
417; Biyaii v. Miller, 28 Mo. 32, 75 Am. Dec. 107; How v. Dorscheimer, 31
Mo. 340; Lee v. Figg, 37 Cal. 328, 09 Am. Dec. 271; Pond v. Davenport, 44
Cul. 481; Plummer v. Douglas, 14 Iowa, 69, 81 Am. Dec. 456. See, also,
bhadrack's Adra'r v. Woolfolk, 32 Grat. (Va.) 707.
128 Coolbaugh v. Roemer, 30 Minn. 424, 15 X. W. 869; Boyles v. Chytraus,
175 111. 370, 51 N. E. 563; Krickow v. Pennsylvania Tar Manuf'g CJo., 87 lU.
App. (;o3.
124 Neusbaum v. Keira, 24 N. Y. 325.
125 Miller v. Earle, 24 X. Y. 110.
126 Cordier v. Schloss, 18 Cal. 576. See Bacon v. Raybould, 4 Utah, 357. 10
Pac. 481; Richards v. McMillan, 6 Cal. 419, 65 Am. Dec. 521.
i27Mavity v. Eastridge, 67 Ind. 211; Chapiu v. McLaren, 106 Ind. 563, 5
X. E. 688; Caley v. Morgan. 114 Ind. 350, 16 X. B. 790; Gardner v. Bonn (IIL)
21 X. E. 614; Stone v. Williams, 40 Barb. (X. Y.) 322.
(96)
Ch. 3) JUDGMENTS BY CONFESSION., § 69
§ 69. For irhat Judgrnient may be oonf eised.
The statutes commonly provide that the debtor confessing judg-
ment shall make oath that the debt is '*justly due or to become due."
It follows of course that if the judgment is for a purely fictitious
debt, or is in excess of the real debt so far as to interfere with the
rights of other creditors, it is fraudulent and cannot stand. Thus,
where a judgment is confessed and execution levied for such an
amount that subsequent judgment creditors find nothing to levy on,
a combination between the parties having been proved, fraud will be
established.*** It is also essential that the debt be a legal debt, —
that is, one which would not be rejected by a court on account of its
illegal consideration. Yet it appears that the defendant in the judg-
ment and those claiming under him (for instance, a subsequent mort-
gagee of his land) are estopped from denying the validity of the
judgment, although the demand might not have been recoverable at
law.'** The word "due," as used in these statutes, must not be
taken in too narrow a sense. It does not necessarily import a debt
which might be recovered in an action at law against any defenses
which the debtor might set up. There are certain defenses which
the debtor has the option of waiving if he chooses, and he does
waive them by confessing judgment. For example, such a judg-
ment is not invalidated by the fact that a part of the claim for which
it is given would be barred by the statute of limitations, provided the
issNustMinm y. I^onchhelm (Pa.) 1 Atl. 391. A Judgment coufessed on a
note given as secnrity for Indorsements is not fraudulent because confessed
for more than the amount of the notes indorsed, the party not having at liand
at the time the means of determining tlieir amount, and notliing more than
«a» due ever having been claimed or received on the Judgment. Page v.
SlmpMu, 188 I*a. 303, 41 Atl. 638. It is error to render Judgment on Judgment
notes authorizing entry of Judgment on default in payment of the interest
notm. in the absence of proof of such default, or production by the payee of
the hiterest notes, as, in their absence, there would be no presumption of their
nonpeyuieiit. Crofut v. Aldrich, 54 111. App. 541. A Judgment note may be
legally given as security for a pre-existing debt and, when so given, is not
open to the objection of want of consideration. Lane v. ITnion Nat. Bank,
TTi III. App. 299; Union Nat. Bank v. Lane, 177 111. 171, o2 N. E. 3(n. (;i) Am.
St. Rep. 2Uk
i'> SLn'elt V. KItufelt. 0 Paige iX. Y.) 137, 37 Am. Dec. 381.
lLA\VJUIXl.-7 (07)
§ 70 LAW OF JUDGMENTS (Ch. 3
debt be an honest one.**® So where a bankrupt, subsequent to his
discharge, confesses judgment upon an old debt, the debt is a good
consideration for the judgment, and the latter is not affected by the
discharge.*** It is further necessary that a confession of judgment
be for a certain and specific sum. A judgment entered by a jus-
tice, on the confession of a defendant, for such sum as A. and B.
shall award, before the award is declared, is invalid.*** Where sev-
eral powers of attorney are given to confess judgment on several
debts in favor of and against the same parties, it is proper and com-
petent for the court to consolidate them and enter but one judg-
ment.*'* A judgment cannot be confessed for a claim arising ex
delicto. A statute which allows confession of judgment "for money
due or to become due" should not be construed as authorizing the
confession of a judgment for damages growing out of a tort***
§ 70. Debt not yet due*
Where the language of the statute is that judgment may be con-
fessed for a debt "justly due and owing," it applies only to a debt
payable at the time of the confession, for these terms import an
immediate liability. But where it authorizes a confession "for mon-
ey due or to become due," this may well include a claim founded
upon an obligation now existing but not yet demandable. Thus the
130 Keen v. Kleckner, 42 Pa. 529; Wassell v. Reardon, 11 Ark. 705, 44 Am.
Dec. 245; Cross v. Moflfat, 11 Colo. 210, 17 Pac. 77L Compare Kahn ▼. Leaser.
97 Wis. 217, 72 N. W. 739; Matzenbaugh v. Doyle, 156 111. 331, 40 N. K
935. In Pennsylvania, the court may, ill Its discretion, open a judgm^t en-
tered by confession on a note not under seal, where it appears on the face
of tlie note that the statute of limitations had run against the debt at the
time the judgment was entered. Bates v. CuUum, 183 Pa. 234, 29 Atl. 870;
Bennett v. Allen, 10 Pa. Co. Ct R. 256. See, supra, § 61a.
J«i Dewey v. Moyer. 72 N. Y. 70.
"2 Nichols V. Hewlt, 4 Johns. (N. Y.) 423. But a power of attorney to con-
fess Judjrment "for an amount that may be found due" on the note therein
described, and sufficient to give the court Jurisdiction, is adequate. Patterson
V. Indiana, 2 G. Greene (Iowa) 492. See Little v. Dyer, 138 111. 272, 27 K, K.
905, 32 Am. St. Kep. 140; Scott v. Mantonya, 164 111. 473, 45 N. E. 977.
138 Genestelle v. Waugh, 11 Mo. 367. See OdeU v. Reynolds, 17 C, C. A.
517, 70 Ked. 656; Fortune v. Bartoloraei. 1C4 111. 51, 45 N. E. 274.
i84Burkham v. Van Saun, 14 Abb. Prac. N. S. (N. Y.) 163; Boutel ▼.
Owens, 2 Sandf. (N. Y.) 055.
(98)
Ch. 3) JUDGMENTS BY CONFESSION. § 70
fact that a nafe upon which a confession of judgment was taken was
not due when the judgment was rendered does not deprive the court
of jurisdictioQ, and the judgment will not be vacated on that ac-
count."* "The fact that a note may not be due at the time of a
confession upon it, might be a suspicious circumstance in a contest
with other creditors of the debtor, but it would not render the judg-
ment void in the proper sense of that term." ^'* So a judgment is
not void as to creditors because the action is commenced before the
maturity of the note which was the cause of action, and the defend-
ant confesses judgment without service of process.^*^ Authority
may be given by a warrant of attorney to confess judgment for a
debt not yet due, but it must be given in clear and precise terms.^^®
Thus where the warrant, attached to a promissory note given in
extension of others, authorized the attorney to appear for the maker
at any time thereafter and confess judgment "for such amount as
may appear to be unpaid thereon," it was held that the authority
given was to confess judgment only for the amount actually due, not
that accruing."' When a warrant of attorney confers authority, in
a certain contingency, to confess judgment on a note before it is
due, the record must show that the specified contingency had hap-
pened, otherwise the judgment is unwarranted.***
itft Black T. Pattlson, 61 Miss. 599; Mechanics' Bank v. Mayer, 93 Mo. 417.
6 S. W. 237: McClish v. Manning, 3 6. Greene (Iowa) 223; Shepherd v. Wood,
73 Dl. App. 48G; Illinois Steel Go. v. 0*Donnell, 156 HL 624, 41 N. E. 185, 31
I^ R. A. 265, 47 Am. St. Rep. 245.
is« Callorway t. By ram, 95 Ind. 423; Farmers' & Mechanics' Bank v. Spear,
48 IIL App. 509. See Forrestw v. Stranss, 21 Civ. Proc. R. 166, 18 N. Y. Supp.
41.
1S7 Pond y. Davenport, 45 Gal. 225.
i»« Tide Ins., Trust & Safe Deposit Go. v. Ran, 153 Pa. 488, 26 Atl. 220;
iJermfln-Amerfcan Title & Trust Go. v. Gampbell, 184 Pa. 541, 39 Atl. 291;
FarweU v. Huston, 151 111. 239, 37 N. E. 864, 42 Am. St. Rep. 237; Gohen v.
BargesBy 44 IIL App. 206; Blanck v. Medley. 63 III. App. 211.
liP Keld V. Southworth. 71 Wis. 288, 30 N. W. 860. And see Smith v. Prin-
ze. 100 Pa. 275.
!<• Roundy v. Hunt. 24 111. 598.
(09)
§72 lAW OP JUDGMENTS, (Ch.'3
§ 71. For Future AdTanoes.
A judgment by confession may be taken to secure future advances
of notes or other commercial paper to be made by the creditor to the
' debtor;**^ or to secure both existing and future indorsement? for
his accommodation.^*^ "A judgment or other security may be taken
and held for future responsibilities and advances, to the extent of the
amount of the judgment or security. But to enable a creditor to
hold a judgment or other security for future responsibilities and ad-
vances, it must be a part of the original agreement that the judg-
ment, or security, should be a security for such respcmsibilities and
advances. It cannot, as against third persons, be held to meet and
cover new and distinct engagements subsequently entered into by the
parties." ^** And it seems that advances made or responsibilities
incurred, after a subsequent judgment has intervened, will not be
covered by the confessed judgment.^**
§ 72. For oontinsent Liabllitiefl.
In those jurisdictions where the more liberal statute is in force, a
judgment may be confessed to secure a future or contingent liability.
Thus a judgment confessed as an indemnity for liabilities incurred
by another is good at law against subsequent judgments, and may be
enforced before the party assuming the liabilities has discharged
them.^*** A judgment on confession may be enforced by execution,
apd is sustained by the same presumptions as other judgments, not-
withstanding it was recovered on a contingent liability.^** In those
states, however, where a judgment can only be confessed for a debt
1*1 Cook V. Whipple, 55 N. Y. 150, 14 Am. Rep. 202.
. M2 i,ar.siug v. VVoodworth, 1 J^aiulf. (;h. (N. Y.) 43.
143 AverlU v. Loucks, 6 Barb. (X. Y.) 19; Tiniscott v. King, 6 Barb. (N. Y.)
340. See Frye v. Jones, 78 111. G27.
m Brinkerhoff v. Marvin, 5 Johns. Ch. (N. Y.) 320.-
1*0 Ford V. Elkln, 2 Speers (S. C.) 14(5. And see Ely v. Parkhurst. 25 N.
J. Law, 188. Where two persons have exchanged accouimodation notes,
which have not been paid, there is a valid consideration for one of them to
confess judgment to the other, though they are not due, and the liability is
contingent. Curtis v. Fox, 191 Pa. 044, 43 Atl. 1093.
1*6 Allen V. Norton, 6 Or. 344. A confession is valid though the Jadgment
(100)
Ch. 3) JUDGMENTS BY CONFESSION. § 73
that is "due and owing," the rule is different in this respect. Thus,
in a New Jersey case the learned vice-chancellor said: "I think I
am bound to consider the doctrine as settled, so far at least as this
court is concerned, that a judgment on bond and warrant of attofi
ney, under our statute, can only be entered for a debt actually exist-
ing at the time of its entry, and that a simple liability as indorser or
surety does not constitute such a debt." ^*^
f 73. Amount of tl&e Judsment.
Where a judgment is entered on a warrant of attorney and in-
cludes a greater sum than was actually confessed, it is held to be
void only as to the excess, not in toto, unless the excess was fraud-
ulently included.^*® Upon a confession of judgment in a pending
action, if the plaintiff's demand is in the nature of a debt which may
be ascertained by calculation, it is sufficient to enter judgment gen-
erally. The judgment is supposed to be for the amount of damages
laid in the declaration and execution may issue accordingly."® But
if the plaintiff should indorse upon the declaration the actual amount
of the debt, and if the defendant complains that injustice has been
done, the court on motion, upon a proper case being made out, will
grant immediate relief.**^® Where the confession of judgment does
not determine the extent of the recovery, and it is not ascertainable
Is not to t>e entered up except upon the happening of a contingency. Keep
T. Leikie. S Rich. Law <S. C.) I(j4.
!*• Sayri* v. Hewes, 32 X. J. Eq. 652. See Clapp v. Ely, 10 N. J. Eq. 178.
"* Davenport v. Wright. 7>i Pa. 292. Compare Tucker v. Gill, (31 111. 236.
Where the* power of attorney in a bond limits the sum for which judgment
may l)e entrrotl, the attorney has no authority to enter judgment for a sum
oxi'eedlutf such limit. Mutual Guarantee Bldg. & Lioan Ass'n v. Fallen, 21
Pa. Co. Ct. K. 017. But judgment on a note is not vitiated because confessed
for a greater rate of interest than the note bears (Merchants* Nat. Banlc v.
Xewton Cotton Mills. 115 X. C. 507. 20 S. B. 7(>5), nor because the prothono-
tary made an entry for interest from the date of the note, uo claim for inter-
c?«t iiaving been made by the plaintiff, and none ever received by him on the
jud^iuent. Page v. Simpson, 188 Pa. 310, 41 Atl. 638. As to inclusion of
liitereiit, »ee, further, Cordray v. City of Galveston (Tex. Civ. App.) 2C S. W.
245.
J*»See Ijitrohe Pldg. ^c Loan Ass'n v. Fritz, 152. Pa. 224, 25 Atl. 558.
"o Lewis V. .^mith, 2 Si rg. & R. (Pa.) 142.
(101)
§ 75 LAW OF JUDGMENTS. (Ch. 3
by mere calculation, it must be liquidated by the court and not by
the clerk."^
I 74. Iiiquidation of Axaoiint by Clerk.
In the case of a confession of judgment without action, the stat-
utes sometimes authorize the prothonotary or clerk of the court to
enter up judgment on a warrant, without the actual intervention of
an attorney appearing for the defendant. But such a statute, it is
held, does not give him all the powers of an attorney. He can enter
judgment only when the amount due appears on the face of the in-
strument, or is ascertainable by calculation from its face.** ^ Thus
where judgment was confessed for the value of certain land at the
rate of $io per acre, the quantity to be ascertained by survey, it was
held that the prothonotary had no power to enter a judgment.***
Such a power must also be exercised by the officer without unneces-
sary delay. Where a judgment was confessed "amount to be ascer-
tained by the prothonotary/' and no amount was ascertained for
fourteen years, and the plaintiff and principal defendant were dead,
the court refused to make an order for ascertaining the amount
against the surety.***
§ 75. Inolusion of Attorney's Feet.
A judgment entered by confession upon a warrant of attorney may
include fees to the attorney appearing in the case (nominally for the
debtor, really in behalf of the creditor), if that be authorized by the
power.*** And it is altogether usual to incorporate a stipulation for
iBi Bonta V. Clay, 1 Lltt. (Ky.) 27. Where a power of attorney authorizes
a ooiifessiou of Judgment for any rent due by the terms of n lease whlcb
fixes the amount of rent, a judgment In accordance with such power may
properly be entered, though the lease also binds the lessee to pay damages for
waste of water and other items, thereby rendering the amount due, aside
from rent, uncertain. Scott v. Mantonya, GO III. App. 481.
152 Hope V. Everhart, 70 Pa. 231; Connay v. Halstead, 73 Pa. 354.
IBS Connay v. Halstead, 73 Pa. 354. The maker of a note authorizing
judgment by confession and the payment of attorneys' fees cannot question
the attorneys* fees on the ground that he was insolvent when he made tlie
note. Blanck v. Medley. 63 111. App. 211.
IS* Cook V. Cooper, 4 JHar. (Del.) 189.
150 Ball V. Miller, 38 lU. 110.
(102)
Ch. 3) JUDGMENTS BY CONFESSION. § 76
such fees in the warrant. Such a provision rests upon a valid con-
sideration and is not fraudulent as to other creditors ; ^*' unless the
amount designated as attorney's fees is grossly in excess of any rea-
sonable amount, in which case the judgment, at least to the extent
of such fees, is fraudulent and void as against the other creditors of
the defendant.*'^ And the attorney's commissions authorized in a
judgment-note cannot be collected as part of the debt due when the
debtor was ready to pay at the maturity of the note.^*® It is cus-
tomary to specify in the warrant or note the sum which may be in-
corporated in the judgment as a fee for the attorney. But cases
have sometimes come before the courts in which the provision, in-
stead of being explicit, merely designated a "reasonable attorney's
fee." This language, it is held, gives to the court in which the con-
a
fession is made the right to determine what is a reasonable fee; it
does not leave it to the option or the conscience of the attorney ; it
contemplates a judicial proceeding by the court for the purpose of
ascertaining the amount which may reasonably be charged up.
Hence if the attorney himself fixes the sum of his fees, under a power
so worded, and confesses judgment for the whole, he acts in excess
of his authority, and the judgment so entered, without the interven-
tion of the court, is void.^**
I 76« Reoordine tlie Judsment.
Under a statute relating to judgments by confession, which re-
quires the plaintiff to file a sworn statement, and enacts that the
clerk shall indorse the judgment upon the statement and enter it in
the judgment-book, the two entries should be deemed to have the
force of duplicate copies, each having the effect of an original.^*®
The power of attorney confessing the judgment should be filed as a
part of the record.*'* In Illinois, wherfe judgment is confessed be-
"• Weigley v. Matson, 125 111. 64, 16 N. E. 881, 8 Am. St. Rep. 3:^5.
i^'Hulae V. Mershon, 125 111. 52, 17 N. E. 50. See Sweeney v. Stroud,
55 X. J. Law, 97, 25 Atl. 273.
"« Moore v. Kligore, 110 Pa. 433, 1 Atl. 593.
"•CampbeU v. Goddard, 123 111. 220, 14 N. E. 261.
>«<»K1ng T. HigRlng, 3 Or. 406.
i«» Durbam v. Brown, 24 111. 93.
(103)
§77 LAW OP JUDGMENTS. (Ch, 3
fore the clerk in vacation, the formal writing up of the judgment in
the court records is held to be essential; and an execution issued
before it is so written up is invalid.^®^ But in some other states, it
appears that the statutory requirements as to the recording of such
judgments are merely directory, the statement, affidavit, and other
papers accompanying the confession constituting the judgment roll
and serving as the basis for an execution.^®*
§ 77. Beversiiis and Vaoatins Judgments by Confession.
In what circumstances a judgment entered upon the confession of
the defendant may be reviewed in the appellate court, or opened or
vacated in the court below, at the defendant's own instance, is a
question involved in much doubt. The difficulty arises from the fact
that the debtor, by his voluntary action in the matter, must be con-
sidered to have waived his strict technical rights to some extent, and
yet he should be protected from injustice and from errors sufficient
to vitiate the whole proceeding. In the first place, it is held in sev-
eral states that a confession of judgment operates as a release of all
errors in the record, and consequently it cannot be carried to the
appellate court either by appeal or certiorari.*** On the other hand,
it is elsewhere held that a confession of judgment, although a waiver
of formal errors, does not prevent the defendant from procuring the
reversal of the judgment for errors of substance.*®' In regard to
the jurisdiction of the court below, it seems to be conceded that it
has power to give equitable relief in cases calling for its interposi-
tion.*®* "The power of the courts to open judgments entered by con-
162 Knights V. Martin, 155 111. 486, 40 X. E. 358.
183 SjuiiKlers V. Lipscomb, UO Va. (i47, 19 S. E. 450; Ex parte Graham,
54 S. C. llxi, 32 S. E. 67.
164 (Jarner v. Burleson, 26 Tex. 348; Maiideville v. Holey. 1 Pet. l^l
7 L. E<1. 85; Wilson v. Collins, 9 Ala. 127. See De Riemer v. Cantilloiu
4 Johns. Ch. (X. Y.) 85.
105 Bat telle v. Bridgman, 1 Morris (Iowa) 363; Portage Canal Co. y. Crit-
tenden, 17 Ohio. 4'M). See Montgomery v. Baruett, 8 Tex. 143; Kennedy
V. Lowe, 9 Iowa, 580; Hopkins v. Howard, 12 Tex. 7.
106 McAllister's Appeal, 59 Pa. 204; Walker v. Ensign, 1 111. App. IV):
Wilson V. Cox, 170 Va. 3:^1, 33 Atl. 79: Seaver v. Siegel, 54 lU. App. (ECi:
Jordan v. Huntington. 58 III. App. 646; Second Ward Sav. Bank v. Schranck.
97 Wis. 250, 73 X. W. 31, 39 L. li. A. 569. Where, in a suit against a city
(104)
Ch. S) JUDGMENTS BY CONFESSION. § 77
iession, or in default of an appearance or plea, is not denied ; and it
is the duty of the courts to exercise such power wherever it is satis-
iactorily shown that in equity the judgment ought not to be collect-
ed." *•' In order to prevent any question of this kind, the parties
sometimes incorporate a release of errors in the confession or war-
rant of attorney, the effect being, of course, to waive any formal ob-
jections or irregularities. But where this is not done, it is proper to
examine with care any irregularity in the proceeding, and to vacate
the judgment if substantial injustice may have been done to the de-
fendant.**' The opening of such a judgment is therefore a matter
of sound discretion, and whether such a sound discretion has been
exercised by the court below depends upon the whole evidence, in
which the burden of proof is to show a defense.*** The judgment
should not be opened and the defendant let in to defend, except up-
on evidence of such weight and clearness as would be sufficient to
warrant a chancellor in decreeing that the instrument upon which
the confession was founded was void, or should be reformed for fraud
to quiet title to land claimed as a street, a decree Is entered by confession,
the court may, in its discretion, in view of the public interests involvetl,
open the ca»? and allow an aiiswer to be tiled. Earll v. City of Chicago,
13« 111. 277, 28 N. E. 370.
J«7 Earaest v. Hosklns, 100 Pa. 551.
i«s Mci'abe v. Sunmer, 40 Wis. 386. Thus, a judgment by confession may
be opened where it is alleged to be usurious (MciJuire v. Campbell, 58 111.
App. 188), or to let In a plea of the statute of limitations. Bates v. CuUum,
1«3 Pa. 2:14. 21) Atl. 870; Bennett v. Allen, 10 Pa. Co. Ct. R. 256. But
there Ih no abuse of discretion In refusing to open the Judgment where the
only defense is a counterclaim, which is denied by the plaintiff. Walter
T. Ftes, 155 Pa. 55, 25 Atl. 829. And see Evans v. Barclay, 38 111. App.
496. Where it appears that a judgment purporting to have been entered by
agreement was entered without authority. It may be set aside. Foley's Ex*r
V. Gatliff <Ky.) 43 S. W. 100. But a judgment admitted to be just will not
be set aside in equity for the mere reason that the attorney confessing It
under a warrant was not formally admitted to practice in the court wlicre
the judgment was taken, nor for defective verification of the complaint.
Pnrcell v. Kleaver. 08 Wis. 102, 73 N. W. 322. In Illinois, it is held that
where the defendant in a confessed judgment asks for and obtains leave to
plejid, he thereby waives all technicalities and objections to the judgnioiit.
Koby V. Updyke. 61 111. App. 328.
»«»R«cnIgk'8 Appeals (l*a.) 3 Atl. 09; Howie v. Lewis, 196 Pa. 558. 4(;
AU. 8:x>.
(105)
§77 LAW OF JUDGMENTS. (Ch. 3
or mistake.*^* Whether a judgment against two persons, entered
by confession on a warrant of attorney, may be set aside as to one of
them and stand good as to the other, is an unsettled point It de-
pends upon whether, in the particular state, a joint judgment is con-
sidered as an entirety or as severable.^'^ When the application to
set aside the judgment proceeds from another creditor of the defend-
ant, there is less doubt as to the power of the court. It may clearly
vacate the judgment for fraud or collusion between the parties, or for
a substantial failure to comply with the statutory requirements.^^*
Where an application to open a confessed judgment is based on
grounds going to the merits, and is contested, the issues raised
should ordinarily be tried by a jury ; but in Pennsylvania, it is held
that the court to which such an application is made, though there is
a conflict of testimony, may pass on the weight of evidence and the
credibility of the witnesses, without sending the case to a jury.*'*
Terms may be imposed upon the defendant, on granting his applica-
tion to open the judgment; but it is not proper to require that the
money supposed to be due should be brought into court, though the
judgment may be allowed to stand as security to abide the result*'*
170 Englishes Appeal, 119 Pa. 533, 13 Atl. 479, 4 Am. St. Rep. 656. A
court ought not to open a confessed judgment on the ground of fraud if.
upon all the testimony, the evidence of fraud is nat distinct Slgle v.
Seigley, 9 Kulp (Pa.) 471. Affidavits filed in support of a motion to open
a Judgment by confession are to be construed most strongly against the
party making the motion. Chicago Fire-Proofing Co. v. Paj'k Xat Bauk«
145 111. 481, 32 N. E. 534.
171 See Reynolds v. Silvers, 17 N. J. Law, 275; York Bank's Appeal 36
Pa. 458; North v. Mudge, 13 Iowa, 496, 81 Am. Dec. 441; Chapin v. Thomp-
son, 20 Cal. 681; supra, §§ 58, 64. As to opening the* Judgment for the
benefit of one of two Joint defendants, who alleges that his signature was
forged, see Darragh v. Bigger, 172 Pa. 89, 33 Atl. 273.
17 2 Crescent Canal Co. v. Montgomery, 124 Cal. 134, 56 Pac. 797; Filson
V. Greenspan, 194 Pa. 546, 45 Atl. 330. See Thompson v. Hintgen, 11 Wis.
112; Pirie v. Hughes, 43 Wis. 531. In the absence of fraud. Judgments by
confession will not be set aside simply because they were given by defend-
ant after obtaining from plaintiff an extension of time to answer in an
action then pending. Wood v. Mitchell, 63 Hun, 629, 17 N. Y. Supp. 782.
178 Blauvelt v. Kemon, 196 Pa. 128, 46 Atl. 416. Compare Hughes t.
Moody, 10 Pa. Co. Ct. R. 305.
17 4 McGuire v. CampbeU, 58 111. App. 188.
(IOC)
Ch. 3) JUDGMENTS BY CONFESSION. § 78
i 78. Effects of Confessed JTiidgmeiit.
"In contemplation of law, a judgment on a warrant of attorney is
as much an act of the court as if it were formally pronounced on nil
dicit or a cognovit, and till it is reversed or set aside, it has all the
qualities and effects of a judgment on a verdict." ^^* A judgment
upon confession is therefore just as conclusive, between the parties
and their privies, of the facts and points necessarily involved in and
determined by it, and as final a bar to the maintenance by the cred-
itor of another suit for the same demand, as any other judgment.^^*
»7*Braddec v. Srownfield, 4 Watts (Pa.) 474. A Judgment confessed upon
terms, duly entered, is in effect a conditional judgment, and the court will
take notice of tlie terms and enforce them. Wood t. Bagley, 34 N. C. 83.
>7«Braddee v. Erownfield, 4 Watts (Pa.) 474; Sheldon v. Stryker, 34
Barb. (X. Y.) 116: Neusbaum v. Kelm, 24 X. Y. 325; Dean v. Thatcher, 82
X. J. Law, 470; Xorth t. Mndge, 13 Iowa, 496. 81 Am. Dec. 441; Twogood
T. Pence, 22 Iowa, 543; Sherman v. Christy, 17 Iowa, 322; Secrist v. Zim-
merman, 55 Pa. 446; Kirby v. Fitzgerald, 31 N. Y. 417; Weikel v. Long,
55 Pa. 238; GolT v. Dabbs, 4 Baxt. (Tenn.) 300. See Hoppock v. Cray
(X. J.) 21 Atl. 624. The confession of a Judgment by the maker of a note,
in faTor of the bolder, does not discharge sureties or indorsers who are not
parties thereto. First Xat. Bank y. Eureka Lumber Co., 123 N. C. 21, 31 S.
(107)
§ 79 I<AW OF JUDQHBNTa. (Cb. 4
CHAPTEB IV.
JUDGMENTS BY DEFAULT.
79. Judgment of Nil Diclt
79a. Judgment for Want of Ailidavit of Defense.
80. Judgment by Default.
81. Against Wbom may be taken.
82. Joint Defendants.
83. Jurisdiction of the Defendant
84. Must be founded on good Declaration,
85. Premature Entity of Default.
86. Default, when proper.
87. Conclusiveness of Judgment by Default
88. Entry by the Clerk.
89. interlocutory Judgment, when necessary.
90. Assessment of Damages.
91. Evidence on Assessment of Damages.
92. Amount of the Recovery.
9iJ. Judgment by Default not aided by Presumptfons.
94. Opening and Vacating Judgments by Default
95. Review of Judgments by Default
S 79. Jndgment of NU Dicit.
When a defendant puts himself in default by failing to plead or
file an answer within a time prescribed, although he may have en-
tered an appearance in the action, the judgment given against him
is technically called judgment of nil dicit, that is, that he "says noth-
ing" in opposition to the plaintiff's claim, and therefore the latter is
entitled to recover.^ But if the defendant has put in his plea, and
issue has been joined, and he then fails to appear when the case is
called for trial, this species of judgment cannot properly be entered,
for he is not in default for want of an answer.^ However, the dis-
tinction betw^een this judgment and the other varieties of judgment
1 Stewart v. Goode, 29 Ala. 476; SummerHn v. Dowdle, 24 Ala. 428. See
supra. § 15.
2 Taylor v. McLaughlin, 2 Colo. 375. In an action on two notes, each set
out as a distinct cause of action, where defendant answers only as to one
of the notes, Judgment should be given, on motion, on the other note. Off-
ran v. Kerchner, 117 N. C. 2G4, 23 S. E. 177.
(108)
Cll. 4) JUDGMENTS BY DEFAULT. § 79a
against the defendant for failure to take a required step in the action
is no longer strictly observed, and when the judgment is nil dicit
when it should have been by default, it is merely informal and will
not be reversed on that account.* But in Texas it is said that while
the proceeding to ascertain the amount of damages is the same on
judgments by nil dicit as on judgments by default, **in other respects,
a judgmcr.: by nil dicit is held by this court to possess a stronger im-
plication in favor of the plaintiff's claim than an ordinary judgment
by default ; it is regarded as partaking of the nature of a judgment
by confession as well as by default." * The distinction, however, is
not of practical value, nor is it generally recognized.
I 79a. Jndcnent for Want of AiBdavit of Defense.
According to the practice at common law in some of the states,
where an action is brought upon an obligation for the payment of a
sum certain in money, if the defendant means to contest it, he is
required to file, within a limited time after notice of the plaintiff's
statement, an affidavit setting forth the facts on which he means to
rely as a defense ; if he fails to do this, judgment may be taken
against him **for want of an affidavit of defense." ^ If such an affi-
davit is filed, but the plaintiff deems it inadequate in law to consti-
tute a defense to the action, he may have a rule on the defendant "to
show cause why judgment should not be entered against him for
want of a sufficient affidavit of defense." • A motion for judgment
on this ground, being in the nature of a demurrer, admits the facts
averred in the affidavit, and denies their sufficiency as an answer to
> Shields Y. Barden. B Ark. 4r)D.
* »torej V. Mchols, 22 Tex. S7.
^Tobybanna & L. I^umber ("o. v. Home Ins. Co., 167 Pa. 231. 31 Atl.
'*U: 2 Bright. Purd, Dig. (Pa.) 13r>6. 1357; Laws Pa. 1887, p. 271, § 5; Act
I'a. May 31, 18S« (P. L. 18o). Plaintiff's right to a default judgment for
want of an affidavit of defense within the required time is not affected by
■n appeamn<*e of defendant by attorney within such time. North v, Yorlte,
174 Pa. :My, 'M Atl. 020.
* Such a judgment, it is said, is not a Judgment by default or confession.
Abeles v. Powell, (5 Pa. Super. Ct. 123. It is error to gfve judgment on ac-
connt of the Insuffleiency of an affidavit of defense flled, when the ease is not
one in which such an affidavit can legally be required. Bartoe v. Guokert,
158 Pa. 124, 27 AU. 845.
(109)
§ 79a LAW OP JUDGMENTS. (Ch. 4
the claim.^ And if the court decides that the allegations of the affi-
davit are not adequate to constitute a defense to the actkm, Judg-
ment will be given for the plaintiff, unless, for ^)ecial reasons, leave
should be granted to file a new or sup|rfemental affidavit of defense.*
If the defense alleged is good as to part of the claim, but insuffi-
cient as to the balance, the court may direct judgment for the part
insufficiently denied, and allow the plaintiff to try the case as to the
remainder.* And a statute in Pennsylvania provides that, where an
affidavit of defense is filed to a part of the claim sued for, the plain-
tiff may take judgment for the amount admitted to be due, and pro-
ceed to trial for the balance.^® This applies to any action in which
a part of the claim is admitted to be due, irrespective of how the
amount is ascertained or the balance computed,^ ^ but not to a case
where the affidavit applies to the whole of the plaintiff's claim, though
it may be insufficient in law as to a part of it.^* In Connecticut, a
statute provides that, in causes where ah attorney appears for the
defendant, the plaintiff may require him to state to the court whether
he believes a bona fide defense exists to the action, whether such de-
fense will be made, and whether there will be a trial, and that if such
attorney refuses to disclose as required, or shall not satisfy the court
that such defense will be made or such trial had, the court may or-
der judgment for the plaintiff. Where this rule is complied with,
the court has no authority to pass on the legal sufficiency of the de-
7 Hicks V. National Banli, 168 Pa. 038. 32 Atl. 63. On such a motion, the
correctness of an averment in the affidavit as to the law of another state
cannot be tested by reference to the statutes of that state. Wood Oo. t.
Berry Co., 4 Fa. Dlst. R. 141.
8 Sykes v. Anderson, 14 Pa. Co. Ct. K. 329; JLaIrd v. CampbeU, itt !*«.
475; Callan v. Lukens, 89 Pa. 134. Where leave has been ^ven to tile a
supplemental athdavit It must be tiled within a reasonable time, or else the
court may enter Judgment without a new rule or further notice to the de-
fendant. Close V. Hancock, 3 Pa. Super. Ct. 207.
» Drake v. Irvine, 10 l»a. Co. Ct. K. 48G.
10 Act Pa. May 31, 1893 (P. L. 185).
11 Roberts v. Sharp, 14 Pa. Co. Ct. R. 186, affirmed 161 Pa. 185, :» Ati.
1023.
12 Reilly v. Daly, 159 Pa. tK)5. 28 Atl. 493; Myers v. Cochran, 3 Pa. Dlst.
Jt. 135. 33 VVkly. ^otes Cas. 250.
(110)
Cb. 4) JUDGMENTS BY DEFAULT. § 80
fense, and render judgment because it deems such defense insuffi-
cient."
S 80. JTvdsiBeAt by Default.
Properly speaking, a judgment by default is one taken against a
defendant when, having been duly summoned or cited in an action,
he fails to enter an appearance. But the term is frequently (and
indeed commonly) used in a much wider sense, in which it includes
judgments given against the defendant for want of a plea, answer,
affidavit of defense, etc., as well as for want of an appearance. The
latter is the signification of the word as used in this chapter. The
characteristic feature of a judgment by default is that it follows upon
the negligence or omission of the defendant, passing over the steps
that would otherwise be taken, trial and verdict, and adjudging
against him immediately upon his failure to defend.** In respect to
its effects and consequences, — as the foundation of a suit, as a lien,
as a bar or estoppel, — a judgment by'default does not differ from one
rendered upon a verdict.** There are, however, certain distinctive
rules, particularly in reference to its rendition and entry, which re-
quire separate treatment and which will form the subject-matter of
the following pages. The rendition of a judgment by default, it is
held, is no violation or abridgment of the constitutional right of trial
by jury.** The right is one which (at least in a civil action) may be
!• Jennings ▼. Farsons, 71 Conn. 413, 42 Atl. 76.
i«A judgment is by default where there has been no appearance by the
defendant, even though he was not legally summoned. Brown v. Chapman,
W) Va. 174« 17 S. K. 855. But a Judgment rendered by a justice of the peace
when the defendant Is present by attorney, who, however, takes no part in the
trial, is not a judgment **by default." Borgwald v. Fleming, (fi> Mo. 212.
i> Where judgment by default is entered against defendant, a final judg-
ment cannot afterwards be rendered in his favor without first setting aside
the default. Bateman v. Pool, 84 Tex. 406, 19 B. W. 552.
^•Cureton t. Stolces, 22 SS. C. 583; Lawrance v. Borm, 86 Pa. 226; Ran-
dall v. Weld* 86 Pa. 357; Hunt v. Lucas, U9 Mass. 409; Dortlc v. Lockwood,
to. Ga. 2i33, The right of trial by jury is not impaired by a law giving to
the court the right to assess damages without a jury in case of default. Hop-
kins ▼. lAdd, 35 ill. 178; 8eeley v. City of Bridgeport, 53 Conn. 1, 22 Atl.
lifil; Baymond v. Danbury & N. K. Co., 43 Conn. 51H>, Fed. Cas. No. 11.593;
Fred Miller Brewing Co. v. Capital Ins. Co., Ill Iowa, 590, 82 N. W. 1023,
tfi£ Am. »t. Hep. 529.
(Ill)
§81 LAW OP JUDGMENTS. (Ch. 4
waived by the party, and the defendant cannot claim that the privi-
lege is denied to him if he presents no defense to be tried by a jury.
S 81. Ag^aimst Wbom may be taken.
As a general rule, a default may be taken against any natural per-
son against whom the same judgment might have passed as the re-
sult of contested proceedings. But there are certain exceptions to
this statement. Thus, in California, a person summoned as a gar-
nishee may be punished for contempt for disobeying ah order where-
by he is required to disclose his indebtedness if any, but a judgment
by default cannot be taken against him, and such judgment is with-
out jurisdiction and void.*^ In some other states, however, where
the court has regularly obtained jurisdiction of the garnishee and
there is no answer on his part, it is held that a judgment by default
may be entered against him, and such judgment will be sufficient to
protect the garnishee if no defense on the merits could have been
made.*® Judgments by default may be entered against non-resi-
dents and against persons under disabilities ; but the validity of such
judgments must be tested by rules which belong to later sections of
this book.** A default judgment may also be rendered against a
corporation ; but in order to support it, it must appear of record
that the person who, as shown by the rcvcirn of the officer, was served
with process, has such a relation to the corporation that service on
such person was tantamount to service on the corporation.*® Un-
der statutes allowing such a course of procedure, a defendant may
proceed with the case upon the failure of the plaintiff to appear, and
judgment may be rendered on the merits.*^ But one who is origi-
iT Hibfrnia fc'avings & l^an Soo. v. Superior Court. 56 Cal. 265.
isscamahom v. Scott, 42 Iowa, 529; Abell v. Simon. 49 Mel. 318; Oracy
V. Coates, 2 McCord, 224; Jones v. Tracy, 75 Ta. 417; Lflughlin v. Jan-
uary, 59 Mo. 3«3; Debs v. Dalton, 7 Ind. App. 84, :U N. E. 23(5.
i» See, infra, §§ 227-232, §§ 190, 196. Particularly as to the vaUdity of de-
fault judgments against Infants, luiiatie8, and married women, see Jacksoo
V. Krunor, 17 Misc. Hep. 339, 39 N. Y. Supp. 1080; Appel v. Brooks. 4 Misc.
Kop. 626. 24 ^. Y. Supp. 100; Kent v. West, 22 Misc. Hip. 403, 50 X X.
Supp. 339; Marion v. Kegensteln, 98 Ala. 475, 13 Soutb. 3H4.
20 tioud V. Inliabitants of Town of I'ierce (Mty, 86 Mo. 357.
«i Clune V. Qultzow, 125 Cat 213, 57 I'ae. 886w
(112)
Ch. 4) JUDGMENTS BY DEFAULT. § 82
nally a defendant, but afterwards, by leave of court, tecomes a plain-
tiff and files a cross bill, is not entitled to a default judgment against
his co-defendants, if they had no notice of his cross bill or that he
had changed his status in the case.*^
S 82. Joint Defendants.
The rule of the common law, in regard to actions in which sev-
eral persons were joined as defendants, was that judgment must be
givtn against all or none of them. The plaintiff could not recover
against a part of the defendants and be defeated of his claim against
the rest, except in the single case where one of them set up and
succeeded in establishing a defense entirely personal to himself, as
his release or discharge or his personal disability to contract. Con-
sequently, except in so far as the rule is changed by statute, where
several persons are summoned as defendants, and one of them pleads
and the other suffers a default, final judgment cannot be entered up-
on the default until the issue as to the other defendant is disposed of,
and not even then unless the plaintiff had a verdict on the issue or
the defendant pleading had set up a merely personal defense.^^ But
this has been changed, in several of the states, by the statutes, w^hich
provide that in actions regularly commenced against several joint
defendants the court may, in its discretion, and whenever a- several
judgment would be proper, render judgment against one or more of
" Cole v. Grigsby (Tex. Civ. App.) 35 SS. W. 680.
2s Russell y. Hogan, 1 Scam, (ill.) 552; CatUn y. Latson, 4 Abb. Prac. (N. Y.)
:!48; I^yior v. Beck, 3 Kand. (Va.) 316; Woodward v. Newhall, 1 Tick. (Mass.)
^JU; Uutcbings y. Heal Kstate Bank, 4 Ark. 517. See Curry y. Uoundtree,
'>1 Cal. IM. if three defendants demur, and, after the demurrer is with-
drawn, two of them plead, a Judgment nil dicit should be entered against
the party not pleading, and the Jury should assess the damages against all.
U but two plead and the other abide by his demuiTer, he cannot be regarded
as going to trial with the others. I'Yeeland v. Board of Supers of Jasper
County, Zi HI. 303. Where one of several defendants answers, he is not in
default for failure to answer an amended peUtlon which does not change
the effect of the original as to him. Bremen Bank y. Umrath, 55 Mo. App.
^^ In an action against several defendants on a Joint demand, where one
defendant, not served, appears and tiles and serves his plea, he is entitled
to DoUce of trial; and until -such notice is given the court (*annot legally
«*nter Judgment by default against the remaining defendants. I'eiifold y.
S^ljtteld, 110 Allch, 343. (58 ^. W. 220,
1 LAW JUDG.~8 (lilJj
§ 83 LAW OF JUDGMENTS. (Ch. 4
them, leaving the action to proceed against the others. Under a
law of this character, it would be proper to render a judgment
by default against the defendant not pleading, where the cause of
action was joint and several. But if the claim were upon a joint
contract, such a judgment would necessarily remain interlocutory
until the issues raised were finally disposed of, for in that case the
defendants must stand or fall together. We shall recur to this sub-
ject at a later point.** It is also held that where process is served
on only one of two defendants, judgment cannot be rendered against
both by default.*' But it seems to be otherwise under the "joint
debtor acts," existing in several of the states, in actions upon a joint
contract.**
f 63. Jnrifldiotion of the Defendaat.
In order to the validity of a judgment by default, as in the case of
any other judgment, it is essential that the court should have ac-
quired jurisdiction .of the person of the defendant.*^ A judgment
entered by default against a party who has not been served with pro-
cess and who has not appeared in the action, is irregular and void,"
24 iSee, infra, $S 208, 20». Where a number of defendants are Jointly sued
on a Joint iiabiiity, and a joint Judgment is asked, it is error for the court
to render a several Judgment on default against one defendant, without
tirst trying and determining the liability of aU the defendants. Osbun y.
Bartram, 15 Ohio Cir. Ot K. 224. Compare German-American Bank v. Stickle,
59 Meb. 321, 80 N. W. 910. A grantor of realty by warranty deeds, soed with
his grantees in an action to set aside the titie which he assumed to oonrey*
may defend in his own name for the defendants served but not answering.
Bausman v. Kads, 4t$ Minn. 148, 48 N. W. 7($U, 24 Am. iSt. Rep. 201.
2 0Kider v. AUeyne, 2 Scam. (111.) 474; Winslow v. Lambard, 57 Me. 356.
in an action against three defendants, service on one only does not authorise
Judgment by default against the others, where no facts are aUeged maktuj;
service on one valid as to all. Tilman v. Johnson (Tex.) 16 S. W. 788. See
Kellogg V. Window, lUO iowa, 552, «« N. W. 875.
26 See, infra, H 235, 230.
27 On the general subject of Jurisdiction as essential to the validity of a
Judgment, see, infra, U 215-244.
28 Warren Manuf g Co. v. .Etna Ins. Co., 2 Paine, 501, Fed. Obb, Xo.
17,20(5; Graham v. Graham, 4 Munf. (Va.) 205; Staunton Perpetual Bldg.
& l^oan Co. V. Haden, 92 Va. 201, 23 S. E. 285; Rorer v. People's Bldg. U
.& S. Ass'n, 47 VV. Va. 1, 34 S. E. 758; Stallings v. GuUy, 48 N. O. 344;. Wins-
low V. Anderson, 20 >'. C. 1, 32 Am. Dec. (551; Duncan v. Gerdine, 59 Miss.
.550; Prentiss v. Mellen, 1 Smedes & M. (Miss.) 521; State v. BUUngs, 23
(114)
Cb. 4) JUDGMENTS BT DEFAULT. § 83
And due and proper service must appear upon the record before the
court is authorized to render a judgment by default ; *• though here
it is necessary to recollect the presumptions of jurisdiction by which
any judgment of a superior court is sustained when assailed col-
laterally or made the basis of a new suit. It being necessary, there-
fore, that the court should have jurisdiction in the case, it is evi-
dent that a defect or failure in this respect may arise either from
some peculiarity in the process itself or from the manner of its serv-
ice. Now, to be duly served with a summons is said to imply that
the defendant has been duly served with a summons notifying him
to appear and answer in the court where the judgment is sought to
be taken.*' Assuming these to be the essentials of a proper notice,
it follows that the writ, although properly served, may be so defect-
ive in itself as to confer no jurisdiction over the defendant. Such
would be the case if it omitted to apprise him of the court in which
the action had been commenced or the day on which he was re-
quired to appear.** It is not true, however, that any irregularities
in the process, short of this, may be entirely disregarded. The rule
is, that if the notice is defective or irregular, but not to the extent
of being substantially worthless, a judgment by default entered there-
on will be irregular and liable to be corrected or set aside on mo-
tion, or reversed above, but not absolutely void, and hence not open
to collateral attack.** In the next place, the process, sufficient in
La. Ann. 798; Townsaud v. Townsand, 21 ill. 540; Moore y. Watkins, 1
Ark. 2»8; Shepherd v. Marvel, 16 Ind. App. 417, 45 N. E. 526; IMtch v.
Fwpte, »1 111. App. 368; Uoitt v. Skinner, im Iowa, 360, 68 N. W. 788; York
Draper Mercantile Co. v. Hutchinson, 2 Kan. App. 47, 43 Pac. 315; Johnson
T. l>elbrldge. 35 Mich. 436; Baseom v. Young, 7 Mo. 1; Zimmerman v.
Gerdes. 106 Wis. 608, 82 N. W. 532; D. M. Osborne & Co. v. Columbia
County Farmers' AUIance Corp., » Wash. 666, 38 Pac. 160.
" \\ ilkinson v. Bayley. 71 Wis. 131, 36 N. W. 836; Zimmerman v. Gerdes,
lOK Wis. 608. 82 N. W. 532; People's Mut. Ben. Soc. v. lYazer, 97 Mloh.
UlfT. :»6 N. W. tH4; Campbell v. Donovan, 111 Mich. 247, 69 N. W. 514. A
mere re<Mtal in a default Judgment that process was served Is not sutticlent
evidence of that fact. Herman's Kx'x v. Martin (Ky.) 55 S. W. 429.
>« Smith V. iiilendale Mill Co., 4 Or. 70.
siKitsnUUer t. Kitchen. 24 lews. 163.
S3 Bishop V. iionnell. 171 Mass. 5<>3, 51 N. E. 170; Dunn v. Hughes (Tex.
CIV. App.> 36 S. U. 10J«; Harl)Olt v. State, 37 Tex. Cr. R. 639. 40 S. W.
Iftfl*; Day v. Mcrllock, 87 Wis. 577, 58 X. W. 1037; De Tar y. Boone Co.,
(115)
f 83 LAW OF JUDOMBNTa C^h- 4
itself, must be duly served upon the party or upon some person au-
thorized to receive service in his stead." But here also, slight ir-
regularities, not fatal in themselves, will not have the effect of de-
priving the court of jurisdiction. **If the court to which the process
is returnable adjudges the service to be sufficient and renders judg-
ment thereon, such judgment is not void, but only subject to be set
aside by the court which gave it, upon seasonable and proper ap-
plication, or reversed upon appeal." ** A voluntary appearance by
the defendant will of course be sufficient to confer jurisdiction, and
will amount to a waiver of formal and technical defects in the process
or its service.'* But a default obtained without proper service and
on an unauthorized appearance, is an absolute nullity.** The de-
fendant may also acknowledge service of the writ, and thereby fore-
M Iowa, 488; Betts ▼. Baxter, 58 Miss. 334; Christian v. O'Neal 46 Miss.
U«>; CampbeU v. Hays, 41 Miss. 561; Isaacs v. l»rice. 2 Dill. 351, Fed. Cas.
No. 7,0«T. A Judgment by default against defendant is valid, notwltbstand-
ing a mistake in ttie summons in the Ciiristian name of the plaintiff. Brad-
ley V. 8andiland8, 60 Minn. 40, 68 N. W. 321, 61 Am. St. Rep. 386. But a cita-
tion not authenticated by the seal of the court will not, on appeal, support
a Judgment by default. Line v. CranlUl (Tex. Civ. App.) 37 S. W. 184. And
where the copy of the notice delivered to the defendant fails to show that
the original notice was signed by the plaintiff or his attorney, as required
by statute, the service is not sufficient to give the court Jurisdiction to enter
a default Judgment. Hoitt v. Skinner, 99 Iowa, 360, 68 N. W. 788. In New
York, plaintiff cannot take a Judgment by default if a copy of the complaiut
is not served with the summons. See Grouse v. Keichert, 61 Htm, 4a 15 N.
Y. Supp. 369.
" A Judgment by default on service of a summons on the attorney of de-
fendant, when the latter in no manner 'voluntarily submits himself to the
Jurisdiction of the court, is void. Goldberg v. Fowler. 29 Misc. Rep. 32^
GO N. Y. Supp. 475. As to service of papers by mall, see Selfert v. Caverly.
63 Hun, 604, 18 N. Y. Supp. 327.
3* Isaacs V. Frice, 2 Dill. 351, Fed. Cas. No. 7,097. Compare Reinhart t.
Lugo, 86 Cal. 395, 24 Fac. 1089, 21 Am. St. Hep. 52.
3 6 The entry of an order that the cause "is hereby continued by conseut"
does not show such an appearance and waiver of service as will support a
Judgment by default. Flowers v. Jackson, 66 Ark. 458. 51 S. W. 462.
86 Fleming v. Boulevard Highlands Imp. Co., 12 Cclo. App. 187, 54 Fac,
859; Great West Min. Co. v. Woodmas of Alston Min. Co., 12 Oolo. 46, 20
Fac. 771, 13 Am. St. Rep. 204; Dillon v. Rand, 15 Colo. ;{72. 25 Pac. IJw:
Howell V. Campbell, 53 Kan. 742, 37 Pac. 120. An attidavit for continuance
tiled by defendant is not such an appearance as will warrant Jud^rmeut hy
default. Hoyt v. Macon, 2 Colo. 113. Mor la service of notice of a motion
(116)
Ch. 4) JUDGMENTS BY DEFAULT. § 88
go his objections to the manner of service or the person executing it.
But it is held in some states that an indorsement upon the process,
of a written acknowledgment of service, purporting to be signed by
the party, is not sufficient, without proof of the authenticity of such
indorsement and signature, to authorize the entry of default for want
of an appearance. ^^ This rule, however, is probably too severe to
find general acceptance. On similar principles, in a state where the
law is that a j'udgment by default cannot be entered except upon
proof of the personal service of the summons and complaint, an ad-
mission of ''service," not stating the mode in which the service was
made, is not sufficient.'® To warrant entering a judgment against
one who has been made a defendant upon his own motion, there
must be notice and proof of no answer, the same as in the ordinary
case of a defendant who has been served and has appeared.'* In
fact, the cardinal principle is that a defendant cannot be put in de-
fault without due notice of everj^thing which requires him to take
affirmative action. Thus in a case where judgment by default was
rendered on a substituted petition, the substitution having been made
without notice to the defendant or any one authorized to represent
him, the judgment was held to be erroneous.*®
•
to dissolve an attaciiment on account of irreguiarity, made by defendant's
auorney. Glidden t. Fackard, 26 Cal. (H9. So where, in foreign .attach-
ment, defendant appears merely to move for a rule on plaintiff to show his
cause of action, for the purpose of securing a release of the property, it
is a special appearance, ahd not sutticient to authorize a Judgment by default.
Warren Sav. Bank v. JSilversteln, 15 Pa. Co. Ct. K. 584. On the withdrawal
of his appearance for defendant by the attorney entering the same, though
without leave of court, a valid judgment by default may be entered against
the defendant. Klo (Irande Irrigation & Colonization Co. v. Gilderaleeve,
174 t. », till;:. ll> Sup. Ct. 7G1, 43 Lr. Ed. 1103. But if the defendant was
personally served, it is immaterial, as affecting a judgment by default against
him, whetlier or not an attorney who appeared for him was authorized to
do so, since in either event the judgment is proper. Hunter y. Bryant, 98
Cal. 252, :« Pac. 55.
«" Johnson v. Delbridge, 35 Mich. .436; Davis v. Jordon, 5 How. (Miss.)
2U5. Wh<-rc H judgment by default recited that service of the writ in the
case was acknowledged by the defendant, it was held sutticient to sustain
the judgment. Winston v. Miller, 20 Miss. 550.
3« Kejul V. rrcncii. 28 .\. Y. 285.
»*l^ii»;;i V. KjiniCH, 14 Fla. 53.
*o\\at^<Jn V. Miller Bros., W Tex. 175, 5 8. \V. ($80. But a judgment
(117)
§ 84 LAW OF JUDGMENTS. (Ch. 4
Thus far we have not spoken of judgments by default rendered up-
on constructive service of process. This proceeding is authorized
by statute in many of the states, in actions against non-resident de-
fendants, and cases involving the vaHdity of such judgments arc by
no means infrequent. The subject properly belongs to another part
of this work, and in this connection it is onlv necessary to remark
that the statutes authorizing the entry of such judgments are strictly
construed and the prescribed procedure must be st^Jctly followed,
and that such judgments have no extraterritorial validity and are not
binding on the defendant out of the state where rendered, except in
actions in rem and quasi in rem (as in divorce), and in cases where
the jurisdiction is based on attachment of the defendant's property
found within the state, in which latter instance the judgment is uni-
versally valid in so far as it affects to dispose of such property.*^
§ 84. Must be f ovnded on good Deelxrmtivn.
A judgment entered by default will be irregular and erroneous
unless it rests upon a good and sufficient declaration or complaint
duly filed in the action.** Hence if the plaintiff's pleading sets out
by default Is not void where it appears that summons upon the petition as
amended was duly served on the defendant. Little v. Ferguson (Ky.) 55
S. W. 554.
*i See Gary v. Northwestern Masonic Aid Ass'n (Iowa) 50 X. W. 27;
Taylor v. Kosslter, 6 Houst. (Del.) 485. And see, infra, §| 227-232. A
Judgment by default on constructive service by publication, there being no
personal service and no appearance by defendant, Is void, where, at the
commencement of such action, and at the time of the mailing of such publi-
cation, the defendant was a resident within the jurisdiction, and. by doe
diligence, service could have been made upon him personally. Hockaday v.
Jones, 8 Olil. 156, 56 Pac. 1054.
*2 Amason v. Nash, 19 Ala. 1(H; Wellborn v. Sheppard, 5 Ala. 674; Mer-
ritt V. White, 37 Miss. 438; Glenn v. Shelburne, 29 Tex. 125; Stahl v. Chi-
cago, St. 1'., M. & O. K. Co., 94 Wis. 315, 68 X. W. 954. Compare Hibeniia
SSav. & Lroan Soc. v. Matthai, 116 Cal. 424, 48 Fac. 370. Plaintiff cannot
talie a default where there is no declaration or complaint on file. Wood-
ruff V. Matheney, 55 111. App. 350; l*ress v. KIdgway Refrigerator Manufg
Co., 37 111. App. 269; Haygood v. T^it. 126 Ala. 264, 27 South. 842. But
a judgment by default is not invalidated by reason of the fact that the de-
fendant's attorney had taken the papers from the flies before judgment
was rendered, and then had them In his possession. SSchultz v. Meiselbar, 144
111. 26, 32 N. K. 500.
(118)
Ch. 4) JUDGMENTS BY DEFAULT. § 84
no cause of action, a judgment by default thereon cannot stand.*'
"A default is an admission of the cause of action stated in the peti-
tion, and that something is due to the plalntiflF. But where no cause
of action is stated in the petition a default can have no such effect.
It is true that a defendant may be concluded by a default where the
facts stated in the petition do not constitute a good cause of action
in law, or where the petition is so defective as to be vulnerable to a
demurrer.** But where the petition omits the necessary averment
to show liability against the defendant, the court may and should,
even upon default, refuse to enter judgment." *' A view opposite to
that here stated has been taken in some of the New York cases,*®
on the ground that, if the complaint is defective in this particular,
the remedy by demurrer is open to the defendant, and if he neg-
lects to avail himself of it, he waives any objections which he might
thus present, and cannot ask to have the judgment set aside or re-
versed. But the very obvious answer to this is, that an objection to
the complaint, on the score of its failure to state a cause of action,
like an exception to the jurisdiction of the court, is never waived;
that a default admits nothing more than the plaintiff has chosen to
allege, and the silence of the defendant should not be made to help
him out; and that if the plaintiff has not stated a case sufficient to
justify the intervention of the law in his behalf, he is not entitled to
«>Tfaigpen v. Mundlne, 24 Tex. 282; Abbe v. Marr, 14 Cal. 210; Barron
T. FrlnK 30 CaJ. 4«e; HaUock v. Jaudln, 34 Cal. 167; Andrews v. Union
t)ent IJfe Ina. Co., ^2 Tex. 5»4, 50 S. W. 572; Ide v. Bootn, 8 Pa. Co. Ct.
U. 4UU.
*^Hut some of tlie cases hold that, in order to support a Judgment by
(lefanlt the declaration or complaint must be sulficient to withstand a gen-
wii demurrer. Globe Ace. ins. Co. v. Reld, 10 Ind. App. 203, 47 N. E. 047;
Uhmei V. FottB (Tex. Olv. App.) 44 8. W. 615.
« Bosch V. Kassing, 64 iowa, 312, 20 N. W. 454. See Walker v. Massey,
lu Ala. 30. in an action to protect a water right, if the complaint states
a good title, it will support a decree taken by default. Bailey v. Malheur
Ac H. U lir. Co., 36 Or. 54, 57 Pac. 010.
*« Adams v. Oaks, 20 Johns. 282; Dorr v. Birge, 8 Barb. 351; Pope v.
JHnsmore, 8 Abb. Prac. 420; Keeder v. Lockwood, 30 Misc. Rep. 531, 62
N. Y. 8upp. 713. See, also, Frankfurth v. Anderson, 61 Wis. 107, 20 X. W.
»iKi; Aftkren v. Squire, 20 Or. 228, 45 Pac. 770; Cowles v. Cowles, 121 N.
C. 272, 28 8. K 476.
(119)
§ 85 LAW OP JUDGMENTS. (CSl. 4
any judgment, wliether the defendant answers or not.*^ A petition,
for instance, which does not allege an assignment of the claim sued
on, when it is not in the plaintiff's name and no assignment is proved,
will not sustain a judgment by default.** The question is diflFerent
where the judgment is rendered on a declaration containing both
good and bad counts. Here it is said that the insufficiency of one count
to sustain a judgment will not impair the plaintiff*s right to recover
on the other, and hence the judgment will be allowed to rest on the
cause of action well pleaded and will not be reversed.** There arc
cases, however, holding that the damages being general, and noth-
ing appearing to show that they were in fact assessed upon the good
count only, there is no authority to presume that they were so as-
sessed, and hence (just as in the case of a verdict and general dam-
ages, upon a declaration containing a count bad in substance) the
judgment will be erroneous.**®
^ ') ^ LI ^ ^^' ^'®''^'^^^'® Entry of Default.
A judgment rendered by default against a defendant before the
expiration of the time allowed to him for filing a plea or answer, is
irregular and voidable at his instance.** He has the whole of the
last day in which to plead, and cannot be said to be in default until
«7 The failure of defendant to appear or answer Is an admission onlj as
to tlie facts which are properly pleaded by the plaintiff. Doud Sons & Co. v.
DuUith Milling Co., 55 Minn. 53, 5(J N. W. 4(j;{.
4 8 Thompson v. JStetson, 15 Seb. 112, 17 N. W. 3(58. So, a default Juds-
iuent for fraudulent representations cannot stand, unless the intent to dt»-
fraud was alleged In the complaint. Shields v. Clement, 12 Misc. Rep. j/Oil
33 A. i. Supp. b'7(i. But it is said that a default Judgment is not void merely
because the complaint falls to show whether the plaintiff (described as a
••company") is a corporation or a partnership. Moore v. Martin & Hoyt Co..
IL'4 Ala. 2yi, 27 South. 252.
*o Hunt V. City of San l^Yancisco, 11 Cal. 2.10.
no Hemmeuway v. Hickes, 4 IMck. (Mass.) 497; Dryden ▼. Dryden, 9 Pick.
(Mass.) 54(J.
61 Parker v. Linden, 59 Hun, 6*23, 13 N. Y. Supp. 787; I^sh ▼. Wanvn
(Tex.) 14 S. \V. (UM; Hole v. Page, 20 Wash. 208, 54 Fac. 1123: Forbes v.
Muxlow, IS av. Proc. K. 231), 13. N. Y. Supp. 797; GIllotte-Herzog Manufg
Co. V. Ashton, 55 Minn. 75, 5(J N. W. 576. As to Judgment by default in a
justices court, rendered, in the absence of defendant and his counsel, prior
to the hour sot in the citation, see Yentzer v. Thayer, 10 Colo. 63, 14 Pac.
(120)
Ch. 4) JUDGMENTS BY DEFAULT. § 85
that day has fully expired ; ** and if the last day falls upon a Sun-
day or a holiday, he is entitled to the whole of the next succeeding
day.** But a judgment thus prematurely entered is not absolutely
void ; if the defendant takes no steps to correct the error, he is pre-
sumed to have waived it/* The time limited is given for the benefit
of the defendant, and he may waive it and consent that a judgment
be entered against him before its expiration.^" So if, after due
service of summons, judgment by default is entered one day sooner
than the statute allows, but the defendant is informed of the date of
the entry, both by an attachment served on him shortly thereafter
and by a scire facias, duly served, to revive the judgment, several
years later, but takes no action until after the judgment has been
revived, the irregularity will be regarded as waived, and a motion to
strike off the judgment will be denied. '• A decree pro confesso,
signed after the time for answering has expired, is regular, though
an order for further time to answer be signed and filed on the same
day with the signing of the decree.*' In case of a default, judg-
TkJ. 3 Am. St. Rep. 563. And see Dow v. March, 80 Me. 408, 15 Atl. 2U.
Where a municipal court orders an answer to be filed, and adjourns to n
rabsequent day, It cannot In the interim render a legal judgment by default
on failure to file an answer. Whitman & Barnes Manuf'g Co. v. Hamilton,
27 Misc. Kep. 1»8, 57 N. Y. Supp. 7«6.
" Porter v. Hower, 9 Pa. Co. Ct. R. 283; Lohman v. Cox, 9 N. M. 503,
5tf Paa 286.
••Kothchlld V. Unk, 29 App. Div. 580, 51 N. Y. Supp. 253. But where
the time to plead Is limited to a certain number of days, Sundays and holi-
days are to be counted, except where the last day is dies non, Bailey v.
KdmuDdson, lt>8 Mass. 2U7, 46 N. E. 1061.
»« White V. Crow, 110 U. S. 183, 4 Sup. Ct. 71, 28 L. Kd. 113; Burt v.
8<Tantom, 1 Cal. 416; Mitchell v. Aten, 37 Kan. 33, 14 Pac. 497, 1 Am. St.
Rep. 231: West r. Williamson, 1 Swan (Tenn.) 277; Glover v. Holman, 3 Helsk.
(Tenn.) 519.
•sHoguet V. Wallace, 28 N. J. Law, 523; Beebe v. George H. Beebe Co..
64 N. J. Law, 497, 46 Atl. 168; Wiggins t. Mayer, 91 Ga. 778, 18 S. B. 430;
MclVmald V. Tutty, 99 Ga. 184, 27 S. K 157. But an acceptance of service
and waiver of citation will not authorize Judgment by default before the
expiration of the time allowed for pleading. Anheuser-Busch Brewing Ass'n
V. McGowan, 49 La. Ann. 630, 21 South. 766.
••Harper v. Biles, 115 Pa. 594, 8 Atl. 446.
•7 Emery t. Downing, 13 ^\ J. Kq. 59.
(121)
§ 86 LAW OF JUDOMBNT8. (Gh. 4
ment may be entered before the case is reached in its regular order
on the docket."®
§ 86. Default, when proper*
When an answer or other pleading of a defendant, raising an is-
sue of law or fact, is properly on file in the case, no judgment by
default can be entered against him; to authorize a default, the an-
swer or other pleading must be disposed of by motion, demurrer, or
in some other manner.*^* The authorities do not go to the extent
58 Brenner v. GundersWemer. 14 Iowa, 82. Wliere an answer is due after
the commencement of a term of court, and no pleading is Illed nor appearance
made by tlie defendant, tlie case may be docketed, and judgment by default
rendered at any time thereafter during sucli term. JLeonard y. Hargis, 50
Kan. 40, 48 Fac. 586. See Kessler v. Vera; 25 Misc. Kep. 763, S» N. 1.
Supp. 142.
08 Plionoliarp Co. v. Stohbe, 20 Misc. Rep. 698, 46 N. Y. Supp. 678; Com.
V. Krause, 23 Pa. Co. Ct. K. 511; Carolina In v. Co. v. Kelly. 123 N. C. 388,
31 S. E. 671; Green v. Jones, 102 Ala. 303, 14 Soutb. 630; Taylor v. Me-
>airy, 42 Miss. 276; Beard v. Orr & Lindsey Shoe Co. (Miss.) 8 South. 512;
aambrick v. Dent. 70 Miss. 59, 11 South. 608; Blloxi Lrumber & Export
Co. V. New Orleans Railway & MiU Supply Co. (Miss.) 28 South. 21; Bed-
well V. 'J'^hompson, 25 Tex. Supp. 245; Sevier v. Turner (Tex. Civ. App.)
33 S. W. 294; Hepburn v. Danville Nat. Bank (Tex. av. App.) 34 S. W.
988; Hicks v. Vann, 4 Ark. 526; Boyer v. Robinson, 6 Ark. 552; Alexander
v. Stewart, 23 Ark. 18; White v. Reagan, 25 Ark. 622; HaiTis v. Muskingum
Manuf'g Co., 4 Blackf. 267, 29 Am. Dec. 372; Young v. State Bank, 4 Ind.
IKM; Terrell v. State, 68 Ind. 155; WaU v. Galvin,-80 Ind. 447; Lyon v.
Baraey, 1 Scam. (111.) 387; Faurot v. Park Nat. Bank, 37 111. App. 322; City
- of Pana v. Humphreys, 39 ill. App. 641; Wells v. Mathews, 70 111. App.
r)04; Keck v. McKldowney, 73 111. App. 159; Miller v. Hardacre, 1 G. Greene
(Iowa) 154; Levi v. Monroe, 11 lo\va, 453; Ruch v. Jones. 33 Mo. 393: Nor-
man v. Hooker, 35 Mo. 366; McMurtry v. State, 19 Neb. 147. 26 N. W. 915:
Strong V. Comer, 48 Minn. 66, 50 N. W. 936; Porter v. Richard. 1 Ariz. 87.
25 Pac. 530. Under a statute providing that either party to a civil actloD
may propound interrogatories to the other, which must be answered fully,
and that If the answers are not full and clear, the court may, on motion,
compel them to be made so, or default or nonsuit the answering party, tlie
court cannot, without further proceedings, default the answering party be-
cause the answers are deemed insufficient or evasive. Fels v. Raymond. 139
Mass. 98, 28 N. E. 691. In some states, the mere filing of an answer will not
prevent a judgment by default, but thpre must also be a subsequent appear-
ance by defendant to protect his rights. Lytle v. Custead, 4 Tex. Civ. App.
490, 23 S. \\\ 451. And see Schwarz v. Oppenheimer, 90 Ala. 462, 8 South.
36.
(11>2)
Ch. 4) JUDGMENTS BY DEFAULT. § 86
of holding that such a judgment would be absolutely void, but it
Hrould be set aside on motion of the defendant or reversed on ap-
peal. There appears to be some doubt as to whether the plea should
be actually on file, in order to prevent a default, or whether it is
sufficient if duly brought to the notice of the plaintiff or his attor-
ncy.** The question will be governed to some extent by the local
practice, and in those jurisdictions where the defendant's answer is
to be served on the plaintiff's attorney within a specified time, an
entry of default would probably be regarded as erroneous if made
after such service, although the pleading were not filed in court. In
a case where judgment by default was entered against a defendant,
who filed an answer on the same day the judgment was rendered, but
it did not appear affirmatively that the answer was filed before the
judgment, or that the attention of the court was called to the answer
before giving judgment, it was held to be the legal presumption that
the judgment was first given. '^ Even though the plea filed by the
defendant be bad in form or substance, yet, if it does not admit the
plaintiff's case, the latter cannot have judgment for want of a plea;
the proper practice is either to move to strike out the plea, or to
answer it by demurrer or otherwise.** And especially after replying
to a plea filed in proper time the plaintiff cannot take judgment by
nil dicit; if the plea is bad, he should withdraw his replication and
dcmur.^*
•• Id an early New i'ork ease, where a plea was delivered to the plaintiff's
attorney, wlio searclied tlie olerk*s otnce, and, finding no plea on tile, entered
11 <l«*faiiJt for want of a plea, the court considered the default as a nullity;
ttie porty is to be governed by the pleadings delivered to him, and not search
ttie ottice to see whether the originals are filed. Smith Y. Wells, 6 Johns.
:»U. Bnt compare Wall v. Galvln, 80 Ind. 447.
•1 Wooidridge v. Brown, 1 Tex. 478. See, per contra, Lyon v. Barney,
1 Scam, (ill.) 387.
•2Brigg8 T. Sholes, 14 N. H. 262. Where the admissions in an answer
negative its general denials, the latter may be disregarded, and if the com-
piamt be verified, judgment may be asked on the former, li'temont v. Seals,
lb Cai. 433. In Texas, to defeat a judgment by default for want of an an-
swer. defendaDt must file an answer consisting of a written pleading; It is
ncrt suUicient for him to request orally, on the appearance daj'. that the ac-
tion be dismlHsed because of its being brought in the wrong county. State
r. I'atterson <Tex. Civ. App.) 40 S. W. 224.
«3 Cox T. Capron, 10 Mo. 01)1.
(123)
§ 86 LAW OF JUDGMBNTa. (Ch. 4
On similar principles, it is erroneous to render a judgment by de-
fault against a defendant who has filed a demurrer to the declara-
tion, when the same remains unanswered and not disposed of in any
way, and he has not taken any subsequent step in the cause amount-
ing to a waiver of the demurrer."* And a judgment by default, en-
tered while exceptions are pending and undetermined, is erroneous
and irregular."' So, pending the question whether a suit can be
maintained in the court where it is brought, by reason of the alleged
non-residence of the defendant, there can be no judgment against
him for want of a plea."" When a demurrer to the answer is sus-
tained, in the absence of defendant and his counsel, an opportunity
must be accorded to the defendant to elect whether he will plead
over or stand on the demurrer."^ But of course, after the defend-
ant's demurrer is overruled and judgment of "respondeat ouster*'
given, he may be put in default for failure to answer further within
the proper time."*
For the same reasons, a default cannot be entered while a motion
is pending."*^ Thus, while an application for the removal of a cause
from the state court to a federal court remains undetermined, it is
irregular to enter a default against the party making the application,
and a motion to set aside the default in such case should be al-
lowed.'" So of a motion to dismiss, for want of security for costs by
a non-resident plaintiff, made in due time.'* A motion to quash the
return or the summons is no waiver of the right to plead, and in such
fl* Steelman v. Watson, 5 Gllman (Ul.) 249; McKlnney ▼. M'^v, 1 Scam. (HI.)
534; Key v. Hayden, 13 Iowa, 602; WHlamette Falls Transportation & Milling
Co. V. Smith, 1 Or. 181; Hlrsh v. Clawsou, 106 Ind. 329, 6 N. K. 919; Fisli v.
Wheeler, 31 111. App. 596; Race v. Irving Park Hall Ass'n, 50 Ul. App. 131.
«5 Francis v. Steamer Black Hawk, 18 La. Ann. 029.
ce state v. Gittings, 35 Md. 169.
6 7 Thwing V. Doye, 2 Okl. 608, 44 Pac. 381.
« 8. Jordan v. John Ryan Co., 35 Fla. 259, 17 South. 73.
6 0 Atchison, T. & S. F. R. Co. v. NifhoUs. 8 Colo. 188, 6 Pac. 512; Bld?-
way V. Horner, 55 N. J. Law, 84, 25 Atl. 386; Hosmer v. Hoitt, 161 Mass. 1T.1
36 N. E. 835.
7 0 ^lattoon V. Hinkley, 33 111. 208. As to the effect of the pendency of an
application for a change of venue, as preventing a default, see Anderson v.
Perkins, 52 Mo. App. 527; Pennie v. A'isher, 94 Cal. 323, 29 Pac. TIL
71 The Osprey v. Jenkins, 9 Mo. 613.
(124)
Ch, 4) JUDGMENTS BY DEFAULT. § 86
case a refusal to allow the defendant to plead, and an entry of judg-
ment as upon default, is error.'* If the defendant's plea is with-
<\T2LVfT\, the case then stands precisely as if no plea had been filed.
An appearance is entered and a want or defect of service is waived
by filing a plea in bar in the action, and if the plea is subsequently
withdrawn, that does not operate as a withdrawal of the appearance,
and the plaintiff is entitled to judgment of nil dicit at any time be-
fore another plea is filed.' ^ And in general, if the defendant aban-
dons, or fails to establish, any preliminary motion or plea, he must
seasonably avail himself of the opportunity accorded to answer to
the merits, or he will be liable to be defaulted.'* Thus, where a de-
fendant filed a motion to quash a summons, which was overruled,
and refused to appear further in the action, it was held that a judg-
ment against him, without showing an entry of default, would not
be disturbed.'* Leave to the plaintiff to amend his declaration, and
to the defendant for time to plead, is an abandonment of all exist-
ing issues, and if the plaintiff amends his declaration, and no plea is
filed to such amended declaration, the plaintiff is entitled to judg-
ment by default.' • Still it is irregular to enter judgment as for want
of an answer, where the complaint is amended after answer but no
amended answer filed, if the original answer states a defense to the
"Story V. Ware, 35 Miss. 31)9, 72 Am. Dec. 125; Farrls v. Walter, 2 Colo.
App. 450. 31 Pac. 231. Compare Higley v. Pollock, 21 Nev. 198, 27 Pac. 895.
"» Dart V. Hercules, M 111. 395; Grigg v. Gilmer, 54 Ala. 425. When de-
fendant has withdrawn his appearance, he is not entitled to notice of an appli-
cation for Judjnnent by default. Day v. Mertlock, 87 Wis. 577, 58 N. W. 1037.
'** Such is the case where defendant's answer is stricken out as sham and
frtrolous, and he unwarrantably neglects to file an amended pleading. Mc-
Mnrran t. Meek. 47 Minn. 245, 49 N. W. 983.
's McPherson v. First Nat. Bank, 12 Neb. 202. 10 N. W. 707. And see Mc-
Krtlar v. Lamkin, 22 Tex. 244; London Assur. ::orp. v. Lee, 66 Tex. 247, 18
». W. 508.
^« Robinson t. Keys, 9 Humph. (Tenn.) 144; La Barre v. City of WaterbmT,
«9 Conn. 554, 37 Atl. 1068. Compare Mulllns v. Johnson (Ky.) 52 S. W. MS.
In California, the rule is that an amendment of the complaint in matter of
nihstance opens a default. Witter v. Bachman, 117 Cal. 318, 49 Pac. 202. As
to the effect of the death of the plaintiff and the substitution of his executor,
extending the time to answer, when the defendant is already in default, see
KiUie T. Bellegarde, 80 Cal. 556, 25 Pac. 55.
(125)
§ 87 LAW OF JUDGMENTS. (Ch. 4
cau^e of action shown by the amended complaint/^ Judgment by
default, without a rule to answer, should not be entered against a
defendant where a motion to strike out a portion of the complaint
has been allowed. "We think the defendant should be regarded as
standing in the same position as though he had successfully attacked
the complaint by demurrer. Even if the order of the court and the
circumstances of the cage required no formal amendment of the
complaint, the necessity for a rule to answer would remain the
same." ^® When a default has actually been entered against the de-
fendant, he cannot escape its consequences by filing a plea or an-
swer, unless by consent of the plaintiff or leave of court.'* But a
default may be waived ; and it will be considered that this is done, if
the plaintiff subsequently permits the defendant, without objection,
to participate in the proceedings, as, by filing an answer or a de-
murrer.*®
S 87. CoBoli&ilTeneM of Ji&dsinent by Def avlt*
A judgment taken by default is conclusive, by way of estoppel, in
respect to all such matters and facts as were well pleaded and prop-
erly raised and material to the case made by the declaration, or oth-
er pleadings, and such issues cannot be relitigated in any subse-
quent action between the parties or their privies.*^ But while a de-
77 First Nat. Bank y. Prescott ^ Wis. 016. Where, In an action of assumpsit,
the general issue has been pleaded, and an amendment to the declaratlOD to
aUowed, it is error to enter Judgment by default against the defendant for
failure to answer the amended declaration. Itidgely Nat. Bank ▼. Fairbaiik,
54 in. App. 296.
76 Mullen V. Wine, 9 Colo. 167, 11 Pac. 54.
7» Irvine v. Davy, 88 Cal. 495, 20 Pac. 500; Camp v. PhiUtps, 88 Ga. 415,
14 S. E. 580. As to the discretion of the trial court in granting defendant
lejive to answer after the time, see Lichtenberger v. Worm, 41 Neb. 856, 60 N.
W. 93. And see Crane v. Crane, 121 Cal. 99, 53 Pac. 433.
^0 Cornell University v. Denny Hotel Co., 15 Wash. 433, 40 Pac. 654; Saw-
telle v. Muncy, 110 Cal. 435, 48 Pac. 387.
81 I^ouard v. Simpson, 2 Bing. N. C. 170; Oregon Ry. Co. v. Oregon Ry. &
Nav. Co. (C. C.) 28 Fed. 505; Derby v. Jacques. 1 Cliff. 425, Fed. Cas. No.
3,817; Thatcher v. Gammon, 12 Mass. 208; Briggs v. Richmond, 10 Pick.
(Mass.) 391, 20 Am. Dec. 520; Minor v. Walter, 17 Mass. 237; GaskiU t. Dud-
ley, 6 Mete. (Mass.) 540, 39 Am. Dec. 750; Newton v. Hook. 48 N. Y. 07(5:
Brown v. Mayor, etc., of City of New York, 00 N. Y. 385; McCalley v. Wil-
burn, 77 Ala. 549; Ellis v. Mills, 2S Tex. 584; Dunn v. Pipes, 20 La. Ann.
(12G)
Ch. 4) JUDGMENTS BY DEFAULT. § 87
fault 18 conclusive of all that is properly alleged in the complaint, it
is conclusive of nothing more, and as a general rule it binds the
defendant only in the character in which he is sued.** "As applica-
ble, however, to a suit to foreclose a mortgage, or other kindred
suits in the nature of a proceeding in rem, where a party is made a
defendant to answer as to his supposed or possible, but unknown or
undefined, interest in the property, we think that, as against him, a
default ought to be construed as an admission that, at the time he
failed to appear as required, he had no interest in the property in
question, and hence as conclusive of any prior claim of interest or
title adverse to the plaintiff." *• Further, a judgment by default,
regularly entered, is as binding as any other, as far as respects the
power and jurisdiction of the court in declaring the plaintiff's right
to recover, although the amount of the recovery, in some cases, may
remain to be ascertained by the assessment of damages.®^ A judg-
ment by default will also operate as a merger of the cause of action
276; Ugon v. Triplett, 12 B. Mon. (Ky.) 283; Marks v. Slgler, 3 Ohio St 358;
McOnrdy ▼. Baughman, 43 Ohio »t 78, 1 N. E. 93; Fletcher y. Holmes, 25
Ind. 458; Van Valkenburgh v. City of Milwaukee; 43 Wis. 574; Doyle v. Hal-
Itm, 21 Minn. 515; Kittridge v. Stevens, 16 Cal. 381. Infra, $ 697.
^'Unfried ▼. Heberor, 63 Ind. 67. Such a judgment. In an notion to en-
force stockholders* liabiUty, la conclusive that a defendant, duly summoned
and failing to answer, was a stockholder. Ueland v. Johnson, 77 Minn. 548,
flO X. W. 700, 77 Am. St. Rep. 698. But it la said that a judgment by default
tgainst defendants in an action wherein they were alleged to be partners,
does not establish the existence of the partnership. Baker v. Baer, 59 Ark.
503, 28 S. W. 28w Where a default is taken in a suit on a contract entered
Into irith a foreign corporation, its capacity to make the contract is admitted.
Starr Cash & Padsage Car Go. v. Starr, 69 Conn. 440, 37 Atl. 1057. Judgment
by default in an action for assessments upon property for public improvements
Is conclusive that such property was subject to assessment, and after the
lapse of 20 years will be binding even where the defendant was a municipal
eorporatioD. City of New Orleans v. Warner, 175 U. S. 120, 20 Sup. Ct. 44,
44 L. Ed. 96. So also, the allegation that money sought to be recovered was
received by defendant in a fiduciary capacity is admitted by a default and
Med not be proved. Steamship Richmond Hill Co. v. Seager, 31 App. Div.
288, 52 N. Y. Supp. 985. In fact, as stated in an lUinois decision, the entire
canae of action, except the amount of damages as stated in the declaration,
is admitted by a default. Phoenix Ins. Co. v. Hedrick, 73 lU. App. 601.
•s Barton v. Anderson, 104 Ind. 578, 4 N. E. 420.
•« Mailhoose v. Inloes, 18 3Id. 328; Green v. Hamilton, 16 Md. 317, 77 Am.
Dec 295; Loney v. Bailey, 43 Md. 10; Clark v. Compton, 15 Tex. 32; Missis-
(127)
§ 88 LAW OF JUDQMBNTfl. (Oh. 4
or bar to another suit for the same demand. Thus, where the de-
fendant offers to be defaulted for a given sum, and judgment is ac-
cordingly entered for the plaintiff for that amount, such judgment is
a bar to a subsequent action between the same parties for the same
claim.*" But this effect is attributable only to the final judgment in
the action. A judgment by default merely admits a cause of action;
but while the precise character of the cause of action, and the extent
of the defendant's liability, remains to be determined by a hearing
in damages and final judgment thereon, the cause of action is not
merged in the judgment, and the rights of the parties, beyond the
mere admission of a cause of action, are neither strengthened nor
impaired thereby.®*
§ 88. Entry by the Clerk.
Where the defendant makes default, and the nature of the action
and of the plaintiff's demand is such that there is no necessity for
judicial action in determining the relief to be granted or the amount
of the recovery, the statutes generally provide that a judgment may
be entered by the clerk of the court, without application to the
judge.*^ But in so entering judgment by default the clerk acts
merely in a ministerial capacity, no intendments can be made in sup-
port of the validity of his acts, and unless he conforms strictly to
the provisions of the statute, his proceedings will be irregular and
sippi & T. It. Co. V. Green, 0 Heisk. (Tenn.) 588; Parker ▼* House, 66 N. 0.
374.
86 riansc'om v. Hewes, 12 Gray (Mass.) 334.
•« Welch V. Wadsworth, 30 Conn. 149, 79 Am. Dec. 239.
97 See Bullard v. Shei-wood, 85 N. Y. 253; Skillman v. Greenwood, 15 Mlna
102 (Gil. 77); Bailey v. Sloan, 65 Cal. 387, 4 Pac. 349; Wall v. Heald, »5
Cal. 304, 30 Pac. 551; KitUe v. Bellegarde, 86 Cal. 556, 25 Pac. 55. On failure
of a defendant properly served to appear within the time allowed, the court
may enter judgment against him without a prior formal entry of default by
the clerk. Hibernia Sav. & Loan Soc. v. Matthai, 116 Cal. 424, 48 Pac. 370.
Where the statute provides that, if tliere is an allegation of fraud, the plain-
tiff cannot recover unless he proves the fraud at the trial. Judgment by de-
fault cannot be entered by the clerk without the intervention of the court
when the action is predicated on certain acts of defendant which are alleged
to have been done with a fraudulent intent Fayei-weather v. Tucker, 25
Abb. N. C. 395, 11 N. Y. Supp. 39.
(128)
Ch. 4) JUDGMENTS BY DEFAULT. § 89
not binding.** For instance, under a statute providing that the
flerk may enter in vacation a judgment by default upon proof of
personal service of a summons on the defendant, a judgment en-
tered out of term by the clerk, unless there is such proof, is void.**
But where the jurisdiction of the clerk to enter the judgment is not
denied, it may be made a question how far his mistakes, misprisions,
or irregular actions will impair the validity of the judgment. The
anthorities would not warrant the statement that the judgment in
such case would be entirely void. On the contrary, they hold that it
wottM be merely erroneous, and that the error could be cured by
motion in the court below or corrected on appeal. This is the posi-
tion taken with reference to cases in which the clerk, by mistake,
has entered judgment for an amount in excess of the real recovery.**
f 89. Interloeiitorj Ji&dsinent, when neoeiiary*
It is important to be noted that the entry of a default is not nec-
essarily, or not always, the final judgment in the action. In the
language of the supreme court of Vermont, "the mere entry of a
default does not involve and amount to the rendering of a final judg-
ment. The default is an incident, which entitles the plaintiff to a
judgment, but does not determine either the kind or amount of such
judgment. The rendering of the judgment is to supervene upon and
succeed the entry of the default, and may require intervening pro-
ceedings in th€ case, in order to enable the court to render such a
judgment as to law appertains." ** And the general rule is that if
the action is brought on a contract or promise for a liquidated sum
of money, or if the amount to be recovered can be ascertained by a
**Kflly V. Van Austin, 17 Cal, 564; Providence Tool Co. v. Prader, 32 Cal.
«H. 91 Am. Dec. 598; Curry v. Roundtree, 51 Cal. 184; Files v. Robinson, 30
Ark. 487; Taylor v. Smltli (Tenn. Ch.) 30 S. W. 970. Where the statute em-
ptiwens the clerk to enter judgment in actions on contracts to recover money
or damages, if defendant falls to answer, this does not authorize him to enter
Judginent by default In an action for trespass. Shay v. Chicago Clock Co.,
Ill Cal. 549, 44 Pac. 237.
»* MeConkey v. McCraney, 71 Wis. 576, 37 N. W. 822; Elder v. Gnmsky,
m Cal. 07. 59 Pac. »00.
•• Lenoir v. Broadhead's Adm'r, 50 Ala. 6S; Bond ▼. Pacheco, 30 Cal. 530.
•« Sheldon v. Sheldon, 37 Vt 162,
1 LAW jrDG.-9 (129)
§ 89 LAW OP JUDGMENTS. (Ch. 4
mere matter of calculation, then a final judgment may be at once
entered for such amount; but if the action sounds in tort,*' or
claims specific relief, or if the damages must be computed or liqui-
dated otherwise than by simple calculation,*' or depend upon evi-
dence, then an interlocutory judgment will first be entered, and the
case proceed to the assessment of damages in some method known
to the law, after which a final judgment will be rendered for the
amount so assessed. In a case of the latter kind, the prior entry of
an interlocutory judgment is important to the regularity of the pro-
ceedings, though its omission would probably not be absolutely fatal.
In a case where the record disclosed the fact that the court referred
the matter to the clerk for the assessment of damages without first
rendering an interlocutory judgment against the defendants for want
of a plea, as the law required, the appellate court said : **In this we
think there is manifest error." •* An action upon an open account
for goods sold and delivered, for services rendered, or the like, is
not upon a liquidated demand such that final judgment may be en-
tered for the amount claimed, upon failure to answer.** Nor can a
final judgment by default be rendered in an action of detinue.*' Nor
is such judgment proper upon a note pa3rable in Confederate money.
**A jury should have assessed the value of the contract [note], upon
»2 Stewart v. Bryan, 121 N. 0. 46, 28 S. B. 18; Studdert v. HasseU, 6
Humph. (Tenn.) 137; Wilson v. Dawson, 96 Va. 687, 32 S. B. 461.
08 Holmes y. Lewis, 2 Wis. 83; Kenum y. Henderson, 6 Ala. 132: Gooley
v. Tybee Beach Co., 99 Ga. 290, 25 S. E. 691; Paucette y. Ludden. 117 N. C.
170, 23 S. E. 173; In re Scharmann, 49 App. Diy. 278, 63 N. Y. Supp. 267;
City of Guthrie v. T. W. Harvey Lumber Co., 5 Okl. 774, 50 Pac. 84.
0* Wilcox v. Field, 1 Colo. 3. But In a later ease it is said that a default
may be recited and entered against a defendant who does not plead, as well
at the time of the rendition of the final Judgment as before. Manvllle v.
Parks, 7 Colo. 128, 2 Pac. 212. In lUinols, where no plea is filed in an action
of assumpsit, and the defendant Is absent, It Is error to impanel a Jury and
assess damages without default first taken and entered. Lehr y. Vandeveer,
48 III. App. 511.
»o Woif y. Hamberg, 8 S. C. 82; Rogers y. Moore, 86 N. 0. 85; Jenkins v.
WMlkerson, 76 Miss. 368, 24 South. 700. Where the cause of acticm Is for
fiervices rendered as an attorney, but no fixed sum Is alleged to have been
iigreed on, an Inquiry of damages must be. had upon defendant's default
Skinner y. Terry, 107 N. C. 103, 12 S. E. 118.
»« Studdert y. HasseU, 6 Humph. (Tenn.) 137.
; (130)
Ch. 4) JUDGMENTS BY DEFAULT. S ^^
a writ of inquiry, before the judgment was made final." '^ On the
other hand, a demand founded upon a simple promissory, note for
a sum certain, not expressed to be payable otherwise than in lawful
money, will warrant a final judgment upon defendant's default.®*
And the same is true of a claim for sums alleged to have been ex-
pended by a mortgagee to protect his security, as, for taxes,'* and
of a claim by a municipal corporation against a tax collector and his
sureties upon the official bond.**'
In some of the states, under statutes authorizing constructive serv-
ice of process by publication in certain cases, it is provided that an
interlocutory judgment by default shall be entered upon the defend-
ant's failure to appear, which can only be made final at the succeed-
ing term of court.^** There is one other instance in which an inter-
locutory judgment should precede the entry of final judgment by de-
fault in an action, viz: upon the overruling of defendant's demurrer
(in certain cases) or dilatory plea. Here the practice is to give judg-
ment that he "answer over," after which, and on his failure to plead
to the merits, he may be defaulted. But if the record shows that
the defendant had an opportunity to answer over and refused to do
so, judgment by nil dicit is good, without an entry of a formal judg-
ment of respondeat ouster.^**
§ 90* Aflieiiment of Dainas^**
After the interlocutory judgment by default has been entered in
an action for unliquidated damages or an unascertained sum, the
next step is to assess the plaintiff's damages. This process, as fol-
lowed at common law, consisted of the execution of a writ of in-
•7 WUUams v. RockweU, 64 N. C. 32S.
•• Georgia Railroad & Banking Co. y. Pendleton, 87 Ga. 751, 13 8. E. 822.
Compare Kaiser v. Brown, 98 Ga. 10, 25 S. E. 925; Tbomas v. American Free-
bold Land & M. Co. (C. C.) 47 Fed. 550, 12 L. R. A. GSl. A note containing
a stipulation for attorney's fees will support a Judgment by default which in-
cludes such fees, without a writ of inquiry. Ledbetter & Co. Land & Loan
Ass'n T. Vinton, 108 Ala. 014, 18 South. 692.
»• Cbwles V. CowJes. 121 X. C. 272, 28 S. E. 476.
* !•• Combs T. Breathitt County (Ky.) 38 S. W. 13a»
101 Lombard v. Clark. 33 Mo. 308. •
i«s llsildeuian t. Starrett, 23 ill. 393.
(131)
§ 90 LAW OP JUDGMENTS. (Ch. 4
quiry, whereby the sheriff was directed to summon a jury of twelve
men, over which he should himself preside, and proceed to assess
the amount of damages sustained by the plaintiff. The verdict be-
ing given, the sheriff returned the inquisition, which was entered
on the roll in the manner of a postea, and thereupon judgment was
rendered that the plaintiff should recover the exact sum of damages
so assessed.*®' This common-law metjiod is greatly modified, in the
different states, by variations of local practice. In few, if any, is
the writ of inquiry still executed by the sheriff; in some, no such
writ issues, but the order for assessing damages is executed in court,
by the judge, with or without the aid of a jury, or by a referee or
auditor.^** The important question is as to the constitutional right
of trial by jury. Under the clause found in many of the state con-
stitutions, providing that in suits at common law, where the value
jn controversy exceeds a certain sum, the right of trial by jury shall
be preserved, it has been held that the defendant has an absolute
and indefeasible right, guarantied by the constitution, to demand that
the question of damages be tried by a jury.*®' There is, however,
reasonable ground for the theory that the defendant, by suffering a
default in the first instance, has voluntarily renounced his right to
have a jury called in any of the proceedings in the action.*®*
io« See Hickman v. Baltimore & O. R. Co., 30 W. Va. 290, 4 S. E. 654.
104 For the practice In the several states, and particularly as to the assess-
ment being made by the court or by a Jury, see Rowen v. New York, N. H.
& H. R. Co., 59 Conn. 3G4, 21 Atl. 1073; Falken v. Honsa tonic R. Co.. 6:i
Conn. 258, 27 Atl. 1117; Thompson v. Fox. 21 Misc. Rep. 2t)S. 47 N. Y. Supp.
17G; Commercial Union Assur. Co. v. Everhart's Adni'r, 88 Va. 952, 14 S. E,
.S3C; McLeod v. Nimocks, 122 N. C. 437, 29 S. E. 577; Allen v. Lftthrop-
Hatton Lumber Co.. 90 Ala. 490, S Sonth. 129; Decatur & N. Imp. Co. v.
Crass. 97 Ala. 524, 12 South. 41; Ross v. Noble, G Kan. App. 361, 51 Pac. 7trJ;
Coleman v. Floyd, 131 Ind. 330, 31 N. E. 75; Haley v. Eureka County Bank.
21 Nev. 127, 26 Pac. 64. 12 L. R. A. 815. Where defendant is dlssattefied
with the assessment of damages on a default, his remedy is by motion to
correct the assessment. Riely v. Barton, 32 111. App. 524.
106 Hickman v. Baltimore & O. R. Co., 30 W. Va. 296, 4 S. E. f.54.
106 Hopkins V. Ladd, 35 III. 178; Seeley v. City of Bridgeport. 53 Conn. 1,
22 Atl. 1017; Raymond v. Danbury & N. R. Co.. 43 Conn. 596, Fed. Cas. No,
ii..m^.
(132)
Ch. 4) JUDGMKNIS BY J>fif AULT. & 91
I 01. Erideiuye on AiieMinent of Damasei*
A default admits the cause of action and the material and travers-
able averments of the declaration, although not the amount of dam-
ages; and upon the proceeding for their assessment, the amount of
damages is all that the plaintiff is required to prove or the defendant
is permitted to controvert.*®' The former must produce whatever
evidence is necessary to fix the amount of his claim with precision.
Thus a judgment by default in assumpsit, where an account is filed
in the declaration, is an admission of indebtedness for the articles
charged, but the value of the articles and the amount of the items
require to be proved.*®* As for the defendant, he may offer any
evidence which is confined to the question of damages solely or
which goes in mitigation or reduction of damages ; but evidence
tending to deny the cause of action, or to show that a right of action
does not exist, or to avoid the alleged contract, is irrelevant and
inadmissible.***
lOT WiUflon V. Willson, 25 N. H. 229, 57 Am. Dec. 320; Rufis v. GHbert, 19
Fk. 54; Maund v. Loeb, 87 Ala. 374, 6 South. 376; Union Cent Life Ins.
Ca v. Lipbcomb (Tex. Civ. App.) 27 S. W. 307; Slater v. Skirvlng, 51 Neb.
loa 70 X. W. 493. 66 Am. St'Rep. 444; Martin y. New Yoik & N. E. B. Co.,
62 Conn. 331, 25 Atl. 239. But In Florida, it is said that it is error to render
fiiuil judgment after a default entered in a suit on a bond without production
of the bond or proper evideuce of It. West v. Fleming, 36 Fla. 298, 18 South.
087.
io» Patrick v. Kidgawny, 4 Har. & J. (^£d.) 312; Durden v. Carhart, 41 Ga.
76w
i**The defendant has the right to cross-examine the plaintiff's witnesses
and interpoise objections to evidence. St. Louis S. W. R. Co. v. Denson (Tex.
CiT. App.) 26 S. \V. 265; Davis v. Wimberly, 86 Ga. 46, 12 S. B. 208. He may
aliK) offer any evidence which goes In mitigation or reduction of damages, but
cjinnot have the benefit of a set-off or counterclaim, or other ground for the
reduction of damages, unless it necessarily arises from the facts pleaded by
tlie plaintiff. Regan v. New York & N. E. R. Co., 60 Conn. 124, 22 Atl. 503,
25 Am. St. Rep. 306. And he cannot introduce evidence controverting the
plaintiff*? entire cause of action, or tending to avoid it, or to show that no
right of action existed. Phillips v. Bachelder, 47 Mo. App. 52; Garrard v.
Dollar, 49 N. C. 175, 67 Am. Dec. 271; Foster v. Smith, 10 Wend. (N. Y.) 377;
Umbert v. Sanford, 55 Conn. 437, 12 Atl. 519; Lee v. Knapp, 90 N. C. 171.
Thus, be cannot defend on the ground that the contract was within the stat-
ute of frauds. Williams v. Crosby Lumber Co., 118 N. C. 928, 24 S. E. 800.
But in Connecticut, a statute permits the defendant to notify the plaintiff of any
(133)
§ 92 LAW OF JUDGMENTS. (Ch. 4
I 02« Amoimt of tli'9 Heeoverj.
A judgment by default for a sum greater than that prayed for in
the complaint is irregular and erroneous.**® And, generally speak-
ing, where the prayer is for specific relief, the plaintiff is confined
to a recovery in strict accordance with what he has asked for.*" If
a plea admits a part of the debt sued for, without a tender, the
plaintiff may take judgment by nil dicit for such amount.*** A
judgment by default on a note, upon which is an indorsement of a
credit by the plaintiff, ought to be entered subject to such credit."'
In an action against joint defendants, where one suffers default, but
the other proceeds to trial and secures a general verdict against the
plaintiff, this is equivalent to a finding that nothing is due from the
defaulted defendant, and no judgment can be entered against him.*"
special defense to be set up on a hearing in damages on default; and tbis
enables him to avail himself of the defense of res judicata. Brennan v. Ber-
lin Iron-Bridge Co.. 73 Conn. 479. 42 Atl. 625. See. also. Ockershnusen v. New
York, N. H. & H. R. Co., 71 Conn. 617, 42 Atl. 650; Gardner v. City of New
Loudon, 63 Conn. 267, 28 Atl. 42.
110 Gage V. Rogers, 20 Cal. 91; White v. Snow, 71 N. C. 232; Johnson v.
Mantz, 69 Iowa, 710, 27 N. W. 467; Northern Trust Co. v. Albert I^ea College,
68 Minn. 112, 71 N. W. 9: Reidy v. Bleistift, 31 Misc. Rep. 181. 63 X. Y. Supp.
974; Bast v. Hysom, 6 Wash. 170. 32 Tac. 997. Where the complaint de-
mands judgment for the principal of a debt and the costs^ a judgiuent which
includes interest, as well as the debt and costs. Is erroneous. Pickett v.
Handy, 9 Colo. App. 357, 48 Pac. 820. But the clerk has authority to add to
the amount due on a note the sum therein stipulated to be paid for attorneys'
fees, if within the amount demanded in the summons. Alexander y. McDow.
108 Cal. 25, 41 Pac. 24.
111 Burling v. Goodman, 1 Nev. 314; Nortliern Trust Co. v. Albert Lea
College, 68 Minn. 112, 71 N. W. 9; Parszyk v. Mach, 10 S. D. 555, 74 X. W.
1027. Where the complaint only seeks subrogation of plaintiff to the right of
another defendant in a Judgment, plaintiff is not entitled, on default of the
defendant, to a personal judgment against him. Heins v. Wicke, 102 Iowa.
396, 71 X. W. 345. But it has been held that, where the action is on a note
and mortgage, the court may, on default, give judgment for foreclosure of
the mortgage, though plaintiff has only asked for a personal judgment for the
amount due. Weaver v. Gardner, 14 Kan. 347.
112 Williams v. Harris, 2 How. (Miss.) 627. See Allen v. Watt, 69 111. 655.
118 Rees V. Conococheague Bank, 5 Rand. (Va.) 326. 16 Am, Dec. 755.
11* Hay den Saddlery Hardware Co. v, Ramsay, 14 Tex. Civ. App. 185, 36
S. W. 505.
(134)
I
Cb. 4) JUDGMENTS BY DEFAULT. § 94
i 93. Jvdsmeiit by Default not aided by Preswptioiit.
In several states it is held that on appeal from a judgment by
default, nothing will be presumed in its favor ; the record must show
afiinnatively the existence of every material fact to give the court
jurisdiction, and that all the proceedings were in accordance with
law.*" "It is a well settled rule of practice that where a judgment
is taken by default against a defendant in ^n action, the record must
affirmatively show that process had been duly served the required
length of time before the default was taken." *^*
i 94. OpeaiitK and VaeatinK Jndgineiits by Default.
A judgment taken against a defendant by default will be opened
or set aside, on his motion, in the court wherein it was entered, for
a failure of jurisdiction or for certain classes of errors and irregu-
larities ; and also, by statute in some of the states, when it was given
in consequence of his "mistake, inadvertence, surprise, or excusable
neglect." But in respect to the exercise of this power, judgments
by default are not differentiated from any other species of judg-
ment, except in so far as certain special statutes are applicable to
them, and except that practically they constitute by far the largest
class of cases in which applications for such relief are made. And
for this reason it is not proposed to examine the subject in detail
in this connection, but the reader is referred to the later chapters
of this work in which the vacating and opening of judgments in
general will be fully discussed.**^
"5 Hudson V. Breeding, 7 Ark. 445; Elligood v. Cannon, 4 Har. (Del,) 17«;
Tonuoly t. Alabama & T. R. R. Co., 29 Ala. 373; Schloss v. White, 16 Cal.
•-"n But in Proulx v Stetson & Post Mill Co., 6 Wash. 478, S3 Pac. 1067,
it is said that the ordinary presumption of regularity in the proceedings of
a court (ft general Jurisdiction applies in the case of a Judgment by default.
And lu Florida, it appears that, -where a final Judgment entered by the cler\i:
on a default is not void on its face, but voidable only, because of matters
dehors the judgment, it becomes an absolute verity after the lapse of 60 days
frum the entry of the default, unless set aside or reversed by an appellate
court. Einstein v. Davidson, 35 Fla. 342, 17 South. 563.
1" E]t2Totb V. VoriB, 74 Ind. 459.
iH jsee infra, «« 2U7-355.
(135)
§ 9d LAW OP JUDOMENTfl. (Ch. 4
S 95. Review •£ Jvdcments ¥y
An appeal will lie from a judgment entered upon the default of
the defendant, in a proper case, as well as from any other judgment.
**There may be error in a judgment by default, as well as in a judg-
ment rendered upon issue joined in the pleadings and tried by a
jury, and in the former, as well as in the latter case, the error may
be corrected on appeal." ^^® We have already seen that such a judg-
ment will be reversed when founded upon a pleading which docs
not state a cause of action.^^* And it remains to be stated that the
appellate court has power to deal with it and to correct or reverse
it on acco int of a failure to comply with the statutory directions,
or mistakes of the cour- c: clerk, or any errors or irregularities
whicH would vitiate a judgment otherwise rendered.
118 Stevens v. Ross, 1 Cal. 94; Gerhart t. Fout 72 Mo. App. 138. Bnt In
New York, the statute restricts the right of appeal to parties not in default:
and consequently the remedy of one aggrieved by an invalid judgment by
default is by motion to have it corrected. Park v. Park, 24 MIbc. Bep. 3?A
33 N. Y. Supp. 677.
11 » Supra, § 84.
(136)
Cb. 5} ARsuuT ov jv0eifBiit» S 96
CHAPTEB V.
AUKESX OP JUDGMENT.
i SW.^ Arrest of Judgment at Common I^w.
\9^. Wbeu the Motion slioold be mnde.
U8. <vroundft (or Arrest of Judgment
W. Defect of Parties.
11)0. insntllclent or Faulty Pleadings.
101. Joinder of Good and Bad Counts.
1U2. Misjoinder of Causes of Action.
103. Objections to the Jury.
104. Irregular or Defective Verdict
105. Grounds held insufficient
I 96b Araesi of Judgammmt at Common I«aw.
The arrest of judgment is defined as the withholding or staying
of judgment, notwithstanding a verdict has been given, on the ground
that there is some error appearing on the face of the record which
vitiates the proceedings.^ But the errors which will justify a motion
in this behalf must be errors of substance, and not merely clerical or
formal mistakes. . If they belong to the latter class, they will be
cured by the statutes of amendments and jeofails, which have intro-
duced a much more liberal practice in this respect than had formerly
obtained. According to Blackstone, "arrests of judgment arise from
intrinsic causes, appearing upon the face of the record." And he
enumerates the grounds which will be sufficient to prompt this action
of the court, as follows : — where the declaration varies totally from
the original writ ; where the verdict materially differs from the plead-
ings and issue thereon ; and where the case laid in the declaration is
not sufficient in point of law to found an action upon." In this
countr)', motions in arrest of judgment, at least in civil cases, are not
especially favored. The liberality of the statutes and the indulgence
»BouT. Law Diet.; Brown, f-aw Diet., citing Steph. PI. 106; Roscarla v.
lliomas. a Jur. U2U.
»3 Bl. Comm. :iU3. Also, the ohjectlcn that thp Judfnnent Is not in con-
ft'imitj with the verdict may he made by motion In arrest. Lee v. Wilkins,
<^ Mo. App. ITj^.
(137)
§ 97 LAW OP JUDGMENTB. (Ch. 5
of the courts, in permitting amendments, and in taking defects as
cured by the verdict if not duly objected to, have taken away most of
the grounds on which a motion of this character could be predicated,
and this reduction is still further promoted by the facility of obtaining
new trials.^ Indeed, a motion in arrest of judgment is now usually
coupled with a motion for a new trial, the latter being the real and
important object of the application. And hi some of the states the
practice of arresting judgments is entirely abolished. In Maine, for
example, it is, provided by law that no motion in arrest of judgment
in any civil action shall be sustained in the courts of that state.* It
is of course only the defendant who can move in arrest of judgment.
If the defendant has obtained a verdict upon a plea which confesses
the cause of action and does not sufficiently avoid it, the proper
course for the plaintiff, as we have already seen, is to move for judg-
ment non obstante veredicto.' A joint motion by several defendants
in arrest of judgment cannot be sustained as to a part only.' A mo-
tion in arrest of judgment need not be in writing, nor point out the
grounds therefor, nor need it be brought into the record by bill of
exceptions^
I 97* When the Motion should be made*
By the English practice, a motion in arrest of judgment may be
made at any time before judgment is actually entered up. In the
absence of statutes, it is probable that a similar rule would be applied
in our own courts. But at all events it seems clear that a motion of
this kind cannot be granted after the rendition and entry of a final
judgment in the cause ; at that stage the only remedy is by motion
to vacate or set aside the judgment.® But where the law provides
« See Virginia & T. Coal & Iron (3o. v. Fields, 94 Va. 102, 26 S. E. 426.
* Inhabitants of Stetson v. Inhabitants of Corrlna, 44 Me. 29; Rev. 8t.
Me. c. £j2. § 31. In Illinois, a statute provides that Judgments shall not
be arrested because of any mispleading, discontinuance, or misjoining of the
issue, or any default or negligence by which neither party has been preju-
diced. Kev. St. 111. c. 7, § (5. See Mayer v. Brensiuger, 180 111. 110, M X
E. 159, 72 Am. St. Rep. 19«.
B Supra, § 16.
• Van Gundy v. Cm ripan, 4 Ind. App. 333, 30 N. E. 933.
7 Chicago & S. E. Ry. Co. v. Wheeler, 14 Ind. App. 02. '2 N. E. 45D.
8 State V. Kibling, 03 Vt 636, 22 AtL 613; Keller v. Stevens, 66 Md. 132.
(138)
Ch. 5) ARREST OF JUDGMENT. § 98
that the motion may be made at any time before the adjournment of
the term at which the case is finally disposed of, it is held that the
defendant's right to so move will not be defeated by the entering up
of a judgment by the plaintiff on the record before the adjournment of
such term.' In some states it is provided that a motion in arrest
shall be made within four days of the rendition of the judgment ; and
when this is the case, the motion is too late if filed after the final
adjournment of the term at which the judgment is entered.^® It is
held to be the correct rule of practice not to entertain a motion in
arrest of judgment after the overruling of a demurrer to the declara-
tion, at least where the motion is based on any exceptions which
might have been considered on the demurrer ; ** and clearly, mai-
ler which was objected to by demurrer and decided upon cannot
afterwards be urged in arrest of judgment. ^^ But a motion of this
character may be received after a decision on a motion for a new
trial.**
I 98. Oronndfl for Arrest of Jndgineiit*
As a general rule, a judgment can be arrested only for some mat-
ter appearing, or the omission of some matter which ought to ap-
pear, on the face of the record itself.** And for the purpose of such
6 AtL 533; Colchen v. Ninde, 120 Ind. 88, 22 N. R 94; Potter v. McCk)rmack,
127 Ind. 439, 26 N. E. 883; Bay less y. Jones, 10 Ind. App. 102, 37 N. E. 421;
Smitli V. State. 140 Ind. 343, 39 N. E. lOGO; Barnhart v. Edwards (Cal.) 57
I'ac. 1004.
• Hartridge v. Wesson, 4 Ga. lOL
Instate y. JLeatbers, 61 Mo. 381.
" Rouse V. Peoria County, 2 Oilman (111.) 99; Independent Order of Mutual
Aid V. Paine, 122 111. 625, 14 N. E. 42; Chicago & E. I. R. Oo. v. Hines, 132
IlL i61, 23 N. E. 1021, 22 Am. St Rep. 515; Indiana & I. S. R. Co. v. Samp-
son, 31 111. App. 513; Crown Coal & Tow Co. v. Yoch Coal Mln. Co., 57
IlL App. 66C; Mayer y. Lawrence, 58 lU. App. 194; Story & Clark Organ
Co. y. Uendleman, 63 lU. App. 123; Miller y. McCormick Harvesting Mach.
Co.. lA llL App. 571.
« Oeeman y. Camden, 7 Mo. 298; Chicago & A. R. Co. y. Clausen, 173
111 100, 50 N. E. 680; Qeveland, C, C. & St. L. Ry. Co. v. Jenkins, 70 111.
Ai»p. 415; Chicago & A. R. Co. v. Pearson, 82 lU. App. 605.
n Wilkiiiflon y. Daniel, Wright (Ohio) 368.
i« Burrows y. Mblack, 28 a C. A. 130, 84 Fed. Ill; Xoyes y. Parker, 64
Vt 379^ 24 Atl. 12; Ward v. Lakeside Ry. Co.. 20 Pa. Co. Ct. R. 494; Burnett
y. K»nund, 2 .Nott & McC. (S. C.) 4'^; Watt's Case, 4 Leigh (Va.) 672: Gerllug
(139)
«
§ 98 LAW OF JUDOMENTS. (Cb. 5
a motion, the evidence does not constitute a part of the record."
"A motion in arrest of judgment reaches only such defects as arc
apparent on the face of the record, and as are not cured by the verdict
or some statute of amendments, or waived by failing to demur." "
This motion, in other words, *'does not perform the office of calling
the attention of the court to rulings which constitute matters of ex-
ception. It can not, therefore, be used as a substitute for a motion
for a new trial. It reaches only those defects which are apparent on
the face of the record proper, and does not reach such as require
to be brought to the notice of the court by proof aliunde." *^ Much
less, of course, can such a motion be supported by matter which be-
comes part of the record after the motion has been overruled."
It is stated to be an invariable rule, with regard to the arrest of judg-
ment, that whatever is alleged for this purpose must be such matter
as would, upon demurrer, have been sufficient to overturn the action
V. Agricultural Ins. Co., 39 W. Va. 689, 20 S. B. 691; State v. George, 30 N.
C. 324, 49 Am. Dec. 3J>2; State v. Douglass, 63 N. C. 500; Brown v. Lee,
21 Ga. 159; Gamer ▼. State, 42 Ga. 203; Frank y. State. 39 Miss. 705; State
V. Addison, 15 La. Ann. 185; State v. Green, 43 La. Ann. 402, 9 South. 42;
Case y. State, 5 Ind. 1; McGiU v. Rothgeb, 45 111. App. 511; McCarty y.
O'Bryan, ""7 Mo. 5H4, 38 S. W. 456; Elsenrath y, Kallmeyer, 61 Mo. App.
430; Floyd v. Colorado Fuel & Iron Co., 10 Colo. App. 54, 50 Pac 864.
"Burrows v. Mblack, 28 C. C. A. 130, »4 Fed. Ill; Clary y. Hardeeville
Briok Co. (C. C.) 100 Fed. 915; Ward y. Lakeside Ry. Co., 20 Pa. Co. Ct
K. 494; lYow v. Thomas, 70 Vt. 580, 41 Atl. 652. After verdict on a moUoa
in arrest of judgment, the court will presume that every material fact al-
leged in the declaration, or fairly inferable from what is alleged, was proved
on the trial. Herman Berghoff Brewing Co. y. Przbylski, 82 111. App. 361.
i« Balllett y. Humphreys, 78 Ind. 388. See Sanner y. Sayne, 78 Ga. 467,
3 S. E. 651; Court of Probate v. Sprague, 3 R. I. 205.
17 White y. Caldwell, 17 Mo. App. 691. In passing upon a motion in ar-
rest, .it is not allowable for the judge to inyoke his recollection as to what
occurred at the trial. City of Washington y. Calhoun, 103 Ga. 675, 30 S. E.
434. r^or can a motion in arrest be aided by statements of the adverse
party's counsel. Taylor y. Corley, 113 Ala. oSO, 21 South. 404. In an action
to rescind a deed for fraudulent representations as to incumbrances, the
fact that the incumbrance has been paid off before trial cannot be consid-
ered on motion in arrest of judgment. Moore y. Cross, 87 Tex. 557, 29 S.
W. 1051.
18 Heward T. State, 21 Miss. 261; Bull y. Mathews, 20 B. L 100, 37 AtL
536.
(140)
Ch. 5) ARREST OF JUDGMENT. f 99
or plea.** That is, motions in arrest are governed in general by the
principles applicable to demurrers, and no greater indulgence is
shovni to the defendant, in respect to his objections thus urged, than
if they had taken the shape of a demurrer. In fact, as a consequence
of the statutes of amendments and the doctrine of cure by verdict,
much greater severity is shown to motions in arrest. So that it is
by no means true that any thing which would have supported a
demurrer will be good ground for arresting the judgment. "Excep-
tions that are moved in arrest of judgment must be much more mate-
rial and glaring than such as will maintain a demurrer, or, in other
words, many inaccuracies and omissions, which would be fatal if
early observed, are cured by a subsequent verdict, and not suffered,
in the last stage of a cause, to unravel the whole proceedings." *•
i 09. Defect of Partiefl.
The objection that there is a defect of parties cannot be raised by
motion in arrest of judgment, but only by demurrer or answer, and
it is waived by going to trial without exception.** So a misjoinder
of parties as plaintiffs is no ground for arresting the judgment.**
Neither is an objection that some of the defendants are non-resi-
dents.** And where an action was pending in the name of a firm,
as plaintiffs, in the style of L. & Co., and L. died before the trial,
and the names of the other partners did not appear of record, it was
1* Washington & B. Tompike Koad t. State, 19 Md. 239; State v. James,
2 Bay (8. C.) *21o; Sedgwick v. Dawklns, 18 Fla. 335.
>• 3 Bl. Comm. 3&M.
*» RonfiCger ▼. Lindenberger, 53 Mo. 304; Yonley v. Thompson, 30 Ark.
3yj»: Thompson v. Kimbrough, 23 Tex. Civ. App. 350, 57 S. W. 328; Crouoh
T. Uance, «2 Mo. App. 25; Chandler & Taylor Oo. t. Norwood, 14 App. D.
C 357.
" Little Rock & Ft. Smith R. Co. v. Dyer, 35 Ark. 300; Demerltt v. Mills,
69 X. H. 18. But In an early Massachusetts case. In case by husband and
wife against defendant for driving his horse and chaise against the plain-
tilTa chaise, by which the wife was thrown out and injured, it was alleged
that the husband had lost the labor and comfort of his wife, and had been
pat to great expense in her cure, etc., and after verdict for the plaintiff,
judgment was arrested, because injuries were charged in the action for which
huKband and wife coul^ not be joined. Barnes v. Hurd, 11 Mass. 59.
ss Washington &, S. U. Tel. Co. T. Hobson, 15 Grat. (Va.) 122.
(141)
S 100 LAW OP JUDaMENT& (Ch. 5
considered that this furnished no ground for a motion in arrest of
judgment, the death itself not being shown by the record.'* Xor
will judgment be arrested because of an ordinary mis-spelling of a
party's name.*' On the other hand, where an objection of this char-
acter is supported by the face of the record, it may in some instances
be adequate ground for arresting the judgment. Thus, where the
law requires that suits shall be brought in the name of the real party
in interest, a motion to arrest a judgment in favor of the assignor of
a note "to the use of" the assignee should prevail.**
i 100. Insiiffloieiit or Faulty Pleadlnc^
A motion in arrest of judgment must be founded on matter of rec-
ord ; and if the declaration or complaint contains a substantial cause
of action, the judgment will not be arrested on account of an irregu-
larity or defect which is amendable, or which has been waived by
appearance or going to trial.*^ In other words, if the plaintiffs
manner of stating his title or setting out his cause of action be objec-
tionable and defective, though the title itself appears to be good in
law, advantage must be taken of the defect before a verdict is ren-
dered. But if, giving him the benefit of all intendments and infer-
ences, the title or cause of action itself appears from the declaration
to be defective and bad in law, so that his averments do not make out
a substantial ground of suit, then judgment will be arrested on the
defendant's motion ; because such a defect cannot be cured by verdict,
and the court cannot presume that a cause of action was proved
where aone was stated.** An admirable illustration of this rule is
«* RouDtree v. Lathrop, 69 G a. 53t).
25 Toledo, W. & W. Ky. Co. v. Ingraham, 77 Ul. 309.
seHutchings v. Weems, 35 Mo. 285.
S7 Parker's Adm'r y. Abrams^ 50 Ala. 35; Lester v. Piedmont & Arlin^on
Life Ins. Co., 55 Ga. 475; Bpahr v. Nicklaus, 61 Ind. 221; Merritt v. Dearth,
48 Vt. 65; Louisville & N. R. Co. v. Ward, 10 C. 0. A. 166, 61 PW. 827.
" Bedell v. ^5tevens, 28 N. H. 118; Gould v. KeUey, 16 N. H. 551; Jaccard
V. Anderson, 32 Mo. 188; Smith v. Curry, 16 lU. 147; Pbllaon v. Bamp-
field's Adm'r, 1 Brev. (S. C.) 202; Seelye v. People, 40 lU. App. 449; Illinois
Live-^tock Ins. Co. v. Kirkpatriek, 61 111. App. 74; Plerson y. ladependeot
School Dist., 106 Iowa, 695, 77 N. W. 49i; Johnson v. MUler, 82 Iowa, 693.
48 X. W. 1081, 31 Am. St Rep. 614; Consolidated Canal Co. v. Peten (Arix.>
4U I'ac. 74. In Town of Walpole v. Marlow, 2 N. H. 385, the role is thus
(142)
Cb. 5) ARREST OF JUDGMENT. § 100
furnished by a recent decision in Indiana, where an action was
brought under a statute which provided that the personal representa-
tive of one killed by. the wrongful act of another might maintain an
action therefor in his own name for the benefit of the widow and chil-
dren, or next of kin, of the deceased. The petition in this case failed
to allege the existence of any widow, children, or next of kin, and it
was held that a motion in arrest of judgment was properly sustained,
because the existence of persons beneficially interested was essential
to the plaintiff's suit, and without that allegation his petition did not
disclose a cause of action.^* But in stating that a judgment will be
arrested if the petition fails to disclose a cause of action, reference
is of course made to substantial and not formal omissions. The lat-
ter are supplied by intendment, and will be presumed after verdict to
have been proved. If the defects are merely of omission, and if, when
supplied, a complete case would be made out, the omission being of
facts which the jury must have found, then the judgment is a legiti-
mate sentence of the law.** Thus judgment will not be arrested,
ttited by CHief Justice Richardson: If tbe titie stated In the declaration
be defective, the Judgment must be arrested; but if the title be defectively
ttated, the defect is cured by verdict. The true distinction between tbe
two is this: When any particular fact is essential to the validity of the
pltlDtiirs title, if such fact is neither expressly stated in the declaration, nor
necessarily impUed from the facts which are stated, the title must be con-
sidered as defective and Judgment must be arrested; but if such fact, al-
tliongh not expressly stated, be necessarily impUed from what is stated, the
title must be considered as only defectively stated, and the defect is cured
by verdict
>• Stewart v. Terre Uaute & L K. Co., IQS Ind. 44, 2 N. E. 208. So also,
in an action against a railroad company for klUing a horse, the jurlsdic-
tlonal defect of failing to allege that it was kiUed in the county where the
action is brought may be reached by motion in arrest of judgment. Louis-
Tine; N. A. & C. Ry. Co. v.. Johnson, 11 Ind. App. 328, 36 N. E. 766; Chi-
ctgo ft S. E. Ky. Co. V. Wheeler, 14 Ind. App. 62, 42 N. E. 489.
••Saulsbnry v. Alexander, 50 Mo. 142; SewaU's Falls Bridge v. Fisk,
25 X. U. 171; Uugoes v. Fnim, 41 W. Va. 445, 23 S. E. 604. A motion in
Mmtt of Judgment will not extend to such defects in the complaint as are
cored by verdict or the finding of the court. Powell v. Bennett, 131 Ind.
465, 80 N. E. 618; Bayless v. Jones, 10 Ind. App. 102, 37 N. E. 421. An
cmlsBloa of the fonnal concluding words of a pleading cannot be taken ad-
vantage of by a motion in arrest of Judgment. Stearns v. Steams' Adm*r,
^^ Vt 978; District of Columbia v. Eaton, 13 App. D. a 182.
(143)
§ 100 LAW OF JUDOMBNTB. (Ch. 5
after verdict, for any defect in pleading which would not hare been
fatal on general demurrer ; nor then, if the court can presume the
defect to have been supplied by proof before the jury.** Further,
upon a motion of this kind, the plaintiff is entitled to the benefit of any
legitimate inference or intendment that can be brought to bear upon
the allegations of his declaration. Hence the rule that judgment will
not be arrested for lack of an essential averment in the declaration
which is contained by implication in the averments used, or which
may be considered to have been proved as a part of what is al-
leged." On a motion in arrest the whole record is before the court,
and where a defect in the petition is waived of record by the defend-
ant, the motion will not be granted on account of such defect.'*
Aside from the question of omissions, the general rule also jM'escribes
that irregularities or informalities m the manner of setting out the
cause of action are not open to exception after verdict. As an illus-
tration of this, it is held that an objection that the complaint, in an
action for damages for breach of contract, treats each breach as a
separate and independent cause of action, and sets forth the same in
a distinct count, is not available upon a motion in arrest of judg-
ment.'* Nor need the plaintiff anticipate defenses; it is no cause
for arresting judgment that the declaration on its face shows the
cause of action to have been barred.** Nor that the complaint only
warrants a recovery of nominal damages.** So again, a traverse by
one party of matter not alleged by the other, in addition to the mat-
ter properly in issue, is mere surplusage and not a ground of arrest.*'
31 Hippins v. Boffan, 4 Har. (Del.) »aO; Woods v. State, 10 Mo. eW; Machon
V. Handle, «($ Tex. 282, 17 S. W. 477.
32 Rea V. Harrington, 58 Vt. 181, 2 Atl. 457, 56 Am. Rep. 561 (citfng Mowy
V. Homan, 10 Vt. 7Ai^; Curtis v. Burdlck. 48 Vt. 166); IBedell v. Stevens.
28 N. H. 118; Edpciiy v. Kinerson, 23 N. H. 555, 55 Am. Dec. 207.
ssAuld V. Butcher, 2 Kan. 135.
3* Pickering v. MlssiRsIppl Val. Nat. Tel. Co., 47 Mo. 457. And see Baden
V. Clarke, 1 GUI (Md.) 165. So the fact that the praecipe Is In trespass and
the declaration In rase Is no ground for arrest of Judgment. Homan ▼• Flem-
ing, 51 111. App. 572.
8 8 Allen V. Word. 6 Humph. (Tenn.) 284.
3« Reagan v. Fox. 45 Iml. 8.
•7 Robhins v. AVolcott, lU Conn. 356,
(144)
Ch. 5) ARREST OF JUDGMENT. § 101
Nor can the question of the propriety of allowing an amendment to
be made in the pleadings be reached on motion in arrest.*'
S 101. Joinder of Good aj&d Bad Countfl.
In regard to the misjoinder of counts in a declaration, or the join-
der of good and bad counts, the English rule is stated to be as fol-
lows: Where general damages are found on a declaration consist-
ing of several counts, which are good but cannot be joined, the
proper course is to arrest the judgment ; where some of the counts
are good and others bad, a venire de novo issues ; but in the case
of a single count containing good and bad causes of action, the court
will neither arrest the judgment nor grant a venire de novo, inasmuch
as it will be intended that the damages were given in respect of the
good cause of action only.** And a similar rule obfains in some
of the American states, viz., that if a general verdict for the plaintiff
be taken upon several counts in a declaration, and one of the counts
is fatally defective, judgment will be arriested on motion, though other
counts, not liable to objection, were covered by the verdict.** As
wc have already seen, some of the American authorities manifest a
decided reluctance (though this disposition is not universal) to pre-
sume in favor of the validity of a judgment which may, for aught that
appears on the record, be composed in part of damages given in
respect of a bad count.*^ Still, in several of the states, it is appar-
ently settled law that where a general verdict is returned, the judg-
ment will not be arrested unless all the counts of the declaration, or
paragraphs of the complaint, are so defective as not to have been
cured by the verdict or finding.** Thus in New Hampshire, judg-
••Le Strange y. IState, 58 Md. 26. And see Hatfield v. Cummings, 152
Ind. 587, 58 N. K. 701.
•• Kitcbenman v. Skeel, 3 Uxcb. 4».
*• SylTester v. Downer, 18 Vt. 32; Needham v. McAuley, 13 Vt. 68; Bank
of CarUBle y. Hopkins, 1 T. B. Mon. (Ky.) 245, 15 Am. Dec. 113.
«i 8apra, f 84.
42Hoag T. Hatch, 23 Conn. 585; Sims v. Dame, 113 Ind. 127, 15 N. E.
217; Gllmore v. Ward, 22 Ind. App. 10«, 52 X. E. 810; Burrows v. Nlblack,
28 a C. A. 130, 84 Fed. Ill; Swift ik Co. v. Fue, 167 111. 443, 47 N. E. 761;
BaltJnoore & O. S. W. Ky. Co. v. Alsop, 176 Xll. 471, 52 N. K. 253; Hayes v.
Solomon, UO Ala. 520, 7 Kontb. U21.
1 LAW JUDG.-IO (145)
ft
§ 108 lULW OP JUDGMENTS. (Ch. 5
ment will not be arrested because the declaration may contain some
claims that are illegal, if it also contains others upon which the plain-
tiflf may properly recover.**
I 102. HlflJolBder of Oavses of Aetioa*
A misjoinder of counts and causes of action, apparent upon the
declaration, with damages assessed entire, is good cause for arrest-
ing the judgment on motion after verdict, or for reversing the judg-
ment by writ of error.** Thus a motion in arrest will be granted
when the petition contains matters of equitable jurisdiction mixed and
blended with matters of legal cognizance, in the states where the
distinction is still observed.*^ And in. Missouri, where several causes
of action are united in the same petition, the verdict, if found for
the plaintiff, Inust be rendered and the damages assessed upon each
cause of action separately, otherwise judgment will be arrested.**
I 103. Objootions to tlie Jury.
An objection to the mode of drawing and impaneling the grand
jury cannot be made the ground of a motion in arrest of judgment*^
Nor will any objection to an individual juror, which would not be
sufficient ground for a principal challenge, be good cause for arrest-
ing the judgment/* It appears, however, that when a cause is tried
in a court of record before a less number of jurors than a party is
entitled to, and his consent to such a trial does not expressly appear
of record, he may take advantage of the objection by motion in ar-
rest ; and in such case no exceptions to the panel need be saved at
the trial.** It is generally held — ^in accordance with the rule that judg-
4» Conway v. Town of Jefferson, 46 N. H. 621.
** Haskell v. Bowen, 44 Vt. 57U. "Objection to the Joinder of a count In tort
with one on contract may be taken In arrest of Judgment. Joy T. Hill, 36
Vt 33a; Bull V. Mathews, 20 R. I, 100, 37 AU. 636.
*B Meyers v. Field, 37 Mo. 434.
«6 Pitts v. Jb\igate, 41 Mo. 406.
*T state V. Swift, 14 La. Ann. 827.
*« Chapman v. Welles, Kirby (Conn.) 133.
*» Cox V. Moss, 53 Mo. 432; Brown v. Hannibal & St. J. R. Co., 37 Mo. 29S;
3rown y. St. Louis & 8. F. Ry. Co., 6» Mo. App. 418.
(146)
Ch. 5) ABBEST OF JUDGMENT. § 105
mcnt will be arrested only for matter of record — that misconduct of
the jury, or improper influence brought tp bear upon them, after
they have retired to make up a verdict, is no ground for a motion in
arrest, although it may furnish cause for granting a new trial.^® So
the fact that the jury, when out, were under the charge of an unsworn
officer, is not technically ground for a motion in arrest of judgment,
though it may be for a new trial/*
i 104« Xrresnlar or DefeotlTe Verdict.
At common law, one of the principal grounds for arresting a Judg-
ment is the objection that the verdict is not responsive to the issues,
or that it differs in a material respect from the pleadings and the
issue formed thereon.^' So if the verdict is upon an insufficient
count, or finds a fact which disaffirms the plaintiff's right to recover,
or omits to find a material issue joined in the cause^ the judg:ment
will be arrested ••
I 105* Grovndfl lield lasiiffleieiat.
A motion in arrest of judgment on a verdict, based solely upon the
ground that the evidence adduced at the trial was not sufficient to
••Brister v. State, 26 Ala. 107. Connecticut apparently stands alone In
permitting a different practice. It is there held that on a motion In ar-
rest of judgment for misconduct of a juror,— as, conyersing with one not
a the jury upon the merits of the cause,— it must be averred that the party
mtldjig the motion was ignorant of such misconduct until after the verdict was
rendered, otherwise the motion wUl not prevaU. Woodruff v. Richardson,
20 Conn. 238. And In another case, where the jury took with them a paper
whicb nad been used on the trial to refresh the memory of a witness, but
which was not read or offered in evidence, nor were its contents communicated
to the other side, and had the same before them in aU their deliberations, and
the paper was calculated to affect the verdict, it was held that this was a
toffident ground for arresting the judgment Claric v. Whitaker, 18 Conn.
513, i» Am. Dee. 337.
viHcOum T. State, 17 Miss. 466.
»s Xoong T. Wickliffe, 7 Dana (Ky.) 447; 8 Bl. Gomm. 393. But in some
states, a motion in arrest of judgment wUl not reach a defective verdict.
i'otter T. McCormack, 127 Ind. 43», 26 N. E. 883; Westfield Gas & Milling?
Co. V. Abemathey, 8 ind. App. 73, 35 N. E. 399. Inconsistency between
a special finding and the general verdict cannot be taken advantage of by
moUoD in arrest. Moflltt v. Albert, 97 Iowa, 213, 66 N. W. 162.
MKelrle T. Shriver, 11 UiU 6l J. (Md.) 406.
(147)
I 105 LAW OF JUDGMENTS. (Ch. 5
make out the plaintiff's case, will not be sustained ; ■* nor, in general,
a motion based on any matters which took place on the trial.'* Nor
can a motion in arrest of judgment reach a defect in the form of the
judgment, for the obvious reason that the motion must precede the
rendition of the judgment.^* And the failure to serve the defendants
in an action with copies of the declaration, as required by the rules
and practice of the court, constitutes no ground for arresting the
judgment*'
B4 LoveU V. Sabln, 15 N. H. 29; Bright v. State, 90 Ind. 348; Powe t.
State, 48 N. J. Law, 34, 2 Atl. 062. But In Allen v. Word. 6 Humph. (Tenn.)
284, it \a held that a judgment will be arrested on the ground of a yariance
between the pleadings and the proof.
B» Walker v. Sargeant, 11 Vt 327.
B« Smith y. Dodds, 35 Ind. 452.
»T Loney y. Bailey, 43 Md. 10.
(148)
Ch. 6) RENDITION AND BNTBT OF JUDGMBNTa § 106
CHAPTER VI.
THK RENDITION AND ENTRY OF JUDGMENTS.
f 108. Distinction between Rendition and Entry.
107. Power and Duty of tbe Court to render Judgment.
108. Application and Order for Judgment
lUU. Signature of Judge.
110. Entry by tbe Clerk,
ill. Entry In wrong Book.
112. Indexing tbe Judgment
113. Remedy against Clerk for improper Entry.
114. Contents of tbe Judgment
113. Form of tbe Judgment.
116. Designation of tbe Parties.
117. Designation of tbe Property.
118. Designation of Amount of Recovery,
lltf. Conditions in Judgment
120. Joint Defendants.
121. Time of entering Judgment
122. Date of tbe Judgment.
123. Construction of Ambiguous Judgments.
124. Tbe Judgment-Roll, or Record.
125. Supplying l»8t Records.
125a. Entry of Judgments in Federal Courts.
f 106. Distinotion between Rendition and Entry.
The rendition of a judgment is the judicial act of the court in
pronouncing the sentence of the law upon the facts in controversy
as ascertained by the pleadings and the verdict.^ The entry of a
judj^ment is a ministerial act, which consists in spreading upon the
record a statement of the final conclusion reached by the court in
the matter, thus furnishing external and incontestable evidence of
I he sentence given, and designed to stand as a perpetual memorial
1 '"i'lie M'bole question, tben, appears to resolve itself into tbis— whether
tlM' rendition of judgment is a judicial act, to which the direct agency of
tbf> court is indispensable, and to which tbe mind of the court is to be judi-
eialiy applied, or whether, after verdict has been rendered, it is a ministerial
■et. which may be performed by the clerk without an order by the court
When presented In tbla elementary fcorm, the question appears to me exceed-
(149)
§ 106 LAW OF JUDGMENTS. (Ch. 6
of its action.* It is the former, therefore, that is the effective result
of the litigation. In the nature of things, a judgment must be ren-
dered before it can be entered. And not only that, but though the
judgment be not entered at all, still it is none the less a judgment.
The omission to enter it does not destroy it, nor does its vitality
remain in abeyance until it is put upon the record. The entry may
be supplied, perhaps after the lapse of years, by an order nunc pro
tunc. But it must not be supposed that this proceeding is required
to give existence and force, by retrospection, to that which before
had none. As is said by the supreme court of California: "The
enforcement of a judgment does not depend upon its entry or docket-
ing. These are merely ministerial acts, the first of which is required
to be done for putting in motion the right of appeal from the judg-
ment itself, or of limiting the time within which the right may be
exercised, or in which the judgment may be enforced; and the
other, for the purpose of creating a lien by the judgment upon the
real property of the debtor. But neither is necessary for the issu-
ance of an execution upon a judgment which has been duly ren-
dered. Without docketing or entry, execution may be issued on
the judgment and land levied upon and sold, and the deed executed
by the sheriff, in fulfillment of the sale, not only proves the sale,
but also estops the defendant from controverting the title acquired
by it." • And it follows, a fortiori, that if the entry, though attempted
to be made in due form, does not correctly record the sentence of
the court, or is defective or ambiguous or otherwise exceptionable,
still this will not weaken the force of the judgment as a judgment.
ingly clear and free from doubt. If there be any one thing done In the
progress of a cause, from its commencement to its conclusion, that is pe-
culiarly and emphatically a judicial act, it is the rendition of judgmeDt"
Ware, Dist. J., in Goddard v. Coffin, 2 Ware (Da v. 381) 3KJ, Fed. Cas. No.
5,490. And see Matthews v. Houghton, 11 Me. 377.
2 Miller v. Albright, 12 Ohio Cir. Ct. R. 533.
» Los Angeles County Bank v. Kaynor, 61 Cal. 145. A judgment ordered
by the judge to be entered for a certain amount, though not yet witered or
signed, is a debt to the judgment creditor capable of being attached. Holtby
V. Hodgson, 24 Q. B. Div. 103. Where counsel on both sides have treated the
verdict as serving the office of a judgment as well as of a verdict objec-
tions on account of the failure to enter judgment are waived- Webster t.
Dundee Mortg. He Itust Co., U3 Ga. 278, 20 S. E. 310.
(150)
Ch. 6) RENDITION AND ENTRY OP JUDGMENTS. § 107
There are certain purposes, however, for which a judgment is re-
quired to be duly entered before it can become available or be at-
tended by its usual incidents. Thus, as above remarked, this is a
prerequisite to the right to appeal. And so a judgment must com-
monly be docketed before it can create a lien upon land, and in
some of the states (though not all) the priority among different
bens is determined by their respective dates of docketing.* And
again, the record entry of a judgment is indispensable to furnish the
evidence of it, when it is made the basis of a claim or defense in
another court.* But with these exceptions, a judgment is independ-
ent of the fact of its entry. And in all cases, the distinction between
rendition and entry is substantial and important.
f 107. Power and Ihktj of the Court to render Jndement*
It is the duty of the court, when the necessary facts have been
lawfully determined by regular proceedings, to render the proper
judgment, and to refrain from any re-opening of the issues.* The
performance of this duty by the court may be enforced by the writ
of mandamus. But to make this remedy available it must appear
that the court had jurisdiction in the premises, that regular and
sufficient proceedings were had, that the case is ripe for judgment,
and that the complainant has an absolute right to the judgment
sought, no constraint upon the judicial discretion of the court being
permissible.''
«8ee infra, i 44S.
>Tbe claim of res judicata cannot be made on the showing of a minute
on the clerk's doclcet, tills not being a judgment. Young t. People, 171 III.
:5I9, 49 N. £. 503.
• Isler v. Brown, t57 N. O. 175. There Is no judgment In fact upon a
renlict until tbe motion for a new trial Is decided. City of Louisyille v.
MnldooD (Ky.) 43 S. W. 867.
7 People v. Murray, 2 Misc. Kep. 152, 23 N. Y. Supp. 160; Fairbanks v.
Amoskeag Nat. Hank (C. C.) 32 Fed. 572; Smith v. Moore, 38 Conn. 105;
State T. Klein, 140 Mo. 502, 41 S. W. 805; Broder v. Superior Court 103
CaL 121, 37 Pac. 143; Elder v. Grunsky, 127 Cal. 67, 59 Pac. 300; State
V. Dickinson, 59 Neb. 753, 82 N. W. 16; People t. Graham, 16 Colo. 347, 26
Pac 936; l'e<^le v. Downer. 18 Colo. 500, 33 Pac. 162; Corthell v. Mead,
19 Cola 386, 35 Pac 741; State Y. Hunter, 4 Wash. St 651, 30 Pac. 642.
(151)
§107 LAW OF JUDGMENTS. (Ch. 6
The failure of the trial court to enter judgment for the plaintiif
for an amount admitted by the defendant to be due and tendered m
court, is error for which the judgment will be reversed.* And a
second final judgment or decree cannot be rendered between the
same parties upon the same pleadings and subject-matter, until the
first hafi been reversed, or opened and vacated.* The authority of
the court to render a judgment does not always depend upon the
fact that regular proceedings have taken place and culminated in a
verdict ; it may, in some cases, rest upon the consent or agreement
of the parties. Thus a stipulation by the parties that when judg-
ment is entered in a certain cause pending in another county, and a
transcript thereof forwarded to the district court of defendant's coun-
ty, where other causes involving the same question are pending, the
judge of the latter court may order similar judgments in the other
causes, is valid, and the judgments may be entered in vacation.**
Where issues are sent from one court to another to be tried, it be-
longs to the court in which the main litigation is pending to enter
any judgment that may be necessary in the case. Thus, where is-
sues are sent by the probate court to a court of law, a judgment
for costs should be entered by the former court upon receiving the
certificate of the verdict, and not by the court in which the issues
were tried.**
s Mace V. Gaddls, 3 Wash. T. 125. 13 Pac. 545.
» State V. JacksonviUe, F. ik M. K. Co., 16 Fla. 708; Morrison y. City
of Chicago, 142 ill. (500, 32 N. B. 172. See, also, Shepherd v. Harvey's Adm'x
(Ky.) 43 S. \V. 45<i; Biudworth v. Poole, 21 Tex. Civ. App. 551, 53 S. W. 717.
10 Western Land Co. v. English, 75 Iowa, 507, 3S> N. W. 719. So of an
agreement of parties that a case shall be beard before a Judge at chambers
in the same manner and with the same effect as though it were tried by faim
in court without a Jury. JBeach v. Beck with. 13 Wis. 21. So of an agree-
ment to refer a pending suit to an arbitrator, and that a judgment in the
cause shall be entered according to his decision. Bank of Monroe v. Widntf.
11 I'alge (N. Y.) 529, 43 Am. Dec. 7«8. It is no ground for the reversal of
a Judgment that the decree is prepared by the attorneys of the succespfal
party, where the decision as prepared Is adopted by the trial Judge. Stepp
V. National Life & Maturity Ass'n, 37 S. C. 417, 16 S. E. 134.
11 Levy V. Levy, 28 Md. 25; Browne v. Browne, 22 Md. 103.
(152)
Gh. 6) &BNPITION AND ENTRT OF JUDGMENTS. § 108
I 108« Applioation and Order for Jvdsiiieiit.
Where judgment follows as the result of contested proceedings
and the finding of a verdict, it is usually not necessary for the suc-
cessful party, in modern practice, to take active measures to secure
the rendition of judgment.^' But an application for judgment is in
some instances required by statute, and is probably always necessary
in case of default. In California, a statute provides that an action
may be dismissed, or judgment of nonsuit entered, "when, after ver-
dict or final submission, the party entitled to judgment neglects to
demand and have the same entered for more than six months." ^'
But this does not cause the party to lose his judgment when the
lapse of the time mentioned was caused by the delay of the court or
the negligence of the clerk." It is held that a judgment which has
been entered, and to which the judgment creditor was clearly en-
titled upon the pleadings, will not be disturbed for failure to give
notice of the application for the judgment, or for failure of the clerk
to enter in his minutes, as required by the court rules, a statement
of the application.** When the court gives to the clerk an order
for a judgment, that is his authority for entering the same, and by
that alone he must be guided. Hence a judgment entered by the
clerk in pursuance of an express order of the court, will not be
void and a mere nullity, although the court, by a subsequent order
not noticed by the clerk, have directed the case to be continued,
although such a judgment would be irregular and voidable, and lia-
ble to be set aside upon seasonable application to the court.**
ISA formal motion for judgment on a special verdict is not necessary.
CartUage Turnpike Co. v. Overman, 19 Ind. App. 309, 48 N. E. 874. See
Voris v. Star City Bldg. & Loan Ass'n, 20 Ind. App. 630, 50 N. E. 779.
"Code av. Proc. Cal. S 581.
i« Jones V. Cbaifant (Cal.) 31 Pac. 257; San Jose Ranch Co. v. San Jose
Land & Water Co., 126 Cai. 322, 58 Pac. 824.
isPormann v. Freae, 72 Wis. 226, 39 N. W. 385. See, as to defective no-
tice of a motion for a judgment, White v. Sydenstricker, 0 W. Va. 46. Ap-
pUcaUon for an order directing the entry of a judgment may be made ex
parte; and no notice is necessary unless a stay exists, or the court, for some
special reason, directs that notice be given. Gould v. Duluth & D. Elevator
Co., 3 N. D. 96, 54 N. W. 316.
i« Claggett V. Simes, 31 N. H. 56.
. (153)
§ 109 LAW OF JUDQMSNTa. (Ch. 6
S 109. SisBatiure of Jndse.
The impression not uncommonly prevails that at common kw a
judgment required the signature of the court in order to be valid.
This notion — arising probably from an ambiguous use of the phrase
"signing judgment" — ^is erroneous; and the ancient practice fur-
nishes but slight aid in determining the same question in modem
law.*^ Now in some of the states the statutes require that the
judgment itself, or the record in which it is entered up, shall be
signed by the judge ; and in these states some of the decisions hold
that unless this direction is complied with, the judgment will be en-
tirely invalid and of no force or effect.^® Still, these statutes re-
quire the signature only of final and definite judgments which pass
upon the merits of a controversy and may constitute res judicata;
interlocutory orders, made in the progress of a cause, have their
eflfect without being signed by the judge.^* And some of the au-
thorities show a tendency to construe such statutes in a liberal man-
ner, instead of requiring an exact compliance with their terms. Thus
a judgment which the court was competent to render without the
verdict of a jury will be upheld if found entered on the minutes of
the day's proceedings, the minutes of the day being regularly signed
by the judge, though the judgment itself bears only the signature of
counsel. Such a judgment, it is said, is irregular but not void, and
can be amended.*® So the signature of the judge affixed by consent
IT French v. Fease, 10 Kan. 51.
18 isuccesslon of Asbridge, 1 Lot. Ann. 206; Hatch ▼. Arnault, 3 La. Ann.
482; »aloy y. ColUns, 80 La. Ann. 63; State v. Jumel, 30 La. Ann. 421; Sloan
V. Cooper, 54 Ga. 486; Raymond v. Smith, 1 Mete. (Ky.) 65, 71 Am. Dec
458; Galbraith t. Sidener, 28 Ind. 142. Until a judgment Is signed by the
judge, It cannot acquire a Uen, although recorded. Marchal v. Hooker, 27
La. Ann. 454. in Louisiana, a statute requires judgments to be read in
open court. It is held that this requirement is jurisdictional, and that a judg-
ment not so read, or which is signed in chambers, is invalid. Woodlief t.
Logan, 50 La. Ann. 438, 23 South. 716; State v. Judges of Fourth Orcuit
Court of Appeals, 48 La. Ann. 905, 19 South. 932; Richardson v. Turner.
52 La. Ann. 1613, 28 South. lo8.
i» Wickmam v. Nalty. 41 La. Ann. 284, 6 South. 123; State v. Judge of
Fifth District, 12 La. Ann. 455.
aoTharpe v. Crumpler, 63 Ga. 273; Huckaby T. Sasser, 69 Ga. 603. A
(154)
Ch. S) BBNDinON AND KNTKY OF JXTDaMBNTS. -§ 109
in vacation is a sufficient authentication of a decree in an ordinary
action to authorize an execution.*^ Another group of cases goes
much further than this, and holds that the requirement that a judge
shall sign all judgments rendered in his court is merely directory,
and consequently that his omission to do so will not avoid the judg-
ment as to strangers, although it might, in connection with other
evidence, be a proof that the judgment was fraudulent or had not
been in fact rendered by him.^^ In harmony with these decisions
it is also held that an irregularity in the signature of the judge — as,
in his placing it in the body of the decree instead of at the foot,^^ or
his signing it while he is in another county,** — is immaterial. And
where the court is composed of several judges, its orders are suffi-
ciently authenticated by the signature of either.**
In several of the other states, there being no statutory require-
ment of this character, it is held to be entirely unnecessary to the
validity of a judgment that it be signed by the judge ; the presump-
tion is, that if it is entered by the clerk, it was so directed and au-
thorized by the court.** And a valid judgment will support an exe-
jDdgment signed "by the court, H., plalntifTs attorney/' which was put on the
minutes, signed by the judge, was held valid in Jones v. Word, 61 Ga. 26.
tiKust V. i«^ust, 15 La. Ann. 477.
ssKoUins V. Henry, 78 N. U. 342; Keener T. Goodson, 89 N. C. 273; Bart-
lett y. Lang's Adm'rs, 2 Ala. 161; Cannon v. Hemphill, 7 Tex. 184; Cath-
cart y. Peck, 11 Minn. 45 (Gil. 24); Chiids v. McChesney, 20 Iowa, 431, 89
Am. Dec. 545. The omission of the Judge to sign the record at the close
of the term will not invalidate judgments or decrees of the term, although
such omission would be gross neglect. Ex parte Slocomb, 9 Ark. 375.
«» Hurley v. Hewett, 89 Ale. 100, 35 AU. 1026.
s« National Bank of Greensboro v. Gilmer, 118 N. C. 668, 24 S. E. 423.
t»ln re Mllcreek Road, 9 Pa. Co. Ct. R. 592.
«• Califcnila Southern R. Co. v. Southern Pac. R Co., 67 Cal. 59, 7 Pac.
123: Crim v. Kessing, 89 Cal. 478, 26 Pac. 1074, 23 Am. St. Rep. 491; Catli-
cart V. Peck, 11 Minn. 45 (Gil. 24); Fontaine v. Hudson, 93 Mo. 62, 5 S. VV.
€02, 3 Am. St. Rep. 515; Platte County v. MarshaU, 10 Mo. 345; Fulton v.
State, 103 Wis. 238, 79 N. W. 234; Lockhart v. State, 32 Tex. Cr. R. 149, 22
S. W. 413; Scott V. Rohman, 43 Neb. 618, 62 N. W. 46; Gordon v. Bodwell,
o5 Kan. 131, 39 Pac. 104i. Judgments are not invalidated by the failure of
the judge to sign the minutes of tlie term. Jordan v. State, 37 Tex. Cr. R.
222. 38 8. W. 780. Nor is it necessary to the validity of orders entered at a
Fp cial term of court that the minutes of said term be signed by the judge.
Wright T. State, 37 Tex. Cr. R. 3, 38 S. W. 81L
(155)
§110 LAW OF JUDGMENTS. (Ch. 6
cution issued in conformity therewith, although the formal record
evidence of its rendition may not have been in existence at the time
execution issued.*^ In New York It is said : "There is no provi-
sion of the present law requiring such signing. The judge is to
make his 'decision in writing/ and this, it is presumed, he must sign
by way of authentication.*® The judgment itself is to be entered in
the judgment-book, and is in theory entered by the clerk." *• The
practice in Kansas is thus described: — ^the clerk by order or per-
mission of the court enters the judgment in all cases in full upon
the journal, and this judgment (as well as every other proceeding)
is valid, and has force and effect, as soon as it is entered on the
journal, whether it is ever signed by the judge or not, and whether
it is ever transcribed into the complete record or not.*® And it is
believed that a practice more or less closely analogous to this is in
vogue in a majority of the states ; so that only in a few jurisdictions
can the judge's signature be regarded as an indispensable requisite
to the validity of the judgment.
S 110. Entry hy the Clerk.
When a judgment has been rendered in a cause,*^ it becomes the
duty of the clerk, according to the usual practice, to make a record
entry of it in an official book kept for that purpose.*" In some
37 Fontaine v. Hudson, 93 Mo. 62, 5 S. W. 692, 3 Am. St Rep. 515. And
see Los Angeles County Bank v. Raynor, 61 Cal. 145.
2 8 Where a "decision in writing" is required, an entry by the clerk at the
end of the trial of the amount for which plaintiff is entitled to recover does
not constitute a juclgment. Crim v. Kessing, 89 Cal. 478. 26 Pac. 1074, 23
Am. St. Rep. 491. If the court does not file the written decision, and a judge-
ment is rendered and entered without it, the remedy is by motion in the court
below to set the judgment aside. Garr, JScott & Co. y. Spalding, 2 H, D.
414, 51 N. W. 8G7.
20 De Laney v. Blizzard, 7 Hun, 66.
»o French v. Pease, 10 Kan. 51.
»i In New York, when an action is referred to a referee to hear and de-
termine, and bis report directs a judgment to be entered, it stands as a de-
cision of the court, and the clerk must enter judgment upon it when its form
has been settled by the referee. Paget v. Melcher, 26 App. Div. 12, 49 N. Y.
Supp. 922. And see Bentley v. Gardner, 27 Misc. Rep. 674, 58 N. Y. Supp. S-'i.
»« The clerk must enter the judgment In accordance with the verdict, or
finding of the court, and the order for judgment; be has no authority to io-
(156)
Ch. 6) RENDITION AND ENTRY OF JUDGMENTS. § 1 10
States, he is required, at this stage, to make up a complete record
of the case from its inception to its close, or a "judgment-roll ;" in
others, he merely adds an entry of the judgment to the brief history
of the case contained in his docket and which consists of consecu-
tive statements of the steps taken in the cause from the issue of the
writ on. The object of this entry is to furnish an enduring memorial
and incontestable evidence of the judgment, and to fix its date for
purposes of appeal or creating a lien. But, as was stated in the
beginning of this chapter, this proceeding is ministerial only, and is
not essential to the validity of the judgment itself. It is none the
less the judgment of the court because not entered by the clerk.*^'
And, except for certain special purposes, it does not remain inchoate
or unfinished until so entered. Hence the neglect or failure of the
clerk to make a proper entry of record of the judgment, or his de-
fective or inaccurate entry of it, will not, as between the parties,,
operate to invalidate the judgment."* "The fact that the clerk did
not perform his entire duty in making up the record cannot deprive
parties of their rights. Even although he should entirely fail to
make up a record, such neglect would not affect those interested in
the matter decided, if sufficient could be found upon the files and
books of the court to show what had been done. What we call the
complete record of a case is nothing but the history of what has
wrt any additional clansea, as^ that the case was dismissed on the merits,
wbei the court did not so state. Card v. Meinelse, 70 Hun, 8d2, 24 N. Y.
Sopp. 375; llamaley ▼. Ramaley, 69 Minn. 491, 72 N. W. 6^. A judgment
entered by a derlt of court who has no authority to enter the same is void.
Lacoste v. Eastland, 117 Cal. 673, 49 Pac. 1046.
ss Unt In California, a Judgment does not become elf ective until filed with
the clerk, and is of no effect if liled after the expiration of the Judge's term,
no matter when prepared and signed. Broder v. Conklin, 98 Cal. 360, 33
Pac 211. And see Danielson v. Northwestern Fuel Co. (C. C.) 55 Fed. 49.
»* Craig V. Alcorn, 46 Iowa, 560; Bridges v. Thomas, 50 Ga. 378; Bird v.
McQelland, Stumpf & Pelzer Brick Manuf'g Co. (C. C.) 45 Fed. 458; Risk
T. Uffelman, 7 Misc. Rep. 133, 27 N. Y. Supp. 392; New York City Baptist
llisslon 8oc. V. Tabernacle Baptist Church, 10 App. Div. 288, 41 N. Y. Supp.
976. See Helvete v. Rapp, 7 Serg. & R. (Pa.) 306. Omission properly to re-
cord the verdict is a mere irregularity which does not destroy the validity of
the Judgment, at least until it be set aside. Gunn v. Plant, 94 U. S. 664, 24 h.
Ed. 304.
(157)
§110 LAW OP JUDGMENTS. (Ch. 6
been done in the case, copied by the clerk into a bo - called the
'book of records/ It is not the writing of those things in this
book that gives them validity. It is the previous action of the court
upon the subject-matter. The record is but evidence of this action,
and if, in copying, the clerk makes a mistake, that mistake will be
corrected by entries made from time to time of the action of the
court, and which entries, made in other books of the court, lay the
foundation for the complete records," ** The docket of a judgment,
it is held in New York, is no part of the record of the court; the
entries upon the docket are directed to be made by the clerk, who,
in making them, acts in a ministerial capacity, and his erroneous or
false entries cannot conclude the parties, whatever might be the
effect of an entry which he was authorized by law to make.'* In
some of the states it is required by la^ that, before a docket entry
is made of a judgment, there shall be filed a "judg^ent-roU" con-
taining all the papers necessary to be attached according to the pro-
visions of the statute. It appears that unless this provision is com-
plied with, the docketing of the judgment is an unauthorized and
illegal act.*^ But it is also held that an order denying a motion to
set aside a judgment because of the failure to file a proper judgment-
roll is not reviewable in the appellate court. If what was done
amounts to a legal nullity, no substantial rights of the defendant
are impaired by the denial ; and if the roll is not in due form, or the
filing for any reason is irregular, the granting or refusing the ap-
plication is discretionary."* According to the law and practice ob-
taining in other states, to constitute a judgment for the purpose of
docketing, it must first be entered in the "judgment-book." And a
»B Kewnam's Lessee v. City of Cincinnati, 18 Ohio, 323, 331, Hitchcock, a J.
3e Booth V. Farmers' & Mechanic's Nat. Bank, 4 Lens. 301. If the mis-
takes or defects In docketing the Judgment do not impair the substantial ac-
curacy and fulness of the recced required, as notice to persons interested, tbey
'Will not prevent the judgment from becoming a Uen. Hesse t. Mano, 40
Wis. 560.
87 Townshend v. Wesson, 4 Duer, 342. But compare Ward v. White, 66
III. App. 155.
38 Whitney v. Townsend, 67 N. Y. 40. And see Hardin v. Melton, 28 S. C.
38, 4 S. E. S05.
(158)
Ch. 6) RENDITION AND ENTRY OF JUDGMENTS. § 111
docketing without such entry is of no avail, even though a judgment-
roU be filed with what purports to be a copy of a judgment in it.**
The general principle pointed out in this chapter — ^that an unre-
corded judgment is valid between the parties, though it may not be
notice to strangers — ^is illustrated by an Alabama decision, in which
it is held that a statute which requires decrees of the chancery court
vesting the title to property in either of the parties to a suit, to be
recorded in the office of the clerk of the county in which the land is
situated, does not make the vesting of the title dependent on the
recording of the decree, but the decree is affected by a failure to have
it so recorded just as a deed would be under the registration laws.*®
That a judgment duly entered in the judgment-book was not signed
by the clerk is an irregularity and a deviation from the ordinary
practice, but it does not vitiate the judgment as to third persons in
collateral proceedings/^
I 111. Eiitrjr in wrons Book.
When the clerk is directed by law to keep certain books for the
entry of judgments, or to record judgments in a book specially des-
ignated by statute for that purpose, and deviates from the course
prescribed, then in either case, for reasons sufficiently stated in the
preceding section, the validity of the judgment is not thereby im-
paired as between the parties.** As concerns third persons the case
••Rockwood T. Davenport, 37 Minn. 533, 35 N. W. 377, 5 Am. St Rep. 872;
Manrln v. Carnes, 71 llinn. 300, 74 N. W. 139. See Locke v. Hubbard, 9 ».
D. 364, G9 N. W. 58&
«• Witter V. Dudley, 42 Ala. 616. lliere are some cases which seem to
indicate that confessed judgments are regarded as an exception to the general
principle above stated. But this is too much a matter of statutory regula-
tion to be here discussed In detail. See King y. French, 2 Sawyer, 441, Fed.
Cas. Na 7,793; Johns v. Fritchey, 39 Md. 258.
*i Artisans* Bank v. Treadwell, 34 Barb. (N. Y.) 553; Hotchkiss v. Cut-
ting, 14 Minn. 542 (Gil. 408); Jorgensen v. Griffin, 14 Minn. 400 (GU. 340);
Lythgoe t. Lythgoe, 75 Hun, 147, 26 N. Y. Supp. 1003.
43 Wolf V. Great Falls Water-Power Co., 15 Mont. 49, 38 Pac. 115; West
y. Keeton, 17 Tex. Ciy. App. 139, 42 S. W. 1034. In Minnesota, notwithstanding
the adoption of a code of procedure merging legal and equitable forms in one
form of action and providing only for a "Judgment" as the determination of
inaea, the clerk of a certain court kept two books, one labelled "Judgment-
(159)
1
I
\
§113 LAW OF JUDGMBN^S. (Ch. 6
might be different. Probably one would not be bound by notice of
a judgment which did not appear in the book designated by law as
the proper quarter in which to direct his inquiries, although it might
be recorded in a book regularly kept by the clerk but not recognized
by law.*' Still, this would not impair the right to issue execution.
So, under the laws of Maryland, the entry of judgment in the "per-
manent judgment-record" in the first instance, and without any pre-
vious entry thereof in the "trial-docket," as required by the ordinary
practice of the trial courts, does not render the judgment illegal or
so irregular as to require it to be stricken out.**
I 112. ladesdiis the Jvdgineiit*
In some of the states, the index to the record of judgments is
made, by the effect of the statute, a part of the record ; and a judg-
ment is not a lien on real property until properly indexed, as against
a purchaser who has searched the index with due care ; and third
persons cannot be charged with constructive notice of a judgment
unless the same is correctly indexed.*' In Virginia, however, an
exactly opposite doctrine prevails ; the index is no part of the record
and is not essential to the creation of a valid lien.** We shall re-
turn to this subject in a later chapter.*'
S 113. BemedF against Glerk for latproper Entry.
There is no question that the owner of a judgment may maintain
an action for damages against the clerk of the court for neglecting
book," the other "decree-book," and was accustomed to enter causes of 1*15**
cognizance In the former, and equity causes in the latter. Held, that a Jadg-
ment of foreclosure was not impaired by the fact that it was entered in the
•*decree-book'* only. The error in the label was a mere Irregularity, which
could not affect the riphts of parties. Thompson v. BIckford, 10 Mhin. IT
(Gil. 1). See Lentllhon v. City of New York, 3 Sandf. 721.
48 See Hesse v. Mann, 40 Wis. 5tiO. See infra, §§ 404-40G.
44 Bond V. Citizens' Nat Bank, G5 Md. 498, 4 Atl. 89:5.
48 Metz V. State Bank, 7 Neb. 105; Sterling Manuf g Co. v. Early, «9 lo^^
94. 28 N. W. 458. See Hahn v. Mosely, 119 N. C. 73. 25 S. B. 713; New
England Loan & Trust Co. v. Avery (Tex. Civ. App.) 41 S. W. 673.
4« Old Dominion Granite Co. V. Clarke, 28 Grat. 617.
47 See infra, § 405.
(IGO)
Ch. 6) RENDITION AND BNTRT OP JUDGMENTS. § IH
to make a proper entry of it, provided he shows an absolute loss of
his judgment in consequence of such neglect."*® And the rule that
it is the duty of the creditor to see that his judgment is properly
entered applies only as between the parties and those affected by
the want of constructive notice, but has no reference to the question
of the liability of the clerik to the plaintiff whose judgment was
wrongly entered.**
f 114. Gontenti of the Judgment.
No particular form of words is usually considered necessary to
show the rendition of a judgment. The record of the judgment is
sufficient if the time, place, parties, matter in dispute, and the re-
sult, with the relief granted, are clearly stated.^® So, under the
ordinary practice, it is not required to set out in the judgment itself
the facts on which it is founded; it is sufficient if they are stated
in the pleadings and ascertained by the judgment."^ And under
those systems, of practice which assimilate the legal and equitable
jurisdiction, it is not necessary that the facts on which a decree in
equity is based should be recited therein. The case is preserved in
the same manner as in an action at law, and all the material evi-
dence must be incorporated in the bill of exceptions."* But it is
«*Blo8tt>in V. Barry, 1 Lans. 190. If the entry ie incorrect, the party af-
fected should first avail himself of his remedy by application to the court to
correct it State t. Currie, 72 Minn. 403. 75 N. W. 742.
*• Saylor v. Com. (Pa.) 6 Atl. 227; Coyne v. Souther, 61 Pa. 455.
••Barrett v. Garragan, 16 Iowa, 47; Church v. Grossman, 41 Iowa, 373;
Ordinary v. McClure, 1 Bailey (S. C.) 7, 19 Am. Dec. G48. For judgment
entries held sufficient, though Irregular in form, see Simmons v. Craig, 137 N.
Y. 550. 33 N. E. 76; Cameron v. Great Northern Ry. Co., 8 N. D. 124, 77 N.
W. 1016; Whiteside v. Noyac Cottage Ass'n, 68 Hun, 565, 23 N. Y. Supp. 63.
For entries held not sufficient to constitute a judgment, see Bmig v. Medley,
m III App. 190; Carter v. Elmore, 119 N. C. 296, 26 S. E. 35.
*i HauUlton v. Ward, 4 Tex. 356. But in New Yorlj, the code requires that
the decision shall state concisely the grounds on which the issues have been
decided; and a decision merely directing judgment, without any statement of
the grounds, wiU not support a judgment. Newman v. Mayer, 7 N. Y. Ann.
Cas. 497, 65 N. Y. Supp. 294.
*2 Judge y. Booge, 47 Mo. 544. But in Illinois it is considered the proper
practice to preserre the evidence by recitals in the decree. Wallier v. Carey,
u3 lU. 470.
1 LAW JUDG.-ll (161)
§ J 15 LAW OF JUDGMBNT& (Cll* ^
held that a judgment of conviction should contain the facts judicially
ascertained, together with the manner of ascertaining them, and the
recorded declaration of the court pronouncing the legal consequences
of those facts.'*
I 115. Form of the Jndsment.
"The judgment is the remedy prescribed by law for the redress
of injuries, and the suit or action is the vehicle or means of adminis-
tering it. What that remedy may be, is indeed the result of de-
liberation and study to point out, and therefore the style of the
judgment is, not that it is decreed or resolved by the court, for
then the judgment might appear to be their own, but *it is consid-
ered,' 'consideratum est per curiam,' that the plaintiff do recover
his debt, his damages, his possession, and the like; which implies
that the judgment is none of their own, but the act of law, pro-
nounced and declared by the court, after due deliberation and in-
quiry." ** This being the theory and practice of the common law,
there was at one time a disposition on the part of some of our courts
to be very strict in requiring the use of this exact formula, and to
hold that nothing could be substituted for the word "considered"
without fatal consequences."' But a more liberal view now obtains,
and the cases hold that the terms "decreed," "resolved," "ordered,"
"judgment rendered," etc., are fully equivalent to the original tech-
nical term, provided the entry shows an actual giving of judgment
and exhibits what it is required to specify with clearness and pse-
cision/* It may therefore be stated as the modern rule that the
»« Mayfield v. State, 40 Tex. 289.
»* 3 Bl. Comm. 396.
58 Baker v. State, 3 Ark. 491.
5« Johnson v. GiUett. 52 lU. 360; Minkhart v. Hanklcr, 19 III. 47; Johnson
V. MUler, 50 III. App. 60; Coats v. Barrett, 49 III. App. 275; Deadrick v.
Harrington, Hempst 50, Fed. Cas. No. 3,694b; Taylor v. Runyan, 3 Clarke
(Iowa) 474; City of La Porte v. Organ, 5 Ind. App. 369. 32 N. E. 342: Thorn-
ton V. Perry, 101 Ga, 608, 29 S. B. 24; Marsh v. Synder, 14 Neb. 8, 14 N. W.
:804. In Pennsylvania, the entry "Judgment on verdict** may, in a sdre
facias upon It, be considered as the judgment which the^ plaintiff was entitled
to have. Shirtz v. Shirtz, 5 Watts, 255. To constitute a sufficient Judgment on
.a demurrer, there should be a formal entry of the submission on demurrer to
JEL specified pleading, a recital of consideration thereof by the court, and t
(102)
Gb. 6) BBNDITIOK AND BNTRT OF JUDOMBNTa §115
form of the ^'udg^ent is not very material, provided that in substance
it shows distinctly and not inferentially that the matter had been
determined in favor of one of the litigants, or that the rights of the
parties in litigation had been adjudicated." In other words, the
sufficiency of the writing claimed to be a judgment should always
be tested by its substance rather than its form.** But while this
IS so, there are certain requisites of a judgment which cannot be
dispensed with. In the first place, the entry must purport to be an
actual judgment, conveying the sentence of the law, as distinguished
from a mere memorandum, note, or recital that a judgment had
been or would be rendered.**' In a case where the record stated as
follows: '*This cause coming on to be heard on the demurrer to
the plaintiff's petition heretofore filed, the court, after hearing the
argument of counsel thereon, and after due consideration, sustained
said demurrer and rendered judgment for the defendant and against
the plaintiff for the costs of this action taxed at $11.20," it w^s held
that this was no judgment, but a mere recital that one had been
rendered for costs.** In the next place, a true judgment must be
formal adjudication, Bucb as, "It is therefore considered and adjudged by the
court that the demurrer be^ and it is hereby, overruled" or sustained, as the
case may be. Jasper Mercantile Go. v. O'Rear, 112 Ala. 247, 20 South. 583;
Alabama Nat. Bank y. Hunt 125 Ala. 512, 28 South. 488. A record in the
foUowIuff. language, "It is therefore ordered by the court that Judgment en-
ter herein on the verdict of the Jury, formerly entered hi this cause,'* is not
a Judgment. Fitzsimmons y. Munch, 74 111.' App. 259.
*^ 8cott V. Burton, 6 Tex. 322, 55 Am. Dec. 782; Hamman v. Lewis, 34
Tex. 474.
»• Humboldt MiU & Min. Ca v. Terry, 11 Nev. 237.
»• Hobinsou t. Govera. G7 Hun, 317. 22 N. Y. Supp. 249; Whitwell v. Emory.
3 Mich. Si^ 59 Am. Dec. 220; Putnam y. Gromble, 34 Barb. (N. Y.) 232. A
finding of facts, together with conclusions of law filed by a trial Judge with
the clerk, is not a Judgment untU actually spread on the court records.
Christie v. Iowa Life Ins. Co., Ill Iowa, 177, 82 N. W. 499. So. a memoran-
dum on the minute bools of the Judge, to the effect that an award of arbi-
trators in a certain sum is approved and accepted, does not constitute a Judg-
ment. Gage V. Judson {D. C.) 92 Fed. 545. An orally expressed opinion or
finding of a Judge in a case not tried to a Jury does not, according to the
practice of the federal courts, constitute a Judgment. Judson v. Gage, 39
C. C. A. 156, 98 Fed. 640. So also, in Ohio, under Rev. St. f 5310, the de-
cision of the court must be in writing and entered on the minutes, to consti-
tute a Judgment. Wiley v. Le^yis, (\ Ohio Dec. 242.
••MiUer y. Burlington & M. li. Co., 7 ^'eb. 227. An entry thus:— "Judg-
(163)
f 115 . LAW OF JUDOMENT& (Ch. 6
distinguished from a mere order, or direction, or permission to the
clerk to enter a judgment. A document of the latter kind has not
the force or the characteristics of a judgment, and will not support
an execution.*^ It is further to be noted, in connection with mat-
ters of form in judgments, that a much less degree of technicality
and formality is required in the judgments of justices of the peace
and other inferior courts, than is exacted in respect to the judgments
of courts of record. In the case of judgments of the former order,
it is generally held sufficient if the books and papers disclose with
reasonable certainty that a judgment was in fact rendered for one
of the parties> and for what amount, or even that a verdict was re-
turned on which no judgment was actually entered.** It is also to
be remarked that irregularities and defects of form, in judicial pro-
ceedings, can be taken advantage of by parties and privies only;
third persons have no right to interfere.**
ment accordingly taxing all costs against deft," is not a Judgment Boberts
V. State, 3 Tex. App. 47. And see Birdsell Manufg Co. v. Independent Fire-
Sprinkler Co., 87 111. App. 443. An entry of Judgment as foUows: "Where-
upon the court enters Judgment upon the iinding," is insufficient. Faulk t.
KeUuins, 54 111. 188.
«i Morgan v. Flexner, 105 Ala. 356, 16 South. 716. An order for Judgment
entered in the Judgment book does not constitute a Judgment unless the word-
ing is such that It expresses the final sentence of the court on the matters
contained in the record, and at once ends the case, and contemplates no fur-
ther Judicial action. McTavish v, Great Northern R. Co., 8 N. D. 333, 79 N.
W. 443. The following entry in the minutes of a court, **verdict for plaintiff,
let writ issue," is not a Judgment, and execution thereon Is void. Stark t.
Billings, 15 Fla. 318. But where the record in a cause, after reciting the
trial and verdict, proceeded: "Therefore it is considered and adjudged by
the court that the plaintiff in this action have Judgment" etc., held, that ihU
was a Judgment and not merely an order for Judgment, and the court did
not err in refusing to set aside the docketing thereof, and subsequent pro-
ceedings thereon, on the ground that there was no Judgment. Potter y. Eaton,
26 Wis. 382.
6« Elliott V. Jordan, 7 Baxt (Tenn.) 376; Gaines v. Betts, 2 Doug. (Mich.)
98: Overall v. Pero, 7 Mich. 315; Lynch v. Kelly, 41 CaL 232; Felter T.
Mulliner, 2 Johns. (N. Y.) 181.
es Breading v. Boggs, 20 Pa. 33.
(164)
CtU 6) RENDITION AND ENTRY OF JUDGMENTS. § IIB
§ 116. Desisnation of the Parties.
"To constitute a, valid judgment, the record of it must contain
sufficient certainty and precision to enable the clerk to issue an exe-
cution by inspection of the entry, without reference to other entries/'
In the case from which this quotation is taken, the judgment was
against "the Captain and Master of the Steamboat MoUie Hamilton,"
and there was nothing in the record to disclose the name of the
captain or master. It was accordingly held that the judgment was
void.** The decision was undoubtedly correct on the facts of the
case, but the general rule announced must not be understood as
declaring that the judgment itself cannot be aided in this respect by
reference to other parts of the same record. For numerous au-
thorities hold that a judgment expressed to be merely for or against
the "plaintiff" or the "defendant" will be sufficient, if the names of
the parties thus designated can be ascertained without ambiguity
from other parts of the record.*" And in a suit against two de-
fenflants, a judgment against "the defendant," instead of "the de-
fendants," is not so defective as to be void for uncertainty, where
the record clearly shows that it is in fact a judgment against both
of the parties defendant.** So in a case where, although the com-
plaint states no cause of action .against any but the defendant, a
third person is permitted on his own petition to appear and answer,
and a verdict is found against "the defendant," the use of the plural
•^Captain of The Mollie Hamilton v. Paschal, 9 Helsk. (Tenn.) 203. A
Judgrneut tbat "It Is considered by this court have and recover of said de-
fradant*' a sum stated Is void for uncertainty as to the plaintiff. Pull^
Watchman's Electrical Detector Co. v. Louis, 50 111. App. 428.
•sAldrlch v. Maltland, 4 Mich. 206; Smith v. Chenault, 48 Tex. 455; Lit-
Ue v. Bird well. 2T Tex. C88; Collins v. Hyslop, 11 Ala. 506; Wilson v. Nance,
11 Humph. (Tenn.) 189; Boiling v. SpeUer, 90 Ala. 2G9, 11 South. 300; Hendry
V. Crandiill. i:U Ind. 42, 30 N. E. 789. But a judgment ordered for "pUiin-
tiff/' after overniling a motion for a new trial, without specifying which of
the two plaint UTa. where the verdict was rendered for "plaintiffs," is fatally
defective. C. Aultman & Co. v. Wirth, 45 111. App. 614.
«• Roach v. Blakey, 89 Va. 767. 17 S. B. 228; McMahon v. Perkins. 22 R.
I. 116. 4G Atl. 405; New Mexico & S. P. R. Ca v. Madden, 7 N. M. 215, 34
Pac 50; Turner v. City of Houston (Tex. Civ. App.) 43 S. W. 69. See Mis-
iwari Pac. By. Co. y. Smith (Tex.) 16 S. W. 803.
(165)
§ 116 LAW (HT JUDGMSNTB. (Ch. 6
"defendants" in the judgment will be treated as a merely clerical
error, and the judgment be held as one against the original defend-
ant only.*^ So a judgment for a definite amount should not be set
aside because it fails to state that it is for the plaintiff against the
defendant, where the declaration sets forth a cause of action and
the parties thereto.** Nevertheless, a patent ambiguity on the face
of the judgment cannot be thus cured or aided. In an Ohio de-
cision the court said: "The order of the court was that these in-
stalments should be paid by the parties in partition 'or their repre-
sentatives or assigns,' and in default that execution should issue
therefor. This order is void for uncertainty. A judgment against
A. or B. is no valid judgment against either A. or B., and is simply
void." •^ On the other hand, in a suit to enforce a resulting trust on
payment of money due the holders of the legal title, a decree re-
quiring such holders to convey to "the heirs at law of W. B." is
proper, without requiring that the persons intended be individually
named.^® So a judgment rendered against a defendant omitting his
Christian name cannot be considered void, but an action max ^
maintained against him on such judgment, averring his identity, and
the plaintiff may prove by parol that he is the person against whom
the judgment was rendered."^ ^ It is sufficient if the memorandum
of the style of a cause, made by the clerk, indicate with reasonable
certainty to what suit it relates. The description of the parties by
the name of their firm is sufficient, and a judgment in favor of the
«7 Taylor v. Taylor, 64 Ind. 356. And see Holcomb v. Tift, 54 Mich. 647.
20 N. W. 627; Finnagau y. Manchester, 12 Iowa, 521; Hayues v. Backman
(Cal.) 31 Puc. 746.
68 Adams v. Walker, 59 Ga. 506.
e» Miller v. Peters, 25 Ohio St. 270.
»oLow V. Graff, 80 111. 360. And see Dietrich v. Dietrich, 154 Pa. 92, 2j
Atl. lUSO.
71 Newcomb v. Peck, 17 Vt 302, 44 Am. Dec. 340; Root v. Fellowes. 6
Ciish. (Mass.) 29. See Preston v. Wright, 60 Iowa, 351, 14 N. W. 352. Where
a defendant Is in the habit of signing checks, and doing business at banks
and other places, by the initials of his Christian name, these initials will be
treated as his business name, and a Judgment recovered against him by tbat
name Is not subject to collateral attack. Oakley y. Pegler, 30 Neb. 628, 46
N. W. 920. And where a debtor Is equally well known by two names, a
Judj;meut against him in either name is good as to him and as to his receiver.
Isaacs V. Mlntz, 11 N. Y. Supp. 423,
(160)
Cb« 6) RENDITION AND BNTRT OF JUDGMENTS. § 117
plaintiffs against the defendants is sufficient, as the pleadings show
who they are.'* In Ohio it is required by statute that the judg-
ment shall certify which of the defendants is principal and which
stircty ; but this, it is held, only applies where they are sued jointly,
and if judgment is recovered in an action against the surety alone,
it is not necessary to its validity that it should specify the fact of
his 'suretyship.'* The title of a case is matter of form only, and a
clerical error therein will not vitiate.'*
f 117. Desisnatioii of tlie Property.
WTien a judgment has to do with specific property, it is essential
that the property be designated in the judgment with such a degree
of certainty that it can be identified without reasonable opportunity
for mistake.^' Thus a decree for the distribution of an estate should
set out specifically the property to be distributed.'* So a judgment
of recovery in trespass to try title is void if it does not describe the
land with sufficient certainty to identify it." But because there is a
want of certainty in the description of land ordered to be sold to
satisfy a judgment, it does not follow that the judgment is otherwise
bad. Though such want of certainty renders void what it refers to,
unless the plaintiff in the execution be dissatisfied no other person
has cause of complaint.'* But here also, as in respect to the desig-
nation of the parties, the judgment may be aided by intendments
and additional data drawn from the pleadings and other parts of the
TsGollIiifl T. Hyslop, 11 Ala. 506. But if the judgment entry does not set
forth the indlvidnal names of the members of a firm, those names must be
disclosed by other parts of the record. If the action was brought by seyerai
liersons as partners, but without setting forth their Individual names any-
where in the cause, a Judgment rendered in the firm name is fataUy defective.
Hitch V. Gray, 1 Marv. (Del.) 400, 41 Atl. 91; Simmons v. TItche, 102 Ala.
317, 14 South. 786.
v> Wilkfns y. Ohio Nat. Bank, 31 Ohio St 565.
»* Ewing T. Hatfield, 17 Ind. 513.
f • Whether the description of land in a judgment is sufiiciently definite to
identify the land is a question for the jury. Birdseye y. Rogers (Tex. Civ.
A pp.) 26 8. W. 841.
TcJcmes y. Minogue, 29 Ark. 637.
T» neame v. Erhard, 33 Tex. 60.
v» Gear y. Hart, 31 Tex. 135.
(167)
§ 118 LAW OF JUDQMBNTS. (Ch^ 6
record. Thus a decree is not void, nor incompetent as evidence,
because it contains no description of the land thereby decreed to be
conveyed, if it refers to the petition in the action, or other pleadings
or documents, for such description, in apt and sufficient words."
Indeed the authorities go even further than this. For it has been
held that a judgment that plaintiff recover "the property in con-
troversy," or in default thereof a sum fixed as its value, will not be
reversed for uncertainty in the recovery, where, although the peti-
tion claims several articles, the record shows that the controversy
was reduced to two of them.*®
^ f 118. Detisnation of Amount of Reoorerj.
The amount of a judgment must be stated in it with certainty
and precision. All judgments must be specific and certain; they
must determine the rights recovered or the penalties imposed, and
be such as the defendant may readily understand and be capable of
performing.** A judgment, it is said, must be so certain that the
clerk can issue an execution by inspection of it, without reference
tQ other entries.*' Hence a judgment which is uncertain as to the
amount which it awards is invalid.®* For example, a judgment
against a garnishee "for the amount of his answer or so much there-
T» Foster v. Bowman, 55 Iowa, 237, 7 N. W. 513: Jones v. Belt. 2 GIU (Md.)
106; Martin v. Teal (Tex. Civ. App.) 29 S. W. 691; Sanger v. Roberts, 92
Tex. 312, 48 S. W. 1. A decree describing the property to be sold as "a lot
with a livery stable thereon" situated on a certain street, and naming the
person who conveyed It to defendant, is sufficient. McCue v. Sharp (Ky.) 45
S. W. 770. It will be presumed that the land described in the judgmeit is
the same as that In the petition, there being no contradiction In the descrip-
tion, though that In the judgment is fuller. Leavell v. Seale (Tex. Civ. App.l
45 S. W. 171. But in Kentucky, it is said that a judgment should be eeriain
as to tlie description of real property ordered to be sold; and it is not suttl-
clent that the property may be identified by a reference to the pleadlnps.
Neff V. Covington Stone Co. (Ky.) 56 S. W. 723; Harrison's Ex'x v. Taylor
(Ky.) 43 S. W. 723.
80 Coleman v. Keel, 75 Iowa, 304, 39 N. W. 510, 9 Am. St. Rep. 484,
SI People V. Plrfenbrink, 96 111. ijS; Etheridge v. Mlddleton, 1 Marv. (Del.)
130, 40 Atl. 714.
82 Boyken v. State, 3 Yerg. (Tenn.) 426.
83 Jones T. Acre, 3klinar (Ala.) 5. A judgment for the recovery of money,
not stating the amount for which it was rendered, is void, where nothing ap*
(1G8)
Ch. (>> RENDITION AND ENTRY OF JUDGMENTS. § 118
of as will satisfy the plaintiflF's debt and costs" has been held void
for uncertainty.** And a finding that a garnishee was liable for one
of two amounts, which are to be determined by a future contingency,
was not considered a judgment at all.*"
Nevertheless, "id certum est quod certum reddi potest;" and we
are unable to discover any good reason why this maxim should not
apply to the amount of a judgment as well as in any other case.
An obscure or ambiguous designation of the parties or the subject-
matter involved may be construed, as we have seen, with reference
to the other parts of the record. And if the pleadings, or the ver-
dict, show the actual amount of the recovery, without any doubt or
room for mistake, it would seem that the judgment should not be
considered invalid, at least as between the parties, for its failure to
specify the sum awarded with precision. It must be admitted that
the authorities hardly go to the length of sanctioning the rule here
suggested, although the general principle of construing a judgment
by the record is not disputed. But the cases certainly justify the
statement that if the judgment-entry itself, without naming the
amount of recovery, contains data which permit its calculation, a
sufficient degree of certainty is attained. Thus a judgment for in-
terest from a day mentioned is sufficiently certain without fixing the
amount.** So also, if a verdict be found for a fixed and definite
amount, and the judgment refers to the verdict in explicit terms (as
if it is expressed to be **for the said sum assessed as aforesaid"), it
is considered to be sufficiently precise.*^ But it is error to render
p«» in the record to eupply«the defect Bludworth v. Poole, 21 Tex. Oiv.
App. r^l, 53 S. W. 717; Board of Ck)m'rs of Custer County v. Moon, 8 Okl.
206. 57 Pac. 161.
•* Berry t. Anderson, 2 How. (Miss.) 649.
••Batten V. Ix)wery, 46 Iowa, 49. See Early v. Moore, 4 Munf. 262. An
entry, upon the rendition of a verdict for plaintiff, that "defendant is entitled
to a credit to be ascertained by A. and B., and the clerk is then authorized
to enter a remittitur. Judgment of the court accordingly and for costs,*' is not
a judgment then rendered, but an agreement for a Judgment to be rendered
subsequently, upon the ascertainment by the referees of the credit to which
the defendant is entitled. Dunns v. Batchelor, 20 N. C. 46.
•• Dinsmore v. AnstiU. Minor (Ala.) 89.
•7 Ellis V. Dunn. 3 Ala. 632. A Justice's Judgment "that the plaintiff re-
corer the sum as claimed In the alx)ve case/' will be sustained, notwithstand-
(169)
§118 LAW OF JUDOMBNTSL (Ch. 6
judgment on a verdict for the plaintiff which fails to state how
much he should recover, when all debt is denied by the defendant.
In such case the jury should have been requested to retire and find
how much the plaintiff ought to recover.**
If there are blanks in the judgment, instead of a statement of its
amount, this will destroy its force and effect for most purposes, or
at least leave it incomplete until the blanks are filled. For instance,
a judgment that the party recover "costs of suit taxed at ^," the
amount of costs not being inserted in the record, will not support a
declaration upon the judgment as for a fixed sum, nor can the de-
fect in the record be supplied by resorting to an entry upon the
clerk's docket.*® So a confession of judgment for " dollars,"
and so entered, creates no lien on the property of the judgment
debtor while it remains in that condition."** In Pennsylvania, how-
ever, it appears to be the rule that a judgment entered for an un-
liquidated sum will sustain an execution and a sheriff's sale thereon,
if the actual amount of the judgment-debt be indorsed on the exe-
cutipn."* When the clerk enters a judgment, leaving blanks for
the amount of damages and costs, the case being one where such
amount can be ascertained by mere calculation, the court has power
to order the blanks to be filled up at the next term, the clerk hav-
ing died during the session ; •* or if the clerk himself fills tip the
blanks, after the lapse of more than a year from the judgment, his
ing its Informality, Tvhen the record shows tliat the action was assumpsit for
1^81, and defendant appeared and contested the claim. Ladnler v. Ladnier,
C4 Miss. 3C8, 1 South. 492. On overruling a frivolous demurrer to a com-
plaint for a specific sum for goods sold and <lelivered, and no answer over,
judgment for the sum claimed is proper, without taking proof of the amount
of damages. Adrian v. Jackson, 75 N. C. 536.
88 Bartle v. Plane, G8 Iowa, 227. 26 N. W. 88.
80 Noyes v. Newmarch, 1 Allen (Mass.) 51.
•0 Lea V. Vates. 40 G a. 56. So, a Judgment for " dollars," based upon
a verdict expressed in the same way, is a nullity, and will not bar a subs^
queut suit upon the same cause of action. School Directors v. Newman, 47
111. App. 3G4. The judgment record in a case left the amount of the Judg-
ment blank, except as to $4.95 costs. In the docket it was entered as $iWS
damages and $16.95 costs with 10 per cent, interest. Held, good as a Judg-
ment for $4.95 only. Case v. Plato, 54 Iowa, 64. 6 N. W. 128.
•1 See Ulshafer v. Stewart, 71 Pa. 170; Gray's HehB v. Coulter, 4 Pa. IbS.
•2 Hagler v. Mercer, 6 Fla. 721.
(170)
Ch. 6) BJSNDITION AND ENTRY OF JUDGMENTS. § 118
doing so will not invalidate the judgment so far as to expose it to
collateral impeachment, although it may be ground for a writ of
error.** Another question arises in the case of a judgment where a
blank is left for the costs alone. Undoubtedly the judgment is not
perfect until this blank is filled. But it is held that the record of a
judgment which is regular in all respects, except that the costs are
left blank until they are taxed by the court, and then inserted, is
admissible in evidence in an action of debt on that judgment.** A
distinction is taken, in one of the recent cases, which we believe to
be well founded. It is held that as respects the lien or the validity
of a judgment informally entered and docketed without the taxation
and insertion of costs therein, the omission is to be treated as a
mere irregularity; but for the purposes of an appeal, the prevail-
ing party, seeking to limit the rights of his adversary, is to be held
to strict practice, and the judgment is not to be deemed perfected
until the costs to which he is entitled are duly taxed and inserted
in the judgment.**
An judgments rendered in this country should be expressed in
the American denominations of money. A judgment given by the
court for a certain amount in francs is therefore erroneous, and will
be amended on appeal so as to express the amount in dbllafs and
cents.** It has sometimes been made a question whether the state-
ment of the amount of a judgment in figures merely, instead of the
sum being written out, would impair its validity. There are cases
which hold a judgment so expressed to be defective to the point of
invalidity.*^ Other authorities seem reluctant to admit that this
alone would absolutely avoid the judgment so as to render it open
»« LInd T. Adams, 10 Iowa, 398, 77 Am. Dec. 123.
•* GaUioon T. Terry Porter Co., 21 Conn. 52a See, also. Big Goose & Beaver
Ditch Co. T. Morrow, 8 Wyo. 537, 59 Pac. 159, 80 Am. St Rep. 955; Young
r. CouieUy, 112 N. C. 616, 17 S. B. 424. In California, the clerk has no right
to insert coats after the Judgment Is entered and the record completed. The
remedy In such case to by a motion to the court for amendment. Chapiu y.
Broder, 16 CaL 403.
•> Ricbaidaon t. Rogers, 87 Minn. 461, 35 N. W. 270.
•• Erlanger t. Aregno, 24 La. Ann, 77.
•7 8niith V. Miner, S N, J. Law, 175, 14 Am. Dec. 418; Lindcr v. Monroe's
Exrs, 33 IlL 390.
(171)
§ 1 18 ULW OF JUDGMENTS. (Ch. 6
to collateral attack.*' While the practice is undoubtedly loose and
irregular, it is difficult to see in it any sufficient ground for con-
sidering the judgment entirely void. If the amount of recovery
stated in figures in a judgment differs from that stated in writing,
but the recitals in the judgment itself show the former to be the
true amount, the error is not sufficient cause for the reversal of the
judgment.*® If the amount of the judgment is written out, the
designation "dollars" (or "cents," or both, as the case may be) must
be appended to it. Thus a judgment for "four hundred and sixty-
one and 53-100 damages" is not for any sum of money and is there-
fore a nullity.*** But it has also been held, and by a very hi5:h
authority, that the omission of the word "dollars" in a verdict for
the plaintiff in an action of assumpsit does not affect the validity of a
judgment entered thereon according to the manifest intent of the
jury.*** If the amount of the judgment is expressed in figures,
the dollar-mark, or some other appropriate sign must be used to
show the sum intended. The necessity for a statement of this kind
arises from the loose manner of keeping the records of tax-judg-
ments which formerly prevailed in some of the states, and was often
brought to the notice of the courts. The rule is that a judgment
for taxes is fatally defective if it does not show the amount of the
tax for which it was rendered; and the use of numerals simply,
without any words, marks, or signs to indicate that they stand for
money, and for what denominations of money, is not sufficient.***
»» FuHerton v. Kelllher, 48 Mo. 542; Kopperl y. Xagy, 37 lU. App. 23; Da-
vis V. McCary, 100 Ala. 545, 13 South. 665.
»» Cave V. City of Houston, 65 Tex. 619.
100 Carpenter v. Sherfy, 71 111. 427. The court said: "We have no right
to indulge in presumptions as to what was found by the court; 'we must take
the record as it reads. A Judgment should be for a certain and definite sum
of money."
101 Hopliins V. Orr, 124 U. S. 510, 8 Sup. Ct. 590. 31 L. Ed. 523.
102 Woods V. Freeman, 1 Wall. 398, 17 L. Ed. 543; Lawrence T. Past 20
111. 338, 71 Am. Dec. 274; Lane v. Bommelmann, 21 lU. 143; Gibson v. City
of Chicago, 22 111. 572; Eppinger v. Kirby, 23 111. 521. 76 Am. Dec. 709; Dukes
V. Kowlcy, 24 111. 210; Baily v. Doolittle, 24 lU. 577; Potwin y. Oadea. 45
111. 367; People v. San Francisco Savings Union, 31 Cal. 135; Randolpli ▼•
Metcalf, 6 Cold. (Tenn.) 400; Tidd v. Khies, 26 Minn. 201, 2 N. W. 497; Black.
Tax Titles c2d Ed.) § 180.
(172)
Ch. 6) RENDITION AND ENTRY OF JUDGMENTS. § 1 1 ^
This rule governs also in case of a judgment for a special assess-
ment.*** It may be conceded, however, that the use of the dollar-
mark is not indispensable, if the amount can be indicated with cer-
tainty by any other device or contrivance.* ***
An entry of judgment for the right sum, but inaccurately named
"damages" instead of "debt," — or so much debt and so much dam-
ages,— ^is not reversible error.*^* And where the record of a judg-
ment does not show of what the judgment was made up, it is com-
petent to show that fact by extraneous evidence.*®*
S 119. Conditions in Jndsment.
In an ordinary action at law, the court cannot render a conditional
judgment.*"' But "when a judgment is recovered according to the
terms and conditions of a written obligation for the payment of
money, and those terms and conditions expressly either limit the
lien of any judgment which may be recovered upon it, or waive
"* l^iltsburgh, t\ W. A .C. R. Co. v. City of Chicago, 53 111. 80.
i»*In the case of Gutzwiller v. Crowe, 32 Mimi. 70, 19 N. W. 344, It ap-
peared that, in the entry of a tax- judgment on the official boolcs, there was a
column headed "Total amonat of judgment," and in this column appeared
three Arabic numerals, the first separated from the others by a short per-
pendleulnr line; it was held that, in reasonable intendment, this must denote
money, and that it was a sufficient designation of the amount of the judg-
luent. This decision was declared to be consistent with Tidd y. Rines, 2(>
MloxL 201, 2 N. W. 407; because one of the grounds on which that case was
ruled was that the figures were not separated by any line or decimal mark.
And see New England Loan & Trust Co. v. Avery (Tex. Civ. App.) 41 S. W.
673; Dyke v. Bank of Orange, 00 Cal. 307, 27 Pac. 3(M; Therme v. Bethenoid,
106 Iowa, G07, 77 N. W. 407. A clerical mistake made in wrltlug a judgment
with an additional cipher is rendered immaterial by a remittitur. Lowdon
V. Fisk (Tex. Civ. App.) 27 S. W. 180.
»•» Carver v. Adams, 40 Vt. 552. In a suit for the recovery of land and
damages for detention, the judgments for the land and for the rents are as
distluct as if separate judgments were rendered in different suits. Shean v.
CaDnlDgkam, 6 Bush (Ky.) 123.
>•« Gilbert v. Earl, 47 Vt. 0. Where judgment is recovered for compen-
satory and punitive damages, the court is not required to specify how much
i« for the one and how much for the other. Hambly v. Hayden, 20 R. I.
558. 40 AU. 417.
loWobnson v. Carver, 175 Pa. 200, 34 Atl. 627; Hopkins v. Bowers, 111
N. C. 175. 16 S. E. 1; Coh v. Bright, 2 Mo. App. Rep'r, 1101, 66 Mo. App. 417.
(173)
§120 LAW OF JUDGMENTS. (Ch. 6
the benefit of all laws exempting property from levy and sale on
any execution, or waive the right of inquisition upon the delinquent's
real estate, and in the entry of the judgment this is set forth upon
the docket, it must be held to be a part of the record of the judg-
ment," and therefore will affect subsequent purchasers.*** But a
judgment on an ordinary promissory note, though given for the
purchase-money of real estate, should not contain provisions de-
claring it a lien on such real estate and ordering that the same be
sold to satisfy it. It should be an ordinary personal judgment
against the defendant, authorizing an ordinary execution to be is-
sued against the property in general of the debtor.*®" In an action
of replevin, where the plaintiff obtains possession of the property
and retains the same, and is in possession of the property at the
time the judgment is rendered, it is neither necessary nor proper to
render a judgment in favor of the plaintiff for the value of the prop-
erty in Case a return thereof cannot be had.*** As a general rule,
a judgment has properly nothing to do with the means of its enforce-
ment; it merely pronounces the sentence of the law upon the facts
ascertained in the case.
9 120. Jolat DefesdAata.
At the common law, it was an inflexible rule that if an action was
brought against two or more defendants jointly, the plaintiff could
have judgment only against all of them or none of them ; the single
exception being in the case where one of the defendants succeeded
in establishing a defense, such as his personal disability, peculiar to
himself. If one defendant suffered default, no final judgment could
be given against him, as we have already stated,*** until the case
was disposed of as to the others, and not even then unless the ver-
dict was in the plaintiff's favor. Under this practice,, therefore, it
was error to give judgment against one of the defendants sued vnth-
108 Hngoioan v. Snlisberry, 74 Ta. 280. And see Little v. White, 3 Ind- MA.
109 Greeno v. Barnard, 18 Kan. 518.
110 Mills V. Kansas Lumber Co., 26 Kan. 574.
111 Supra, § 82. In an action of trover against two, one of whom ia de-
faulted and the otlier found guilty by the jury, there Is but one assessment
of damages and a joint judgment. Gerrish y. Cummlngs, 4 Gush. (Mass.) 39L
(17A)
Cb. 6) RENDITION AND ENTRY OF JUDGMENTS. § 121
out disposing of the suit as to the other defendant; a final con-
clusion must be reached as to all of them, one way or the other, at
the same time.^^* But now it is provided by statute in some of the
states that "in an action against several defendants, the court may,
in its discretion, render judgment against one or more of them, leav-
ing the action to proceed against the others, whenever a several
judgment is proper." *^* In a case where this law was to be ap-
plied, the court said: "As no order was made as to the other de-
fendant, the action is still pending against him, and the court had a
right to render a judgment against one, and continue the action as
to the other ; although no order of continuance seems to have been
entered, yet the action stood continued by operation of law." ***
I 121. Tiate •£ entevias Jndsatest.
By the rule of the common law, if a judgment was not stayed by
a motion in arrest, or for a new trial, or other appropriate proceed-
ing, within the first four days of the next term after the trial, it was
then to be entered upon the roll or record. Statutes fixing the time
of entering a judgment upon verdict exist in some of the states, and
require notice in this connection. Thus the New York Code pre-
scribes the lapse of four days after the verdict before the rendition
of judgment ; but it is held that judgment may be entered upon the
verdict immediately, and relief may be had against the verdict within
four days afterward, if there be ground for it, notwithstanding the
judgment.*** But the case is different under a statute which de-
dares that judgments on the decision of the court may be entered
"after the expiration of four days from the filing of the decision and
the service upon the attorney of the adverse party of a copy there-
of, but not before." Here, it is held, four full calendar days must
elapse after the filing of a decision and notice thereof before judg-
ment can be properly entered; and here the rule of interpretation
"* Johnson v. Vaagban, 9 B. Men. (Ky.) 217. See Creigh y. Hedrlck, 5
W. Va. 140.
i»» Code N, Y. f 274; Code Wis. § 184; Code Civ. Prac. Ky. § 370; Code
Civ. Pn>c Cat I 57&
ii« Patton V. Shanklin. 14 B. Mon. (Ky.) 15.
lis DrocB T. Lakey, 2 Sandf. (N. Y.) QSL
(175)
§ 121 LAW OP JUDGMENTS. (Ch. 6
which, in computing time, excludes the first and includes the last
day, has no application, the provision being clear and explicit."'
In Pennsylvania, a law requires **^ that judgment shall not be en-
tered on the report of a referee until after the expiration of thirty
days. But in a case where the prothonotary entered a judgment
on the same day on which the report was filed, it was considered
that this should not, on error, be treated as material, where it ap-
peared that exceptions to the report were subsequently filed and
acted upon, and no attention paid to the mistake.^^' On the other
hand, the California Code provides that "when trial by jury has
been had, judgment must be entered by the clerk, in conformity to
the verdict, within twenty-four hours after the rendition of the ver-
dict, unless -the court order the case to be reserved for argument or
further consideration, or grant a stay of proceedings." **• But the
failure of the clerk to enter judgment within the prescribed time
does not, according to the authorities, affect the validity of the judg-
ment afterwards entered ; for the injunction of the statute is merely
directory and not mandatory.^*® And reading this statute in con-
nection with another law, which provides, as a penalty, that the
action shall be dismissed when the judgment is not entered within
six months after verdict, it is held that the court does not lose juris-
diction of the cause if judgment is entered within six months after
the verdict is rendered.^*^ In other states it appears to be required
m
ii« Marvin v. Marvin, 75 N. Y*. 240, construing Code Civ. Proc. N. Y. S 1228.
And see Hutchinson v. Brown, 8 App. D. 0. 157. Where a justice of tiie
peace decided a cause before him, and made upon the papers in the suit a
memorandum of his Judgment within four days after the final submission to
him, hold, tliat the judgment was regular and valid, although no entry thereof
was made in his docket until after the lapse of four days. Walrod y. Shuler,
2 N. Y. 134.
117 Act Va. May 14. 1874.
118 Pittsburgh & C. R. Co. v. Shaw (Pa.) 14 Atl. 323.
11 n Code Civil l*roc. Cal. § 6(i4. A similar statute is in force in Ohio (Kev.
St. § 5o2G); and it is hold that the clerk may enter judgment immediately on
rendition of the verdict, and before the expiration of the time for moTing
for a new ti'ial. Young v. Shallenberger, 53 Ohio St. 291, 41 N. E. 518.
120 First Nat. Bank v. WollT, 79 Cal. 69, 21 Pac. 551; Bundy v. Maghiess.
7G Cal. 5.'J2, 18 Pac. 608; Hehilen v. Phillips, 88 Cal. 557, 26 Pac 366; Ed-
wards v. Hellings, 103 Cal. 204, 37 Pac. 218.
lai Waters v. Dumas, 75 Cal. 563, 17 Pac. 685.
(176)
Ch. 6) BENDITION AND BNTRT OF JUDGMENTS. § 121
that the judgment be entered at the same term at which the verdict
is rctjimed. But the cases rule that if this is omitted, it is com-
petent for the court to enter the judgment at a subsequent term,
both parties appearing and being heard.**"
Rules of the former class — those requiring a certain time to inter-
vene between verdict and judgment — probably obtain in a majority
of the states, either by statute or as the settled practice of the courts.
Their design is to afford the parties an opportunity of proceeding
against the verdict, either by a motion for judgment non obstante
veredicto, motion in arrest, or motion for new trial, as the case may
be. But since the right of a party so to move will not be prejudiced
by a premature entry of judgment,**^ and since the judgment itself
can be stayed or set aside as well as the verdict, while, on the other
hand, it is the right of the prevailing party to have his rights fixed
by a judgment as soon as he is entitled to it, it is conducive to jus-
tice not to regard a judgment entered in advance of the time as
entirely invalid, but to consider the rule as merely directory.
In some jurisdictions, while judgment may be entered immediately
upon the verdict, the court may stay the proceedings for a certain
number of days, for the purpose of giving time for a motion for
new trial. Where this is done, and judgment is entered up before
the expiration of the stay, still it is not void. The judgment is only
provisional, and it does not deprive the losing party of the right so
to move."* And even where it appeared that judgment was en-
tered up while a motion for a new trial was actually on file, which
12S Shepbard y. Brenton, 20 Iowa, 41. And see Murdock y. Ganahl, 47 Mo.
135; Prudential Ins. Co. y. Taylor, 59 N. J. Law, 352, 35 Atl. 798; Voorhiee
y. Uennessy, 7 Wash. 243, 34 Pac. 931. A judgment not entered within the
time provided by law Is not for that reason V9id. Brown v. Porter, 7 Wash.
327, 34 Pac. 1105. But in New York, it is held that a judgment rendered by
a Justice of the district court wiU be reversed where it was rendered after
the time limited by law. OrvJs y. Curtlss, 8 Misc. Rep. 681, 28 N. Y. Supp.
728. And in Iowa, under a statutory provision that, where a verdict is ren-
tiered by a Jury in a Justice's court, the Justice shall enter Judgment thereon
"forthwith," it Is held that a Judgment entered more than 90 days after the
return of the verdict is void for want of Jurisdiction. Toralinsou v. LiUe, 82
Iowa, 32, 47 N. W. 1015, 31 Am. St Rep. 468.
"» Hartrldge v. Wesson, 4 Ga. 101.
is« Harvey v. McAdnms, 32 Mich. 472.
1 LAW JUDG.-12 (177)
{122 LAW OF JUDGMENTS. (Ch. 6
motion was afterwards overruled, and all the proceedings occurred
at the same term of court, it was held that the fact that judgment
was so entered was no ground for reversing the decision on the
motion.^ ^°
S 122* Date of the Jndcment.
The rule of the common law was, that all judgments were pre-
sumed to have been rendered on the first day of the term, unless
the contrary appeared. And it is also a patt of the English practice
to consider all judicial proceedings as taking place at the earliest
period of the day on which they are done.^** It is still the rule, in
some of the American states, that all judgments docketed during
the term shall be deemed to be docketed on the first day of the
term; and this, it is held, makes them relate to the first day even
where the judge fails to open court on that day.**^ But in some
other states, principally in New England, an exactly opposite rule
is in force, and a judgment is regarded as rendered on the last day
of the term, unless the contrary is shown.^*® But in a majority of
the states, a judgment takes effect from the day it is actually ren-
dered or entered. ^** "The term of the court is not with us regarded
128 Hasted t. Dodge (Iowa) 35 N. W. 402.
120 Wright y. Mills, 4 Hurl. & N. 488. In this case, Judgment was signed
at the opening of the office at its usual hour, eleven a. m., and the defendant
died at half past nine a. m. on the same morning. It was held that the judg-
ment was regular. For a similar case, see Peetsch v. Quinn, 6 Misc. Rep.
50, 26 N. Y. Supp. 728.
"7 Norwood V. Thorp, 04 N. C. 682. See Coe v. Erb, 59 Ohio St 250, 52
N. E. 040, 69 Am. St. Rep. 704. But if a case was not ready for trial, ao that
no judgment could be given on the first day of the term, the judgment does
not relate back to that date. Dunn's Kx'rs v. Renlck, 40 W. Va. 349, 22 S.
E. 06.
128 Bradish v. State, 35 Vt. 452; Herring v. Polley, 8 Mass. 113; Chase v.
Oilman, 15 Me. 64; Goodall v. Harris, 20 N. H. 363. Accordingly, the time
within which a motion for new trial must be made (which is limited to two
years) must be computed from the last day of the term. Bradish v. State.
.35 Vt. 452. Taxation of additional costs incident to a suit, with award of
execution therefor, at a term subsequent to that of the recording of the judg-
ment, cannot be considered as making the Judgment a judgment of the later
term. Klder v. Alexander, 1 D. Chip. (Vt.) 274.
120 A judgment is not void merely because it la not dated. Beed t. Lane, 96
Iowa, 454. 05 N. W. 380.
(178)
Cb. 6) RENDITION AND ENTRY OF JUDGMENTS. § 123
as one day, and though until the term expires the orders made and
judgments rendered are largely under the control of the court, and
may be altered, modified, or vacated, yet they have been generally
regarded as taking effect from the day on which they were made or
rendered, subject to the power of the court, and not from the day
the term closes/* *•• And the date of a judgment may be fixed by
reference to the record of the proceedings in the case.*** We shall
have occasion to discuss this topic more fully in connection with the
subject of priority among judgment-liens.*'*
fi 123. Construction of Amblsnovs Judgments.
The rule for the construction of ambiguous judgments is clearly
stated by the supreme court of Kansas in the following language :
**Wherever the entry of a judgment is so obscure as not to clearly
express the exact determination of the court, reference may be had
to the pleadings and the other proceedings ; and if, with the light
thus thrown upon such entry, its obscurity is dispelled and its in-
tended signification made apparent, the judgment will be upheld and
carried into effect in the same manner as though its meaning and
intent were made clear and manifest by its own terms." *'* This
rule also applies to decrees in equity. The meaning and effect of a
decree may, in case of doubt, be ascertained by reference to the bill
and other proceedings, particularly when these are referred to in
the decree itself.*'* And for this purpose, recourse may be had to
duly attested stipulations between the parties.*'* But where a judg-
ment refers to the findings for certain data, and the findings do not
!•• Ex parte Dillard, GS Ala. 594; Alabama C. & N. Co. y. State, 54 Ala.
36; Quinn v. Wlswall, 7 Ala. 645; Powe v. McLeod, 76 Ala. 418; Pope v.
Bniidon, 2 Stew. (Ala.) 401, 20 Am. Dec. 49; Dyson v. Simmons, 48 Md.
207; Stannls ▼. Nicholson, 2 Or. 332.
»»i Cooper v. Cooper, 14 La. Ann. 665.
1" See infra, H 441--444.
"« Clay V. Hlldebrand, 34 Kan. 694, 9 Pac. 466, Valentine, J. See, to the
Mme effect Fleenor v. Drisklll, 97 Ind. 27; Hofferbert v. KUnkhardt, 58 111.
iT4K Saccessioii of Dumford, 1 La. Ann. 92; Fowler y. Doyle, 16 Iowa, 534;
Konr-Miie Land Co. v. Blusher (Ky.) 55 S. W. 555.
"* Walker's Ex'r v. Page, 21 Grat (Va.) 636.
i»» Thayer v. McGee, 2U Mich. 195.
(179)
I 124 LAW OF JUDGMENTS. (Ch. 6
contain the data, but refer again to the pleadings, which are also
uncertain, the judgment will be reversed for uncertainty.^*^ A mis-
take apparent on the face of a judgment, amounting to an impossi-
bility, will not destroy the judgment, if enough remains, after it is
corrected or eliminated, to disclose the actual judgment rendered.
Thus, where a judgment entry recites a demurrer (sustained) as
having been interposed by the defendant to his own plea, the ap-
pellate court will intend the recital to have been a clerical mistake
and that it was the plaintiff who demurred."^ But a judgment must
follow the verdict ; and in a case wher6 the jury returned two ver-
dicts, as follows : "We the jury find for the plaintiff and assess his
damages in the sum of $800," and, "We the jury find for the de-
fendant on the counterclaim and set-off and assess the damages in
the sum of $300," it was held to be error in the court to overrule a
motion for a venire de novo, and render judgment for the plaintiff
for $500.*" The presumption in support of the judgment extends
to inferring the presence of the plaintiff in court, for the purpose of
an act which he only could perform, although the entry only recites
the presence of his ^ttorney.^'*
fi 124. Tbe Jndsment-Boll, or Record*
It seems appropriate, in this connection, to give some account of
the judgment-roll or record of the judgment. At common law the
judgment-roll was a roll of parchment upon which all the proceed-
ings in the cause, up to the issue, and the award of venire inclusive,
together with the judgment which the court awarded in the cause,
were entered. It included as well the pleadings and process as the
signing of judgment.^** In our modern practice, the proceedings
i»« Kelley v. McKlbben, 53 Cal. 13.
i»7 Evans v. McMaban, 1 Ala. 43.
las Baugbn v. Baugbo, 114 Ind. 73, 17 N. E. 181. See Jarboe ▼. Brown, »»
lud. 549.
1311 Tbomason v. Odum, 31 Ala. 108, 68 Am. Dec. I.*j9.
140 Brown, Law Diet: Vall v. Iglebart, 69 111. 332. Brown says that to
modem English practice '*the making up and depositing the Judgment-ro!! is
generally neglected, unless in cases wh«re it becomes absolutely necessary to
do so, as when, for Instance, it is required to give the proceedings In the
cause in evidence in some other action, for in such case the Judgment-roU
(180)
Ch. 6) RENDITION AND BNTRT OF JUDGMENTS. S ^24
arc not thus transcribed, although in some states they are required
to be copied with more or less detail into books kept for that pur-
pose, and in others a "judgment-roll," consisting of the writ, plead-
ings, and other papers in the cause, must be on file when the clerk
enters judgment. And for the purpose of an appeal, or other similar
use, the "record" comprises a full copy of all the papers and pro-
ceedings in the cause. The following account of the practice ob-
taining in Illinois will be found applicable in many of the states.
"Under our practice, while the pleadings, process, etc., are -not, as
at common law, required to be copied on a parchment roll, nor in
the record book in v/hich final judgment is entered, they are re-
quired to be filed in the office of the clerk ; and when a copy of the
record of the judgment is required, for the purpose of bringing the
case by appeal or writ of error into this court, or bringing suit upon
it in another state, or as evidence under an issue of nul tiel record,
or to establish a former adjudication of the same subject-matter be-
tween the same parties, and indeed in all cases where it is essential
to have a complete record of a judgment, the pleadings and process
are an indispensable part of it. And the general rule is, that where
the copy of a record of a judgment is required, it must be of the
whole record, so that the court may determine the legal effect of the
whole of it, which may be quite different from that of a part." ^*^
In Massachusetts, the clerk's docket is the record of the court, until
the record is fully extended, and every entry upon it is the state-
ment of an act of the court, which is presumed to be made by its
direction, in pursuance either of an order for the particular entry,
or of a general order, or of a general usage pre-supposing such an
order.*** A record, it will be remembered, imports absolute verity,
must be tried by itself, and cannot be contradicted.**'
or an examined copy thereof, Is The only eyidence of them that wiU \ye ad-
mitted.'* And gee Steph. PI. 24.
1*1 Vail T. I$rlebart, G8 111. 332; Stevison v. Earnest, 80 111. 513. And see
Barjje t. Gandy, 41 Neb. 149, 59 N. W. 359; Boe v. Irish, 09 Minn. 493, TJ
K. W. 812.
'*» liead T. Sutton, 2 Cush. 116. A Judgment recovered before a magistrate
may be proved by his memoranda upon his docket and upon the original writ,
'«> 8ee note 143 on following page.
(181)
§126 LAW OF JUDGMENTS. (Ch. 6
I 125. Smpplyimc Iiost Heoords.
The power of supplying a new record, where the original has been
lost or destroyed, is one which pertains to courts of general juris-
diction independent of legislation, and if the statute also confers a
power, and prescribes a practice, in that behalf, it does not mcr^
the inherent authority of the courts.*** Hence if, for example, the
notice of a motion for leave to substitute a new record is explicit in
describing a judgment and papers alleged to be lost, it is sufficient,
although it does not conform to a statute which provides for such a
proceeding.*** The destruction of the record book in which judg-
ments are written, does not destroy the judgment-debts, and though
the judgments are wrongfully restored by the court without notice
to the debtors, yet when the judgments are revived by scire facias
with notice to the debtors, they should make their objection by plea
of nul tiel record.*** On a motion to supply a lost record, the
proper practice is as follows. The notice of the motion must specify
when the ntotion will be made, and must contain a copy of that
which the plaintiff will move the court to enroll as the substance of
the lost record, and the defendant must have reasonable personal
service of the notice, and also of the affidavits by which it will be
supported, which affidavits may be controverted by counter-affi-
davits. If the court, on hearing the affidavits, is fully satisfied of the
loss or destruction of the original record and of the correctness of
and by the production of the original papers in the case, Terifted by the te^
timony of the magistrate, if these, taken together, show clearly all the essen-
tial particulars of a valid judgment, and no extended record has been macJA
Mc-Grath v. Seagrave, 2 Allen, 443, 79 Am. Dec. 797.
143 Adams v. Betz, 1 Watts (Pa.) 42o, 2G Am. Dec. 79; Ellis t. EUls, 55
Minn. 401, 56 N. W. lOuC. Where a judgment roll offered in evidence con-
tains two judgments, the last in point of time will be treatetl as the true and
final Judgment, and the other disregarded. Colton Land & Water Co. v.
Swartz, 99 Cal. 278, 33 Tac. 878.
i** Doswell V. Stewart 11 Ala. 629; Gammon v. Knudson, 46 Iowa. 455;
George v. Middough, 62 Mo. 549; Keen v. Jordan, 13 Fla. 327; Garibaldi t,
Carroll, 33 Ark. 568.
i*c Doswell V. Stewart, 11 Ala. 629.
' 1*8 George v. Middough, 62 Mo. 549. And see Gibson v. Vaughan, 61 Mo.
418.
(182)
Ch. 6) RENDITION AND ENTRY OF JUDGMENTS. § 125a
the proposed substitute, it will order the substitute to stand enrolled
as and for the original.**' The application must be made to the
court in which the record originally remained. The courts of chan-
cery will not entertain jurisdiction of a bill to restore to the judg-
ment-creditor the benefit of his judgment, for the reason that there
is an adequate remedy at law, by motion in the court in which the
judgment was rendered.*** "The inherent power of courts to con-
trol their own records, and to supply losses therein, is antagonistic
to the power of any other court to interfere and make records for
them. By this proceeding, one court of special jurisdiction is in-
voked to take cognizance of, and to supply to another court of gen-
eral jurisdiction, a record, in lieu of one which has been destroyed.
Ihis power, once admitted, will place the records of the courts of
common law at the mercy of the court of chancery, and might leaid
to absurd conflict between the law and equity side of the court over
the records of the common law. * * * There is nothing here
requiring the exercise of the conscience of the court which may not
be attained by a simple proceeding, according to the course of the
common law, and therefore chancery has no office to perform.'* **•
I 125a. Entry of JvdKments in Federal Covrts.
An act of congress provides that "the practice, pleadings, and
forms and modes of proceeding in civil cases, other than equity and
admiralty causes, in the circuit and district courts [of the United
States], shall conform, as near as may be, to the practice, pleadings,
and forms and modes of proceeding existing at the time in like
causes in the courts of record of the state within which such circuit
or district courts are held, any rule of court to the contrary notwith-
standing." *•• This law, it is held, extends to the mode of entering
and recording judgments, and requires the judgments of the federal
147 Adkinson ▼. Ke^, 25 Ala. 551.
»<• Fluher t. Slevres, 05 HI. 90.
»*• Keen v. Jordan, 13 Pla. 327. On a motion to substitute the record of a
d^vtroyed judgment, the defendant cannot contest the truth of the recitals
of the proposed record, though he may show that the lost record contained no
micb recitals. Peddy v. Street, 87 Ala. 2U9, 6 South. 3.
!»• Her. St U. S. f U14.
(183)
§ 12oa LAW OP JUDGMB3rTa. (Ch. 6
circuit and district courts, in actions at law, to be entered and re-
corded in the same manner as those of the courts of the state wh6^^
in such United States courts sit.^*^ Thus, if the state practice au-
thorizes the entry of a judgment upon the report of a referee, with-
out any application to the court, no application will be considered
necessary in an action in a federal court in such state.^" But a
state law requiring a judge to give his decision in writing upon
every issue made by the pleadings is not binding on the federal
courts.***
i»i Morrison t. Beniards Township (G. C.) 35 Fed. 400; Sawin t. KeoDj,
9S U. S. 289, 23 L. Ed. a26w
i» Fotntli Nat. Bank t. Neyliardt 13 Blatchf. 383, Fed. Gas. No. iML
i«s Martindale t. Waas (G. G.) U Fed. 551.
• (184)
Oh. 7) ENTRY OF JUDGMENTS NUNC PRO TUNC. § 126
OHAFTEB Vn.
THE ENTRY OF JUDGMENTS NUNC PRO TUNC.
i 126. Origin and Nature of the Power,
urr. Delay by Act of the Court.
12H. Delay by Motions or AppeaL
U9. Laches of Party.
190. Supplying Entry of Judgment
ISl. Correction of Clerical Errors.
132. Not a proper Means of changing or revising the Judgment.
133. Only proper when Mnal Judgment could be entered.
1S4. Notice of Application.
135. Evidence.
136. Reladon back of Order.
137. Effect upon Third Persons.
§ 126. Origiiii and Nature of tlie Powev.
The phrase "nunc pro tunc/' "now for then," is used to indicate
that something which was omitted to be done at the proper time is
afterwards performed with a retroactive effect ; that is, it is to have
the same force and virtue, and be attended by the same consequences
as if it had been regularly done. In relation to judicial proceedings,
the performance of acts nunc pro tunc may take place in the various
stages of the progress of a suit, and instances are not uncommon of
affidavits or other papers filed in this manner. But in this connec-
tion we are only concerned with th^ entry and the amendment of
judgments nunc pro tunc, and in this chapter only with the former.
The power of the courts, whether of law or equity, to make entries
of judgments or decrees nunc pro tunc, in proper cases and in fur-
therance of the interests of justice, is one which has been recognized
and exercised from ancient times, and as a part of their common law
jurisdiction.* This power therefore does not depend upon statute;
» Lord Mohun*s Oase, 6 Mod. 59; Hodges v. Templer, 6 Mod. 191; Mayor
of .Vorwlck v. Berry. 4 Burrows, 2277; Evans v. Rees, 12 Adol. & E. 167, 175;
Mitchell v. Ovemmn, 103 U. S. 62, 26 L. Ed. 369; Wood v. Keyes, 6 Paige
»X. Y.) 478; Hess v. Cole, 23 N. J. Law, 116; Dial v. Holter, 6 Ohio St. 228;
i^waln t. Naglee, 19 Cal 127; Reid v. Morton, 119 111. 118, 6 N. E. 414; Shep-
(185)
§127 LAW OF JUDQMBNT8. (Gh. 7
it is inherent.* It rests partly upon the right and duty of the courts
to do entire justice to every suitor, and partly upon their control
over their own records and authority to make them speak the truth.
When a judgment is allowed to be thus entered in order that the
party may not suffer for what has transpired during a delay caused
by the court, it exhibits a practical application of the maxim "Actus
curiae neminem gravabit." But the authority is much wider than
this, and the power must not be confounded with the illustration of it
The cases calling for the exercise of this power of the courts are
chiefly of two kinds ; first, where no judgment was actually rendered,
although one might or ought to have been ; second, where a judg-
ment was actually rendered, but never entered or put upon the rec-
ords. We shall first consider the former class of cases.
§ 127. Delay by Act of tlie Covrt.
In any instance where a party has brought his case to trial and
proceeded to present it on the merits and submit the decision, and
before any judgment is rendered one of the parties dies, the court,
in order that the time consumed by it in deliberation, without laches
of the party who was successful in the suit, may not operate to his
disadvantage, will not allow the action to abate, but instead will
enter judgment nunc pro tunc, as of the time of the submission.* Or,
hard v. Breiiton, 20 Iowa. 41. Statutory provisions requiring a proceeding to
vacate or modify a judgment to be brouglit within a certain time after the
judgment is pronounced do not apply to a motion for an entry of judgment
nunc pro tunc. Hyde v. Michelseii. 52 Xeb. (J80, 72 N. W. 1035, 66 Am. St.
Kep. 533. And see Risser v. Martin, 80 Iowa, 302, 53 N. W. 270.
2 Cliissom V. Barbour, 100 Ind. 1.
3 Mayor of Norwicli v. Berry, 4 Burrows, 2277; Toulmin v. Anderson, 1
Taunt.. 385; Bridges v. Smyth, 8 Bing. 21>; Blewett v. Tregonning, 4 Adol. &
E. 1002; Green v. Colxlen, 4 Scott's Cas, 480; Key v. Goodwin, 1 Moore & S.
020; Harrison v. Heathorn, 1 Dowl, & L. 529; Evans v. Rees, 12 Adol. & K.
167; Moor v. Roberts, 3 C. B. (N. S.) 844; Seymour v. Gre?nwood. 30 I-aw
J. Exch. ISO; Abington v. Lipscomb, 11 T-aw J. Q. B. 15; Da vies v. Da vies.
0 Ves. 401; Neil v. McMillan, 27 T'. C. Q. B. 257: Mitchell v. Overman, 103
IT. S. 62, 26 L. Ed. 309; City of New Orleans v. Warner. 176 U. S. 92, 2>
Sup. Ct. 280, 44 L. Ed. 385: Griswold v. Hill, 1 Paine. 483, Fed. Cas. No.
5,834; Goddard v. Bolster, 0 ^le. 427, 20 Am. Dec. 320: Blalsdell v. Harris,
52 N. II. 101; Collins v. PrenUce, 15 Coim. 423; Brown v. Wheeler. 18 Ct>nn.
199; Perry v. Wilson, 7 Mass. 393; Tapley v. Goodsell, 122 Mass. 170; RygUt-
(180)
Gh. 7) ENTRY OF JUDGMENTS NUNC PRO TUNG. § 127
if justice so require, the judgment may be entered as of the day in
the term when the last of the evidence was submitted.* And a
judgment may be entered nunc pro tunc against one of several de-
fendants, as well as against a sole defendant, when death takes place
after verdict and before judgment* The same practice obtains, un-
der tlM same oonditiofis, in chancery. Thus, a party in interest hav-
ing died since the argument and before the signing of a. decree, the
decree and orders in the cause should be signed and filed as of the
date of the argument.* The case may also be put in an irregular
position by reason of the death of the plaintiff after a verdict. And
here also the salutary power of giving judgment retrospectively may
be invoked. By the common law practice, since the delay of the
court must not be allowed to prejudice the parties, if the plaintiff die
during the time the case is under advisement, judgment will be
entered for him nunc pro tunc as of the time of the return of the
postea.^ But in English practice (and probably the rule is general)
the power so to enter judgment does not extend to suits in tort.®
But it is not only the death of a party that will justify the exercise of
this power. It may be employed to overreach any event happening
while the case is in the hands of the court, and which would otherwise
myer t. Durham, 12 Wend. (N. Y.) 245; Spalding v. Congdon, 18 Wend. (N.
r.) Ma; Holmes v. Honle, 8 How. Prac. (N. Y.) 383; De Agreda v. Mantel,
I Abb. Prac. (N. Y.) 130; Campbell v. Mesier, 4 Johns. Ch. (N. Y.) 334, 8 Am.
Dec. 570; Wood v. Keyes, 6 Paige (N. Y.) 478; Klssam v. HamUton, 20 How.
Prac, (N. Y.) 3(50; Fulton v. Fulton, 8 Abb. N. C. (N. Y.) 210; Long v. Stafford,
103 N. Y. 275, 8 N. E. 522; Arthur v. Sohriever, 60 N. Y. Super. Ct. 59, 16 N.
Y. gupp. 610; He&s v. Cole, 23 N. J. Law, 116; Wilson v. Myers, 11 N. C. 73,
13 Am. Dec. 510; Isler v. Brown, 60 N, C. 556; Beard v. Hall, 79 N. O. 506;
Allston V. Sing. Riley (S. C.) 199; Powe v. McIvCod, 70 Ala. 418; McLean
T. State, 8 Heisk. <Tenn.) 22; Pool v. Loomis, 5 Ark. 110; Dial v. Holter, 6
Ohio St. 228; In re Jarrett's Estate, 42 Ohio St. 199; In re Page's Estate, oe
Gal. 40. The same rule applies where the defendant is a corporation, and is
disflolTed after the action has been tried and the case taken under advise-
ment by the court Sliakman v. United States Credit System Co., 92 Wis.
368, 06 N. W. 528, 32 L. R. A. 383, 53 Am. St. Rep. 920.
4 Citizens' Bank t. Brooks (C. C.) 23 Fed. 21.
» Harrison v, Heathom, 1 Dowl. & L. 529.
• Bamham v. Dalling, 16 N. J. Eq. 310.
^ Jackson v. Mayor of Berwick, 1 Mod. 36.
• Ireland v. Champneys, 4 Taunt 884. But see Brown v. Wheolcr. IS Conn.
isa
(187)
§128 LAW OP JUDGMENTS. (Ch. 7
rob the successful suitor of his judgment.* Thus, in a case in Mass-
achusetts, where the action was upon a statute which was afterwards
repealed, but before the repealing statute went into operation the ac-
tion was tried and verdict rendered for the plaintiff, and questions of
law were reserved, which, after the repeal took effect, were decided
in favor of the plaintiff, the court ordered judgment to be entered
on the verdict as of a day previous to the going into operation of the
repealing act.^®
I 128. Delay by Motions or AppeaL
The principle that a party shall not be prejudiced by the act of
the court, or the delay incident to legal proceedings, applies equally
where the successful litigant finds his progress obstructed, after ver-
dict, by, the pendency of a motion or appeal, during which his
adversary dies. Hence, where the defendant, after a verdict is given
against him, moves for a new trial, and dies before the decision of
the motion, and the motion is subsequently overruled, the judgment
may be entered up for the plaintiff, nunc pro tunc, as of the term
when the verdict was returned.^ ^ And conversely, if a verdict be
found for the plaintiff, and a motion is made in arrest of judgment,
during the pendency of which the plaintiff dies, the judgment will be
entered, the motion being denied, as of the day of the verdict, or as
of a term after the verdict when the plaintiff was still alive; and in
such a case, it is held, it makes no difference whether the cause of
action would or would not survive.^* So also if the plaintiff dies dur-
ing the pendency of a motion, and the motion is subsequently decided
» The general principle is tliat, whenever delay in entering a judgment is
caused by the action of the court, Judgment nunc pro tunc will be allowed as
of the time when tlie party would otherwise have been entitled to it. If Justice
requires it McNamara v. New York, L. E. & W. R. Co., 56 N. J. Law. 56,
28 Ati. 313; Ferrell v. Hales, 119 N. C. 199, 25 S. E. 821; Todd v. Todd, 7
S. D. 174, 63 N. W. 777. Compare McClain v. Davis, 37 W. Va. 330, 16 S. K
629, IS L. R. A. 634; Llttlejohn t. Arbogast, 86 111. App. 506.
10 Inhabitants of Springfield y. Inhabitants of Worcester, 2 Cuah. (Mass.) 51
11 Den V. Toralin, 18 N. J. Law, 14, 35 Am. Dec. 525; McNamara v. New
Yorlc, L. E. & W. R. Co., 56 N. J. Law, 56, 28 Atl. 318; Terry v. Briggs, 12
Cush. (Mass.) 319; Dial v. Holter, 6 Ohio St 228; Fitzgerald v. Stewart, 5?
Pa. 343; Brown v. Wheeler, 18 Conn. 199; Collins v. Prentice, 15 Conn. 423.
la Griffith v. Ogle^ 1 Bin. (Pa.) 172; Brown v. Wheeler, 18 Conn. 199.
(188)
Ch. 7) ENTRY OF JUDGMENTS NUNC PRO TUNC. § 129
in favor of the defendant, the latter may enter up his judgment as of
a term before the decease of the plaintiff.^' Where an appeal has
been taken, and one of the parties dies before hearing in the appellate
court, the proper practice is to affirm or reverse the judgment below
nunc pro tunc.^* So in a case where the cause was transferred for
consideration by the court in banc, upon exceptions taken by the
defendant, and while it was there pending the defendant died, and
afterwards the exceptions were overruled, it was held that the plain-
tiff should have judgment as of the term when the verdict was ren-
dered.** Where an appeal is taken and final judgment not entered,
and the appeal is afterwards withdrawn or set aside for irregularity,
the judgment may be entered nunc pro tunc on the verdict.*® And
in a case in the supreme court of the United States, where the appel-
lee died after the argument of a motion to dismiss the appeal, the
order on the motion was entered nunc pro tunc as of the day of the
argument.*^
I 129. Iiaolies of Party.
If a delay in the entering of a judgment, after verdict or submis-
sion, is not attributable to the act of the court in holding the case
under advisement, or the pendency of a motion or other interruption,
but is caused by the laches of the party entitled to judgment, and
during the interval a party dies, judgment nunc pro tunc will not be
allowed.** There is, of course, no room here for the application of
the maxim above quoted, and the ends of justice do not require that
the law should restore to a party an advantage which he may have
lost through his own negligence or hesitation.
" Spalding v. Congdon, 18 Wend. (N. T.) 543.
*«Snow v. Carpenter, 54 Vt. 17.
i> Blaisdell t. Harris, 52 N. H. 191. Where the defendant In a criminal
cause has been found guilty by the verdict of a Jury, and appeals before an
entry of final judgment against him, the district court may enter final Judg-
ment nunc pro tunc after a term has intervened since the verdict. Ex parte
Beard. 41 Tex. 234.
>• Kane t. HIUs, R. M. Charlt. (Ga.) 103; Hardee v. Stovall, 1 Ga. «2; Van
Gmiden ▼. Kane, 88 Va. 591, 14 S. E. 334.
3 7 Richardson v. Green, 130 U. S. 104, 9 Sup. Ct. 443, 32 L. Ed. 872.
!• Fishmongers' Co. T. RobertscA, 8 C. B. 970; Willies y. Perks. 5 Man. ^
G. 370.
(189)
§ 130 LAW OF JUDGMENTS. (Oh. 7
I 130. Suyplying Entry of Jmdgment.
We come now to the second class of cases mentioned above—
those where a judgment was actually rendered by the court, but was
never put upon the records. And the rule is, that in any case where
the court did actually render a formal judgment, but the same has
not been entered on the record, in consequence of any accident or
mistake, or through the neglect or misprision of the clerk, the court
has power to order that the judgment once pronounced be entered
nunc pro tunc, upon the production of proper evidence to establish
the fact of the judgment and to show jts terms and character and the
relief granted ; and this may be done after the expiration of the term
at which the judgment was originally given.^* Thus, where, on a
plea of nul tiel record, the court decided that there was such a rec-
ord, but in consequence of the mistake of the prothonotary judgment
was omitted to be entered, after which the defendant died, it was held
that the court might, in order to do justice, enter judgment as of the
time when it ought to have been entered, although nearly eight years
had elapsed, provided third persons were not injured thereby.** The
rule applies equally to cases of judgment by confession,** and to
judgments by default.** It may be invoked in proceedings in a
i» Chichester v. Cande, 3 Cow. (N. Y.) 39. 15 Am. Dec. 238; Hagler ▼. Mer-
cer, 6 Fla. 721; Wilkerson v. Goldthwalte, 1 Stew. & P (Ala.) 159; Whoriey
V. Memphis & C. R. Co., 72 Ala. 20; Gotten v. McOehee, 54 Miss. 021; Forbe«
V. Navra, 63 Miss. 1; Hammer v. McCbunei, 2 Ohio, 31; Howell v. Morlan.
78 111. 162; Ives v. Hulce, 17 111. App. 30; Shephard v. Brenton, 20 Iowa. 41;
(Mbsoii V. Chouteau's Heirs, 45 Mo. 171, 100 Am. Dec. 366: Groner r. SmltH.
49 Mo. 31S; Belkln v. Rhodes, 76 Mo. 643; Swain v. Nagrlee, 19 Cal. 127:
Drey fuss v. Tompkins, 67 Cal. 339, 7 Pac. 732; St Louis, I. M. & S. Ry. Ca
V. Winfrey (Ark.) 16 S. W. 572; Fitzsimmons v. Munch, 79 111. App. 538: Day
V. Goodwin, 104 Iowa, 374, 73 N. W. 864, 65 Am. St Rep. 465; Van Etten
V. Test, 49 Neb. 725, 68 N. W. 1023; Hamer v. McKinley-Lanning L. & T.
Co., 51 Neb. 496, 71 N. W. 51; Hyde v. Michelson, 52 Neb. 680, 72 N. W. lOSTi.
66 Am. St. Rep. 533; Guud v. Horrigan. 53 Neb. 794, 74 N. W. 257; Marshall
V. Taylor, 97 Cal. 422, 32 Pac. 515; Parrott v. McDevitt, 14 Mont. 203, 36
Pac. 193.
«o Murray v. Cooper, 6 Serg. & R. (Pa.) 126.
21 Davis V. Barker, 1 Ga. 559; Doughty v. Meek, 105 Iowa. 16, 74 N. W.
744, 67 Am. St. Rep. 282. See, also, Mountain y. Rowland, 30 Ga. 929.
«a Monarch v. Brey (Ky.) 51 S. W. 191.
(190)
Ck. 7) ENTRY OF JUDGMENTS NUNC PRO TUNC. § 131
probate court,*' and in actions for divorce,** as well as in other cases.
Afld its application is not confined to final judgments, but extends
also to orders of the court. Entry of an order sustaining a demur-
rer to the petition may be thus supplied ; *" and, genially speaking,
if it shall be made to appear to the satisfaction of the court that any
given order was actually made at a former term and omitted to be
entered by the clerk, it may, at any term, direct such order to be
entered on the record as of the term when it was made.'*
§ 131. Conreetion of Clerical Errors.
'That a court has a right, at a term subsequent to one at which a
judgment is rendered, to correct, by an order nunc pro tunc, a clerical
error or omission in the original entry, is indisputable. The error,
whether of commission or omission, must appear from the record of
the proceedings in which the entry of judgment is made." *^ Thus
a judgment is not rendered void by an omission to sig^ it, but may
be amended, even after the lapse of ten years, by an order to supply
the proper signature nunc pro tunc.** And even during the pen-
dency of an appeal a judgment may be amended nunc pro tunc, in
respect, for example, to proof of acknowledgment of service of pro-
cess and to the waiver of exemptions, at a subsequent term of the
trial court, and when properly certified to the appellate court, the
amendment is before such court for consideration, and will relate
back and sustain the judgment.** When the clerk is ordered by the
court at a subsequent term to supply a clerical omission in the rec-
ord of a judgment by an entry nunc pro tunc, the proper course for
him to pursue would be to enter anew in the proceedings of that term
the entire judgment as corrected; and the action of the clerk in sup-
*s Brooks T. Brooks, 52 Kan. 562, 35 Pac. 215.
«* Rush v. Kush, d7 Tenn. 279, 37 S. W. 13.
«» Texas Land & Loon Ck). t. Winter, 93 Tex. 560, 57 S. W. 39.
<• Burnett ▼. State, 14 Tex. 455, 65 Am. Dec. 131; Ferguson v. Millandon,
12 La. Ann. 348; Huber Mannfg Co. v. Sweny, 57 Ohio St. 169, 48 N. B. 879.
ST AUen t. Sales, 56 Mo. 28.
3* Pollard T. King, 62 Ga. 103. As to the necessity of signing a judgment,
■ee fi 109 supra.
>• Seymour t. Thomas Harrow Co., 81 Ala. 250, 1 South. 45.
(191)
§182 LAW OF JT7DOMENTS. (Ch. 7
plying the omitted part of the judgment, by an interlineation in the
record of the preceding term, is considered as loose, irregular, and
reprehensible. Nevertheless such improprieties of the clerk would
probably not have the eflfect of rendering the judgment a nullity."
S 132. Not a proper Means of chansins or revlsins the Judsment*
The power of courts to order the entry of judgments nunc pro
tunc is not to be used for the purpose of correcting errors, omis-
sions, or mistakes of the court ; it cannot direct a proper judgment
to be thus entered when the fault is that the first judgment is one
which should not have been entered in the case, or is imperfect or
improper.*^ The object and effect of an amendment nunc pro tunc
of a judgment is to furnish proper evidence of acts properly done by
the court, but not properly exhibited by its record ; and such evi-
dence IS furnished in this manner, for the purpose of supporting those
acts which, although the proper consequences of a judgment, would
seem to be irregular and void because there was no proper evidence
of a judgment.'^ Hence the court cannot at a subsequent term
change its judgment to one which it neither rendered nor intended
to render ; '* nor supply an order which it might or ought to have
t.o Allen V. Sales, 56 Mo. 28.
»i Brlgnardello v. Gray, 1 Wall. 627, 17 L. Ed. 692; In re Inhabitants of
Limerick, 18 Me. 183; Smith v. Hood, 25 Pa. 218. 64 Am. Dec. 692; PerkiDS
V. Dunlary, 61 Tex. 241; Hyde v. Curling, 10 Mo. 359; Gibson v. Choateaas
Heirs, 45 Mo. 171, 100 Am. Dec. 366; Evans v. Fisher, 26 Mo. App. 541; Whit-
well V. Emory, 3 Mich. 84, 59 Am. Dec. 220.
32 Adams v. Higgins, 23 Fla. 13, 1 South. 321. 'The »itire purpose of en-
tering orders or judgments as of some prior date, Is to supply matters of evi-
dence. The failure of a court to act does not authorize the entry of a nanc
pro tunc order or Judgment. If no order or Judgment was In fact rendered,
the court cannot treat such defect as a clerical error. But when It is dear
that an order or Judgment was in fact rendered, but was not entered upon
the Jom'nal through the inadvertence or negligence of the clerk, the court la?
authority to order it to be supplied. In such a case, the record is merdy
amended by inserting in the memorial of the proceedings of the coort that
which has been omitted therefrom." Maxwell, J., 'in Garrison v. People, *>
Neb. 274, 281.
«3 Ross v. Ross, 83 Mo. 100; Cleveland leader Prhiting Co. v. Green, ^
Ohio St. 487, 40 N. E. 201, 49 Am. St Rep. 725; Page T. Chapin, 80 Mo. App.
159.
(192)
Ch. 7) ENTRY OF JUDGMENTS NUNC PRO TUNC. § 133
made, but wholly omitted to make.^* Nor can such an entry be
made by the court for the purpose of reversing its action in respect
to what it formerly refused to do or assent to.'** Yet the cases hold
that if, in an action by two or more plaintiffs, or against two or more
defendants, judgment has been mistakenly entered for one plaintiff
only, or against one defendant only, as the case may be, a proper
judgment nunc pro tunc may be subsequently entered, without no-
tice, if the record furnishes sufficient ground.'*
I 133. Oaly yroper ivlieii Final Jndsmeiit oould be entered.
The rule that a judgment may be entered nunc pro tunc, when
such action is necessary in order to save a party from being un-
justly prejudiced by a delay caused by the act of the court or the
course of legal procedure, must be taken with an important restric-
tion, viz., that such an entry is not proper unless the case was in such
a condition, at the date to which the judgment is to relate back, that
a final judgment could then have been entered immediately. If it
were otherwise, the death of one's adversary, for example, might
operate to one's positive advantage. But this is not the object of
the practice. It is intended merely to secure that one shall not suf-
fer for an event which he could not avoid. As it has been said, "a
judgment nunc pro tunc in case of death is proper only when a party
dies after hearing, while the case is under advisement, or after the
case has proceeded so far that judgment can be entered, if not as a
merely formal act, at least without the need of further inquiry or
evidence into matters of fact involved in the controversy." *^ Hence
if there is no verdict in the record, the court cannot at a subsequent
term order a verdict and judgment to be entered nunc pro tunc ; if
»* Hyde t. Curling, 10 Mo. 359.
»• Moore v. State, 63 Ga. 165.
»• Alien v. Bradford, 3 Ala. 281, 37 Am. Dec. 689. It Is held In Arkansas
that If, on appeal from a Justice of the peace, Judgment is recovered against
the appellant and his sureties in the appeal bond, and the clerk omits to in<
dude the sureties in the entry of Judgment, a nunc pro tunc Judgment may
be entered against them at a subsequent term without notice to them. Free-
man T. Mears, 36 Ark. 278; Shaul v. Duprey. 48 Ark. 331, 3 S. W. 366.
•T Haard v. Durant, 14 R. I. 25. And see BlrdseU Manurg Co. v. Inde-
pcDdent Fire-Sprinkler Co., 87 111. App. 443.
1 LAW JUDO.— 13 (193)
§135 LAW OF JUBCOnSNTB. (Ch. 7
the record does not show that a verdict was rendered, it cannot be
supplied at a subsequent term of the court.**
S 134. N«Hioe of ApplloatloB.
In Alabama it is the settled practice of the courts that a judgment
nunc pro tunc may be entered at a subsequent term without noticf
to the opposite party, if there is any order or memorandum of record
to warrant the entry.** In New York, also, it is held that an entry
of judgment nunc pro tunc may be ordered without notice, and an
improper notice is a mere irregularity, not a fatal defect.** But in
some other states the view holds, that although a judgment may be
entered on a verdict without notice, yet an application to aineiid a
judgment after the term at which it was rendered, must be made
upon notice to the adverse party.*^ In general, we may say that flie
necessity of notice of such an application must depend upon the
sources which are to furnish the evidence of the judgment to be en-
tered. If the examination is to be confined to the records, the pres-
ence of the defendant could not affect the result, nor would he have
room to contest it. But if it is to be based on extraneous proof, it
is but just that he should have the opportunity to prepare counter-
vailing testimony.
S 135. £vid«]iott»
It is held in several of the states that the evidence which will jus-
tify the court in entering a judgment nunc pro tunc must be record
evidence; that is, that such entry can only be made upon the pro-
duction of some note, entry, or memorandum from the records or
> 8 Gray v. Thomas, 12 Smedes & M. (Miss.) Ill; Jennings y. Ashley, 6
Ark. 128. And see North v. Pepper, 20 Wend. (N. Y.) 677; Kissam ▼. Ham-
ilton, 20 How. Prac. (N. Y.) 375.
»» Mays V. HasseU, 4 Stew. & P. 222, 24 Am. Dec. 750; Bentley r. Wright
3 Ala. e07; Allen v. Bradford. 3 Ala. 281, 37 Am. Dec. 68»; Glass v. Gte«,
24 Ala. 468; Nabers' Adm'r v. Meredith, 67 Ala. 333. Compare Womack ▼.
Sanford, 37 Ala. 445.
♦0 Long V. Stafford, 103 N. Y. 274, 8 N. B. 522.
41 Berthold v. Fox, 21 Minn. 51; Hill v. Hoover, 5 Wla 386, 68 Am. Dec
70; Weed y. Weed, 25 Conn. 337; King y. Bumham, 12d Mass. 508. See in-
fra, f 164.
(194)
Ql 7) BNTBY OF JtrOGMSlfrt mjNC 1»R0 TUNC. } 135
quasi records of the court, which shows in itself, without the aid of
parol evidence, that the alleged judgment was rendered, alnd what
were its character and' terms.** "We think,'* said the court in Ala-
bama, "that no judgment can be amended, or one rendered nunc pro
tunc, unless such amendment or rendition of judgment be authorized
by matter of record, or by some entry made by or under the author-
ity of the court, which entry must be shown by the record of the
caise, or at the least by some book belonging to the office of the court
»d required to be there kept by law." *• It is somewhat difficult to
ascertain from the authorities what will be .considered record evi-
dence for this purpose. But it is held that the entry may be based
OB the judge's minutes or the clerk's entries, or some paper on file
in the case, but cannot be made upon the judge's recollection of what
took place at the trial or upon outside evidence.** So entries on the
court and bar docket, which are quasi records, are admissible evi-
dence; and a recital in the amending judgment that the court "is of
«s Adams v. Re Qua, 22 FIs. 250, 1 Am. St Rep. 191; Drauglmn y. Tom-
be^bee Bank, 1 Stew. (AJa.) 66, 18 Am. Dee. 38; Andrews' Adm*r v. Branch
Bank, 10 Ala. 375; Hudson y. Hudson, 20 Ala. 364, 56 Am. Dec. 200; Met-
caJf V. Metcalf. 19 Ala. 319, 54 Am. Dec. 188; Yonge y. Broxson, 23 Ala. 681;
8x parte Joees, 61 Ala. 399; Ex parte GUmer, 64 Ala. 234; Lilly y. Larkln, t»
Ala. 123; Herring v. Cherry, 75 Ala. 376; Kemp y. Lyon, 76 Ala. 212; Shack-
elford y. Levy. GS .Ilss. 125; Raymond v. Smith, 1 Mete. (Ky.) 65, 71 Am.
Dec. 458; Ludlow*8 Heirs y. Johnston, 3 Ohio, 553, 17 Am. Dec. 609; Goughran
▼. Gutcbeua, 38 IlL 390; Cairo & St. L. R. Co. y. Holbrook, 72 111. 419; Hyde
y. Curling, 10 Mo. 359; Gibson y. Chouteau's Heirs, 45 Mo. 171, 100 Am. Dec.
306; Fletctaer ▼. Coombs, 58 Mo. 430; Atkinson y. Atchison, T. A S. F. R.
Co.. 81 Mo. 50; Bllze y. Castlio, 8 Mo. App. 290; Swain y. Naglee, 19 Cal.
127; Hegeler y. Henckell. 27 Cal. 491; Ware y. Kent, 123 Ala. 427, 26 South.
208, 82 Am. St. Rep. 132; Montgomery County y. Auchley, 103 Mo. 492, 15 S.
W. 626; Boyd v. Schott (Ind.) 50 N. B. 379; Tynan y. Weinhard, 153 lU. 598,
38 X. E. 1014. An oral announcement of the court's decision is not a suffi-
cient bosis for an entry of judgment nunc pro tunc. Boyd y. Schott, 152 Ind.
161, 52 N. E. 752.
*» Hudson y. Hudson, 20 Ala. 364, 56 Am. Dec. 200.
«« Belkln y. Rhodes, 76 Mo. 643; Graham y. Lynn, 4 B. Mon. (Ky.) 17, 39
Am. Dec. 493; Short y. Kellogg, 10 Ga. 180; Chicago, B. & Q. R. Co. y. Wlng-
Ut. 165 ni. 634, 46 N. E. 712. The presumption of the yerlty of the record
vill control where the eyidence afforded by the papers and flies in the case
iff in conflict with that furnished by the minute book and the judge's docket.
Missouri, BL & E. Ry. Co. y. Holschlag, 144 Mo. 253, 45 S. W. 1101, 66 Am.
8t Rep. 417. But in Kansas, it is said that the minutes on the court's docket
(195)
I 136 LAW OF JXJDOMBNTa. (Ch. 7
opinion" from an inspection of said docket, etc., is equivalent to an
averment that the court deemed the evidence satisfactory, and is
sufficient to sustain the amendment, unless the entries themselves
are shown to be insufficient.** And where an order approving the
report of commissioners in partition, although informal, taken in
connection with the report itself, affords sufficient data, there is no
error in the entry at a subsequent term of a judgment nunc pro tunc
ratifying and giving effect to the report.** So a memorandum writ-
ten by the presiding judge across a motion entered on the motion-
docket will authorize a nunc pro tunc order.*^
On the other hand there are numerous cases which hold that an
entry nunc pro tunc may be -ordered on any evidence that is suffi-
cient and satisfactory, whether it be parol or otherwise.*' But the
general balance of authority seems to be with the cases holding that
so far as concerns the question whether a judgment was ever ren-
dered, that fact must be established by record evidence and cannot
be proved by parol, — a rule which, if conservative, is also entirely
safe. Thus, when a case stands on the docket as not disposed of, and
no entry on the papers or elsewhere is produced indicating any dispo-
sition of it, a final judgment cannot be entered nunc pro tunc on parol
testimony alone, unaided by the judge's recollection, especially where
counsel for one of the parties denies on oath all knowledge of the
alleged judgment, and there is no positive affirmative- evidence but
that of the adverse counsel.** But when the fact that a judgment
and the testimony of the presiding judge are ordinarily controlling. Shocfcey
v. Akey, 6 Kan. App. 920, 49 Pac. G94. An entry in the clerk's minutes, giving
the style of the case and the case number, followed by the abbreviation
"Judgt," is a sufficient basis for the entry of a Judgment nunc pro tane.
Monarch v. Brey (Ky.) 51 S. W. 191.
45 Farmer v. Wilson, 34 Ala. 75.
*e Mead v. Brown, G5 Mo. 552. And see Wade v. Bryant (Ky.) 7 S. W. 3»7.
47 Harris v. Bradford, 4 Ala. 214. Where the flies of the court, the motion.
the enti-y of its filing, its purpose, and the entry of simUar orders in the same
cause, show that tlie order was made, a nunc prq tunc entry may be made,
Hanebrough v. Fudge, 80 Mo. 307.
*8 Frink v. Frink, 43 N. H. 508, 80 Am. Dec. 189, 82 Am. Dec. 172; Rugg
V. Parker, 7 Gray (Mass.) 172; Weed v. W^eed, 25 Conn. 337; Jacobs v. Burg-
wyn, 63 N. C. 193; Aydelotte V. Brittaln, 29 Kan. 98; Bobo v. State, 40 Art
224; BrowDlee v. Board of Com'rs of Grant Co., 101 Ind. 401.
*» Itobeitson v. Pharr, 5G Ga. 245; Cadwell v. Dullaghan, 74 Iowa, 23^, 3T
(19G)
Ch. 7) ENTRY OF JUDGMENTS NUNC PRO TUNa ' § 136
was formerly rendered is established by record evidence, it seems
entirely reasonable to admit parol proof for the purpose of showing
its date, character, and terms, and the relief granted. And it is so
held by many respectable authorities.*® In order to entitle a party
to have a judgment entered on the minutes nunc pro tunc, he must
show when it was rendered ; certainly at what term of the court, if
not on what day of the term.**^
S 136. Relation back of Order.
A nunc pro tunc entry of judgment is made as of the time the pro-
ceedings of the court actually took place, and becomes a part of the
entry of that date the same as if entered then.'* Hence the entry,
by its relation back, will cure any variance between the judgment as
originally (defectively) entered and the execution issued thereon.*'
**There can be no doubt that such an entry may operate so as to save
proceedings which have been had before it is made. For instance, a
judgment is actually made at one term, but through mistake or neg-
ligence is not entered of record. Subsequent to the term, the plain-
tiff, under the impression that the business had all been correctly
transacted, prays out execution. The property of the judgment-
debtor is levied upon and sold to a bona fide purchaser, who parts
with his money in good faith. In such case the court may with pro-
priety enter a judgment, to be considered of the term in which it was
actually rendered and should have been entered. Such proceedings
should be for the furtherance of justice. It would do no injury to
the parties concerned, and would secure the rights of an innocent
N. W. 178. Such entry should not be ordered by a Judge other than the one
who is claimed to have made the original order, upon the mere statement
ot counsel, excepted to by opposing counsel, that such order was made. Car-
ter T. McBroom. Ho Tenn. 377, 2 S. W. 803.
••Camoron v. Thurmond, 56 Tex. 22; Burnett v. State, 14 Tex. 455, 65
Am. Dec. 131; Johnson v. Wright, 27 Ga. 555; Weed v. Weed, 25 Conn. 337;
Krink t. Frink, 43 N. H. 508, 80 Am. Dec. 180, 82 Am. Dec. 172; Rugg ▼.
I'arker, 7 Gray (Mass.) 172; Clark v. Lamb, 8 Pick. (Mass.) 415, 10 Am. Dec.
332; Darls v. Shaver, 61 N. C. 18, 91 Am. Dec. 92.
*i Robertson v. Pharr. 56 Ga. 245.
»3 Bush V. Buah. 46 Ind. 70.
»« Jonlau T. Petty. 5 Fla. 326.
(197)
§ 137 ULW OF JUDOMBNT8. (Ch. 7
purchaser." •* But it is held that for the purpose of a statute of lim-
itations, the date of the entry of a judgment nunc pro tunc is the
date of the order of such entry, and not the day as of which the judg-
ment is ordered to take effect. ••
S 137. Elfe<»t upon Tlilrd PeraoiLB.
When a judgment is entered nunc pro tunc, its effect, so far as it
operates by relation back to the earlier date, must be confined to the
rights and interests of the original parties; at least it will not be
allowed to work detriment to the rights of innocent third persons ac-
quiring interests without notice of the rendition of any judgment."
Thus a purchaser of real estate takes it charged with the lien of only
such judgments as are actually existing at the time of the purchase,
and it is not comp^etent for a court to bind by a lien the land of a
third person by the rendition of a nunc pro tunc judgment against
his grantor.'^ So an entry nunc pro tunc of a probate decree of in-
solvency of the estate of a decedent takes effect, as against claims
filed by creditors thereof, from the date of actual entry.'* In order
that such an entry of judgment may bind a person who is not a party
thereto (such as a surety in a supersedeas bond given on appeal
»« Ludlow's Heirs v. Johnston, 3 Ohio, 558, 575, 17 Am. Dee. 009. Enter-
ing a decree nunc pro tunc, and thereby restricting the time for appeal, is not
prejudicial error, where the defeated party succeeds in perfecting his appeal.
Monson v. KiU, 144 111. 248, 33 N. E. 43.
»« Borer v. Chapman, 119 U. S. 587, 7 Sup. Ct. 342, 30 L. Ed. 532.
60 Banlt of Newburgh v. Seymour, 14 Johns. (N. Y.) 219; Vroom v. Ditmas,
5 Paige (N. Y.) 528; Smith v. Uood, 25 Pa. 218, W Am. Dec. 092; Gaipin t.
Fishbume, 3 McCord (S. C.) 22, 15 Am. Dec. 614; Acklen v. Acklen, 45 Ala.
609; Graham v. Lynn, 4 B. Mon. (Ky.) 18, 39 Am. Dec. 493; Small v. Douth-
Itt, 1 Knn. 335; Shirley v. Phillips, 17 111. 471; McCormick v. Wbeeler, »5
in. 114, Ho Am. Dec. 388; Koch v. Atlantic & P. R. Co., 77 Mo. 354; Hays v.
Miller, 1 Wash. T. 143. But on motion to enter nunc pro tunc a judgment
already rendered, a stranger cannot intervene and question the judgment.
Hillens v. Brinsfleld, 113 Ala. 304, 21 South. 208.
5T Miller v. Wolf, 63 Iowa, 233, 18 N. W. 880. But a party to an action can-
not prevent the court from entering nunc pro time the Judgment pronounced
by it, by showing tliat some third person, not a party to the suit has acquired
an Interest in the property involved since the rendition of the original Judg-
ment. Hyde v. Michelsen, 52 Neb. 680, 72 N. W. 1035, 06 Am. St. Rep. SSS,
5« Acklen v. Acklen, 45 Ala. 609.
(198)
Ch. 7) ENTRY OF 7UDG«n»NT8 KVffC PRO TUNC. § 137
from the judgment as first entered), it must appear that he had notice
of the judgment really rendered at the time his rights were acquired
or his liability fixed thereunder, or that he had notice of the applica-
tion to have the nunc pro tunc entry made and an opportunity to
appeal therefrom.**
•• Koch y. Atlantic A P. R. Co., 77 Mo. 354.
(1»9)
i
§ 138 LAW OF JUDQMENTflL (Ch. 8
CHAPTEB VnL
AMOUNT AND CHARACTER OF RBUEF GRANTED.
8 138. Amount greater than JPlalntifTs Demand.
139. Assessment of Damages on Default.
140. Amount indorsed on Summons.
141. l^ayer for Relief as Measure of Recovery.
142. Judgment must follow tbe Verdict
143. Allowance of Credits.
144. Tender, Counterclaim, Offer of Compromise.
145. Joint Parties.
14(>. Affirmatlye Relief to Defendant
147. Interest.
148. Conditions as to Payment
149. Statutory Damages.
150. Designation of Amount.
151. Judgment designating Medium of Payment
152. Judgment for Coined Money.
S 138. Amomit greater thaii Plaintiire Demaiid.
Since judgments are usually rendered for a definite sum of money,
and are intended either to enforce the payment of a legal debt, or to
establish the existence of a legal right and give compensation for its
infraction by an award of damages, it becomes important in this
connection to consider the amount and character of the relief which
may be granted, the mode of its ascertainment, and the question of
designating the medium of payment. These matters will constitute
the subject of the present chapter. And first, it is an undisputed
rule that if a judgment be rendered for a greater sum, whether by
way of debt or damages, than is laid in the ad damnum clause, or
claimed in the declaration, petition, or complaint, or notified to the
defendant by the demand in the summons, then the judgment will
be erroneous and liable to reversal.^ Thus, where a complaint con-
1 Chaffee v. Hooper, 54 Vt 513; Andrews v. Monllaws. 8 Hun, 65; Dennison
V. Leeeli, » Fa. 164; Jobnson v. Van Doren, 2 X. J. Law, 374; Lester v.
Cloud, 67 Ga. 770; Hillebrant v. Barton, 39 Tex. 5U9; Janson v. Bank of
the Republic, 48 Tex. SHU; Price v. Grand Rapids & I. R. Co., 18 Ind. 137;
(200)
Ch. 8) AMOUNT AND CHARACTBR OF RELIEF GRANTED. § 138
tains two paragraphs, and there is a special finding of facts by the
court, and the facts found support all the material allegations of one
of the paragraphs, but not of the other, judgment must be rendered
as upon the paragraph that is supported by the findings, and it can-
not be for an amount greater than is claimed therein to be due.^
Xor is the application of this rule confined to contested actions. It
is equally true, in cases where the defendant suflfers a default, that
a judgment for more than the plaintiff has claimed is erroneous, and
may be set aside, modified on motion, or reversed on appeal.' And
a judgment for a greater sum than that laid in the declaration can-
not stand, even though the defendant confesses judgment for the
larger amount.* Nor will the defendant's withdrawal of his pleas
authorize or sustain a judgment for a sum in excess of that warranted
by the cause of action stated in the petition.* But it must be
Oak« V. Ward, 19 111. 46; Taylor v. Richman, 87 111. App. 419; Stiles v.
Brown, 3 G. Greene (Iowa) 589; Hayton v. Hope, 3 Mo. 53; Beckwith v.
Boyce, 12 Mo. 440; Cautliom v. Berry, 09 Mo. App. 404; Wheeler v. Mayher,
iColo. App.) «1 Fac. 623; Lamping v. Hyatt, 27 Cal. 99; Bond v. Pacheco,
30 Cal. 530; Foley v. Foley, 120 Cal. 33, 52 Pac. 122, 65 Am. St. Rep. 147;
Gentry v. United States, 41 C. C. A. 185, 101 Fed. 51; Morrison v. KHomme-
dien, 15 App. Div. 623, 44 N. Y, Supp. 79; Denison v. Lewis, 5 App. D.
C. 328; Sontheru Bell Teleplione & Telegraph Co. v. D'Alemberte, 39 Fla. 25,
21 South. 570; Wilkins v. Bums (Tex. Civ. App.) 25 S. W. 431; Warren v.
Prewett (Tex. Civ. App.) 25 S. W. 647; Chaney v. Ramey (Ky.) 43 S. W.
^235. It is immaterial that the evidence may prove a greater debt, or a
jn^ater amount of damage, than was alleged by the plaintiff in his deelara-
rion. Denison v. Lewis, 5 App. D. C. 328; Cauthorn v. Berry. 69 Mo. App.
-KM; Uster v. Vowell. 122 Ala. 264, 25 South. 564. And where the dec-
laration specially alleges the items of damage, in precise and deflnite sums,
there can be no greater recovery than their aggregate, notwithstanding that
the ad damnum clause claims a greater amount in a lump sum. Kerry v.
Pacific Marine Co., 121 Cal. 564, 54 Pac. 89, 66 Am: St. Rep. 63. But In
Indiana, It appears that, where the complaint demands a money Judgment
in a speolHed sum, and defendant has answered, Judgment may be rendered
for a greater sum than that demanded, should the case Justify it. Bozarth
V. McGlllicuddy, 19 Ind. App. 26, 47 N. E. 397. And see Code Civ. Proo. Cal.
f 58(J.
2 Helms V. Keams, 40 Ind. 124.
> Andrews v. Monilaws, 8 Hun, 65; Bond v. Pacheco, 30 Cal. 530. See
lHompson T. Turner, 22 111. 389.
* Lester v. Cloud, 67 Ga. 770.
• Janiion v. Bank of the Kepubllc, 48 Tex. 599.
(201)
§ 1 39 lAW OF JVDOMBNT8. (Cb. 8
observed that a judgment so rendered for an excessive amount is not
void.* Relief may be had against it, or it may be corrected or set
aside, in any appropriate mode ; nevertheless it is not a mere nullity.
Consequently it will stand as a valid adjudication until the proper
steps are taken against it, and will be binding upon the parties and
not c^en to collateral attack. And where this is the only error in
flie judgment, it may be rectified without the necessity of entirely va-
cating it. For if a judgment is entered for too great an amount, it
may be reformed by remitting the excess.^ Again, if the plaintiff
amends his petition, and issue is joined thereon, his recovery will
not be limited to the amount claimed in the original petition.* Or,
in proper cases, the complaint will be deemed to have been amended
so as to demand judgment for the amount actually recovered.* It
also appears that it is not error to render judgment for an amount
of damages exceeding the ad damnum in the writ, after the action,
together with other claims of the plaintiff against the defendant, has
been referred to arbitrators under a rule of court.** It should also
be remarked that the rule prohibiting a judgment for a greater sum
than that demanded by the plaintiff does not apply to the addition of
costs to the amount of the recovery, though the total may exceed the
ad damnum,^ ^ but it does prevent the addition of attorneys' fees in
excess of the sum claimed in the complaint.**
I 139. AMeasment of Damac®* om Default.
We have already seen, in the chapter on judgments by default,
that if the amount which the plaintiff is entitled to recover is defi-
« Chaffeo v. Hooper, 54 Vt 513; Bond v. Pacheco, 30 Cal. 530; Gum-Elastic
Rooflng Co. V. Mexico Pub. Co., 140 Ind. 158, 39 X. K. 443, 30 L. R. A. 700.
T Anthony v. Estes, 101 X. C. 541, 8 S. E. 347; Lister v. Vowell, 122 Ate.
204, 25 South. 504. In case of remittitur, the Judgment previously entered
should first be set aside, and a remittitur entered, and this should then be
followed by judgment for the amount remaining. Bartling v. Thielman, 183
lU. 88, 55 N. ifl. 077.
8 Kohn V. Johnson (Iowa) 80 N. W. 543.
» Carpenter v. Sheldon, 22 ind. 259.
10 Day V. Berkshire Woolen Co., 1 Gray (Mass.) 420.
i 11 French v. Goodnow, 175 Mass. 451, 56 N. E. 719. And the same Is troe
of interest. Georgia Home Ins. Co. v. Goode, 95 Va. 751, 30 S. K. 360.
" Skym V. Weske Consolidated Co. (Cal.) 47 Pac. 110.
(202)
Ch. 8) AMOUNT AND CiiAKACTEK OF BELIEF GRANTED. § 141
nitely fixed by the contract or other instrument on which he sues, a
final judgment may at once be entered, upon the defendant's defauh,
for such amount; and that the same is true if the amount can be
ascertained by a matter of simple calculation. But in other cases, an
interlocutory judgment must first be entered, fixing the plaintiff's
right to recover, and then the damages assessed by a writ of inquiry
or some other proper method.^* It is therefore erroneous for the
court, in an action on an unliquidated claim, to proceed to render
final judgment for a specific sum, without the preliminary assessment
of damages.^^ And in an action on an open account, in which the
defendant was defaulted, the judgment will be set aside if the record
does not disclose in what manner and upon what proofs the amount
of the judgment was ascertained.^'
S 140. Aateiiiit imdorsed on Svnunoajk
In some of the states, where the code practice is established, it is
required by law that in all civil actions for the recovery of money
only, the amount for which judgment will be taken, if the defendant
fails to appear, shall be indorsed on the summons. When such
indorsement is made, the defendant has a right to rely upon it as fix-
ing a limit beyond which the court cannot go in rendering judgment,
in case he chooses to make no appearance in the action, and it is
error to exceed it.**
f 141. PrAFer fer Relief mm Measure of ReooTery.
According to the settled practice in equity, the rule in regard to de-
crees is similar to that just stated as governing judgments at law,
IS Bupra, (^ 8».
»* Beam v. Hayden, 5 Bosh (Ky.) 426; Evans v. Parks, 10 Ark. 306; War-
ren T. Kennedy, 1 Ueiak. (Tenn.) 437.
iftSneU V. Irvine, 17 FU. 234.
i« Cleveland Co-op. Stove Co. v. Grimes, 9 Neb. 123, 2 N. W. 345; Basset
V. Mitchell (Kan.) 19 Fac. 671. But a recovery for an amount greater than
the sum indorsed on the summons is lawful where the excess is for Interest
Accroed since the commencement of the suit. Elliott v. Knight, 64 111. App.
V7. And the fact that the Judgment exceeds the sum indorsed on the sum-
moDB is unimportant where the defendant appears and answers to the merits.
Krck V. Omaha Nat Bank, 43 Neb. 613, 62 K. W. 67.
(203)
§ 141 LAW OF JUDGMENTS. (Ch. 8
viz., that it is error to decree relief not sought in the bill, in other
words, if the complainant has prayed for specific relief in the prem-
ises, or relief as to a specific subject-matter, no more extensive relief
can properly be accorded to him.^^ But it is usual to join with the
demand for specific relief a prayer for general relief also, and where
this is done, the court is not limited, in its dealing with the matters
in litigation, to the orders or decrees particularly asked for, but may
take such other action as may be necessary to fully adjust the equi-
ties, provided it be not inconsistent with the allegations of the bill
and the facts in evidence.*' So where there are prayers for both
specific and general relief, the court, if it refuses the specific relief
asked, may still grant any other appropriate relief under the general
prayer.** But it is the settled rule in equity that a party must re-
cover according to the case made by his bill or not at all, — secundum
allegata as well as secundum probata. Hence, even under a prayer
for general relief, the court cannot go outside the case made by the
pleadings, and decree in favor of the plaintiflF on grounds not stated
in his complaint, or grant relief for matters not charged, although
they may appear from other parts ol the pleadings and be improp-
erly in evidence.*® But the fact that more extensive relief, of the
same general nature, is prayed in the bill than is warranted by the
IT Dodge v. Wright, 48 111. 382; Smith v. So RiU (Tex. Civ. App.) 54 S. W. 38.
18 Laverty v. Sexton, 41 Iowa, 435; Galloway v. Galloway, 61 Tenn. 328;
Colton V. Ross, 2 Paige (N. Y.) 39(5, 22 Am. Dec. 648; Wilkin v. Wilkin, 1
Johns. Ch. (x\. Y.) Ill; Kelly v. Payne, 18 Ala. 371; Stone v. AndersoD, 2G
X. H. 506; Allen v. Coffmau, 1 Bibb (Ky.) 469; Barr v. Haseldon, 10 Rich,
fcki. (S. C.) 53.
i« Rogers V. Brooks, 30 Ark. 612.
20 Rome Exchange Bank v. Eames, 4 Abb. Dec. (N. Y.) 83; Rogers t.
Brooks, 30 Ark. 612; Carpentier v. Brenham, 50 Cal. 549; Miller v. AUen,
104 Ky. 114, 46 S. W. 523. For example, where plaintiff seeks to recover for
a conversion, a Judgment for foreclosure of an alleged lien on the same
property cannot be granted under his prayer for general relief. Behrens
Drug Co. V. Hamilton (Tex. Civ. App.) 45 S. W. 622. So, wh»e plaintiffs
pleadings asked for a lien only on personal property of defendant a Judg-
ment giving him in addition a lien on defendant's realty. Is erroneous. Cod-
lln V. Lamont Iron Co., 116 Mich. 626, 74 X. W. 1004. In an action to
enforce a contract for the sale of land, where both parties allege a sale, but
differ as to the consideration, a decree cancelling the contract as Inequi-
table is erroneous. Hoover y. Binkley, 66 Ark. 645, 51 S. W. 73.
(204)
Ch. 8) AMOUNT AND CHARACTER OF RELIEF GRANTED. §141
proofs does not preclude giving so much as the evidence will sus-
tain. Thus if the bill asks relief on an allegation of an abandonment
of twenty-six acres of land, and the proof is that sixteen acres only
were abandoned, the complainant may be relieved as to the sixteen.^*
Under the code practice, where the forms of action are abolished,
and either a legal or an equitable remedy, or both, may be prosecuted
under the same method of procedure, the rules already stated will
still hold good, though modified by certain statutory provisions,
which we now proceed to notice. The codes generally provide that if
there be no answer, the relief granted cannot exceed that which the
plaintiff shall have demanded in his complaint.^^ A recent decision
in California, construing the phrase "cannot exceed," holds that, in
case of default, it is improper to grant the plaintiff any other relief
tlian that prayed for.^' Whence it would appear that if the plaintiff
has mistaken his remedy, or otherwise failed to demand the relief
appropriate to his case, it would be beyond the power of the court
10 enter the proper judgment. But this view runs counter to that
held in New York, where, the.language of the statute being the same,
the courts say : "The relief demanded by no means necessarily char-
acterizes the action or limits the plaintiff in respect to the remedy
which he may have. If there be no answer, the relief granted can-
not exceed that which the plaintiff shall have demanded in his com-
plaint But the fact that after the allegation of the facts relied upon
the plaintiff has demanded judgment for a sum of money by way of
damages does not preclude the recovery of the same amount upon
ihc same state of facts by way of equitable relief. The relief in the
two cases would be precisely the same ; the difference would be form-
al and technical. If every fact necessary to the action is stated, the
plaintiff may, even when no answer is put in, have any relief to which
the facts entitled him consistent with that demanded in the com-
plaint."'* Rut under this clause, where a complaint contains no
prayer for damages, a judgment on default awarding damages is erro-
•1 VIckgburg & M. K. Co. v. Kagsdale. 54 Miss. 200.
" Code N. Y. f 275; Code Civ. Proc. Cal. $ 5«0.
«» Mudge V. Steinhart, 78 Oil. 34, 20 Pac. 147, 12 Am. St Rep. 17.
»« Uale V. Omaba Nat. Bank, 49 N. Y. 628; Hagar v. Townsend (C. C.) 67
F^ 433. Compare UaU v. Gall, 17 App. Div. 812, 45 N. Y. Supp. 248.
(205)
§ 141 LAW OF JUDOMENTa j(Ck. 8
-neoiis, althot^h the complaint states facts sufficient to sustain such
a jiKigincnt.** However, under the codes, the extent of the relief to
be granted by a judgment is restricted to that prayed for in the com-
plaint only in cases where there is no answer; in all other cases any
relief may be granted which is consisteirt with the. case made by the
pleadings.** Thus, for example, where the complaint in an action
relating to land contains proper averments to entitle the |rfaintiffs
to possession, and a general prayer for relief, and there are an ap-
pearance, trial, and finding that the plaintiffs are owners and entitled
to possession, and defendant is in unlawful possession, judgment
for possession is proper, though there is ^lo specific prayer therefor.*^
So, in a case where the plaintiff, in an action to recover a street as-
sessment, asked for a judgment against the defendant's lot but not
for a personal judgment, and the court rendered judgment against
the lot and also ordered that if the lot shotiM not seH for the fall
am!Ount of the plaintiff's claim, then a personal judgment for the bal-
ance should be docketed against the defendant, it was held that the
action of the court was proper, it having jurisdiction of both the
subject-matter and the person of the defendant.** Again, where the
plaintiff alleges facts entitling him to both legal and equitable relieh
and demands both, the court may award either that is appropriate to
20 Pittsburgh Coal Min. Co. ▼. Greaiwood, 38 Cal. 71. See Miner ▼. Peir-
Bon, Id Kan. 27; Olcott ▼. Koliteaat, 56 Hun, e07, 8 N. Y. Supp. 117.
26 Marder v. Wright, 70 Iowa, 42, 29 N. W. 799; Humphrey v. Thoni, 63
Ind. 2y«; Bank of Kusseliville v. Coke (Ky.) 45 S. W. 867; Poledori t. Xew-
man, 11(5 Cal. 375, 48 Pac. 32o; Ellis v. Rademacher, 125 Cal. 556, 58 l?ac.
178. The tillDg of a demurrer is not the making of a defense within tbe
meaning of these statutes. Board of Sinkiug Fund Com'rs v. Mason A Foard
Co. (Ky.) 41 S. W. 548. In Missouri, it is said that, where a petition con-
tains a plain statement of the cause of action, it is immaterial what tbe prayer
is; and the trial court may direct such Judgment as the averments and facts
of the case will warrant. Gunnel! v. E^merson, 80 Mo. App. 322. And in
North Carolina, there is a ruling that, where a Judgment is Justified by tbe
pleadings and proof, it is immaterial that It is not in conformity with the
prayer of the complaint. Keade v. Street, 122 N. C. 301, 30 S. E. 124.
2 7 Evans v. Schafer, 119 Ind. 49, 21 N. E. 448. And see Eldridge T. Adams,
54 Barb. 417.
28 Chase v. Christianson, 41 Cal. 258. See Conlin v. Lamont Iron Co.. W
Mich. UL'(i. 74 xN. W. 1004. Compare Childress v. Smith (Tex. Civ. App.) 3T
S. W. 1070.
(206)
Ch. 8) . AMOUNT AND CHARACTER OF RStlEF GRANTED. § 142
the case made by the proof.'* Nevertheless this equitable power in
the courts will not justify them in awarding to the plaintiff, upon a
replication, an entirely different judgment from that prayed for in his
petition.**
i 142. Jndsment must follow the Verdict.
The judgment must follow the verdict, and if the jury have found
a verdict for a specified sum of money, the court cannot render judg-
ment for any greater amount ; if the verdict is wrong, the remedy is
by a new triaL*^ Or a judgment entered for a sum in excess of what
the vetdict authorized may be reformed so as to bring it within the
verdict.** If, on the other hand, the verdict is excessive, being for a
greater amount of damages than are laid in the declaration, it is said
that judgment may be given only for the amount so laid.** But this
would appear to be adequate ground for a motion in arrest and for
new trial; although it would undoubtedly be good practice to enter
a remittitur for the excess and take judgment for the balance.*^ Ac-
cording to the practice of the United States courts, the clerk has no
>• Johnson v. UathOTn, 2 Abb. Dec. 406.
»• Marder v. Wright, 70 Iowa, 42, 2» N. W. 799; Eastllck v. Wright 121
CaL 3U9, 53 Pac. 654; Hib^nia Savings & Loan Soc. v. Thornton, 123 Gal.
ez, 56 Pac 702; Lazarus v. Barrett, 5 Tex. Civ. App. 5, 23 S. W. 822. But
in Iowa, nnder MiUer^s Code, § 2514, \^bich provides for a change into the
proper proceedings in case a wrong proceeding is adopted, a proper judgment
at law for the amount of the claim will be given, though the proceeding was
erraneonsly commenced in equity to establish a mechanic's lien. Swift v.
Catalan, 102 i«wa, 206, 71 N. W. 23S, 37 L. R. A. 462, 63 Am. St. Rep. 443.
SI Buck T. LitUe, 24 Miss. 463; R^d v. Dunklin, 5 Ala. 205; MitcfaeU v.
GeiaendorC, 44 Ind. 358; John A. Tolman Ck). v. Savage, 5 S. D. 496, 59 N.
W. 8K!; dark t. Gallaher, 3 Tex. Civ. App. 541, 22 S. W. 1047. But the
judgment mmj inclnde interest accrued since the verdict Hallberg v. Bros-
Man, 6i IlL App. 520. And it is said that a trifling excess in the judg-
ment <sach as ten cents) will not invalidate it, especially where the decree
oiders a sale in the exact amount of the verdict. Brown v. Montgomery (Tex.
Or. App.) 31 & W. 1079. The fact that the court, in entering final judgment
in ejectment, did not award to the plaintiff all the premises to which he
wai entitled under the verdict, affords no ground of complaint to defendant.
CoUxrado Central ConsoUdated Min. Go. v. Turck, 2 O. O. A. 67, 50 Fed. 888.
»« Stevens' Kx'rs v. Lee, 70 Tex. 279, 8 S. W. 40.
•* BaltseU V. Ulckman, 4 Utt (Ky.) 265.
•« Walka T. Fuller, 29 Ark. 448.
(207)
§144 LAW OP JUDGMENTS. (Ch. 8
authority to enter judgment for any other sum than the verdict and
statute (the action being statutory) call for; hence where the stat-
ute requires interest to be added to the verdict, the clerk cannot enter
a judgment for the amount of the verdict without interest, even
though the plaintiff waives the interest.* •
S 143. AUowanoe of Credits.
In an action on an obligation for the payment of money, on which
credits are indorsed, the judgment should be rendered for the real
balance due, deducting the indorsements.*' But where the judgment
on a promissory note, on which there was a payment indorsed, was,
by mistake, rendered for the amount of the note apparent on its face,
without deducting the payment indorsed, it was held that this did not
invalidate the judgment and render void the proceedings under an
execution issued thereon, but relief must be afforded to the party
injured in some other mode.*^ It is also held that payments made
pending the suit iare to be deducted in making up the judgment*'
But where the plaintiflf is entitled to the entire amount sued for or
nothing at all, a judgment in his favor for part of such amount cannot
stand.**
§ 144. Tender, Coimter claim, Offer of Compromise.
If a verdict is returned for a sum less than the amount tendered
in court, it would be erroneous to render judgment on the verdict
86 RobostelU V. New lork, N. H. & H. R. Co. (C. O.) 34 Fed. 507.
80 Gray v. Mines, 4 Mimf. (Va.) 437. Attorney's commissions stipulated for
by a judgment note will be computed on the balance due on tbe note, for
which Judgment Is entered, unless it is shown that previous payments credited
on the note were secured by the services of the attorney. George P. Steel
Iron Co. V. Jacobs, y Pa. Super. Ct. 122.
8 7 Hathaway v. Hemingway, 20 Conn. 191. The court, In this case, was
Inclined to think the remedy was by application to a court of chancery. But
a mistake of this kind could probably be cured by amendment in the court
rendering the judgment; and it has been held that failure to credit sodi a
partial payment in the entry of the Judgment will be cured by crediting it on
the execution. Woiford v. Bowen, 57 Minn. 267, 59 N. W. 195.
38 Joy V. Hull, 4 Vt 455, 24 Am. Dec. ($25.
89 Pionier v. Alexander, 7 Allsc. Kep. 709, 28 N. Y. Supp. 157; Owens r.
Flynn, 7 Misc. Kep. 171, 27 JS. 1. JSupp. 330.
(208)
Ch. 8) AMOUNT AND CHARACTER OF RELIEF GRANTED. § 145
and order the residue to be refunded, inasmuch as the tender admits
the whole to be due.*^ The proper practice in such a case would be
to set aside the verdict and enter judgment for the amount tendered,
the plaintiff being entitled to that much on the pleadings." If
the defendant succeeds in- establishing a counterclaim, judgment
should of course be given in his favor, either for the whole amount
or for its excess over the claims proved by the plaintiff, according as
the case may be.** So a claim for damages for a breach of warranty,
interposed by answer to a petition to recover the price of the goods,
is in effect a counterclaim, and the court can render judgment for the
undisputed portion of the price, and allow the action to proceed as
to the sum in dispute.** An offer of settlement made by the plain-
tiff before the commencement of the action, will not preclude him
from recovering a larger sum than that contemplated by his offer.**
§ 146. Joint Fartiei.
£mbarrassing questions sometimes arise in regard to the amount
and character of the judgment in cases where there are numerous
«• Sweetland v. TutbUl, 54 HI. 215. It is equally error to render judgment
for tlie plaintiff upon the pleadings, without evidence, for a larger sum than
tlie answer admits to be due to him. Van Etten v. Kosters, 48 Neb. 152, 66
N. W. HOG. If defendant becomes entitled to costs, because of plaintiff's fail-
ore to recover a more favorable judgment than defendant has offered, a single
judgment should be entered for the plaintiff for the amount recovered, less
defendant's costs. Coatsworth v. Ray, 52 N. Y. Supp. 498.
" Coffman v. Brown, 7 Colo. 147, 2 Pac. 905.
«*BDt defendant Is not entitled to recoupment for an amount larger than
that claimed In his plea. Paragon Refining Oo. v. Lee, 98 Tenn. 613, 41 S.
W. d^SL A judgment for plaintiff in an action in which a set-off is pleaded
need not specilieally show what disposition was made of the set-off. Coats
T. Barrett, 49 111. App. 275. Where a counterclaim is well pleaded and the
plaintiff Interposes no reply, he cannot recover more than the sum claimed in
bis petition, less the amount of the counterclaim; and a verdict in his favor
for more than this should be set aside. Ashland Land ft Live-Stock Co. v.
Woodford, 50 Neb. 118, 69 N. W. 769.
«• Moore ▼. Woodside, 26 Ohio St. 537. And see Clarkson v. Manson, 60
How. Prac. 48.
«« Brush T. S. A. & D. R. Co., 43 Iowa, 554. An agreement between the
parties as to the amount of the recovery will support a judgment for such
amoimt, altbongh the pleadings were not amended to correspond with the
agreement. Wilson v. Panne, 1 Kan. App. 721, 41 Pac 984.
1 LAW JUDO.-14 (209)
§ 146 . LAW OP JUDGMENTS. (Ch. 8
parties on one side or the other. And first, in regard to joint plain-
tiflFs, it is the rule that several persons having distinct claims against
the same defendant cannot make one suit the vehicle for carrying all
their demands into judgment. Their recovery is limited to what
concerns them jointly. For instance, all persons whose property is
affected by a nuisance, though they own the property in severalty
and not jointly, may unite in an action to abate the nuisance; but
in such action they cannot have judgment for the damages done to
the property of each, but only such relief as is common to all the
plaintiffs, e. g., an injunction against the nuisance.** Conversely,
one of a class of plaintiffs cannot, in suing alone, procure an adjudi-
cation which will be binding upon all, unless the others come in
as joint plaintiffs or otherwise connect themselves with the action.
Thus, where only one of ten distributees sued the administrator in
the probate court, it was held irregular for that court in its judgment,
without making the other persons interested parties, to do more than
adjudicate the rights of the plaintiff and the administrator.** Where
proceedings are taken concurrently by several persons against the
same fund, it seems they stand on an equal footing. Thus, in a
Massachusetts case, where two trustee processes were served at the
same time, and judgment was recovered in each for an amount
greater than the sum held by the garnishee, it was considered that
each of the creditors was entitled to one-half of the fund, though
their claims were unequal.*^ Where several defendants are sued
jointly in an action on contract, the rule at common law was that
the plaintiff could only recover judgment against all or none of them.
But this has been changed by statute in many of the states, so that
now, in such an action, a judgment may be rendered in favor of one
of the defendants and against the other, if the facts warrant it"
In equity, a decree between co-defendants, grounded on the pleadings
and proofs between the plaintiff and defendants, is regular, and in
fact the court is bound to make such a decree in order to avoid a
*» Grant v. Schmidt, 22 Minn. 1. See Helmutb v. Bell, 150 liL 263, 37 K.
E. 2ao.
*« Williams v. Williams, 74 N. C. 1. '
-47 Davis V. Davis, 2 Cush. (Mass.) 111.
*8 Supra, H «2, 120; Moffett v. Blckle, 21 Qrat 280.
(210)
i
Cb. 8} AMOUNT AND CHARACTRR OF RELIEF GRANTED. § 147
muhiplicity of suits.*** But at law one defendant to a suit cannot
ordinarily recover a judgment against a co-defendant without a cross-
pleading and service of process or an appearance to the cross-plead-
ing by the defendant thereto.*^ In New Hampshire, damages may
be apportioned among several defendants by separate judgments, if
justice will be promoted by such procedure.'^
I 146. AflnatiTe BeUef to BefoaiUiit.
In some of the states the code provides that "if a counterclaim,
established at the trial, exceed the plaintiff's demand, judgment for
the defendant must be given for the excess ; or if it appear that the
defendant is entitled to any other affirmative relief, judgment must
be given accordingly." '* And aside from statutes of this character,
courts possessing equitable powers are disposed to complete the
adjudication of controversies brought before them by awarding to
defendants any relief justified by the facts. In equity, a decree may
be rendered in favor of a defendant where he proves to be the cred-
itor and the plaintiff the debtor." So on the foreclosure of a deed
of trust, the decree directing the surplus remaining after paying the
plaintiff to be paid to the co-defendant, there being no cross-bill, need
not find the precise amount due such co-defendant, but only that
there is due him more than the surplus.'*
I 147. latereit.
Accrued interest on the demand in suit is of course a legal part of
the plaintiff's claim and should be included in the judgpment. But a
«*Cbainley t. Dunsany, 2 iSchoales & L. 690, 718. See Jones y. Sander, 2
Wash. St. 3*JU, 26 Pac. 2*^.
•♦ CaviD V. WilHams, 8 Bush (Ky.) 343.
»i City Sav. Bank v. Whittle, 63 N. H. 587, 3 Atl. 645.
" Code ClvU I'roc. Cal. | 666. See Gaff v. Hutchinson, 38 Ind. 341; James
▼. Daniels frex. Civ. App.) 43 S. W. 26; National Foundry & Pipe Works v.
<ktmto City Water Supply Co., 106 Wis. 48, 81 N. W. 125; Nichols & Shepard
To. T. Wledmann, T2 Minn. 344, 75 N. W. 208. As to the propriety of ad-
Judiring afttrmatlTely for defendant, where he has not asked for afBrmatiye
rplier. see (iilreath y. GiUiland, ^ Tenn. 383, 32 S. W. 250.
»» Kraker v. Shields, 20 Grat. (Va.) 377.
•« Walker v. Abt, 83 lU. 226.
(211)
§147 LAW OF JUDGMENTS. (Ch. 8
judgment for the gross sum of principal and interest made up to a
certain day, with interest on such gross sum, is erroneous.*' The
statutes sometimes require that the debt and the interest shall be
separately specified. This being the case, it is erroneous to enter
the judgment, in an action of debt, for an aggregate sum, including
the debt, interest, and damages, without distinguishing the amount
of either.*'* Where, in rendering judgment by default on a demand
ascertained by writing, too much interest is calculated and mcluded
in the judgment, the error will be corrected on motion/ oi it may be
amended in the appellate court at the cost of the plaintiff in error."
It is immaterial that the judgment recites that the money recoverable
bears interest from an erroneous date, where it appears that the
amount, with interest, for which judgment is rendered does not
exceed the amount for which the party complaining is legally liable."
In some states, the statutes provide that, when judgment is rendered
upon a verdict, interest shall be computed from the date of the
verdict to the time of rendering the judgment on the same, and made
a part of the judgment. But a judgment is not void for uncertainty
because the interest is not so computed.'* It also appears that
where the verdict, in an action on an implied contract, does not men-
tion interest, the court cannot allow interest in entering the judg-
ment.*®
»» Boarman v. Patterson, 1 Gill (Md.) 372.
s« WUmans v. Bank of Illinois, 1 Gilman (lU.) 667.
»T Bpence v. Rutledge, 11 Ala. 590. But It Is held by the United States
supreme court that the objection that too large an amount of Interest bas
been included in a judgment cannot be raised for the first time in that coart.
Hawkins v. Glenn, 131 U. S. 319, 9 Sup. Ct. 739. 33 L. Ed. 18i.
68 Dean v. Blount, 71 Tex. 270, 9 S. W. 168; Washington Park Club t.
Baldwin, 59 111. App. 61.
B» Blumke v. Dalley, 67 HI. App. 381. It Is error to compute interest on
the amount of a verdict for a period prior to the date of its rendition, and
render judgment therefor, when the verdict neith^ includes such interest nor
afTords data for its computation. Southern Kansas Ry. Co. v. Sbowalter, 57
Kan. 681, 47 Pac. 831.
•0 Carter v. Christie, 1 Kan. App. 604, 42 Pac. 256. See Goggan v. Evans.
12 Tex. Civ. App. 256, 33 S. W. 891.
(212)
Ch. 8} AMOUNT AND CHARACTER OF RELIEf GRANTED. § 149
S 148. Conditloni «■ to Paymeat.
In certain classes of cases it is customary for the judgment .to con-
tain conditions or directions as to the time or manner of payment.
Thus a judgment, directed by the court, in an action upon a contract
for the sale and purchase of lands, which ascertains the amounts
which will become due to the plaintiff, for principal and interest, at
the several times stipulated in the contract, may further direct that,
in case the same should at those periods remain unpaid, the plaintiff
shall have judgments for their recovery and executions for their col-
lection.** So a judgment on a bond for the payment of a debt by
instalments should be for the debt in the declaration mentioned, to
be discharged by payment of the sum due at the time of suit brought,
reserving liberty to the plaintiff to resort to scire facias to recover
such other damages as might thereafter arise upon the condition of
the bond.** Again, in an action of covenant upon a guaranty by
which the covenantor became surety for the punctual payment of the
bond of another, and undertook that if the obligor made default, he
would pay the mortgage mentioned in the bond, the judgment upon
such default should not be that he should pay absolutely to the plain-
tiff the amount due, but that he should pay or cause to be paid and
satisfied of record the mortgage mentioned, within thirty days from
the date of the judgment, or, in the event of his not doing so, then
that he pay the amount to the plaintiff.**
S 149. Statutory Damases.
Where a statute imposes a penalty for the commission or omission
of a certain act, the judgment, if for the plaintiff, must be for the
full amount of the penalty; the courts have no power to mitigate it,
for in so doing they would contravene the expressed legislative will.**
«» tribby V. Rosekrans, 55 Barb. (N. Y.) 202. Upon proof of a claim against
■n estate for money payable In installmenta, some of which are not yet due,
Jcd^meot may be rendered for Its payment at different times as the Install-
meutu fan doe. Wolfe v. Wllsey, 2 Ind. App. 549, 28 N. B. 1004.
•2 Thatcher v. Taylor, 3 Munf. (Va.) 249.
•» Famham v. Mallory, 2 Abb. Dec. (N. Y.) 100.
•« Powell T. Redfleld, 4 Blatchf. 47, Fed. Cas. No. 11»859; United States ▼.
(213)
§151 LAW OP nJDOMENTB. (Ch. h
In cases where the statutes give double or treble damages for a cer-
tain kind of injury, the jury, if they find for the plaintiff, should in-
crease the damages which they find by the statutory multiple; but
if the verdict in terms finds only single damages, the court will per-
form the multiplication and direct judgment to be entered for the
increased amount.*" Under a declaration containing a count for a
common law trespass and a count for the statutory trespass, where
a general verdict of guilty is returned, it is not competent for the
court to apply the verdict to the count under the statute, and proceed
to render judgment for treble the damages returned.'*
•
f 150. Deaigiiatioa of Aa&ount.
The amount of a judgment must be stated in it with certainty and
precision ; an incurable ambiguity in this respect will be sufficient to
invalidate the judgment. But the judgment is to be construed with
reference to the pleadings and other parts of the record, and if these
furnish data from which the amount of the recovery can be ascer-
tained with certainty, it is probably sufficient. All judgments ren-
dered in this country should also be expressed in the American de-
nominations of money; and the amount should be written out, or
at least, if expressed in figures, should be accompanied by some ap-
propriate mark or sign to indicate what denominations of money arc
meant.*^
§ 161. JndKuent deiignatine Medium of Payment.
As a general rule, a judgment, being merely the sentence of the
law upon the facts shown by the pleadings and proof, has nothing to
do with the means or the medium of satisfying the debt which it
establishes. Hence, where a suit is for a money demand, the court
has no power (with exceptions to be noted in the next section), after
MonteU, Taney, 47, Fed. Cas. No. 15,798; Clark v. Barnard, 108 U. S. -ISft 2
Sup. Ct. 878, 27 L. Kd. 780.
0 5i»almer v. York Bank. 18 Me. 1(56, 36 Am. Dec. 710; Royae r. Maj. 93
Pa. 4.^)4; Shrewsbury v. Bawtlltz, 57 Mo. 414; Osborn v. LoveU, 36 Mich. 246;
Chipman v. Knierick, 5 Cal. 23l>: Sedg. Dam. 588.
«a Osborn v. LoveU, 36 Mich. 246.
•7 Supra, ^ 118.
(214)
Ch. 8) AMOUNT AND CHARACTER OF RELIEF GRANTED. § 152
giving judgment for the amount claimed, to specify in what kind of
money it shall be paid ; when the plaintiff is entitled to a judgment,
the law determines how it shall be satisfied.'® But where a promis-
sory note was made payable **in the currency of the country but not
in Confederate notes," it was held that the recovery should be for
such notes as were actually in circulation at the maturity of the note,
although greatly depreciated in value.®*
f 162. Jndcment for Coined Money.
When the "legal tender act" (Act Cong. Feb. 25, 1862) first came
before the supreme federal tribunal for interpretation, it was held
to be unconstitutional.^* But this decision was afterwards overruled,
and the act was held to be constitutional and valid, both as applied
to contracts made before its passage and as to those entered into
since; and it was further decided that the treasury notes were
equally a legal tender when reissued by authority as upon their orig-
inal issue.** At the same time, the court held that the legal tender
act applied only to debts which were payable in money generally, not
to obligations solvable in commodities, nor to debts or contracts as
to which the parties had agreed that they should be payable only in
a specified kind of money. Hence, where a contract for the payment
of money is by its terms made payable "in specie," "in coin," "in
coined money," or "in gold coin," it cannot be satisfied by a tender
in treasury notes ; and when a contract so worded is put in suit, the
judgment rendered upon it should specify "coined dollars" or "gold
coin," or otherwise as the case may be, as the medium of its satisfac-
tion.^* Notwithstanding these decisions, some of the cases, refusing
to accept this construction of the act, or preferring to abide by the
rule that the courts have nothing to do with the manner in which a
judgment or execution shall be satisfied, held that it would be
«« 8waln V. Smith. 05 N. C. 211; Belford v. Woodward, 158 ni. 122, 41 N.
K imi, 29 L. R. A. 593.
•• Comn Y. Hill, 1 Uelgk. (Tenn.) 385.
'• ^epbllm T. Uriswold, 8 Wall. 603, 19 U Ed. 513.
Ti Legal Tender Cases, 12 Wall. 457, 20 L. Ed. 287; Jullllard v. Greenman,
HO i;. 8. 421, 4 Sup. Ct. 122. 28 Lr. Ed. 204.
7«TreWloook v. WHson, 12 WaH. 087, 20 L. Ed. 400; Bronson v. Rodes, 7
Wali 229, 19 U Ed. 141; BuUer v. Horwitz, 7 WaU. 258, 19 L. Ed. 149.
(215)
§ 152 LAW OP JUDGMENTS. (Ch. 8
entirely erroneous to enter judgment for a particular kind of moncy.^*
But in a majority of the states the courts have followed the lead of
the federal decisions, and maintained the rule that if the contract
specified gold or silver as its medium of payment, the judgment upon
it must do likewise."'* It is also held that if the contract was only
solvable in coin it would be improper to render judgment for the
market value of that amount of coin calculated in terms of the treas-
ury notes : the judgment must simply be for so much gold or silver/*
Also it is considered that interest on the debt can only be paid in
coined money.^* But the costs of the action may be paid in legal
tender notes. ^^ However, it is only in respect to contracts expressly
stipulating for payment in coin that judgments for coin can be en-
tered. In suits for unliquidated damages, such judgments are not
permissible.^* Nor can they be rendered in actions of tort.^' So
T8 Davis V. Field, 43 Vt. 221; Munter v. Rogers, 50 Ala. 283; WIndisch ▼.
Gussett, 30 Tex. 744; Flournoy v. Healy, 31 Tex. 61K>; Olanyer y. Blanchanl
18 La. Ann. 616; Whetstone v. CoUey, 36 111. 328; Hurling v. Goodman, 1 Nev.
314; Buchegger v. Shultz, 13 MicH. 420; Wood v. Bullens, 6 Allen (Mass.) 518;
Killough V. Alford, 32 Tex. 467, 5 Am. Rep. 241); Reed v. Eldredge, 27 Cal. ^46.
74 Independent Ins. Co. v. Thomas, 104 Mass. 192; Paddock v. Commercial
Ins. Co., lOi Mass. 521; Chrj'sler v. Renols, 43 N. Y. 209; Kellogg v. Sweeney.
46 N. Y. 291, 7 Am. Rep. 333; Ransford v. Marvin, 8 Abb. Prac, (X. S.) 432:
McCalla v. Ely, 64 Pa. 254; Chesapeake Bank v. Swain, 29 Md. 483; Phinips
V. Diigan, 21 Ohio St. 466, 8 Am. Rep. 66; Foster v. Atlantic & P. R. Co., 1
Mo. App. 390; Uardlng v. Cowing, 28 Oai. 212; Reese v. Stearns, 29 Cal. 273;
Whians v. Hassey, 48 Cal. 634; McGoon v. Shirk, 54 111. 408, 5 Am. Rep. 122:
Hittson V. Davenport, 4 Colo. 169; Smith v. Wood, 37 Tex. 620.
T6 Dewing V. Sears, 11 Wall. 379, 20 L. Ed. 189; Davis v. Mason, 3 Or. 154:
Foster v. Atlantic & P. R. Co., 1 Mo. App. 390; PhiUips v. Dugan, 21 Ohio
St. 466, 8 Am. Rep. 66. In an action on a promissory note made payable in
gold, a judgment was rendered for the face of the note and interest thereon,
together with 40 per cent, on account of the depreciation of the currency. It
was held that this was error, whether the act making treasury notes a legal
tender is constitutional or not. In the first case, the currency and gold arc
of equal value before the law. In the second case, the plaintiff has the right
to refuse the notes, no matter in what quantity offered, and to demand
payment of his debt in gold. Henderson v. McPike, 35 Mo. 255.
70 Cliesapeake Bank v. Swain, 29 Md. 483; Chrysler v. Renois, 43 N. Y. 2<U
7T Phillips V. Dugan, 21 Ohio St 466, 8 Am. Rep. 66; Chrj'Sler v. Reuois, 43
N. Y. 209.
T8 Calhoun v. Pace, 37 Tex. 454.
7 0 Livingston v. Morgan, 53 Cal. 23; Chamborlin v, Vance, 51 Cal. 75.
Where there is no allegation in the complaint that there was an agreement to
(21G)
Cb. 8) AMOUNT AND CHARACTER OF RELI?:F GRANTED. § 152
a person who deposited gold with a banker is only entitled to recover
the amount in dollars and cents in the circulating medium of the
country.** But a judgment on a promissory note expressed to be
payable "in gold coin or its equivalent in United States legal tender
notes," rendered simply for gold coin, would be erroneous. The
judgment should follow the contract, fixing the amotmt to be paid if
paid in gold, and the amount to be paid if paid in legal tender notes.*^
A condition in a note expressed to be payable in gold coin, that "if
it IS paid at maturity or before suit brought, it shall be payable in
lawful money," does not impair the right, in case it is necessary to
bring suit, to recover judgment in gold coin.'*
In California, and perhaps some other states, the statutes provide
that judgments in suits on contracts or obligations in writing for
the direct payment of money may be made payable in the kind of
money specified therein ; and under such a law, a judgment expressed
to be payable in "U. S. gold coin" is not erroneous where the note
on which it is rendered is worded in the same manner.®^
pay In gold coin, the court cannot render a Judgment payable in gold coin,
even if the verdict ot ttie Jury is for gold. The verdict cannot go beyond the
issues in the case. Watson v. iSan Francisco & H. B. R. Co., 50 Cal. 523.
8« Gombel v. Abrams, 20 La. Ann. 508, 96 Am. Dec. 426.
•1 Wells, Fargo A Co. v. Van Sicltle, 6 Nev. 45.
•s Churchman v. Martin, 54 Ind. 380.
•» Sheehy v. Chalmers (CaL) 36 Pac. 514; Code Civ. Proc. Cal. i 667.
(217)
§153 UIW OF JUDGMBNTii (Ch. 9
THK AME.NDM112NT OF JUDGMBNTB.
8 168. Amendment during the Term.
154. Amendment aft^ tlie Term.
155. Ck)rrection of Clerical Krrora.
156. Supplying Omissions.
157. Reforming and Perfecting tbe Judgment.
158. Judicial Errors not to be thus Corrected.
159. Amendment as to Amount of Judgment.
1(S0. Amendment in Respect of Parties.
IttL What Courts have Power of Amendment
1(52. Time of making Application.
ltS3. Method of applying for Amendment
104. Notice of Application.
165. Evidence.
166. Method of making Corrections.
167. Allowance of Amendment Is discretionary.
168. Jurisdiction of Equity.
169. Effect of Amendments on Third Persons.
f 163. Amendnient dnriac the Term.
A judgment may be incorrect, imperfect, or erroneous, and there-
fore stand in need of revision oj amendment, from either of two
causes ; that is, either because the entry fails to correspond with the
judgment actually intended to be given, in consequence of some omis-
sion, mistake, or inadvertence; or because the judgment actually
rendered was one that ought not to have been given, the error being
due to misinformation or a wrong apprehension of the law. The
principles of justice obviously require that what has been done amiss
should be set right. But in order to secure stability to the formal
and solemn records of the courts, the rules of practice have estab-
lished important limitations upon the power of a court to correct or
revise its own sentences. These limitations rest mainly upon a dis-
tinction which originated in the common law, and was there consid-
ered of the greatest consequence. During the whole of the term
in which any judicial act was done the proceedings were considered
to continue in fieri, and even after a judgment was rendered, the
(218)
Cb. 9) AMENDMENT OF JUDGMENTS. § 158
record was said to remain "in the breast of the judges of the court
and in their remembrance," and therefore the judgment was subject
to such amendment or alteration as they might direct. But after
the term had passed, the record no longer remained in this nebulous
condition. It was then spread at large upon the judgment-roll,
and thereupon acquired an inalterable and indisputable character,
passed beyond the control of the court, and admitted of no alteration,
modification, or contradiction.^ The distinction between power to
act during the term and power to act after the term has survived
in many points of modern practice. And in regard to the first part
of the common law rule, as above stated, there can be no doubt that
it still stands as sound law. The authorities all hold that a court
has plenary control of its judgments, orders, and decrees during the
term at which they are rendered, and may amend, correct, modify,
or supplement them, for cause appearing, or may, to promote jus-
tice, revise, supersede, revoke, or vacate them, as may in its discre-
tion seem necessary.* Thus an order of record setting aside a ver-
dict may be corrected by the court at any time during the term at
which it was rendered.' And the court may allow a judgment to be
amended as to the name of a member of a firm, so as correctly to
describe the firm against which the judgment is given.* Nor is it
» Co. Litt. lieoa; 3 BI. Comm. 407.
« Barrel! t. TUton. 119 L'. S. 637, 7 Sup. Ct. 332, 30 L. Ed. 511; Alabama Gold
Ufe ina. Co. v. Mchols, 10» U. S. 232, 3 Sup. Ct. 120, 27 L. Ed. 915; Memphis
r. Brown, 94 V. S. 715, 24 U Ed. 244; Tllton v. Barrell (C C.) 17 Fed. 59; Burch
t. Scott 1 Bland (Md.) 112; Lemaeks v. Glover, 1 Rich. Eq. (S. C.) 141; Worth-
ingtotx T. CampbeU (Ky.) 1 S. W. 714; Lane v. Ellinger, 32 Tex. 3G9; Rlchard-
*jn T. Howk, 45 lud. 451; Stahl v. Webster, 11 111. 511; Becker v. Sauter, 89
IIL 5915; Harris r. State, 24 Neb. 803, 40 N. VV. 317; De Castro v. Richardson,
r» Cal. 49; Cooper v. Cooper. 51 App. DIv. 595, (J4 N. Y. Supp. 1)01; Conklln
T. Xew York -El. K. Co., 18 Civ. Froc. R. 366, 13 N. Y. Supp. 782; aUbreth
V. Smith, 124 X. C 289, 32 S. E. 714; Barton v. American Nat. Bank, 8 Tex.
Civ. App. 223, 29 S. W. 210; Texas Savings Loan Ass'n v. Smith (Tex. Civ.
App.) 32 S. W. 38U; McGurry v. Wall, 122 Mo. 614, 27 S. W. 327; Stltt v. Kur-
tenbaoh, 83 111. App. 38. But while the court ha.s control of its Judgments
flaring the entire term at which tliey are rendered, this rule wHl not be
appliHl so as to enable a party to take advantage of his own negligence or
miscoDdnot. to the Injury of other parties. Cornell University v. Parkinson,
99 Kan. 3Ur>, 53 Pac. 138.
s Pawfion V. Wlsner, 11 Iowa, 6.
« Sugg V. Thornton, 73 Tex. 666, 9 S. W. 145.
(219)
§ 154 LAW OF JUDGMENTS. (Ch. 9
only in respect to clerical misprisions or omissions that this power
of amendment during the term may be exercised ; it also extends to
the errors of the court. Thus, where a court makes an erroneous
order under a mistaken view of the law, it may, during the term, of
its own motion, correct the mistake by expunging such order and
entering an order in accordance with the law of the case.' Thus,
where an action was tried by the court without a jury, the judge has
power, during the same term, to reduce the amount of the judgment
if satisfied that it is too great.' So a final decree which is incorrect
in regard to an item of costs, which error was caused by the court's
hot being correctly informed, will be corrected in that particular on
motion made during the term.^ Again, where a receiver has been
ordered, by mistake, before a final settlement, to pay out more money
than is liable to come into his hands as such receiver, the order may
be amended and modified, either upon direct and summary proceed-
ings, or by the court upon its own motion.' It is even held that the
court, in a criminal action, may set aside a judgment made in regu-
lar course, imposing on the defendant a fine and the costs of the
proceedings, during the same term in which the judgment was ren-
dered, and before any part of it has been performed, and may impose
a greater fine than was imposed by the first judgment.'
f 164. Aa&endnieat after the Ternt.
That part of the common law rule which declares that no judgment
can be amended after the term at which it was rendered, can
scarcely be said to survive, in this country, in all its original inflexi-
bility. Divided between the policy of administering justice liberally
and equitably and the habit of ascribing the utmost sanctity to a
record once completed, the courts have suffered exceptions to be
introduced which are of such importance as to require the rule to be
» Wolmerstadt v. Jacobs, 61 Iowa, 372, 16 N. W. 217; Carothers v. Langc
(Tex. Civ. App.) 55 8. W. 580.
e Flicklnger v. Omaha Bridge & Terminal Ry. Co., 08 Iowa, 368, 67 N\ W.
372.
7 Bishop v. Abom, 16 R. I. 568, 18 Atl. 203.
8 Ryon V. Thomas, 104 Ind. 59, 3 N. B. 653.
• State V. Uaugherty, 70 Iowa, 43», 30 N. W. 685.
(220)
Ch. 9) AMENDMENT OP JUDGMENTa § 154
much modified before it will apply to contemporary practice. A
conservative statement of the rule as at present observed, and one
fully supported by the authorities, would be as follows : After the
expiration of the term at which a judgment or decree was rendered,
it is out of the power of the court to amend it in any matter of sub-
stance or in any matter affecting the merits.^® It is said by the
supreme court of Illinois, "The general rule is that courts, while a
cause is pending and the parties before them, have control over the
record and proceedings in the cause, and that they have jurisdiction
over their judgments and final orders of a pending term, and may,
during the term or while the cause is depending, and the parties in
court, for cause appearing, amend or set them aside. But after
the expiration of the term, unless the cause is still depending and the
parties are in court, their power over the record is confined to errors
and mistakes of their officers ; and these may at any time, upon notice
to the parties in interest, and saving such rights as in the interval
of time may have accrued to third persons, be corrected so as to
make the record conform to the action or judgment of the court." ^^
In the following sections we shall endeavor to show that, beside
the correction of clerical errors, the courts have power, after the
!• Harrison v. State, 10 Mo. (J86; Botkln v. Pickaway County Com'rs, 1
Ohio, 375, 13 Am. Dec. 630; Bramblet's Heirs v. Pickett's Heirs, 2 A. K.
Marsli. (Ky.) 10, 12 Am. Dec. 350; Becker v. Santer, 89 111. 596; Humphrey-
TlUe T. Culver, 73 lU. 485; Smith v. Armstrong, 25 Wis. 517; aark v. Lary,
3 Sneed (ITenn.) 77; Cook v. Wood, 24 lU. 295; Balio v. Wilson, 12 Mart. O. S.
(U.) 358. 13 Am. Dec. 376; McLean v. Stewart, 14 Hun, 472; Daviess County
Court V. Howard, 13 Bush (Ky.) 101; Ocoee Bank v. Hughes, 2 Oold. (Tenn.)
52; KiUpatrlck v. Rose, 9 Johns. (N. Y.) 78; Coughran v. Gutcheus, 18 111. 390;
IfOuld*8 Estate v. Watson, 80 111. App. 242; Schmelzer v. Chicago Ave. Sash
ft Door ManuTg Co., 85 lU. App. 596; Schmidt v. Rehwinkel, 86 III. App. 267;
Hook V. Mercantile Trust Co., 32 C. C. A. 238, 89 Fed. 410; Foley v. Foley,
15 App. Dlv. 276, 44 N. Y. Supp. 588; Stewart v. Stewart, 40 W. Va. 65, 20
». H 862; Ivey v. Gilder, 119 Ala. 495, 24 South. 715; McLain v. Duncan, 57
Art. 49, 20 S. W. 597; Mxon v. Nichols, 10 Ind. App. 1, 37 N. E. 421; State
T. Harper, 66 Mo. App. 611; Anderson v. McCloud-Love Live-Stock Com-
mission Co., 58 Neb. 670, 79 N. W. 613. An amendment of a decree from one
7D the merits, tinal in its character, to one dismissing the bill for want of
(urifldictloii, and leaving the merits for determination in an action at law, is
Rbfitantial and material, and cannot be made after the term at which it was
rendered. Homer v. Homer, 37 111. App. 199.
ti Coughran y. Gutcheus, 18 111. 390.
(221)
§ 164 LAW OP JUDGMENTS, (Ch. 9
term, to supply omissions in a judgment, and to reform and perfect
it, so as to make it conform exactly to the judgment intended to be
given in the case ; but that they cannot use the power of amendment
to correct judicial errors or to enter a judgment which was neither
in fact rendered nor intended to be rendered. Taken with these
corollaries, the rule as above stated will be found to express the
common opinion of the authorities on this point at the present time.
In illustration of the rule, the proposition may be cited that, after
the term, the power of the court to amend its own record is limited
to such corrections or changes as are in affirmance of the judgment
originally rendered ; it has no authority to strike out the judgment,
to enlarge or diminish it, to change its whole nature, or to render
another and different judgment upon the same record.** So, after
a judgment was rendered and the court had adjourned, it was con-
sidered that an error therein could not be cured by the entry of a
remittitur of an excess of damages.^" A decision in Virginia holds
that a decree for alimony, affirmed on appeal as to the date at which
payments should commence, is final, and when, in subsequent pro-
ceedings in the trial court to ascertain its amount, payment is fixed
as beginning at a different date, such action is erroneous and will be
reversed.^* In California, the court has no power to amend an
order made at a previous term, unless a motion was made or some
proceedings instituted at such term to procure the amendment to be
made and the motions or proceedings were continued, or unless the
record discloses that the order as entered was not the one made by
the court.^° It follows also that a judgment cannot be expunged at
12 Gould's Ii^tate v. Watson, 80 lU. App. 242; Bethel ▼. Bethel, 6 Bush (Ky.J
C6, W Am. Dec. 655. Alter the term, the court caoDot enlarge Its Judgment
so as to Include a recovery against bondsmen not originally included thereiu.
Barber v. City of Biioxl, 7tt Miss. 578, 25 South. 298. Again, after the terai
at which a final Judgment in replevin was rendered, the court cannot amend
that Judgment by entering a further Judgment for damages and a retonio
habendo. I'eterson v. Metropolitan Nat. Bank. 88 111. App. 190. Mistake of
counsel in entering a decree which does not conform to the opinion of the
court cannot be corrected after the term expires. Doe v. Waterloo Mia. Ca
(C. U.) 60 Fed. 643.
18 Buckles V. Northern Bank of Kentucky, (33 111. 2G8.
1* a-alle V. Cralle. 84 Va. 198, 6 S. K. 12.
15 i)e Castro v. Richardson, 25 Cal. 49,
(222)
Ch. 9) AMENDMENT OF JUDGMENTS. § 155
a tenn subsequent to that of its rendition, on the ground that neither
the judge's docket nor the clerk's minutes show the rendition thereof.
In such case the record of the judgment imports absolute verity and
cannot be assailed for the lack of such vouchers.^® But the rule
that the court has no power over its judgments after the expiration
of the term, applies only to final judgments, not to judgments which
are still in fieri, as an order for a partition.^^ And it appears that
the rule which prevents the court from interfering with its judg-
ments after the term does not apply to such action as may be taken
in that behalf with the consent of the parties concerned, or at their
request.** And further, a judgment may be carried over the term
by motion; that is to say, if a motion to amend or correct it, or
a petition for a rehearing, is filed during the term at which the judg-
ment was rendered, its operation will be so far suspended that the
matter may be heard and determined at the ensuing term.*^
I 165. CTreetion of ClevioAl Erron.
As regards mere clerical errors, mistakes arising from inadvertence,
or formal misprisions of clerks or other officers, it is always in the
power of the court, even after the adjournment of the term, to make
such corrections or amendments as truth requires.*® HencQ a mis-
is Jones T. Uart, (K> Mo. 351.
" Hastings v. Cunningham, 35 Cal. 549; AuU v. Day, 133 Mo. 337, 34 S. W.
57H. A court lias jurisdiction to set aside a judgment rendered at a previous
term, requiring a party to pay tlie costs of the term. Tanton v. Keller, 78
Ul. App. 31.
11 Sheridan v. City of Chicago, 175 lU. 421, 51 N. B. 898; Hewetson v. City
of Cblcago, 172 liL 112, 49 N. E. 992.
»» CTKeefe v. Foster, 5 Wyo. 343, 40 Pac. 525; Watson v. lie Grand Roller
Skating Kink Co., 177 lU. 203, 52 X. E. 317. Where a formal written Judg-
ment Is not made and signed until the term succeeding the one at which the
matter was orally determined, the Judgment comes into existence only at the
later term, and remains subject to the control of the court until the close of
moh term. Judson y. Gage, 39 a C. A. 156, 98 Fed. 510.
'•Balcb Y. Bbaw, 7 Cush. (Mass.) 282; Fay v. Wenzeil, 8 Cush. (Mass.) 315;
IVUmo t. Myers, 11 N. C. 73, 15 Am. Dec. 510; Speed's Ex'rs v. Hann, 1
r. a Mon. (Ky.) Itt, 15 Am. Dec. 78; Smith v. MuUins, 3 Mete. (Ky.) 182;
Krady v. Beason, 28 N. C. 425; Portis ▼. Talbot, 33 Ark. 218; RusseU v.
Erwin'i Adm*r, 41 Ala. 292; Johnson v. Bank of Kentucky, 2 Duv. 521; Ham-
mer T. McOannel, 2 Ohio, 31; Ohio ▼. Beam, 3 Ohio St 608; Silner v. But-
(223)
§ 155 LAW OP JUDGMENTS. (Ch. 9
take in entering a decree, which is manifestly a clerical error, which
cannot mislead, and which does not prejudice the appellant, is no
ground for reversal.*^ A court may, upon motion of one party and
due notice to the other, amend a docket entry by inserting the true
date of the rendition of the judgment, where a wrong date appears of
record.^* So a misnomer of the term of the court in the entry of a
judgment is a clerical error and amendable.^' And the same is true
of a misnomer of one of the parties,^* or a misdescription of the
property involved.*" So also, a judgment entered against*a party in
a representative capacity, when it should have been against him indi-
vidually, or vice versa, or a personal judgment against an executor
which should have been against the goods of the estate, may be
amended by other parts of the record, on motion, when the mistake
is plainly that of the clerk.*' Again, where a judgment in attach-
ment gives the right of execution to the defendant, instead of to the
plaintiff, this is manifestly a clerical error and may be corrected at
a subsequent term.*' And so also where there have been two trials
terfield, 2 Ind. 24; iSberman y. Nixon, 37 Ind. 153: Jenkins v. Long, 23 Ind.
400; Smitli v. Wilson, 26 111. 186; Hickman v. Barnes, 1 Mo. 156; State t.
Frimm, 01 Mo. 106; Swain v. Naglee. 19 Cal. 127; Will v. Sinkwitz, 41 Cal.
588; Drcyfuss v. Tompkins, 67 Cal. 339, 7 Pac. 732; Granite State ProTident
Ms'n V. McHugh, 88 Hun, 617, 34 N. Y. Supp. 341; Knox v. Mowe, 41
S. U. 355, 19 S. iiX 683; Birmingham v. Leonhardt, 2 Kan. App. 513. 43
Pac. 996; Brittenham v. Kobinson, 22 Ind. App. 536, 54 N. E. 133; Canthom
r. Berry, 09 Mo. App. 404; Farley v. Cammann, 43 Mo. App. 168; People v.
'Jounty Court of Arapahoe County, 9 Colo. App. 41, 47 Pac. 469.
»i Eau Claire liumber Co. v. Anderson, 13 Mo. App. 429.
22 Grimes v. Grosjean, 24 Neb. 700, 40 N. W. 137; Carlton v. Patterson,
29 N. H. 580; Clark v. Clark. 138 N. Y. 653, 34 K. B. 513; Day v. Aigm
Printing Co., 47 N. J. Eq. 594, ^2 Atl. 1066.
28 Buraham v. Chicago, 24 111. 496.
24 Southern Kansas Ky. Co. v. Brown, 44 Kan. 681, 24 Pac. 1100; Brown
V. Barnes, 93 Ala. 58. 9 South. 455; First Nat. Bank y. Kowalsky (CaL) 31
Pac. 1133.
26 Wilcox V. WeUs (Idaho) 51 Pac. 985.
2« Bemmerly v. Woodward, 124 Cal. 5(>8, 57 Pac. 561; Atkins r. Sawyer, 1
Pick. (Mass.) 351, 11 Am. Dec. 188; Yarborough's Ex'r v. Scott's Bx^, 5
Ala. 221; Speed's Ex*rs v. Hann, 1 T. B. Mon. (Ky.) 16, 15 Am. Dec. 78;
Wyman v. Buckstaff, 24 Wis. 477. But compare Sass v. Hlrachfeld, 23 Tex.
Civ. App. 1, 56 S. W. 602; Leonis v. LeffingweU. 126 Cal. 369, 68 Pac. 940.
2T Hogue V. Corbit, 150 111. 540, 41 X. E. 219, 47 Am. St. Rep. 232.
(224)
Ch. 9)
AMENDMENT 07 JUDOMENTS.
S 156
of a case, and the record shows that judgment was rendered on the
second verdict, but the clerk entered it for the amount of the first
verdict." So again, where it is shown, on motion to correct the
entry of a judgment of dismissal of an action as to a party thereto,
that the order was not intended or understood by either party to in-
clude a dismissal of the cause of action against such party, the error
may be corrected.** In some states, the courts have authority, by
statute to amend a judgment at any time within three years after
its rendition, by the correction of any clerical error or mistake, where
there is sufficient matter apparent on the record to amend by.'" And
in others, the judge in vacation may correct any miscalculation or
misrecital of any sum of money in a judgment.**
i
S 156. Svpplyiiig OmiMiom.
In regard to the power of amending judgments by supplying omis-
sions, it is necessary not to lose sight of the principle that amend-
ments can only be allowed for the purpose of making the record con-
form to the truth, not for the purpose of revising and changing the
judgment. Hence if anything has been omitted from the judgment
which is necessarily or properly a part of it, and which was intended
and understood to be a part of it, but failed to be incorporated in it
through the negligence or inadvertence of the court or the clerk,
then the omission may be supplied by an amendment after the
term.'* If, on the other hand, the proposed addition is a mere after-
thought, and formed no part of the judgment as originally intend-
«• Gaynor v. Clements. 10 Colo. 209. 26 Pac. 324.
*• Stuart v. City of Logansport, 87 Ind. 584.
»• Lee V. Houston, 20 Ala. 301; Code Ala. 1886, § 288tt.
»» Morris V. Coleman County (Tex. Civ. App.) 35 S. W. 29; Sayles' Civ. St.
Tex. art. 1355.
"Lewis V. Koss, 37 Me. 230, 69 Am. Deo. 49; State v. Moran, 24 Neb
KO. 38 X. W. 29; Galloway v. McKeithen, 27 N. a 12, 42 Am. Dec. 153
Gaines v. Wedgeworth, 19 Ga. 31; Keld v. Morton, 119 111. 118, « X. E. 414
ITiorp V. l*Jatt, 34 Iowa. 314; Trammell v. Trammell, 25 TIbx. Supp. 2G1
Rogers v. Rogers, 1 Paige (X. Y.) 188; Xewburgh Bank v. Seymour, 14 Johns
•X. Y.) 5a9; Gardner v. Derlng, 2 Kdw. Ch. (N. Y.) 131; Ray v. Connor, 3
Kdw. Ch. (X. Y.) 478; Nye v. Stlllwell, Blerce, Smith & Valle Co., 12 Ohio
nr. Ct. R. 40; Kendall v. (TNeal, 16 Mont. 303, 40 Fac. 599.
1 LAW JUDG.~15 (225)
§ 156 LAW OP JUDGMENTS. (Ch. 9
ed and pronounced, it cannot be brought in by way of amendment
For example, in the entry of a final judgment against a garnishee, it
is the duty of the clerk to recite the fact and the amount of the orig-
inal judgment against the defendant, but his failure to do so is a
clerical error which may be corrected nunc pro tunc at a subsequent
term.** So a judgment in favor of A. "administrator" may be
'amended so as to show that it was recovered by A. as administrator
of B., deceased.'* The omission of the clerk's signature to a judg-
ment filed and docketed, where that is required, may be supplied in
like manner.** Where a decree orally announced as dismissing a bill
without prejudice, is drawn and enrolled, omitting the phrase "with-
out prejudice," these words may be afterwards supplied by amend-
ment.** And in like manner, where a decree in foreclosure pro-
ceedings, by inadvertence or mistake, omits a fractional part of the
land described in the mortgage and the findings, the court may
amend the decree by including such land.*' And the power of or-
dering amendments of this character extends as well to other parts
of the record as to the judgment itself. Thus, when the court had
in fact jurisdiction of the defendant, but the return of the constable
failed to show that fact, the record may be amended after judgment
so as to show jurisdiction, if there are no intervening rights to be
affected.** So where the Christian name of an appraiser was omit-
ted in drawing up a decree for the appraisement and sale of trust
property, the court directed it to be inserted in the original decree
in the register's minutes, it being a merely formal matter.** Again,
where a guardian ad litem was appointed at the proper term, but no
88 W^horley v. Memphis & C. R. Co., 72 Ala. 20.
8* Crane v. Crane, 51 Ark. 2«7, 11 S. W. 1.
38 Seaman v. Drake, 1 Calnes (N. Y.) 9.
8« Township of Hiawatha v. Schoolcraft County Circuit Judge, 90 Mich.
270, 51 N. W. 282.
8T Dickey v. Gibson, 118 Cal. 26, 45 Pac. 15, 54 Am. St. Kep. 321. Bnt
compare Ruff v. Klkln, 40 S. C. 00, 18 S. E. 220. . See, also, Young's Guardian
V. Sadler (Ky.) 24 S. W. 877.
88 Allison v. Thomas, 72 Cal. 562, 14 Pae. 300, 1 Am. St Rep. 89: Fiw-
cett V. Vary, 59 N. Y. 597; Hibemla Savings & Loan Soc. v. Matthal, 116
Cal. 424, 48 Pac. 370; Cunningham v. Spokane fiydranUc Mln. Co., 20 Wash.
450, 56 Pac. 756, 72 Am. St. Rep. 113.
«» De Caters v, Le Ray De Chaumont, 3 Paige (N. Y.) 17a
(226)
Gh. 9) AMBNDMBNT OF JX7DOHBNT8. § 167
entry made on the docket, the entry may be subsequently supplied.**
And in another case, where the omission occurred through the in-
advertence of the plaintiff's attorney, and it was necessary that it
should be supplied in order to perfect the record, although it would
not vary the judgment, the learned judge, in allowing the amend-
ment, said : "I cannot discover any difference, as to the allowing of
an amendment, whether the mistake has happened through the omis-
sion of an attorney or by that of the clerk. Both are equally officers
of the court." ** But on the other hand, as already stated, the pow-
er of amendment cannot be made the means of adding to a judg-
ment or decree something not originally contemplated by it or which
is foreign to its intended scope and purpose. Thus, in an Illinois
case, it appeared that a decree had been drawn up by the plaintiff's
solicitor and accepted and signed by the judge as the decree of the
court; afterwards it was discovered that the solicitor had omitted
from the decree a clause which he had intended to make a part of it,
and application was made to have it added. But it was considered
to be no proper case for an amendment, inasmuch as it did not ap-
pear that the court had intended to insert the clause in question, and
consequently to add it by amendment would be to change the sen-
tence pronounced and revise its own decree.** On the same prin-
ciple, plaintiff is not entitled to an amendment of a judgment in his
favor, so as to include the sureties on an appeal bond, where the
judgment, as entered, followed the minutes of the court and was
properly rendered against defendant alone, and where any judgment
against the sureties would necessarily have been for a different
amount *•
f 157. Reformiiis aad Perfeotliis tlie Judgment*
A judgment entry may be amended at any time to make it corre-
spond with the judgment actually rendered.** And for this pur-
«• Johnson v. Wright, 27 Ga. 555.
«i Close T. GiUespey, 3 Johns. (N. Y.) 526.
** Forquer v. Forquer, 19 111. 68.
4* Robertson v. King, 120 Ala. 459, 24 South. »29.
«« Gilmer v. City of Grand Rapids (C. C.) 16 Fed. 708; Tucker v. New Bruns^
irick Ttadlng Co., 44 Ch. Dlv. 249; Capen y. Inhabitants of Stougbton, 16
(227)
S 157 LAW OF JUDGMENTS. (Oh. 9
pose either additions or elisions may be made. In a case where the
judgment pronounced by the court upon motion of the defendant was
"that the complaint be dismissed with costs," and the judgment en-
tered by the clerk was that the complaint be dismissed **upon the
merits" with costs to the defendant, it was held that the insertion of
the words quoted was a material addition to the judgment which the
clerk had no authority to make, and was properly stricken out on
motion.** So an amendment may be made where a judgment of dis-
missal failed to include a judgment for costs properly chargeable to
the plaintiff,** or where a judgment is confessed in open court, and
the clerk improperly enters it as a judgment by default,*^ or where,
on a nonsuit for failure of proof, at the close of plaintiif^s case, the
judgment is erroneously made to recite a dismissal on the merits,"
or where, by the terms of a judgment confessed, it purports to be for
the benefit of the "several creditors" of the debtor, but there is un-
Gray, 364; Robertson v. Hay, 12 Misc. Rep. 7, 33 N, Y. Supp. 31; Sexton v.
Bennett, 63 Hun, 624, 17 N. Y. Supp. 437; Gough v. McFaU, 52 N. Y. Supp.
221; Portis v. Talt)ot, 33 Ark. 218; Sharpe v. Fowler (Ky.) Lltt SeL Cas.
446; Beam v. Brldgers, 111 N. C. 269, 16 S. E. 391; Converse t. Langshaw,
81 Tex. 275. 16 8. W. 1031; State v. White, 75 Mo. App. 257; Hoagland t.
Way, 35 Neb. 387, 53 N. W. 207; Hall r. Merrill, 47 Minn. 260. 49 N. W.
980; Nell V. Dayton, 47 Minn. 257. 49 N. W. 981; Bostwick v. Van Vleck.
106 Wis. 387. 82 N. W. 302; San Joaquin Land & Water Co. v. West 9»
Oal. 345, 33 Pac. 928. Where a party moves for and obtains an amendment
of a judgment against him, he thereby waives all erroneous rulings of the
court preceding the Judgment. Pittsburg, C, C. & St. L. R. Co. v. Beck tind.)
52 N. E. 399. And after an order entered, as dictated by the Judge, has been
construed and affirmed by the supreme court, an amendment cannot be al-
lowed on the ground that the construction placed on it was not what the
judge intended. Harrison v. Harrison. 114 N. C. 219, 19 S. E. 232. I'nder
the statute law of Louisiana, a strict rule prevails; and the judge, after bar-
ing by mistake signed a judgment in favor of defendant, cannot of his own
accord substitute therefor a judgment for the plaintiff, although the latter w.ns
the judgment orally given by him. State v. Judge of CivU District Court.
43 La. Ann. 1169, 10 South. 294.
46 Williams v. Hayes, 68 Wis. 248, 32 N, W. 44. Further as to striking
out words Improperly inserted by the clerk, see Brusie v. Peck Bros. & Ca,
62 Hun, 248, 16 N. Y. Supp. 645.
40 Marine Bank Co. v. Mailers, 58 lU. App. 232..
4 7 cirand Rapids Sav. Bank v. Widdcomb, 114 Mich. 639. 72 N. W. 615.
4 8 Mannion v. Broadway & S. A. R. Co., 18 Civ. Proc. R. 40, 13 X. Y. Supp.
759.
(228)
Ch. 9) AMENDMENT OF JUDGMENTS. § 157
disputed evidence that it was intended only for his unsecured "busi-
ness creditors," **^ or where a cognovit was filed by an attorney at
law as such, but the judgment erroneously recites that it was filed
by defendant's ''attorney in fact." *^ And where a judgment is er-
roneous on its face by reason of not conforming to the verdict, no
other objection being made, it may be corrected on motion.'^* This
power of amendment may also be used to clear up ambiguities.
Thus it is held that the court has power to amend a judgment for a
specified quantity of water, "miners' measurement," so as to relieve
it of the imcertainty of that term, the amendment being made on
the uncontradicted testimony in the case, made a part of the motion
papers. The court remarked: "We do not doubt the soundness
of the rule that the trial court cannot at a subsequent time so modify
a judgment that the modification is in eflfect a reversal. That is the
province of the appellate court. But the trial court has the power
to modify or correct the judgment or record to such an extent that
the relief granted may be such as was intended to be granted." *'
On similar principles, the court may amend its record by transfer-
ring the proceedings to the proper suit when by mistake they have
been filed in a suit to which they do not belong."' In this connec-
tion, the following observations of the court in North Carolina will
be found instructive. "As a general rule, it is unquestionably true
that no act of the court, as contradistinguished from the act of its
officers or of the parties, can be allowed to be amended, but during
the term at which it was done. During the term the record is said
to be in the breast of the judge ; after it is over it is upon the roll.
But this rule applies to such amendments as call into action the judg-
ment or discretion of the court, and not to such as are a matter of
*• Jenkins v. Davis, 141 I'a. 206, 21 Atl. 5U2.
•«<)dell V. Keyiiolds, 17 U. C. A. 317, 70 Fed. 656.
*» Seattle & M\ Ky. Co. v. Johnson, 7 Wash. »7, 34 Pac. 567. But where
the court has lost Jurisdiction by entering a final decree In divorce, the sub-
wNiuent appearance of defendant to contest a motion for aUmony does not
JTive the court jurisdiction to amend the decree by adding an order reserving
the qnestion of alimony for further consideration. O'Brien v. O'Brien, 124
Cal. 422. 57 Pac. 225.
« Welch V. Keene, 8 Mont. 305, 21 Pac. 25.
" Sweeny v. Delany, 1 Pa. 320, 44 Am. Dec. 136.
(229)
§158 LAW OP JUDGMBNT8. (Ch. 9
course. In such cases, the reasons of the rule no longer operate;
for, as much as the law confides in the integrity of the court, it ad-
mits a possibility of its being corrupt, and therefore guards it from
temptation." '* It is held that a judgment by consent cannot be cor-
rected by the court without the consent of all parties to it. It is not
the judgment of the court except in the sense that it is recorded and
has the effect of a judgment. In such case, the court can only cor-
rect its own errors in making the entries, as, for instance, the mis-
prision of its clerk. '•
$ 158. Judicial Error* not to be tlius Corrected.
The allowance of an amendment should never be used by the court
as a means of reviewing its judgments on the merits, or correcting
its own judicial mistakes, or substituting a judgment which it nei-
ther in fact rendered nor intended to render.'* "The power of courts
to amend judgments after the close of the term extends to all omis-
sions to enter the judgments pronounced by the court, and to clerical
errors in the form of the entry, whether by introducing a fact which
ought to appear on the record, or by striking out a statement of a
fact improperly introduced, and when the record affords sufficient
evidence. But when the defect consists in the failure of the court to
render the proper judgment, or arises from a want of judicial action,
the record cannot be corrected after the term has closed, the cause
being no longer sub judice. The purpose of amendment is to make
5* Wilson V. Myers, 11 N. C. 73, 15 Am. Dec. 510.
8B McEachern v. Kercliner, 90 N. C. 177. And see Knox v. Moser, 72 Iowa,
154, 33 N. VV. 017. A judgment entered by consent of defendant, but whicb
was broader than the consent authorized, will not be vacated where plain-
tiff agrees to its moditication to conform to the real intention of the parties.
McManus v. Ennis, 1 App. Div. 30, 3tJ N. Y. Supp. 1049.
68 Elder v. Richmond Gold & Silver Min. Co., 7 C. C. A. 3o4, 58 Fed. 636;
Duffey V. Houtz, 105 Pa. 90; Gannon v. Kiel, '3 Lack. Leg. N. 68; Heert v.
Cniger, 14 Misc. Kep. 508, 35 N. Y. Supp. 1063; Shipman v. Fletcher, W
Va. 473, 22 S. E. 458; Milam Co. v. Robertson, 47 Tex. 222; Missouri Pac.
Ry. Co. V. Haynes, 82 Tex. 448, 18 S. W. 605; Horner t. Horner, 37 111. kW-
199; Webb v. Elliott, 75 Mo. App. 557; Turner v. Cliristy. 50 Mo. 145: Darn-
ing V. Burkhardt, 34 Wis. 585; Pinger v. Vandick, 36 Wis. 141: Dillon v. Chi-
cago, K. ^fe N. K. Co., 58 .Neb. 472, 78 N. W. 927,
(230)
Ch. 9) AXBNDMBMT OF JUDGMENTS. § 158
the judgment conform to what the court intended it should be, to set
right the record and make it speak the truth, so that omissions or
clerical error shall not prejudice parties litigant. The power to
amend nunc pro tunc is not revisory in its nature, and is not intended
to correct judicial errors. Such amendments 'ought never to be the
means of modifying or enlarging the judgment, or the judgment rec-
ord, so that it shall express something which the court did not pro-
nounce, even although the proposed amendment embraces matter
which ought clearly to have been pronounced.' However erroneous,
the express judgment of the court cannot be corrected at a subse-
quent term." *^
A judgment, therefore, cannot be amended so as to vary the rights
of the parties as fixed by the original decision of the court and the
judgment entered thereon.** Thus, it is error to amend a judg-
ment by reducing its amount, where the reason for the alteration is
that the court has changed its mind ; such action may be taken as
the means of correcting a miscalculation or other clerical error, but
not to set right a judicial mistake.'* Again, the power of amend-
ment cannot be used as a means of enlarging the judgment originally
given, by decreeing additional relief to the successful party,*® or by
adding judgments against parties not originally included in the judg-
ment, or giving a personal judgment in addition to the decree of fore-
»T Browder v. JOaulkner, 82 Ala. 267, 3 South. 30, citing Wborley v. Memphis
ft U. K. Co., r2 Ala. 20; Kmerson v. Head, 81 Ala. 443, 1 South. 197.
" Smith V. Smith, 40 App. Dlv. 251, 67 N. Y. Supp. 1122; Stilwell T. Stil-
weU, 81 Hun. »«. 30 x\. Y. Supp. 9«1.
•» Griffith V. Maxwell, 19 Wash. 614, 54 Pac. 35; Heath v. New York Build-
ing Loan Banking Co., 84 Hun, 302, 32 N. Y. Supp. 454.
••riFBt Nat. Bank v. Dusy, 110 Cal. «>, 42 Pac. 476. In foreclosure on
default in payment of the first of several instalments of interest contracted
to be paid, a decree directing a sale to satisfy said instalment alone, which
was duly signed and entered, cannot be amended so as to provide for fur-
ther sales on subsequent defaults. Byrne v. Hoag, 116 Gal. 1, 47 Pac. 775.
^. where the question of alimony is raised by the pleadings in a divorce
i-ase, the failure to find on that issue is a judicial error, and not a clerical
mistake; and hence the judgment cannot be amended by adding an order re-
wrvlng the question of alimony for further consideration. O'Brien v. O'Brien,
ll'4 Cal. 422, 67 Pac 226. And see Thompson v. Thompson, 73 Wis. 84, 40
X w. tni,
(231)
§ 159 LAW OP JUDGMENTS. {Ch- 9
closure originally pronounced,*^ or releasing from the operation of
the judgment parties or property originally affected by it.'* Nor
has the court power or jurisdiction to correct a valid and final judg-
ment, after the term, by readjudging the question of costs and tax-
ing them in a different amount, or distributing them in a different
manner, from that originally fixed. •' So also, a judgment dismiss-
ing the complaint, entered after trial, cannot be amended by ap-
' pointing a referee to pass on plaintiff's claim, unless the dismissal is
vacated.®*
S 159. Amendment as to Amovnt of Judgment.
If there has been obvious clerical error on the part of the clerk or
the court in the entry of the amou::t recovered by a judgment, the
entry may be amended to conform to the truth.** Thus if, through
an error of the clerk, a judgment by default has been entered for a
01 Konyon v. Baker, 82 Iowa, 724, 47 N. W. 977; Barnes v. Hale, 44 Neb. 355.
62 \. W. 10t>3; Smith v. Fox (Tex.) 15 S. W. 1W5.
«2 Johnson v. Foreman, 24 Ind. App. 93, 56 X. E. 254. But where, in an
action to set aside a sale on foreclosure, the court, by mere Inadvertence, goes
further than the relief asked and also adjudges the mortgage to be void, tbis
mistake can be corrected by an amendment striking out the proTislou as to
the mortgage. Chase v. Whitten, 62 Minn. 498, 65 X. W. 84.
63 Hetlgecoxe v. Conner (Tex. LUv. App.) 43 S. W. 322; People v. Common
Council of Buffalo, 9 Misc. Kep. 403, 29 X. Y. Supp. 1071; Manning v. Xelson.
107 Iowa, 34, 77 X. W. 503; Genet v. Delaware & U. Canal Co., 136 X. Y.
217, 32 X. E. 851.
«4 Duryea v. Fuechsel, 76 Hun, 4(M, 27 X. Y. Supp. 1037.
66 Smith V. Hood, 25 Pa. 218, 64 Am. Dec. 692; Wall v. Covington. 83 X.
C. 144; Sherry v. Priest, 57 Ala. 410; Modawell v. Hudson, Id. 75; Arriujrton
V. Courey, 17 Ark. 100; Emlson v. Walker (Ky.) 31 S.^ W. 461; De Hymel v.
Scottish-American Mortgage Co., 80 Tex. 493, 16 S. W. 311; Miller v. Royce,
60 Ind. 189; Daniels v. McGinnis. 97 Ind. 549; Knappen v. Freeman. 47 Minn.
491, 50 X. W. 533. But an amendment cannot be used to correct a judicial
mistake, as distinguished from a mere clerical error. Missouri Pac. Ry
Co. V. Hayncs, 82 Tex. 448, 18 S. W. 605; Pursley v. Wickle, 4 Ind. App.
382, 30 X. K. 1115. And see section 158, supra. And so. when the error
complained of in a consent decree is the Insertion of a particular amount
as the result of a calculation by one of the parties upon a basis which the
other parties do not regard as In accordance with the agreement It is not a
clerical error, but a mistake of parties, and it can be wrrected only by original
bill. .Morris' Admr v. Peyton's Adm'r, 29 W. Va. 201, 11 S. E. 954.
(232)
Ch. 9) AMENDMENT OF JUDGMENTS. § 159
sum too small, as appears on the face of the papers, the judgment
may be corrected on motion at a subsequent term, even although the
amount for which it was erroneously entered has been paid.*® So
also, a clerical error in the calculation of interest, or in fixing the
date from which interest shall run, may be corrected by an amend-
ment.*^ Again, if the clerk, by mistake or inadvertence, enters up
a judgment for a sum in excess of that found by the verdict or or-
dered by the court, the entry may be corrected so as to correspond
with the verdict or findings.®* On the same principle, a court ren-
dering a judgment in excess of the amount which its jurisdiction
allows may reduce it to such limit.*® And where a judgment by de-
fault is too large, and the plaintiff remits the excess, the court may
correct the judgment to conform to the remittitur.'^ But the fact
that the evidence fails to support the full amount of the judgment is
properly ground for a new trial, rather than a motion to modify the
judgment.'* If a judgment is erroneously rendered for a sum great-
er than the amount of the plaintiff's claim, it may be corrected on
•• Sberman r. Mxon, 37 Ind. 153; Mechanics' Bank v. Mlnthorne, 19 Johns.
(>*. \.) 244. But where judgment by default has been properly entered, the
court cannot, on mere motion, vacate the judgment at a subsequent term,
aUow an amendment increasing the ad damnum, and enter a new judgment
tor a larger sum. Uadclyffe v. Barton, 154 Mass. 157, 28 N. E. 148.
•T Fidelity Ins., Trust & Safe-Deposit Co. v. Koanoke Iron Co. (C. 0.) 84
F«L 744; West Chester & W. Flank-Koad Co. v. Chester County, 21 Pa.
ro. a. U. 86; Hastings v. Alabama State Land Co., 124 Ala. 008» 26 South.
«81; lYIplett V. Lake, 43 VV. Va. 428, 27 S, E. 363.
"Alpers V. Schammel, 75 Cal. 590, 17 Pac. 708; Klndel v. Beck & Pauli
Lithographing Co.. 19 Colo. 310, 35 Pac. 538, 24 L. R. A. 311; Ellis H. Rob-
erta & Co. V. Buckley. 145 >'. 1. 215, 39 X. E. 966; Quigley v. Birdseye, 11
MoDt. 439, 28 Pac. 741. Where a petition claimed "part" of certain lands,
and the finding gave plaintiff the lands **sued for and described in the i)eti-
tlon," but the clerk inadyertently entered judgment for the whole of the
lands mentioned, it was held an amendable mistake. Elliott v. Buffington,
149 Mo. 663, 51 8. W. 408. An error of the clerk in inserting in a decree
the amount of the costs claimed by the plaintiff, before they had been as-
<*ertain6d or taxed, did not render it void, and was cured by the subsequent
taxing by the court, and collection by the sheriff, of only the actual costs
in the case. Janes v. BuUard, 107 Cal. 130, 40 Pac. 108.
••StinervlUe & B. Stone Co.'v. White, 25 Misc. Rep. 314, 54 N.- Y. Supp.
oil,
'• Pennsylvania If^re Ins. Co. v. Wagley (Tex. Civ. App.) 36 S. W. 997.
Ti Boos V. State, 11 Ind. App. 257, 39 N. £. 197.
(233)
§ 160 LAW OP JUDGMENTS. (Ch. 9
motion.''* The same rule applies also if there is a manifest fault in
the verdict itself. Thus if the jury bring in a verdict for a sum which
is less than that admitted to be due on the face of the pleadings, the
judgment, if entered according to the verdict, may afterwards be rc-
formed.'^' Again, in an action of debt, where the judgment was er-
roneously entered for damages alone, it was held that the defendant
in error might, on application to the court in which the judgment
was rendered, amend the entry so as to make it a judgment for the
debt in the declaration mentioned, to be discharged on payment of
the damages found by the jury.'* And in an English case, the rec-
ord in a penal action, where the jury by mistake gave damages, be-
ing carried by writ of error to the King's Bench, it was held that the
plaintiff might enter a remittitur of the damages on the record, and
the transcript might be m^de conformable thereto.''*
fi 160. Ameiidmeiit in Respect of Pariiei.
If the entry of a judgment is open to objection because the par-
ties are incorrectly named or erroneously described in it, it may be
amended on motion so as to conform to the other parts of the rec-
ord.''* This is also true if the entry, in this respect, is not sufficient-
ly definite or precise. Thus, where a judgment as first entered was
defective in not designating the defendants who were personally Ka-
ble for the debt, but the record showed who they were, it was held
that the court had power to amend the judgment at any time by add-
ing a clause specifying the defendants so liable.^' Also, if the
T2 Dunn V. llUotson, 9 Port. (Ala.) 272; Smith v. Robinson, 11 Ala. 270:
Nelson V. CottlngJtiam, 152 Ind. 135, 52 N. E. 702; McLellan Dry-Dock Oo. t.
liYirmers' Alliance ^^team-Boat Line, 43 La. Ann. 258, & Soutb« 630.
78 Brown v. Lawler, 21 Minn. 327.
74 0'Conner v. Mullen, 11 111. 57.
76 Hardy v. Cathcart, 1 Marsh. C. P. 180.
7fl Wright V. McBrlde, 42 Ga. 234; Smith v. Redns, 9 Ala. 99. 44 Am.
Dec. 42y; Shelly v. Dobbins, 31 La. Ann. 530; Davenport v. Kirkland, 15<>
III. 169, 40 N. E. 304. But a Judgment against a party sued by a i^Tong
name, and not appearing in the action, is a nfillity and incapable of amend-
ment. Schoellkopf V. Ohmels, 11 Misc. Rep. 253, 32 N. Y. Supp. 736.
7 ' Leviston v. Swan, 33 Cal. 480. But a judgment rendered against several
defendants cannot be amended so as to stand as a personal Judgment agaiQ^t
(234)
Ch. 9) AMENDMENT OP JUDGMENTS. § 160
•
judgment is irregular, as embracing more parties than the record
justifies. It is proper practice to correct the judgment in the trial
court." Thus if process issues against two defendants, and one
only is served, and the pleadings are against that one, but verdict
and judgment against both, the entry may be amended at a subse-
quent term by striking out the name of the defendant not served.^*
So where a firm consisting of three partners was sued, and one ac-
cepted service and appeared for all, and judgment went against the
three individually, and the two defendants not served then moved for
a new trial on the ground that the other had no authority to appear
or plead for them, it was held to be in the discretion of the court to
reform the judgment, so as to award execution against the firm and
against the individual property of the partner served, instead of
granting a new trial.®^ Again, where a judgment is rendered against
several defendants, one of whom dies previous to its rendition, it
may be amended, on motion, by vacating it as to the deceased de-
fendant and continuing its vitality as against the others.®* If a judg-
ment may be corrected by striking out the name of a party improp-
erly inserted in it, so also may it be amended, after the term, by
inserting the name of one of the parties, omitted through mistake,
when there is. sufficient record evidence by which to make the cor-
rection.** But if a suit is brought in the name of A. "and others,"
ooe as principal, and against tbe others as sureties, if no such issue was
raised on the trial. Levi v. Drudge, 139 Ind. 458, 39 N. E. 45.
T«MuUlken V. Hull, & Cai. 245; Robinson v. Moore, 1 Tex. Civ. App. 93,
ai) 8. W. 9U4.
'• Hammer v. McConnel, 2 Olilo, 32; Lemen v. Young, 14 tnd. 3; People's
Nat Bank v. McArthur, 82 N. C. 107; Heintz v. Pratt, 54 lU. App. 616;
City of Cftlifomia V. Harlan, 75 Mo. App. 506. A judgment is not such an en-
Urety as not to be amendable in respect to one of the parties alone, unless
the substantial rights of the others would be injuriously affected thereby.
.Neenan v. City of St. Joseph, 126 Mo. 89, 28 S. W. 9G3.
••Henderson t. Banlss, 70 Tex. 398, 7 S. W. 815; Breene v. Booth, 6
Cdo. App. 140. 40 Pac. 193.
•1 Hood Y. Branch Bank of State, 9 Ala. 335; State v. Tate, 109 Mo. 265,
18 8. W. 1088. 32 Am. St. Rep. 664. The rule is the same where there are
flevend plaintiffs, one of whom dies. BiUingsIea v. Smith, 77 Md. 504, 2G
AU. 1077; Mingay v. Uickey, 142 N. Y. 449, 37 N. E. 471.
** Whlttaker v. Gee, 63 Tex. 435; Russell v. Erwin*s Adm'r, 41 Ala. 292;
Doty v. CaldweU (Tex. Civ. App.) 38 S. W. 1025. But It seems the court
(235)
§ 161 LAW OP JUDGMENTS. (Ch, 9
it is held that the record cannot be amended by striking out the
word *'others" and inserting the name of another party, more espe-
cially when the cause had previously been referred to arbitrators,
from whose award there had been an appeal.*' Nor has the court
power to modify its own judgment, rendered at a former term, by
changing it from a judgment against the plaintiff (who brought the
suit, in his official capacity, upon an assignee's bond) to a judgment
against the person for whose benefit the suit was brought.®* But
in another case, where, by mistake, a judgment had been entered up
in favor of a former administratrix, whose letters had abated by mar-
riage, it was considered proper for the court to amend the judgment
so as to make it read in favor of the administrator de bonis non, if
he had been duly made a party and was the real plaintiff when the
judgment to be corrected was entered.®*
fi 101. What Courts lia^e Power of Amoadiiieat.
All courts, from the highest to the lowest, whose proceedings arc
preserved in any species of record or memorial, have the power and
authority to make such corrections therein as truth and justice re-
quire and the rules of law permit; and this power, being inherent,
belongs to a court merely as such, and does not depend upon a stat-
utory grant of jurisdiction. An appellate court may modify and
change its orders and decrees before they become final, and may,
even at a subsequent term, amend its records in respect of clerical
errors and mistakes.®* And its power extends even further than
this. For if, on an appeal, the only error assigned is a clerical mis-
prision in regard to the amount of the judgment, such mistake, being
»
cannot allow an amendment of a judgment confessed severally on a joint bond,
by adding the name of the co-obligor. Brown v. Smyth, 4 Har. (Del.) 20L
And see Sprague v. Jones, 9 Paige, 31)3.
88 Uarslvadden v. McGhee, 7 Watts & S. 140.
84 Boland v. Benson. 54 Wis. 387. 11 N. W. 911. But where a judgment
Is entered in the name of the next friend of an Infant without showing
the capacity In which he sues, it may be amended by inserting the infant's
name. Kees v. Maxim, 99 Mich. 493, 58 N. W. 473.
8 6'(iay V. Cheney, 58 Ga. 304.
86 iiiii V. Hoover, 5 Wis. 38G, (i8 Am. Dec. 70; McCk)y v. Porter, 17 Serg.
& K. 59; Hopkins V. Flynn, 7 Cow. vN. Y.) 526.
(230)
Ch. 9) AMENDMENT OF JUDGMENTS. § 162
amendable on motion in the court below, will be amended by the
appellate court at the cost of the appellant, and the amended judg-
ment affirmed.®^ A court of probate jurisdiction may amend its pro-
ceedings in a proper case ; ** e. g., after a sale by an administrator
under its order, by adding to the administrator's account exhibited
his affidavit that the same was just and true, formerly taken in court
but not filed.*® So also a justice of the peace may correct a judg-
ment rendered by his predecessor in office, by a nunc pro tunc order,
to make it conform to the truth. •• And an arbitrator, it is held,
after the delivery of his award, may correct a mere clerical error
not affecting the merits.'* But there are decisions to the effect that
a motion to amend or correct a judgment cannot be made before a
judge other than the one whose judgment is sought to be modified.*^
And the clerk of the court has no ex officio right, without an express
order of the court to that effect, to complete, alter, or amend the
record kept by a predecessor in that office whose term has expired.* •
S 102. Tiaie of maklBs Applioatloa.
An application for the amendment of a judgment should be made,
by the party in whose interest the correction is required, within a
reasonable time after he has discovered the error. If he suffers an
undue period to elapse, the court may refuse, on account of his
laches, to accord the relief asked, and especially if rights have be-
come vested under the judgment which would be disturbed by its
alteration.** At the same time, the inherent power of a court to
correct or amend its own records in the interests of justice is not lost
by the mere lapse of time,*** unless, as is the case in some states, the
•Y Smltb T. Kennedy, 63 Ala. 334.
«• AuU V. St. Louis Trust Co., 149 Mo. 1, 50 S. W. 289; In re Robertson,
51 App. Div. 117, 04 N. Y. Supp. 385.
»» Kennedy v. Wachsmuth. 12 Serg. & R. 171. 14 Am. Dec. 676.
••Gates T. Bennett, 33 Ark. 475.
•^GoodeU V. Raymond, 1 wmiams (Vt.) 241.
•2 New York Security & Trust Co. v. Llpman. 83 Hun, 569, 32 N. T. Supp.
05; Wells v. Vanderwerker, 45 App. Div. 155, 60 X. Y. Supp. 1089; Hughes
T. Edlsto Cypress Shingle Co., 51 S. C. 1. 28 S. E. 2.
»» Rockland Water Co. v. PiUsbury, 60 Me. 425.
•4 Rogers v. Rogers, 1 Paige,' 188; Bonar v. Gosney (Ky.) 30 S. W. 602.
•'Breene y. Booth, 6 Colo. App. 140, 40 Pac. 193. A judgment which,
(237)
§ 162 LAW OP JUDGMENTS. (Ch. 9
fime within which such action may be taken is limited by statute.**
The amendment is generally discretionary with the court, but the
circumstances are sometimes such that justice and right rather de-
mand the refusal of the correction than its allowance. Thus, after
money has been paid under an erroneous decree, it cannot be so al-
tered or amended as to make a party to it liable to pay the money a
second time; *' although if, in satisfying the face of the judgment,
he has paid only a part of that which was really awarded against him,
the judgment may afterwards be amended so as to make him liable
for the true balance.**
So long as the record remains with the court which rendered the
judgment, it is of course under its control for proper purposes and
in proper cases. But it may be otherwise when the record has been
removed to an appellate court. "Although there is some conflict of
opinion as to whether an inferior court can amend the record whilst
a case is pending upon writ of error in a higher court, we are in-
clined to think that the weight of authority is in favor of the prop-
osition that the pending of such writ does not prove an impediment
to the action of the court below." ** And in California it is held
that the amendment may be made even after the judgment has been
though dormant, still survives as a debt of record, enforceable by suit tomj
be so amended as to cure a mere irregularity therein. WUllams v. Merritt,
lOD Ga. 217, 34 SS. E. 1012. PlalntlfTs delay for two years to apply to cor-
rect a clerical omission in a Judgment is not ground for denying the ai^Ii-
cation, where it was made upon the discovery of the omission. BritteD-
ham v. Robinson, 22 Ind. App. 536, 54 N. E. 133.
oe See Code Civ. Froc. Cal. § 473; Dyerville Manufg Co. v. HeUer, 102
Cal. 615, 36 Pac. 928; Scamman v. Bonslett, 118 Oal. 93, 50 Pac. 272, 62
Am. St. Kep. 226; Code Civ. Proc. Colo. § 75; Pleyte v. Pleyte, 15 Colo.
44. 24 Pac. 579; Child v. Whitman, 7 Colo. App. 117, 42 Pac. 601; Miller's
Code Iowa, §9 2837, 3154; Reed v. Lane, 96 Iowa, 454, 65 N. W. 3S0. In
Rhode Island, a decree cannot be amended after a year has lapsed since tbe
entry thereof on simple motion to amend, or petition, or even petiti(m for a
rehearing. Fitch v. Richard, 18 R. I. 617, 29 Atl. 689.
87 Hassler's Appeal, ^ Watts, 176.
»8 Mechanics' Bank v. Minthorne, 19 Johns. 244. See Harrison v. Union
Trust Co., 80 Hun, 463, 30 N. Y. Supp. 443.
»• Sparrow v. Strong, 2 Nev. 362; Richardson v. Melllsh, 3 Bing. 346:
Freel v. State, 21 Ark. 226; Exchange Xat. Bank v. Allen, 68 Mo. 474;
Dow V. Whitman, 36 Ala. 604. But compare Haydel v. Roussel, 1 La. Ann.
35.
(238)
Ch. 9) AMENDMENT OF JUDQMENTS. § 168
affirmed on appeal.^**® But in Alabama, on the other hand, it is con-
sidered that when a judgment or decree is affirmed on appeal, the
decree or judgment of the court below is merged in the judgment of
affirmance, and that court cannot afterwards make any order modify-
ing or altering it.*** And this seems the more reasonable view, un-
less in cases where the error was not discovered until after the ap-
pellate proceedings were had.
§ 163. Method of Applyinc f or AaieBdiiiei&t.
A judgment once entered must be corrected, if irregular or erro-
neous, by some proper proceeding for that purpose; it cannot be
merely disregarded and the proper judgment entered anew.*®^ Dur-
ing the term at which the judgment was rendered, the correction may
be made by an order of the court upon a mere suggestion of the
error.*** But after the term is ended, according to the practice in
many of the states, the amendment can only be made upon the
presentation of a formal petition and motion, setting forth the mis-
take and the alteration prayed for, and after proper notice to the
adverse party to appear and show reasons why the correction should
not be made.*** In Indiana, an application to correct a mistake in a
judgment should be made by motion, and though made in the form
of a complaint it will be treated as a mere motion and not demurra-
ble,**' It is also to be observed that a motion to amend a judg-
ment cannot be allowed in an action of scire facias upon the judg-
ment, but must be made in the original cause.*** If a judgment is
^••Dreyfuss r. Tompkins, 67 Cal. 33», 7 Pac. 732; Rousset v. Boyle, 45
Oal 6i.
^•iWerbom y. Plnney, 76 Ala. 291,
!•« NuckoUs v. Irwln, 2 Neb. 60.
!•• Weed V. Weed. 25 Conn. 337.
i«*In re Inliabitants of Limerick, 18 Me. 183; Rugg v. Parker, 7 Gray
OiatB.) 172; Weed v. Weed, 25 Conn. 337; State v. King. 27 N. C. 203;
Koniner y. Forquer, 1» Ul. 68; Stockdale v. Johnson, 14 Iowa, 178; Ar-
rlngton y. Conrey, 17 Ark. 100; Morrow y. Geeting, 23 Ind. App. 494. 55
N. K. 787. The proper remedy to correct a judgment which contains an
mumthorized proyision is a motion to strike out Sabater y. Sabater, 7
App. IMy. 70, 39 N. Y. Supp. 958.
!•• Latta y. Grlttith, 57 Ind. 329: Good wine y. Hedrick, 29 Ind. 383.
^•e Clark y. Dlgges, 5 GIU (Md.) 109.
(239)
§ 164 LAW OP JUDGMENTS. (Ch. 9
Other than that resulting from the conclusions of law arrived at by
the court, it cannot be corrected by an appeal from an order grant-
ing or denying a new trial, but must be reached by an appeal from
the judgment.*^®^
If the judgment is objectionable in form, the remedy is by motion
to correct it in the court below, and an appeal may be taken from a
denial of the motion ; but an appeal without making such motion is
not proper.^*^* A defendant in a foreclosure proceeding, who desires
the correction of a mistake in the record entry of the decree, does
not waive his right to apply therefor by taking a stay of the order
of sale.^®' If the motion for correction or amendment is denied,
the remedy is by appeal, and not by renewing the motion,^ ^® nor by
applying for a new trial or rehearing of the motion.**^ When the
application is granted, the costs of the motion are properly taxed
against the party who resisted the application.*** Mandamus will
not lie to control the judicial action of an inferior court to correct a
decree which it had full authority and jurisdiction to render, where
the petitioner has a full and adequate remedy to correct it on appeal
on the final determination of the cause.***
§ 164. Notice of AppUeatioii*
The general rule is well established that a judgment cannot be
amended, after the term at which it was rendered, upon an ex parte
application. Due and proper notice must be given to the opposite
party of the application and the relief asked, that he may have an
opportunity to appear and show cause against the proposed correc-
tion.*** Nevertheless if the amendment is to be based upon matter
107 Martin v. Mattteld, -^9 Cal. 43.
108 Simmons v. Craig, 137 N. Y. 550. 33 N. E. 70.
109 Hoagland v. Way, 35 Neb. 387, 53 X. W. 207.
iioBonar v. Gosney (Ky.) 30 S. W. 602.
111 Morrow v. Goeting, 23 lud. App. 41)4, 55 N. E. 787.
112 Morris v. Coleman County (Tex. Civ. App.) 35 S. W. 29.
lis Ex parte Woodruff, 123 Ala. 99, 26 SoutH. 509.
ii*Wallis V. Thomas, 7 Ves. 292; Rockland W^ater Co. v. Pinsbnrj, 00
Me. 427; Weed v. Weed, 25 Conn. 337; Wooster v. Glover, 87 Qodjl 315;
Poole y. McLeod, 1 iSmedes & M. (Miss.) 391; McNalry v. Castleberry. 6
Tex. 286; Wheeler v. Goffe, 24 Tex. 669; Martin y. Bank of State^ 20 Ark.
(240)
Ch. 9) AMENDMENT OP JUDGMENTS. § 165
of record only, the necessity of giving notice to the adverse party is
not so evident. In that case, any evidence against the amendment
which he might produce, if drawn from extraneous sources, would
be inadmissible and unavailing; and it is not at once apparent how
liis rights could be prejudiced by his ignorance of the proceedings.
It seems that the same rule should here obtain as in the case of nunc
pro tunc entries, — that notice is requisite only when evidence dehors
the record will be consulted.^** And indeed it has been held that if
the amendment relates only to a matter of form, the notice may be
dispensed with.^^' And the court in Michigan considered the omis-
sion of notice as immaterial, in a case where the amendment was not
calculated to change the effect of the judgment, but merely to bring
its terms into more perfect expression of the meaning which would
have been ascribed to it by a proper construction of its language be-
fore the amendment. *^^ For, as the court observed, any person who
was interested in the judgment, or acted on the faith of it, was
chargeable with knowledge of all that a proper construction of it
would have taught him, and the amendment did not change its mean-
ing.
§ 165. Erldenee.
In the matter of amending records, the rule of English practice
forbids the correction of any judgment or decree unless there is suf-
ficient record evidence, or evidence quasi of record, to amend by,
and strictly excludes all parol testimony offered for that purpose.
636; Alexander v. Stewart, 23 Ark. 18; Cook v. Wood. 24 111. 295; Means
V. MeflDS, 42 in. 50; Michael v. City of Mattoou, 172 111. 31M. 50 X. E. loo;
Hinton v. Ufe Ins. Co. of Virginia, IIG N. C. 22, 21 S. E. 201; Case v.
Mannis, 57 Han, 5W, 11 N. Y. Supp. 243; Bertliold v. Fox, 21 Minn. 51;
Hill T. Hoover. 5 Wis. 386, 68 Am. Dec. 70. \\ here a final decree dismissing
a bill in equity was at a subsequent term amended so as to purport to be a
dismissal without prejudice, but the amendment was made upon a verbal
notice to the solicitor of one defendant only and a notice posted upon the
coart-bonse door, held, that as there was no sufficient notice, the amend-
ment was absolnt^y void for want of jurisdiction, and could be assailed
In a coUateral proceeding. Swift v. Allen, 55 111. 308.
"•Supra, f 1:m. And see Ware v. Kent. 123 Ala. 427, 26 South. 208,
h2 Am. St Rep. 132.
i>« Baloh V. Shaw, 7 Cush. (Mass.) 282.
"' Emery v. Whitwell, 6 Mich. 41)1.
ILAW JLDG.-16 (241)
§165 LAW OP JUDGMENTS. (Ch. 9
And this rule has been adopted, either expressly or tacitly, in many
of the United States, and has become too firmly settled in their
jurisprudence to admit of contradiction.^^* It hjis been concisely
stated in the following language : ' **We think that no judgment can
be amended, or one rendered nunc pro tunc, unless such amendment
or rendition of judgment be authorized by matter of record, or by
some entry made by or under the authority of the court, which entry
must be shown by the record of the cause, or at the least by some
book belonging to the office of the court and required to be there
kept by law." ^^* Where this rule obtains it is held that a judg-
ment cannot be amended by the notes or minutes of the judge made
upon the docket ; they are not considered a part of the record nor
evidence for any purpose.^*® Nor can the amendment be made from
the judge's memory or knowledge of the fact omitted. ^*^ Nor by
his affidavit in regard to the error to be corrected.*-* And certainly
amendments cannot be made from the recollections of witnesses tes-
tifying ex parte.*^* It is also the rule, in the states mentioned, that
118 Pitman v. Lowe, 24 Ga. 429; Gay v. Cheney, 58 Ga. 304; Armstrong
Y. Robertson, 2 Ala. 164; Brown v. Bartlett 2 Ala. 29; Rains v. Ware, 1(>
Ala. 623; Metealf v. Metcalf, 19 Ala. 319. 54 Am. Dec. 188: Hudson v. Hud-
son, 20 Ala. 3(M, 56 Am. Dec. 200; West v. Galloway's Adinr, 33 Ala. 3t)6:
Harris v. Martin, 39 Ala. 556; Summersett v. i$ummersett*s Adm'r, 40 Ala.
596, 91 Am. Dec. 494; Pettus y. McClannaban. 52 Ala. 55; Lilly v. Larkln,
66 Ala. 122; Guise y. Mlddleton, Smedes & M. Ch. (Miss.) 89; Moody t.
Grant, 41 Miss. 565; Russell y. McDougall, 3 Smedes & M. (Miss.) 234:
Shackelford y. LeYy, 63 Miss. 125; Hendrlx's Heirs y. Clay, 2 A. K. Marsh.
(Ky.) 462; Norton y. Sanders, 7 J. J. Marsh. (Ky.) 12; Stephens v. WIlsoo,
14 B. Mon. (Ky.) 88; FinneU v. Jones* Ex'x, 7 Bush <Ky.) 359; Makepeace
Y. Lukens, 27 Ind. 435, 92 Am. Dec. 263; Hansen v. Schlesinger. 125 lU. 230,
17 N, E. 718: State y. Clark, 18 Mo. 432; Saxton v. Smitli, 50 Mo. 490.
Bohn V. StiYers. 75 Mo. App. 291; I^einkauff y. Tuscaloosa Sale & Ad-
vancing Co., 105 Ala. 328, 16 ?outh. 891; De Castro y. Richardson, 25 CaL
49; Morrison y. Dnpman, 3 Cal. 255; Swain y. Naglee, 19 CaL 127; Solomwi
V. Fuller. 14 NeY. 63.
110 Hudson Y. Hudson, 20 Ala. 364, 56 Am. Dec. 200,
120 Dickson y. Hoff's Adm*r, 3 How. (Miss.) Km: Boon v. Boon. 8 Smedos
& M. (Miss.) 318; Shackelford Y. LeYy, 63 Miss. 125.
121 State V. Smith, 1 Nott & McC. 16; Stony Island Hotel Co. y. Johnson,
.67 111. App. 608.
122 Smith Y. Brannan, 13 Cal. 107.
issCoughran v. Gutcheus, 18 lU. 390.
(242) •
Ch. 9) AMENDMENT OF JUDGMENTS. S ^^^
a decree in chancery, equally as a judgment at law, cannot be amend-
ed at a subsequent term upon parol testimony, but only upon evi-
dence which is matter of record or quasi record.^** Further, it is
held that where the judgment is sought to be amended, after the
term, for clerical errors or formal defects, it is necessary that the
error or defect should be apparent on the record ; it cannot be point-
ed out by affidavit.*-*
On the other hand, in contravention of the rule that a judgment
can only be amended by matter of record, in several of the states it
is decisively held that it may be amended on any evidence, properly
admissible, and satisfactory in its weight and character, showing it
to differ from the judgment really rendered by the court.*** In the
language of the supreme court of New Hampshire: "We think it
clear upon the authorities that the court may make such amend-
ments upon any competent legal evidence, and that they are the
proper judges as to the amount and kind of evidence requisite in
each case to satisfy them what was the real order of the court, or
the actual proceeding before it, what was the proper entry to be
made on the docket, and how the record should be extended.
* * * Where there is nothing more to rely on than mere mem-
ory, the court will act, if at all, with great caution." **^ In a recent
Indiana decision it was held that parol evidence was sufficient as a
foundation for the correction of a clerical error in the amount of a
judgment, the court observing that this was a different matter from
making a nunc pro tunc entry of something that had been entirely
»" Kemp T. Lyon. 76 Ala. 212.
»" BramblefB .Heirs v. Pickett's Heirs. 2 A. K. Marsh. (Ky.) 10, 12
Am. Dec. ;«0; Solomon v. tXiUer, 14 Nev. 63; State v. Primm, 61 Mo. 166;
Portia V. Talbot. 33 Ark. 218.
22€ ^Uithetion's AdmYs v. (Jrant's Adm'r, 2 How. 263, 11 L. Ed. 261; Frink
T. Frink, 43 N. H. 508, 80 Am. Dec. 189, 82 Am. Dec. 172; Clark v. Lamb,
« Pick. LMaas.) 415, 19 Am. Dec. 332; Kugg v. Parker, 7 Gray (Mass.) 172;
Weeil V. Weed, 25 Conn. 337; Arrlngton v. Conrey. 17 Ark. 100; HoUlster
T. Judges of Lucas County District Court, 8 Ohio St. 201, 70 Am. Dec. 100;
Forqoer v. Korquer, 19 111. 68; Stockdale v. Johnson, 14 Iowa, 178; Doane
T. laeun. 1 Colo. 454; Breene v. Booth, 6 Colo. App. 140, 40 Pac. 193; People
T. Arapahoe County Court, 9 Colo. App. 41, 47 Pac. 469. See, also, In re
Wight. i:« U. 8. i:i6. 10 Sup. Ct. 487, 33 L. Ed. 865.
«' Frink ▼. Frink, 43 N. H. 508.
(243)
S 166 LAW OP JUDGMENTS. (Ch. 9
omitted, In which case it might well be that parol evidence would
not be admissible, but only the record itself.*-* The distinction,
however, does not appear to rest upon any plausible basis; and the
decision cited is a departure from the earlier rulings in the same
state.* *• If parol evidence is to be admitted, the notes and min-
utes made by the judge upon the trial docket will of course be prop-
er sources from which to obtain information as to the action really
taken by the court.*'® And indeed they will naturally be consulted
in the first instance. But since such memoranda are not a part of
the record, and therefore not of controlling authority, it will be pos-
sible that they may be overborne by other evidence ; and the court
cannot be 'compelled to correct its journal from such minutes.*"
In Illinois, the present rule appears to be that the court, upon
notice to the parties in interest, may amend its record at a subse-
quent term, if evidence to support the amendment can be drawn
from the record, or from some minute or memorial paper, or notes
taken by a stenographer, or other document in the nature of a
record, made in connection with the case or upon the trial or hear-
ing; but that an amendment cannot be based on oral evidence
alone.*'*
The rule that "a record can onlv be amended bv matter of record"
seems to rest, in the last analysis, upon the rule that "a record im-
ports absolute verity." Without losing sight of the extreme impor-
tance of securing stability and authority to the solemn memorials of
the courts, we may still conceive that this rule, if applied with full
rigor and severity, might in many cases produce the greatest hard-
ship and injustice. But it is evident to a student of American case-
law, that we are gradually working away from the 'old standards in
this respect. The courts are more and more disposed to a liberal
practice and to look to the full and perfect administration of justice,
rather than to buttress up the sanctity of records by forbidding in-
128 MitcheU V. Uncoln, 78 Ind. 531.
i2»See Makepeace v. Lukens, 27 Ind. 435, 92 Am. Dec. 2G3; Boyd t.
Blaisdell, 15 Ind. 73.
iBOGiUett v. Booth, 95 111 183; Nlcklln v. Robertson, 28 Or. 278, -12 I*ac.
1^93, 52 Am. St. Rep. 790.
181 SuHlvan's Sav. Inst. v. Clark, 12 Neb. 578. 12 N. W. 103.
182 stitt V. Kurtenbach, 85 lU. App. 38; (ilUett v. Booth, 05 lU. 183.
(244)
Ch. 9) AMENDMENT OF JUDGMENTS. § 166
quiry into their truth. Hence it is not improbable that the policy
of permitting judgments to be amended upon cause shown by any
proper and satisfactory evidence, will ultimately prevail. Certainly
it is a policy that is commended by reason and justice, and still more
by the loose way in which the records of our courts are but too fre-
quently made up. To shut out any light which could help to make
the records accurate, complete, and right in themselves, appears tc
show a too superstitious reverence for the litera scripta.
% 166. Method of making Correotions.
"An amendment should not be made by simply noting the order to
amend, but it should be actually made by turning back to the min-
utes of the former term, and making the proper correction and entry
there, so that the entry will stand and be read as if no amendment
or correction had ever been necessary." ^** If the correction con-
sists merely in adding a word or phrase, or adding or substituting a
name or date, or altering an amount, or the like, it may be well
enough simply to make the change upon the face of the original en-
try. But in general, interlineations are to be avoided ; and the more
re;;ular mode of making amendments, after the term, is by an order
of court reversing the defective entry, followed by a new order nunc
pro tunc.*'* Where a decree already made in a cause is tacitly re-
voked, during the same term, and a second decree is made on the
same subject-matter, it would be more orderly and convenient, in
making the second decree, to refer to the first one, and state in what
particulars the later is intended to modify, supplement, or supersede
the former; but this is not essential if a comparison of the two de-
crees discloses the changes or modifications made. On the contrary,
it is to be presumed that a second decree made within the term is in-
'^" McDowell r. McDowell, &2 N. C. 227, 229. The court has power at any
tuno to 11 mend its records nunc pro tunc, and the clerk is bound not only to
ivc« id the amendment, but also actually to alter the original record. Jones
r. K«'wls. 30 N. C. 70, 47 Am. Dec. 338.
»'* King V. State Bank, 9 Ark. 185, 47 Am. Dec. 739. See Mansel v. Castles,
f*3 Ti\. 414, 5."> S. W. 559. Interlineal corrections of clerical omissions In a
rw-ord, althouj^h Irregular and reprehensible, do not necessarily invalidate the
JiuUnieuu Allen v. Sales, 56 Mo. 2a
(245)
§ J 68 LAW OP JUDGMENTS. (Ch. 9
tended to modify a former one just so far as it differs from it, either in
length or breadth.^*'
% 167. AUowanee of AjnendineBt is discretioiiary.
An application to amend a judgment or decree is addressed to the
discretion of the court, and its denial is not the subject of exception
or review.**® Hence an appellate court will not issue its writ of man-
damus to compel an amendment of the record of an inferior court.
The question of amending is wholly a matter for the judicial discre-
tion of the court having the custody of the record. And while man-
damus is a proper means of compelling a judge to proceed to his
duty, yet it cannot be used as a means of deciding for him what that
duty is.*'^ It is also true that the regularity of an amendment made
by a court of competent jurisdiction cannot be inquired into col-
laterally.*"
S 168. JnrisdiotioB of Eqvltj.
It is held in some of the states that the judgments of courts of
record are of such high verity that their existence cannot be im-
peached, nor their contents contradicted, falsified, or corrected by
parol proof, and consequently that a bill will not lie in equity to
correct a judgment, purporting to be rendered upon the verdict of
a jury, by showing by parol that the judgment was in reality by nil
dicit without a jury, and should have been rendered for a larger sum
than that specified on its face.^'* On the other hand, in Iowa**'
and Missouri,*** it is held that if judgment is by mistake entered for
a sum less than the amount actually recovered, so that the creditor,
i«s Barrel! v. Tilton, 119 U. S. 637, 7 Sup. Ct. 332, 30 L. Ed. 511; RWIe t.
Eddie, 138 Mo. 599, 39 S. W. 451.
130 Brown v. McCune, 5 Sandf. (N. Y.) 224; Austin v. Jordan, 5 Tex. 1»K
i»7 Commoitwealth v. Hultx, 6 Pa. 469; Ex parte Morgan, 114 U. S. 174.
5 Sup. Ct. 825, 29 L. Ed. 135.
13 8 Hamilton v. Seltz, 25 Pa. 226, 64 Am. Dec. (ttH.
i8»Bank of Tennessee v. Patterson, 8 Humph. (Tenn.) 302, 47 Am. De*'-
618; Smith v. Bowes, 38 Md. 463. .
140 Partridge v. Harrow, 27 Iowa. 96, 99 Am. Dec. 643.
1*1 Wilson V. Boughton, 50 Mo. 17. And see Pelzer Manuf'g Co. t. Ham-
burg-Bremen Fire Ins. Co. (C. C.) 71 Fed. 826; GUI v. Pelkey, 54 Ohio St 34».
43 N. K. 991; Tyler v. Shea, 4 N. D. 377, 61 N. W. 468, 50 Am. St Rep. 6fl0.
(246)
Cb. 9) AMENDMBKT OF JUDGMENTS. § 169
without fault, loses a part of his judgment, equity will assist him, if
he cannot obtain relief otherwise. But since the cases must be of
very infrequent occurrence in which the law court could not correct
a mistake of this kind on motion, there will seldom be an opportunity
for chancery to exercise this power. Besides, its well known re-
luctance to interfere with the records of otlier courts will preclude
action of this kind, unless in a case of very palpable hardship and
entire inadequacy of any remedy at law.
§ 169. Effect of Amendmeiiti on Third Persons.
An amendment of a judgment or decree will never be allowed to
prejudice the rights of third persons — such as subsequent judgment-
creditors, purchasers, or mortgagees — who have acquired interests
for value and without notice.^ *^ It is proper to insert, in the order
allowing an amendment, a saving of the intervening rights of third
persons, but the law will make the reservation whether it is ex-
pressed or not.*** During the term, however, at which the judgment
was rendered, or decree made, the court has power to amend or cor-
rect it, and a person who acquires an interest in property involved,
on the faith of the judgment. or decree, but with notice of the pro-
ceedings, takes it subject to the possibility that the judgment or de-
cree may be corrected or vacated.***
»«» Cmtcher v. Commonwealth, 6 Wbart. (Pa.) a40; Remick v. Butterfleld,
31 N. H. 70, 64 Am. Dec. 316: Colman v. Watson, 54 Ind. 65; Ligon's Adm'rs
T. Rogerm 12 Ga. 281; Perdue v. Bradshaw, 18 Ga. 287; Calef v. Parsons,
48 III. App. 233; Roman v. Hellman, 35 Neb. 414, 53 N. W. 300; Nell v.
l>a7ton. 47 Minn. 257, 49 N. W. 981.
>»» McCormick v. Wheeler, 36 111. 114, 85 Am. Dec. 388.
><« Henderson v. Carbondale Coal & Coke Co., 140 U. S. 25. 11 Sup. Ct.
^1. 35 L. Ed. 332; Studebaker Bros. Manufg Co. v. Hunt (Tex. Civ. App.)
38 8. W. 1134.
(247)
§ 170 LAW OF JUDGMENTS. (Ch. 10
THE VALIDITY OF JUDGMK^TS.
S 170. Voidable and Void Judgments.
171. Jurisdiction.
172. Character and Status of Parties.
173. Constitution of the Court.
174. DisqualiHed Judge.
175. Acts of Judge de Facto.
17(5. Judge out. of OtHce.
177. Time and Place of holding Court
178. Place of Trial.
179. Judgment rendered in Vacation.
180. After Expiration of Term.
181. Premature Entry of Judgment.
182. Sundays and Holidays.
183. Judgment must be supported by the Pleadings.
184. Judgment in Action not at issue.
185. Findings necessary to support the Judgment.
180. Judgment must follow Verdict.
§ 170. Voidable and Void Jvdements.
Before proceeding to a detailed examination of the questions which
may affect the validity of judgments, it is necessary to point out the
important distinction between judgments which are void and such as
are merely voidable. The differences, though real and fundamental,
are not always marked with sufficient sharpness in juristic writing,
and courts have been known to speak of a judgment as *Void" when
they meant no more than that it was liable to be overturned if prop-
erly attacked. Now a "void" judgment is in reality no judgment at
all. It is a mere nullity. It is attended by none of the consequences
of a valid adjudication, nor is it entitled to the respect accorded to
one. It can neither affect, impair, nor create rights. As to the
person against whom it professes to be rendered, it binds hini in no
degree whatever, it has no effect as a lien upon his property, it does
not raise an estoppel against him. As to the person in whose favor
it professes to be, it places him in no better position than he occupied
before ; it gives him no new right, but an attempt to enforce it will
place him in peril. As to third persons, it can neither be a source
(248)
Gh. 10) VALIDITY OP JUDQMENTS. § 170
of title nor an impediment in the way of enforcing their claims. It
is not necessary to take any steps to have it reversed, vacated, or
set aside. But whenever it is brought up against the party, he may
assail its pretensions and show its worthlessness. It is supported
by no presumptions, and may be impeached in any action, direct or
collateral. On the other hand, a "voidable" judgment is one which,
though not a mere nullity, is liable to be made void when a person
who has a right to proceed in the matter takes the proper steps to
have its invalidity declared. It always contains some defect which
may become fatal. It carries within it the means of its own over-
throw. But unless and until it is duly annulled, it is attended with
all the ordinary consequences of a legal judgment. The party against
whom it is given may escape its effect as a bar or an obligation, but
only by a proper application to have it vacated or reversed. Until
that is done, it will be efficacious as a claim, an estoppel, or a source
of title. If no proceedings are ever taken against it, it will continue
throughout its life to all intents a valid sentence. If emanating from
a court of general jurisdiction, it will be sustained by the ordinary
presumptions of regularity, and it is not open to impeachment in
any collateral action. When is a judgment void and when merely
voidable? The answer to this question will form the subject of this
and the two following chapters. It may be here stated, however,
that it is very doubtful whether a judgment can ever be considered
entirely void except in the single case where there was a total want
of jurisdiction to render it. And even then, in the case of a domestic
judgment, it is a serious question whether the lack of jurisdiction
must not appear on the face of the record in order to entitle the
courts to treat it as a nullity.* But there are many possible defects
and irregularities which will render a judgment voidable.
Before leaving the subject it is necessary to advert to two words,
often used in this connection, and which must be distinguished from
those already explained. These are "irregular" and "erroneous.''
.•\n irregular judgment is one which is rendered contrary to the
1 See infra, S 21«. The validity of a Judgment Is to be determined by the
laws iji force when it is rendered, and is not affected by subsequent chunfrt's
tlit-reia. Anderson v. Uygeia Hotel Co., »2 Ya. OtTT, *M iS. E. 2UU.
§ 170 LAW OF JUDGMENTS. C^h- 1^
course of law and the practice of the courts. The meaning of the
term is therefore not exactly coextensive with that of "voidable,"
although the two are often used interchangeably. For while every
irregular judgment is also, and for that reason, voidable, there may
be other causes besides irregularity sufficient to avoid it. An erro-
neous judgment is one which, though regularly rendered, is contrary
to law, and therefore liable to be reversed by an appellate tribunal
Irregular and erroneous judgments cannot be attacked collaterally.
But the former can be vacated by the court which rendered them
or by a court of review, according to the nature of the irregularity;
the latter only by an appellate court. These distinctions are noted
in an opinion of the supreme court of New York, from which we
quote as follows : "Although a void judgment, or one that is void-
able for irregularity, will not, after being set aside, justify the acts
of the party done under it before it was set aside, this principle, I
apprehend, has never been applied to a judgment merely erroneous
and reversed for error by a court of review. An irregular judgment
is called voidable, and when set aside is treated as though void from
the beginning, for the party himself is held chargeable with the
irregularity; while a judgment pronounced by the court, although
upon an erroneous view of the law, and subject therefore to be re-
versed by an appellate tribunal, is never treated as void, but valid
for all purposes of protection to the party acting under it before re-
versal. The fact that in the one case the party is responsible for the
irregularity, and in the other whatever of error there is in the judg-
ment is the error of the court, seems to be the ground of the dis-
tinction between the two, and it is manifestly a just and proper dis-
tinction. While it may well be held that a party is not justified by a
judgment which is subsequently set aside for an irregularity in enter-
ing it up, which is his own act, it would seem unjust to hold that a
judgment duly rendered by the court shall fail to protect a party
acting under it before reversal, because reversed for error committed
by the court." *
« Simpson V. Hombeck, 3 Lans, 53. See, also, Gray v. Stuart, 33 Gnt
(Va.) 358; Boggess v. Howard, 40 Tex. 153; Kz parte Lange, 18 WaU. 175, 21
U ifld. «72; Wolfe v. Davis, 74 N. C. 599.
(250)
Ch. 10) VALIDITY OF JUDGMENTS. § 173
I 171. JnrUdiotioii.
The first and fundamental requisite to the validity of a judgment
is that it should have been rendered by a court having jurisdiction.
Without jurisdiction the courts can do nothing, and a judgment given
forth without jurisdiction is a mere nullity. The jurisdiction required
is of three sorts : (i) jurisdiction of the parties ; (2) jurisdiction of
the general subject-matter ; (3) jurisdiction of the particular matter
which the judgment professes to decide. But the subject of juris-
diction is of such importance and intricacy as to require treatment in
a separate chapter, and is mentioned here only for the sake of logical
completeness.
% 172. Cliavaeter and Statni of Parties.
The validity of a judgment may also depend in many instances on
the character or status of the party against whom it is rendered.
And in the case of persons who are under legal disabilities, judg-
ments may be irregular and voidable for the failure to comply with
statutory formalities, or to protect the defendants in the ways pre-
scribed by law, or may even be considered void for the want of
power of the courts over them. This subject will be examined in
detail in the next chapter.
§ 173. Constitution of the Conrt.
In order that a judgment should be recognized as valid, it is of
course necessary that it should have been rendered by a lawful and
duly constituted court ; otherwise it is not "the sentence of the law*'
and is not entitled to carry its sanction.* But on principles of pubHc
policy and for the security of rights, it is held that the regular judg-
ments of a de facto court, whose existence has afterwards been pro-
nounced unconstitutional and void, are nevertheless valid and con-
clusive.* Thus, in a case before the supreme federal tribunal, it was
* Koften T. Wood. 2 Bam. ft Adol. 245.
•State V. CarroU. 38 Conn. 449, » Am. Rep. 409: Burt v. Winona & St.
P. It Co., 31 Minn. 472, 18 N. W. 285; State v. Anone, 2 Nott & McC. (S. C.)
•T; GiUiam y. Reddick, 26 N. C. 868; State y. Porter, 1 Ala. 688; Mayo y.
(251)
§173 LAW OP JUDQMBNTS. (Ch. 10
held that an adjudication made by a Spanish court in Louisiana was
not void because made after the cession of that territory to the
United States. "For we know historically," said Thompson, J., "that
the actual possession of the territory was not surrendered until some
lime after these proceedings took place. It was the judgment, there-
fore, of a competent Spanish tribunal, having jurisdiction of the case,
and rendered whilst the country, although ceded, was de facto in the
possession of Spain and subject to Spanish laws. Such judgments,
so far as they affect the private rights of the parties thereto, must be
deemed valid." •
In regard to the validity of judgments rendered by the courts of the
states which attempted to secede from the Union in 1861, there has
been a great fluctuation of opinion, and it is only of late that the
authorities have come to a substantial agreement. At first, and par-
ticularly in some of the reconstructed states, there was a strong dis-
position to treat all such judgments as mere nullities. This view was
based on the theory that, the government of a state organized under
the Confederacy being an usurpation and being erected in hostility to
the lawful government of the country, all its acts were void; and the
same objections which might be urged against its laws would be suf-
ficient to overturn its judgments, both being parts of one whole.*
But after a time, impressed with the idea that some sort of govern-
ment existed in those states during the war, and that the courts
created or recognized by it were at least considered lawful tribunals
by that government, real or pretended, and that respect was paid to
their adjudications by the persons who acknowledged that govern-
ment as rightful, the authorities were inclined to put such judgments
upon the footing of quasi foreign judgments. That is, they were not
to receive the full faith and credit due to a domestic judgment, but
neither were they to be treated as entirely void. They were consid-
ered as prima facie evidence, but cause might be shown against their
Stoneura, 2 Ala. 390; Mastcrson v. Matthews, CO Ala. 2G0; Slate v. Ailing. 1-
Ohlo, IG.
n Keene v. McDonongh, 8 Pet. 308, 8 L. Ed. 955.
6 Penn v. Tollisou, 26 Ark. 545; Thompson v. Mankhi. 26 Ark. 5S6, 7 Am.
Rep. 628; Ray v. Thompson, 43 Ala. 454, 04 Am. Dec. UOG.
(252)
Ch. 10) VALIDITY OP JUDGMENTS. § 173
being carried into effect.^ The position was anomalous in the ex-
treme, and the theory itself quite untenable. For, as pointed out by
Dr. Wharton,* in suing upon such a judgment it would be necessary
to declare as upon a judgment in a state not belonging to the United
States, and therefore virtually foreign. But a foreign judgment,
rendered in the courts of a state whose independence bur own gov-
ernment has never acknowledged, cannot be recognized as a judg-
ment on which suit can be brought. At a still later period, a view
came to be recognized which was the exact opposite of that first
adopted, viz., that the judgments rendered by the Confederate courts
during the war were in all respects legal and conclusive. It was held
that the state government, as organized and existing in all its de-
partments in one of those states during the continuance of hostilities,
was its rightful de jure government ; and accordingly that judgments
and proceedings of its courts, which during that time formed a por-
tion of that government, not violative of the constitution and laws of
the United States, nor infringing upon the state constitution, were
valid and binding.* In the meantime the suprenie court of the United
States had been called upon to consider these questions, and had
ruled that an act of the "Confederate Congress" creating a court was
void, and that the court itself was a mere nullity and could exercise
110 rightful jurisdiction.** There is no difficulty in accepting this po-
sition if we deny to that body the rights and powers of a government.
For of course a mere assemblage of private persons, acting in re-
bellion against the law of the land, cannot, create a court of law, and
the acts of such pretended court would be destitute of any authority.
But on the other hand, if the insurrectionary authorities had no power
to create, they had no power to destroy. By no act or proceeding
' Pepin V. Laohenmeyer, 45 N. Y. 27; Martin v. Hewitt, 44 Ala. 418; Mo8e-
!y V. Tuthlll, 45 Ala. 621, 6 Am. Rep, 710; Shaw v. Lindsay, 46 Ala. 290;
liURli T. Glover, 47 Ala. 167; Barclay v. Plant, 50 Ala. 509; Bibb v. Avery, 45
Ala. G91.
• 1 Whart. Ev. $ 807.
•Parks v. Coffey, 52 Ala. 32; Hill v. Huckabee, 52 Ala. 155; McQueen v.
McQneen, 55 Ala. 433; Steere v. Tenney, 50 N. H. 461; Hill v. Armistead,
."16 Ala. 118; Hendry v. Cline, 29 Ark. 414. See BlackweU v. Willard, 65 N.
C. 555. 6 Am. Rep. 749.
i« Hi( knian v. Jones, 9 Wall. 197, 19 L. Ed. 551.
(253)
§ 173 LAW OP JUDGMENTS. (C3l. 10
could they strip a lawful pre-existing tribunal of its power and juris-
diction or terminate its existence. Their law§, being altogether void,
had no effect whatever upon the courts which had been duly organ-
ized before the rebellion began. And still less could any change in
the judicial system be efTected by the mere declaration of secession.
"The objection that the judgment of tfie supreme court of Louisiana
is to be treated as void because rendered some days after the passaj3;c
of the ordinance, of secession of that state, is not tenable. That ordi-
nance was an absolute nullity, and of itself alone neither affected the
jurisdiction of that court or its relation to the appellate power of this
court." ^^ These two decisions outline the view which has prevailed
in the supreme federal court and which must now be regarded asi
the accepted doctrine. Courts organized by the Confederate authori-
ties for distinctively national purposes, and as a part of what was
intended to be a national judicial system, had no legal existence, and
all their acts were mere nullities. But the courts of the several states,
in their individual capacities, had a lawful existence, notwithstanding
the usurpation of the state governments by the insurrectionary au-
thorities, and even though they professed to derive their powers from
those who, de facto, had possession of the state government. Ac-
cordingly, their judgments, so far as they did not tend to impair the
supremacy of the federal authority or the just rights of citizens under
the constitution, are to be treated as valid and binding.*^ But this
is subject to an important qualification, viz., that such judgments
could have no effect as against defendants who were residents of
other states not sharing in the rebellion. This exception is established
by a noteworthy decision' in Ohio, where it was held that as between
11 White V. Cannon, 6 Wall. 443, 18 L. Ed. 023.
12 Horn V. Lockhait, 17 Wall. 570, 21 L. Ed. 657. In this case the court
said: **The existence of a state of insurrection and var did not loosen the
bonds of society, or do away with civil government or the regular adminis-
tration of the laws. Order was to be preserved, police regulations maintained,
crimes prosccuttxl. property protected, contracts enfori*ed, marriages cele-
brated, estates settled, and the transfer and descent of property regulateit
precisely as In times of peace. No one that we are aware of seriously ques-
tions the validity of judicial or legislative acts in the insurrectionary slates
touching these and kindred subjects, where they were not hostile, in their
purpose or mode of enforcement, to the authority of the national gov^mmeot,
and did not Impair the rights of citizens under the constitution."
(254)
Ch. 10) VALIDITY OF JUDGMENTS. ^ § 174
parties residing in the state of Arkansas and within the rebel lines,
and a citizen of Ohio, resident within the Union lines, between whom
the war made intercourse impossible, there could be no jurisdiction
in a Confederate court in Arkansas by which the rights of non-resi-
dents could be injuriously affected. Neither could such jurisdiction
be acquired by the consent or waiver of an attorney practicing in
said court, who was employed and appeared for the non-resident
defendants before the war commenced. His general authority as an
attorney, before the war, though not revoked by the clients, did not
authorize him to waive any of their rights, nor could such consent or
waiver confer on the court jurisdiction over the case or over the de-
fendants." Questions have arisen as to the validity of judgments
rendered by a tribunal created by a military commander in a district
of insurrectionary territory held by him in belligerent occupation.
But as these questions chiefly relate to the effect of such judgments
as res judicata, the consideration of them is postponed to another
place."-
I 174. Diflqvalilled Judse.
The validity of a judgment may often depend upon considerations
personal to the judge who rendered it. He may be disqualified from
acting in the particular case by reason of his being concerned as a
party, or otherwise interested in the event of the suit, or on account
of his relationship or affinity to one of the litigants, or because he is
not qualified for the office in accordance with the statutory require-
ments. And first, in regard to his interest in the suit ; it is a maxim
of the common law that "nemo potest esse judex in propria causa." *'
And indeed natural justice, as well as a regard for the integrity and
impartiality of the judiciary, sanction the same rule. Accordingly
it is held, under statutes forbidding a judge to act in a cause in which
he is interested, that if he should assume to decide a case where his
personal interest might come in conflict with his judicial indifference,
i» Pennywit v. Foote, 27 Ohio St. GOO, 22 Am. Rep. 340. See, also, Botts
r. Creoaliaw, Ctiase, 227, Fed. Cas. No. 1,600; Livingston v. Jordan, Chase, 454,
i->d. Cas. No. 8.415; Brooke y. Filer, 35 Ind. 402; French y. Tumlin, Fed.
Cag. Xo. 5,104.
>« See infra, voh 2, | 525.
" 12 Co. 113.
(255)
§174 - LAW OP JUDOMENT& (Ch. 10
the judgment so rendered would be entirely null and void.** So a
judgment pronounced by a judge who was disqualified on account
of his having been of counsel in the case, is void and not conclusive
on the parties.*^ It does not appear that this would have been so at
common law, for the doctrine seems rather to have been that the acts
of a disqualified judge were not merely nullities, but were liable to be
avoided or reversed on a proper application, although the parties
might admit their binding force by acquiescence.** In the next place,
the relationship of the judge to any of the parties in the cause is
made a ground of his disqualification, by statute in many of the states ;
and there are cases holding that a judgment attempted to be ren-
dered by one who was disqualified by reason of his consanguinity with
a litigant, is utterly void and incapable of being made good by any
waiver or consent.** But the rule obtaining in a majority of the
states is that such a judgment is voidable and liable to be set aside
on proper proceedings for that purpose, but is not absolutely void ;
it is a sufficient protection to persons lawfully acting under it while
it stands, and it cannot be attacked collaterally.** Some of these de-
i«In re Cottle. 5 Pick. (Mass.) 483; Colfin t. CotUe. 9 Pick. (Mass.) 287:
Slgourney t. Sibley, 21 Pick. (Mass.) 101, 32 Am. Dec. 2iS; Gay v. Minot. :i
Cnsh. (Mass.) 3o2; Wasliington Ins. Co. v. Price, 1 Hopk. Ch. (N. Y.) 1; Place
V. Butternuts Woolen & Cotton Manuf g Co., 28 Barb. (N. Y.) 503; State t.
Castleberry, 23 Ala. 85. But in Texas, it is said that an alleged disqualifica-
tion of the trial judge can be reviewed by appeal, and Is no ground for en-
joining proceedings on the judgment. Dunson v. Spradley (Tex. Civ. Ajjp.)
40 S. W. 327.
17 Xowcome v. Light, 58 Tex. 141, 44 Am. Rep. QOi; Jouett v. Gnnn. 13
Tex. Civ. App. 84, 35 S. W. 194. Compare Louisville & N. R. Co. v. Taylor,
93 Va. 220, 24 S. E. 1013.
18 Dimes v. Grand Junction Canal Co., 17 Jur. 73; Gorrill v. Whittier, 3 N.
H. 2GS.
19 Chambers v. Clearwater. MO N. Y. 310; Oakley v. Aspinwall, 3 X. T.
547; Hall v. Thayer. 105 Mass. 219, 7 Am. Rep. 513. See Reams v. Keams.
5 Cold. (Tenn.) 217; Horton v. Howard, 79 Mich. W2, 44 N. W. 1112, 19 Am.
St. Kep. 198: In re Depuy'a Estate, 5C Hun, 639, 9 N. Y. Supp. 12L
2 0 Fowler v. Brooks. 64 N. H. 423, 13 Atl. 417, 10 Am. St. Rep. 425 (cltlnjf
Phillips V. Eyre, L. R. 6 Q. B. 1, 22); Trawick's Heirs v. Trawick's Adm'rs. f.T
Ala. 271 (citing Hine v. Hussey, 45 Ala. 496; Hayes v. Ck)llier. 47 Ala. r*V>:
Plowman v. Henderson, 59 Ala. 559; Heydenfeldt v. Towns, 27 Ala. 4'S^K
Itogers V. Felker, 77 Ga. 46; Matthews v. Noble, 25 Mlse. Rep. 674, 65 N. ^ .
Supp. 100.
(25G)
Ch. 10) VALIDITY OP JUDGMENTS. § 175
cisions were rendered under statutes providing that the parties in-
terested might waive the disqualification by consenting to the action
of the judge. And when this is the case, it is entirely reasonable to
hold that, if no express objection appears, the judgment will be void-
able at most, not void. "These disqualifications may be unknown,
or so obscure as to require a judicial decision to determine their
existence. It is a serious thing to annul the judgments of the courts,
and it ought not to be done where the consent of the parties alone is
requisite to their validity, and its entry on the record is the only ad-
missible evidence that it was given." ^* The disqualification may also
arise from omission of statutory requirements on the part of the
person assuming to act as judge. Thus, a judgment rendered by an
attorney orally appointed judge and acting by consent of parties, but
without having taken the prescribed oath, is void for want of juris-
diction.**
f 176. Aotfl of Jndffe de Faoto.
This brings us to the consideration of acts done by a judge de
facto, A person may be entitled to this designation who, although
he is not a true and rightful incumbent of the office, yet is no mere
usurper, but holds it under color of lawful authority. And there can
be no question that judgments rendered and other acts performed by
such a person are valid and binding. If a contested election, for
example, should result in the ouster of the person who, being entitled
on the face of the returns, was commissioned and qualified as judge,
Ihis would not retrospectively invalidate the judgments he may have
rendered while in actual possession of the office. So judges elected
and duly qualified, and who exercise the functions of their office, are
de facto officers, although the act under which they were elected was
unconstitutional.** And a person who is ineligible to a judgeship,
** HIne V. Hussey, 45 Ala. 496. 513. A judgment is not void because the
judi^e rendering it is related in equal degree to both the parties litigant, es-
pecially when no objection was made at the hearing on this ground. Beall v.
Wnquelield. 73 Ga. 48.
2» HorbAer v. State, 80 Ind. 484. The fact that one judge presided when
the cause was beard, and another when judgment was rendered, does not in-
validate the Judgment Ueed v. Lane, 96 Iowa. 454. 65 N. W. 38().
St Campbell v. Commonwealth, 96 Pa. 344; Burt v. Winona & St. P. R.
Co., 81 Minn. 472. 18 N. W. 285; In re Ah Lee O). C.) 6 Sawy. 410, 5 Ftnl.
1 LAW JUDG.— 17 (257)
§176 LAW OP JUDGMENTS. (Ch. lO
but who has nevertheless been duly appointed, and who exercises the
powers and duties of the office, is a de facto judge, and his acts are
valid until he is properly removed.^* Again, one duly elected to a
judgeship, and commissioned a judge by the governor, and dischar-
ging the functions of the office, is a judge de facto, although the
supreme court afterwards decides that the term of his predecessor
had not expired.** So also the acts of a de facto judge cannot be
attacked collaterally, by showing that he has taken no oath of office,
or that he has taken an oath to support a power in insurrectionary
hostility to the federal goverhment.*' These rules are founded upon
sound principles of public policy and justice, and are generally whole-
some in their practical operation.
I 176. Jndse out of Oflloo.
It IS generally held that a judgment or decree rendered, or order
made, by a judge whose term of office has expired, but who continues
in possession and exercise of the functions of the office, is valid and
binding as the act of a de facto officer.*^ Thus, in a recent case, the
action was tried on November 30th and a decree rendered December
6th, the term of court having begun on November 8th and con-
tinued till December 6th, on which day the decree was dated and filed.
It transpired that the term of office of the judge who signed the
899; Cailand v. Custer County, 5 Mont. 579, 6 Pac 24; Taylor v. Skrine, 3
Brev. (S. C.) 516; Bro\\Ti v. 0*Connell, 36 Conn. 432, 4 Am. Kep. 89; Clark
V. Commonwealth, 29 Pa. 129; People v. Bangs, 24 111. 184. And see Griffin's
Case, Chase, 364, Fed. Cas. No. 5,815.
24 Ostrander v. People, 29 Hun (N. Y.) 513; Blackburn v. State, 3 Head
iTenn.) 690; Gregg v. Jamison, 55 Pa. 468.
2 5 McCraw v. Williams, 33 Grat. (Va.) 510.
26 Pepin V. Lachenmeyer, 45 N. Y. 27.
27 Read V. City of Buffalo, 4 Abb. Dec. (N. Y.) 22; CarU v. Rhener, 27 Minn,
292, 7 N. W. 139; State v. Williams, 5 Wis. 308, 68 Am. Dec, 65; Gary t.
State, 76 Ala. 78; ThreadglU v. Carolina Cent Ry. Co., 73 N. C. 178; Wood-
side V. Wagg, 71 Me. 207; Deutermann v. Pollock, 30 App. Div. 378, 51 N.
Y. Supp. 928. Where the term of office of the Judge who tried the ease has
^xphred, Judgment may be rendered by hlg successor. Raub v. Scholl. 1^
Wash. 30, 52 Pac. 332. But where the docket of a Justice of the peace shows
that a judgment was entered on a day on which he was not within the state,
«uch judgment is Toid for want of jurisdiction. TollTer y. BrowneU, 94 Mich.
577, 54 N. W. 302.
(258)
Ch. 10) VALIDITY OP JUDOMBNTS. § 177
decree expired on December 2d. But it was held that the judge was
an officer de facto and his decree valid as a decree of the court.*®
So in another case, a judge whose office was vacated by his taking
a seat in the legislature, but who continued to exercise the functions
of a judge, was considered to be a de facto officer and his acts conse-
quently valid.** If a judgment or decree was actually rendered before
the judge's term expired, it is of course immaterial that it was not
docketed or filed until afterwards. Thus, where a cause was sub-
mitted to a judge to be determined in vacation, and he made his
decision and deposited it, with the papers, in the express office the
day before his term of office expired, directed to the clerk of the
proper county, it was held that the decision was then complete and
it was not invalidated because it was not filed it! the clerk's office
before the expiration of the judge's term.**
( 177. Time and Place of l&oldinc Conrt.
It is held in several of the cases, that it is indispensable to the
validity of a judgment that it be rendered at the time and place pre-
scribed by law.'* And the holding of a court at a time or place
other than that ordained or authorized by law, and all proceedings
thereunder, are coram non judice and void.'* Perhaps the rule is too
broadly stated in these decisions. But it may be admitted that the
fact that a term of court was not held at the time prescribed by law
will constitute a ground for the reversal of a judgment rendered in
such term." But if there was reasonable mistake in regard to the
time fixed by law, and color of authority for the time actually se-
lected, there is authority for the view that a judgment so rendered is
••Cromer v. Bolnest. 27 S. C. 436, 3 S. E. 849. But compare Mace v.
O'Rellley, 70 Cal. 231, 11 Pac. 721.
2» Woodside v. Wagg, 71 Me. 207.
«• Babcock v. Wolf, 70 Iowa, 670, 28 N. W. 490; Shenandoah Nat. Bank
T. Read, 86 Iowa. 136, 53 N. W. 96; McDoweU v. McDowell, 92 N. C. 227.
«> State T. Roberts. 8 Nev. 239; Dalton v. Llbby, 9 Nev. 192; Cooper v.
American Central Ins, Co., 3 Colo. 318; Wicks v. Ludwig, 9 Cal. 173.
»» Grimniett v. Askew, 48 Ark. 151, 2 S. W. 707.
" Smitbson v. Dillon, 16 Ind. 160. See Cofflnberry v. Horrill, 5 Cal. 49:i;
Bowden y. Hatcher, 83 Ga. 77, 9 S. E. 724«
(259)
§ 177 LAW OF JUDGMENTS. (Ch. 10
perfectly valid. Thus, in a case in Tennessee, it appeared that an act
of the legislature had changed the times for the sitting of the circuit
court for a certain county. This change was not known to the
ofKcers of the court, the act having been passed but a short time
before a term was to be held. The court was held by the presiding
judge at the time before fixed by law, but at a different time from that
required by the law then in force. A judgment was rendered by the
court thus sitting, the justice of which was not controverted. And
it was held that the judgment was valid ; that the acts of a judge
regularly in office are valid, if he hold his court under color of law,
although the law may be repealed or invalid.'* On similar prin-
ciples, and by an even stronger reason, a judgment is valid when
rendered at a term which was commenced at the day fixed by law,
although, in the middle of the term and before the judgment, a new
statute changes the time for holding the court, because the later act
will not affect a term already lawfully commenced.'* And where,
in the absence of the judge, the sheriff adjourned the court without
authority, the adjournment was held to be a nullity, and a judgment
entered by the court two days afterwards was held valid.'* In regard
to the place of holding a court, compliance with the law is of course
important, and perhaps essential to the perfect validity of the judg-
ments rendered. But it does not appear, from the authorities, to be
so indispensable that deviation from the law in this respect will of
itself be sufficient to render such judgments absolutely void.*' H
it appears by the record of a judgment that the court which pro-
nounced it had jurisdiction of the person of the defendant and of the
subject-matter of the suit, such judgment will not, in a collateral pro-
ceeding, be held void upon proof being made that it was rendered
at a place other than the established seat of justice of the county,
when it is shown that all the houses at the latter place had, before
the rendition of the judgment, been destroyed by fire, and that the
«* Venable v. Curd. 2 Head, 582.
85 Clnre v. Clare, 4 Greene (Iowa) 411.
«« Thomas v. Fogartj', 19 Cal. G44.
37 Le Grange's Lessee v. Ward, 11 Ohio, 257; Smitli v. State, 9 Humph.
(Tenn.) 10.
(2G0)
Ch. 10) VALIDITY OF JUDGMENTS. § 178
county court had accepted, as a temporary seat of justice, the place
at which the judgment was rendered.'®
§ 178. Flaoe of Trial.
That a judgment was rendered in a county other than that in
which the venue was laid is a mere irregularity, and does not avoid
the judgment.** And the same is true of the fact that the judge made
and signed a decree in a county other than that where the trial was
had.*'' So also, the jurisdiction of the court is not affected by the
fact that the action was tried in a county which was not the one de-
clared by statute to be the proper county for its trial.** Thus, in
Lalifornia it is held that where a cause is transferred, because of the
disqualification of the judge, to an adjoining judicial district, under
authority of statute, the judgment therein is not void or subject to
collateral attack because the county to which the cause was trans-
ferred was not the nearest one, as required by the statute. "We
cannot see," said the court, "how it can be law that a judgment
can be impeached collaterally and held void, because a judge has
made an inconsiderable mistake in computing distances, or had se-
lected a county-seat more readily accessible than the other in coming
from L., and holding it to be really the nearer on that account. The
judge had jurisdiction to make this order under the statute then in
force. He must determine what is the nearest court in administering
the law. This determination was undoubtedly within his power, and
if he sent it to a county some distance further than another, by error
of a miscalculation of distances, it would be nothing more than an
error, and should not render the judgment void. Conceding that this
judgment might have been reversed on appeal, still it would not be
void on collateral attack." ** This decision illustrates the difference
between void judgments and such as are merely erroneous. In gen-
» Herndon v. Hawkins, 65 Mo. 2(5.").
" J^pit bier v. Aslel, 83 Hun, 223, 31 N. Y. Supp. 584.
•• Walter t. Merced Academy Ass'n, 126 Cal. 582, 59 Pac. 136.
*» EUis V. KHis, 55 Minn. 401, 56 N. W. 1056, 23 L. R. A. 287, 43 Am. Bt
Hep. 514.
*2 Gage V. Downey, 79 Cal. 140, 21 Pac. 527.
(261)
§ 179 IjAW op JtJDaMBNTs. (Ch. 10
eral, as already stated, a judgment is not void except for a total failure
of jurisdiction.
I 179. Judgment rendered in Vaoation.
When the law provides for the holding of regular terms of a court,
it is only during term-time that the judges are invested with their
full judicial character. Necessary rules and orders, ministerial acts,
and some matters which go as of course, may fall within the powers
of the court in vacation. But in general all judicial functions are
suspended during that interval. Hence, unless under statutor}' au-
thority, a judgment cannot be pronounced in vacation. The rendition
of judgment, in a court of record, is essentially a judicial act, and if
performed when the court is not in session, that is, out of term, it is
open to a fatal jurisdictional objection; the judgment is absolutely
void, creates or affects no rights, and will even be disregarded on
appeal.*' "The judge of the court below had no power to render
any judgment or decree in vacation. The statute provides for regular
terms of the court to be held for the trial of causes, and it does not
provide for the rendering of judgments or decrees at any time except
during the term." ** And again : "With a few exceptions, all
matters of a judicial character must be heard and determined by the
court at a term fixed by and held in accordance with law. The
motion under consideration [to discharge a garnishee] does not con-
stitute one of the exceptions." *' While this is the case, it is also held
in several of the states that the parties may consent to the rendition
of a judgment during the vacation of the court, which judgment is
*8 Kinports v. Rawson, 29 W. Va. 487, 2 S. E. 85; State v. Judge of FiWi
District Court, 26 La. Ann. 119; Culver v. Leovy, 21 La. Ann. 30G; Dodge t.
Coffin, 15 Kan. 277; Bruce v. Doolittle, 81 111. 103; Sheppard v. Wilson, 1
Morris (Iowa) 448; Peabody v. Phelps, 7 Cal. 53; Filley v. Cody, 4 Colo. W.
Cliauipion v. Sessions, 1 Nev. 478; Backer v. Eble, 144 Ind. 287, 43 N. E. '-^'^
Gamble v. Buffalo County, 57 Neb. 1C3, 77 N. W. 341. But a Judgment en-
tered in vacation as of the last day of the previous term has the same effect
when signed by the judge at the next term, as If entered in term-time. Louis-
ville & N. R. Co. V. Trustees of Ellzabethtown DIst. Public Schools (Sj.) ^s*
S. W. 34.
44 Earls v. Earls, 27 Kan. 538.
45 Laughlln y. Peckham, 66 Iowa, 121, 23 N. W. 294.
(2G2)
Ch, 10) VALIDITY OP JUDGMENTS. § 179
then to be entered as of the preceding term,*® or the ensuing terrii,*^
and will be perfectly valid as between the parties,*® and even against
third persons in the absence of fraud or collusion.*® Nor is the main
rule of quite universal application. In some states, either in accord-
ance with the established practice of the courts,"* or by express statu-
tory authority,** the courts are empowered to make decrees or orders
or render judgments in vacation. And when this power is given,
it of course includes the jurisdiction necessary to make a decision
in vacation upon a cause proved and submitted in term-time. In this
connection we must notice a certain class of statutes authorizing
cases to be "taken under advisement" by the court. In Mississippi
it is considered that a statute of this character does not authorize the
rendition of a judgment in vacation, but the judgment must be given
by the court upon the delivery of the judge's opinion in writing at the
next term after the submission of the case.'* In Illinois, however,
under a similar statute, it is held that a decree may be rendered in
vacation, but that it will remain in fieri and subject to modification,
and not become final, until after the expiration of the succeeding
term, and then only as approved at that term.'*
The rendition of a judgment, it will be remembered, is an entirely
distinct thing from the entry of it. The former is the act of the law
through the mouth of the judge; the latter the act of the clerk.
The former gives force and efficacy to the judgment ; the latter pre-
serves a memorial of it. The former is a judicial act ; the latter a
ministerial act. A judgment is none the less a sentence of the law
because it is erroneously entered or not entered at all. Hence it
«• King y. Green, 2 Stew. (Ala.) 133, 19 Am. Dec. 46.
«7 Herrey v. Edmunds, 68 N. G. 243.
<• City of New Orleans v. Gauthreaux, 32 La. Ann. 1126; Green v. Reagan,
32 La. Ann. 974; Herrey v. Edmunds, 68 N. C. 243; King v. Green. 2 Stew.
(Ala.) 133, 19 Am. Dec. 46; Hattenback v. Hoskins, 12 Iowa, 109; O'Uagen
▼. O'Hagen, 14 Iowa, 264.
«» City of Xew Orleans v. Gauthreaux, 32 La. Ann. 1126.
»• Beyerle v. Hain, 61 Pa. 226.
»i Ex parte Bennett, 44 Cal. 85. And see Harris y. Jones, 96 Va. G58, 32
8. E. 45o; RnaseU t. Hank, 9 Utah, 309, 34 Pac. 245.
»> Wilson T. Rodewald, 61 Miss. 228. And see Abraham y. Leyy, 18 G. C.
A. 469, 72 Fed. 124.
»» Hook V. Blcheson, 115 UL 431, 5 N. E. 9&
(263)
S 180 LAW OF JUDGMENTS. (Ch. 10
follows that if a judgment is duly rendered during term-time, it is
then complete, and its validity is in no wise affected by the fact that
the clerk does not enter it until the vacation.** It is also to be here
noted that the meaning of the word "vacation," as used, for example,
in a statute which authorizes the confession of judgments during
vacation, may not be the same as that known to the common law,
viz., "all the time between the end of one term and the beginning of
another,'' °° but it may cover a recess caused by the adjournment
over of the court for a number of days.***
f 180. After Expiration of Term.
As a corollary of the rule stated in the preceding section, it is held
that a judgment of a court holding regular terms, if rendered after
the time fixed by law for its adjournment, is invalid and will be re-
versed on appeal."^ But where the trial of a cause is commenced in
a term with the bona fide expectation and belief that it will be con-
cluded before the day shall arrive when the judge is directed, but not
imperatively required, to hold court in another county, he may re-
main, conclude the trial of that case, receive the verdict, and pass
judgment, even though this may happen to be done on a day, or at a
time, when regularly he would be holding court in another county."
And if a judgment be ordered and its terms prescribed by the court
during a term, it is a judgment rendered in term-time although the
entry thereof be not in fact prepared and transcribed on the journal
until after the close of the term.*" On principles analogous to those
obtaining in the case of courts of record, it is held that if a justice of
B4 Sicber v. lYlnk, 7 Colo. 148, 2 Pac. 901; Earls v. Earls. 27 Kan. 538.
Supervisors of Manitowoc Co. v. Sullivan, 51 Wis. 115, 8 N. W. 12. But in
Indiana it is held that a judgment duly pronounced in term, but entered tn
vacation, and the entry never seen by the judge nor signed by him, though
his name was signed by an attorney, is Invalid, and its execution will be en-
joined. Mitchell V. St. John, 98 Ind. 598. And st^, also, First Nat. Bank ot
Mc<^regor v. Hostetter, Gl Iowa, 395, IG N. W. 289.
»5 Jacobs, Law Diet.; Bouv. Law Diet
06 Conkling v. Ridgely, 112 111. 36, 1 N. E. 2G1, 54 Am. Kep. "WH.
67 Smith v. Chichester, 1 Cal. 409; Passwater v. Edwards, 44 Ind. 343; Fer<
rell V. Hales, 119 X. C. 199, 25 S. E. 821.
0 8 State V. Knight, 19 Iowa, 94.
5J» Iliff V. Arnott, 31 Kan. G72, 3 Pac. 525.
(L>G4)
Ch. 10) VALIDITY OP JUDQMBNTS. § 181
the peace adjourns a cause without specifying the hour of the day
or the place to which it is adjourned, he loses jurisdiction and his sub-
sequent judgment is void.*® But in several of the states it is held
that while judgments should be signed and entered during the term,
yet if the parties consent that the cause be taken under consideration
by the judge, and a judgment rendered and signed after the term
shall have expired, and entered as of the term, it will not be irreg-
ular.** And a party to the action who fails to interpose an objection
to this procedure, at the proper time, waives his right, which amounts
to an implied consent and concludes him.** The decision of a cause
may be carried over the vacation by a proper entry ; but if a judg-
ment be continued by "curia advisari vult,'* and be not given until the
terra succeeding that at which the verdict was rendered, the judgment
must be entered and signed as of such succeeding term, not of the
former term.*'
( 181. Premature Entry of Jndsment*
The rendition of judgment at a term before that fixed by statute
is considered not as a mere formal defect which may be remedied
by an amendment in the court below, but as a radical error.** Thus,
the entry of final judgment at the same term with a default, when the
statute provides that the former shall be entered at the next term
••CrandaU v. Bacon, 20 Wis. 639, 91 Am. Dec. 451. But in Nebraska,
«"li«Te a Justice of the peace has Jurisdiction of the subject-matter and of the
parties, a Judgment rendered by him after the expiration of the time fixed
l>y statute must be corrected by a direct proceeding for that purpose, and wlil
not be enjoined upon that ground alone. Gould v. Loughran, 19 Neb. 392, 27
N. W. 397.
•I Shackelford t. MiUer, 91 N. C. 181; Hardin v. Ray, 89 N. C. 3(54; Mor-
rison V. Citizens' Bank. 27 La. Ann. 401. Where motions and demurrers are
fiubuiitted for deci.siou during the term or in Tacation, the coui-t, by failure to
determine the questions until the next term, does not lose Jurisdiction so as
to require a resubmission. Reed v. Lane, 9G Iowa, 454, Go N. W. 380.
« Molyneux v. Huey, 81 N. C. IOC.
•» Thorpe v. Corwin, 20 N. J. Law, 311.
•♦Teat V. Cocke, 42 Ala. 336. But while such a premature entry constitutes
an Irregularity, the later cases hold that it does not go to the Jurisdiction of
the court, and does not render the Judgment entirely void. Marshall & Ilsley
J*nnk V. Hyman, 84 Wis. 23, 53 N. W. 1120; Tobar v. I^sano, 6 Tex. Civ.
App. C88, 25 S. W. 973; Main v. Johnson, 7 Wash. 321, 35 Pac. 67.
(205)
§ 182 UiW OF JUDOMBNTB. (Ch. 10
after the default, is an irregularity, although, in this instance, it ap-
pears that the error may be corrected on motion at a subsequent
term.®* So also an order of court which bears date as of a day not
yet arrived is absolutely without effect, at least until that day shall
arrive.** In this connection also must be mentioned the rule that
final judgment cannot properly be rendered in any case while there
are issues of law or fact remaining undisposed of or undetermined,*'
or while an order staying all proceedings in the case remains still in
force.**
I 182. Sundays aad Holidays*
It is a maxim of the common law that "dies dominicus non est
juridicus." Accordingly no valid judgment can be rendered upon
Sunday. ''That courts have no right to pronounce a judgment or do
any other act strictly judicial on Sunday, unless expressly authorized
by statute, seems to be too well settled to admit of a doubt by the
decisions in England and in this country. The cases all show that a
judgment entered of record on Sunday is not only erroneous, but is
absolutely void." ** But in some of the states, by the operation of
statutes authorizing or requiring the rendition of a judgment im-
•5 Nave V. Todd, 83 Mo. 601. A judgment rendered by a Justice of the
peace before the return day of the warrant is erroneous but not void. Glover
V. Holman, 3 HeislL. (Tenn.) 519.
«e Smith V. Coe. 7 Rob. (N. Y.) 477.
67 Bosman v. Alieley, 39 Mich. 710, 33 Am. Rep. 447; Aymar v. Cbace, VI
Barb. (N. Y.) 301; Barret v. Thompson, 5 Ind. 457; Miller v. Hoc, 1 Fla. 1»»:
Clark V. People, 15 111. 213; Benson v. Arnold, 75 111. App. 610; Hammond
V. Freeman, 9 Ark. 62; Davison v. Brown, 93 Wis. 85, 67 N. W. 42.
08 Uhe V. Chicago, M. & St. P. Ry. Co.. 3 S. D. 563, 54 N. W. 601; Id.. 4 S.
D. 505, 57 N. W. 484.
«o Baxter v. People, 3 GUman (111.) 368, 384; MackaUey's Case. 5 C<Ae, 66:
Swann v. Broome, 3 Bmrows, 1595; Pearce v. Atwood, 13 Mass. 347; Chap-
man V. State, 5 Blackf. (Ind.) Ill; Nabors v. State, 6 Ala. 200; Frost v. Hull,
4 N. H. 158; Arthur v. Mosby, 2 Bibb (Ky.) 589; Story v. Elliot. 8 Cow. (N.
Y.) 27, 18 Am. Dec. 423; Davis v: Fish, 1 (J. Greene (Iowa) 406, 48 Am. Dec.
387; Blood v. Bates, 31 Vt. 147; City of Parsons v. Lindsay. 41 Kan. 336. 21
Pac. 227, 3 L. R. A. 658, 13 Am. St. Rep. 290; AUen v. Godfrey, 44 N.
Y. 433; Coleman v. Henderson, Litt. Sel. Cas. (Ky.) 171, 12 Am. Dec 290;
Hoghtaling v. Osborn, 15 Johns. (N. Y.) 119; Ex parte White, 15 Nev. 14ft, 3»
Am. Rep. 4G6; Hemmens v. Bentley, 32 Mich. 89; Ex parte Juneman. 28 TW.
App. 486, 13 S. W. 783: Shearman v. State, 1 Tex. App. 215, 28 Am. Kep.
402; Styles v. Harrison. 99 Tenn. 128, 41 S. W. 333, 63 Am. St Rep. 824.
(2GG)
Ch. 10) VALIDITY OP JUDGMENTS. § 182
mediately upon the reception of a verdict, it is held that if a verdict
is returned on Sunday, a judgment entered upon it the same day will
be valid.^* Since the entry of a judgment, as distinguished from its
rendition, is a merely ministerial act, there can be no doubt that it
will not be invalidated by the fact that it was put upon the record or
the docket by the clerk on a Sunday. But in that case it should not
appear to have been rendered on Sunday.^* However, the court is
not bound to accept as true a docket-entry that a judgment was
rendered on that day when there is extraneous evidence that in fact
it was not.'*
In regard to other legal holidays, the general rule is that unless
the statutes recognizing or creating them expressly prohibit the exer-
cise of judicial functions upon them, the courts may validly render
judgments and transact their other usual business.^' And even if
they are declared non-juridical days, this will not hinder the perform-
ance of ministerial acts. Thus the statute in Georgia, declaring the
fourth of July a holiday, does not inhibit the courts from sitting on
that day, or make a judgment rendered on that day void, except
when the day falls on Sunday.'* So it is held that a judgment ren-
dered by a justice of the peace on Thanksgiving Day is not void.'"
And in another case it was considered that in the absence of an ex-
press statute, the ministerial act of a clerk in filing a transcript of
TO Thomiison v. Church, 13 Neb. 287, 13 N. W. 626; Hurford v. City of
Omaha. 4 Neb. 336; Tajlor v. Ervin, 119 N. C. 274, 25 S. E. 875. See, also,
Perkins v. Jones, 28 Wis. 243; Wearae v. Smith, 32 Wis. 412.
71 Where a confession of Judgment and order for execution Trere handed
by the plaintiff to the prolhonotary on Sunday, and the next day the latter
entered Judgment and issued execution, it was held that the judgment was
valid. The prothonotary was not bound to receive the papers on Sunday;
bis acceptance of them was not an official act, but be receiyed them merely as
agent of the plaintiff. Kauff man's Appeal, 70 Pa. 261.
»* Ecker v. First Nat. Bank, 64 Md. 292, 1 Atl. 849; In re Worthlngton,
7 Bias. 455, Fed. Cas. No. 18,051. To avoid a Judgment, regular on its face,
on the ground that it was rendered after midnight on Saturday, the evidence
fihoQld eetabllsb, beyond the doubt naturally arising from the difficulty of
determining the precise time of a particular transaction, that it was thus
rendered. Bishop v. Carter, 29 Iowa,, 165.
7» Pee Spiedel Grocery Go. v. Armstrong, 8 Ohio Cir. Ct. R. 489.
»« Ilamer v. Seam, 81 Ga. 288, 6 S. E. 810.
Yft Bear v. Youngman, 19 Mo. App. 41.
(207)
§ 183 LAW OP JUDGMENTS. (Ch. 10
a judgment is not void because done on Christmas Day, but is a
valid docketing of the judgment and will confer a valid lien upon the
real estate of the debtor in the county where it is filed.'*
S 183. Jndement miuit be supported by the Fleadingi.
A judgment must accord with and be warranted by the pleadings
of the party in whose favor it is rendered. A judgment not sup-
ported by the pleadings is as fatally defective as one not sustained
by the verdict or finding.^^ Hence the code, although it abolishes
the forms of actions as they existed at common law, does not author-
ize a recovery, where the complaint alleges facts showing a cause of
action in tort, by proving upon the trial a cause of action in con-
tract.^' Again, under the common count for goods sold and deliver-
ed, no recovery can be had for money advanced, or personal services
rendered for defendant."'* In an action for money obtained from
plaintiff by fraud, it is error, on finding no fraud shown, to give judg-
ment as for money loaned.*** Where the complaint alleges that the
fall of plaintiff's wall, for which he claims damages, was caused by
defendant's negligent excavation of land "adjacent'' to plaintiff's
land, but the evidence shows that the excavation was "beneath" the
plaintiff's building, the latter cannot recover.** So also, where the
petition alleges tiiat two defendants are jointly indebted to plaintiff
as a banking firm, he is not entitled to recover a judgment against
f In re Worthlngton, 7 BIss. 455, Fed. Cas. No. 18,051. In lUinols, a judg-
ment by confessfou entered on the 25th of December is not void. Bradley v.
Claudon, 45 111. App. 320.
7 7 BiKhman v. Sepulveda, 39 Cal. 688; Marshman v. Conklin, 21 N. J. Eq-
540; Parsley v. Nicholson. 05 N. C. 207; Frevert v. Henry. 14 Nev. 191; Lee
V. British & American Mortg. Co., 16 Tex. Civ. App. 671, 40 S. W. 1041:
Clark v. Clark, 21 Tex. CIt. App. 371. 51 S. W. 337; Wheeler v. Foster. 82
111. App. 153; demons r. Heelan, 52 Neb. 287, 72 N. W. 270: SeiberUng ▼.
Mortiuson, 10 S. D. 644, 75 N. W. 202.
7 8 Degraw v. Elmoro. 50 N. Y. 1.
7i»Rand, McNally & Co. t. Hombarger, 82 111. App. 34L But defendant
cannot complain of a Judgment based on a contract as it is alleged in his
answer, though it differs from that alleged by plaintiff. Ach v. Carter, 21
Wash. 140, 57 Pac. 344.
»o Kress v. Woehrle, 23 Misc. Rep. 472. 52 N. Y. Supp. 628.
»i Novotny v. Danforth, 9 S. D. 301, 68 N. W. 74».
(2G8)
Ch. 10) VALIDITY OP JUDGMENTS. § 183
one of them as a city treasurer.** Where an action is brought to
foreclose a mechanic's lien, and the lien is shown to have been dis-
charged by the giving of a bond, the court has no power to render
a personal judgment against the defendant.®' On the same prin-
ciple, where the theory of the complaint and of the trial, as well as
of the entire evidence, was that a deed was not intended as a mort-
gage, but as a conveyance, a judgment based on the theory that the
deed was a mortgage cannot be upheld.®* And although, under
modern systems, courts of law may enforce equitable rights, the
proof must agree with the pleadings, and the relief granted must be
within the prayer for relief and the grounds relied on.®* So where
the declaration is defective in substance to the extent of failing to
show a cause of action, no judgment can be entered upon it.®* This
would be good ground for a motion in arrest, but if a judgment were
nevertheless entered, it would be reversed for error. And if the
complaint docs not state facts sufficient to constitute a cause of ac-
tion, a finding "that the allegations of the complaint are true," is
not sufficient to support a judgment for the plaintiff.®^ But where
a verdict is returned for the plaintiff on two counts in a declaration,
one of which contains no cause of action, the court will render judg-
ment upon the other, if legally sufficient.®® But the fact that the
defendant, at the trial, makes no objection to the form of action (as
that one joint action is improperly brought instead of two several
suits), cannot enable the court to enter a judgment which the law
•» City of Ssrracuse v. Reed, 5 Kan. App. 806, 49 Pac. 259.
»» Mertz V. Mapes-Reeve Const. Co., 30 Misc. Rep. 343, 6;3 N. Y. Supp. 455.
«* Bullenkamp v. Bullenkamp, 43 App. Div. 510, 60 N. Y. Supp. 84.
•» Eddy & Bls«en Live-Stock Co. v. Blackburn, 17 C. C. A. 532, 70 Fed. 949.
•• Harris v. Harris, 10 Wis. 467.
«7 Knudson v. Curley, 30 Minn. 433, 15 N. W. 873. A Judgment is not void
or erroneous because the name of plaintiff's attorney attached to the complaint
is printed instead of being written. Hancock v. Bowman, 49 Cal. 413.
••Gordon v. Downey, 1 Gill (Md.) 41. In California, it Is said that if any
material issue Is raised by the pleadings, a verdict in favor of a party supports
a judji^ent in his favor. Orton v. Brown, 117 Cal. oOl, 49 Pac. 583. But in
Wistonsin, the court declares that a judgment which Is based on only one of
two issues raised by the pleadings, and which leaves the other undisposed of.
Is erroneous. Gage v. Allen, 84 Wis. 323, 54 N. W. 027. And if there Is no
count in the declaration on the cause of action shown by the evidence, there
can be no recovery. Riley v. Jarvls, 43 W. Ya. 43, 26 S. E. 306.
(269)
§184 LAW OF JUDGMENTS. (Ch. 10
does not warrant.®* In any action, process and pleadings are gen-
erally necessary, but where the parties are voluntarily before the
court, and by agreement, consent, or confession (which are the same
in substance) a judgment is rendered, such judgment is valid, al-
though not granted according to the regular course of procedure.**
So a judgment rendered without any complaint having been filed, is
valid if entered by agreement or if ratified by subsequent consent.**
A judgment or decree based upon incompetent e\ddence is never,
for that reason alone, void."* And in general, mere error in a judg-
ment, though it may be ground for its reversal, will not have the
effect to make it absolutely void, or lay it open to collateral impeach-
ment, or impair its efficacy while it stands.
8 184. Judcment in Action not at Israe.
It has been held, in several cases in Mississippi, that judgments
rendered without issues to be determined by them are nullities.**
And in some other states there are expressions to the effect that,
before a cause is at issue, either expressly or tacitly, no final judg-
ment can be validly rendered."* Undoubtedly a judgment so pro-
nounced would be irregular and erroneous, as being contrary to the
course of law and the usual practice of the courts, and would there-
fore be liable to reversal. But whether it should be regarded as en-
tirely void, a mere nullity, is a question involved in more difficulty.
That no such result could properly follow is contended by Mr. Free-
man, on the general principle that "when jurisdiction over both the
parties and subject-matter is once obtained, no error committed in
80 Ellison V. New Bedford Five Cent. Sav. Bank, 130 Mass, 48; Leonard v.
Bobbins, 13 ^Ulen (Mass.) 217.
»o Peoples v. Norwood, JM N. C. 167. And see Mengis v. Fifth Ave. By.
Co., 81 Hun, 480, 30 N. Y. Snpp. 999.
01 Gay V. Grant, 101 N. C. 20G, 8 S. E. 99. But without such consent a
judgment recovered in a court of record will be set aside "where no complaint
or written statement of the cause of action was filed therein. Beckett v. Cu^
nin, 15 Colo. 281, 25 Pac. 167, 22 Am. St Rep. 399.
02 Mann v. Martin, 14 Bush (Ky.) 763.
9 3 Steele v. Palmer, 41 Mips. 88; Armstrong v. Barton, 42 Miss. 506; Porter-
field V. Butler, 47 Miss. 170, 12 Am. Rep. 329.
0* Braunsdorff v. Fay, 18 La. Ann. 187; Du Bay v. Ullue, (J Wis. oSS: Balti-
more & O. R. Co. V. Faulkner, 4 W. Va. 180.
' (270)
Ch. 10) VALIDITY OP JUDGMENTS. § 186
the exercise of that jurisdiction can make the proceedings or judg-
ment of the court void." •* This may readily be conceded. And yet,
in no proper sense can a court of law be said to have jurisdiction if
there is no specific question or controversy submitted for its deter-
mination. It is not enough that the parties are properly in court.
That does not give the tribunal power to adjudicate any and all mat-
ters of difference between them. When we speak of "jurisdiction
of the subject-matter," we do not mean merely cognizance of the
general class of actions to which the action in question belongs, but
wc also mean legal power to pass upon and decide the particular
contention which the judgment assumes to settle. And how can a
court acquire jurisdiction of the particular contention, except it be
clearly marked out and precisely defined by the pleadings of the par-
ties? And how can that be done, in any mode known to the law,
save by the formation of a regular issue ? There is therefore plausi-
ble ground for holding that if the record fails to show an issue to be
determined, the judgment will be void on its face.
8 186. Findlnsfl aeeesflary to support the Jndsmeiit*
In some of the states there are statutes requiring a finding of
facts and conclusions of law to be filed in the action, to serve as a
ba&is for the judgment. But the disposition is to regard this re-
quirement as not vitally necessary to the validity of the judgment.
As to parties before the court, and respecting a matter within its
jurisdiction, the cases hold that a judgment without a finding of facts
to support it is not void, but at most merely erroneous and subject
to reversal by a suitable proceeding in a tribunal having authority
to review it.** So where a court of record, having jurisdiction, ren-
••FVeem. Judgm. 8 135a. And In Doyle v. Smith, 1 Cold. (Tenn.) 15, it
l8 held that the want of a plea or issue constitutes at most but an error in
the Judgment, but does not make it void, or affect the authority of the sheriff
to execute writs which may be issued upon it.
•• ConnoUy v. Edgerton, 22 Neb. 82, 34 N. W. 76; Lubker v. Grand Detour
Plow Co., 53 Neb. Ill, 73 N. W. 457; Springfield F. & M. Ins. Co. v. Hamby,
65 Ark. 14, 45 8. W. 472; McCreary v. Robinson (Tex. Civ. App.) 57 S. W. 682.
Bat In Michigan It is considered that such a judgment has no greater validity
than a Judgment rendered upon a Jury trial without a verdict. Stans&ll v.
Coming, 21 Mich. 242. And see Texas Brewing Co. v. Meyer (Tex. Civ. App.)
(271)
I 186 LAW OF JUDGMENTS. (Ch. 10
ders a judgment upon a petition filed before it against a defendant
upon default of answer, and the statute requires the court in the par-
ticular proceeding to take evidence and make special findings, and
the court fails to comply with the statutory requirement, the judg-
ment may be erroneous but is not void.*^ And where a court, at
the conclusion of a trial, has ordered judgment, but omits to make
and file findings of fact and conclusions of law, as prescribed by
statute, such findings and conclusions may be made and filed by the
court after judgment nunc pro tunc.®' But in Michigan it is held
that a judgment entered up before the findings are finally completed
and filed is premature, and is to be regarded as provisional action
merely, which only becomes perfected when the findings are com-
pleted and filed.** If the findings are required to be specific, a gen-
eral finding for the plaintiff will not support a judgment in his fa-
vor.^«<»
8 186. Judsmeiit miut follow Verdlet*
If the defendant in an action has recovered a verdict upon a plea
which confesses the plaintiff's cause of action and does not suffi-
ciently avoid it, judgment should be entered for the plaintiff not-
withstanding the. verdict.*®^ Again, if the verdict is clearly wrong,
this may furnish ground for arresting the judgment or granting a
new trial.^°* But if no such reasons exist for disregarding or set-
ting aside the verdict, the judgment, to be valid, must follow it and
accord with it. We have already seen that this is an established
rule in respect to the amount of the judgment.^®* And it may also
be stated as a general principle that the judgment must conform to
the verdict, not only as to the amount, but also as to the measure
38 S. W. 2(13; Maynard v. Locomotive Engineers' Mat. life & Accident Im.
Ass*n, 14 Utah, 458, 47 Pac. 1030; Williams v. Williams. 104 Cal. 85. 37 Pac
784; National Horse-Importing Co. v. Novak, 95 Iowa, 696, 64 N. W. 6ML
07 Garner v. State, 28 Kan. 790.
es Swaiistrom v. Marvin, 38 Minn. 350, 37 N. W. 455.
•0 People V. Judge of Circuit Court, 34 Mich. 62,
100 i,udd V. Tiilly, 51 Cal. 277.
101 Supra, § 16.
102 SriJra, § 104.
108 Supra, § 142.
(272)
Cb. 10) VALIDITY OF JUDGMENTS. § 186
of relief and as to the parties against whom the finding is made.^®*
Moreover the judgment cannot go beyond the verdict in settling the
rights of the parties, or admeasuring the recovery, or declaring or
foreclosing liens.^®* In cases where the statutes provide for the
returning of special verdicts, and enact that "if a general and a spe-
cial verdict are inconsistent, judgment shall be rendered pursuant
to the latter," it is held that a judgment should be rendered pursuant
to the general verdict in all cases where the facts constituting the
special finding are not inconsistent with the general verdict.*®'
Where the court has permitted the jury to amend its verdict, it is
error to enter judgment on the original verdict, rejecting the amend-
ment.^*^ It is also error to render a judgment upon a verdict which
finds upon a part only of the issues.*®* Finally, where the verdict
is for the plaintiff, subject to a question of law reserved, a subse-
quent judgment for him should be entered, not on the point reserved,
but on the verdict.*®*
JO* Morsch v. Besack, 52 Neb. 502, 72 N. W. 953; Bell v. Otts, 101 Ala.
186, 13 South. 43, 46 Am. St. Rep. 117; Hellman v. Schwartz, 44 111. App. 84.
In an action agalnat two defendants, who seek no afflrmatlve relief, a verdict
for *Hhe defendant** will support a judgment that plaintiff take nothing, and
that defendants. (by name) recover their costs. Butler v. Estrella Raisin Vine-
yard Co., 124 Cal. 230, 56 Pac. 1040. So where, in an action against principal
and surety, the latter alone defends, and the verdict is against the principal
only, the legal effect is a finding in favor of the surety, and a Judgment ac-
cordingly is not erroneous. Howard y. Johnson, 01 Ga. 319, 18 S. E. 132.
»•• Freiberg v. Brunswick-Balke-Collender Co. (Tex.) 16 S. W. 784; Boyd
r. Ernst, 36 lU. App. 583. But where the evidence authorizes the court to
direct a verdict, the court may, in rendering judgment, go further than the
verdict in adjusting the equities of the parties. Smith v. Smith, 23 Tex. Civ.
App. 304. 55 S. W. 541.
i««Quaid V. ComwaU. 13 Bush (Ky.) 601.
J»T George v. Belk, 101 Tenn. 625, 49 S. W. 748.
»•« Haekett v. Jones, 34 111. App. 562. When the jury fail to pass upon an
issue, the court has no right to render a judgment thereon, however clear and
undisputed the evidence may be. First Nat. Bank v. Vander Stucken {Tex.
Civ. App.) 37 S. W. 170.
*•• Ringle V. Pennsylvania R. R., 164 Pa. 529, 30 Atl. 492, 44 Am. St. Rep.
628.
1 I^AW JUDG.— 18 (273)
§ 187 LAW OF JDDQMBNTS, if^' ^^
THE VALIDITY OF JUDGMENTS AS AFFECTED BY THE CHARAOTBB
OR STATUS OF THE PARTIES.
I 387. Against what Parties Judgments may be Rendered.
188. Judgments against Married Women at Common Law.
389. For Debt contracted Dum Sola.
190. Effect of Omission to plead Coverture.
19L Under partially enabling Statutes.
192. Statutes removing Disability of Ooverture»
193. Judgments against Infants.
194. Service of Process on Infants.
195. Appearance by Attorney or Guardian.
196. Effect of Failure to plead Infancy.
197. Decrees in Equity against Infants.
198. Infant Plaintiffs.
199. Judgments against Deceased Parties.
200. Judgment against Decedent Voidable only.
201. Death of One of Several Defendants.
202. Entry of Judgment against Decedent Nunc pro Tunc
203. Jurisdiction must be acquired before Party's Death.
204. Judgment for Deceased Plaintiff.
205. Judgments against Insane Persons.
206. Joint Parties at Common Law.
207. In Actions of Tort
208. Joint Debtor Acts.
209. One Defendant suffering Default.
210. Judgment, when Several, when Joint
211. Joint Judgment as an Entirety.
212. Confession of Judgment by Joint Defendants.
213. Misnomer of Parties.
214. Descriptio Personse.
§ 187. Against what Parties Jndsments may be Rendered.
Normally, all persons, natural or artificial, may be made defend-
ants in a judgment. In theory of law, all persons who live under the
protection of a particular sovereignty are subject to its laws and are
within the power and authority of its courts, so far as their actions
come within the jural sphere. But the theory is modified to a cer-
tain extent by the technical rules relating to abnormal conditions of
.status. Persons who are under the various legal disabilities, thougn
(274)
Ch. 11) VAUDITY. AS AFFECTBD BY STATUS OP PARTIES. § 187
not exempt from the jurisdiction of the courts, are protected by spe-
cial provisions as to the cases and the manner in which proceedings
may be had against them. Their full and free personality, and there-
fore their accountability, is thus abridged by the peculiarity of their
condition. The same is true, in even greater degree, of those whose
personality is suspended, for juristic purposes, by natural or civil
death. In respect to the latter, it no longer occupies a prominent
place in the law, though there are still circumstances in which a man
may be considered, strictly or by analogy, as civiliter mortuus. And
where this doctrine still survives, it will always incapacitate the man
from suing or being sued, and of course from being a debtor by judg-
ment. Thus a judgment obtained against a man after the filing of
his petition in bankruptcy could not create a lien upon his estate.
"The court will inquire whether in fact the judgment was not entered
after the petition was filed, and if so, will treat the judgment as of
no more validity than if entered against a deceased person. So far
as regards the disposition of his property, or the control of suits
pending against him, the bankrupt, from the time his petition is
filed, may be considered as civiliter n^ortuus." * In some of the states,
the same suspension of personality, or civil death, is predicated of
a felon confined in the penitentiary. Being dead in law, he cannot
be sued, and if his conviction takes place and his sentence begins
while an action is pending against him, a judgment afterwards ren-
dered therein is null.' And during the existence of slavery, the law
denied any juristic personality to the beings so held in bondage.
Consequently, a judgment entered against a slave was considered as
entirely destitute of any legal efficacy or validity.*
1 McLean v. Hockey, 3 McLean, 235, Fed. Cas. No. 8,891. And see Inter-
national Bank v. Sherman, 101 U. 8. 406, 25 L. Ed. 866.
2 Rice County Com'rs v. Lawrence, 2D Kan. 158; Neale v. Utz, 75 Va.
48a. But see Coffee v. Haynes, 124 Cal. 561, 57 Pac. 482, 71 Am. St. Rep.
90.
» Wood v. Ward, 2 Flip. 336, Fed. Cas. No. 17,966.
(275)
I 188 hkW OF JUDOMBNTS. (Gh. 11
i 188. Jvdgmenta asainat Married Women at Comatom Iaw.
At common law, on account of the merger of the wife's personaKty
in that of the husband, she was incapacitated for almost every species
of juristic action ; and theref re, being unable to bind herself by en-
gagements, the breach of which would give rise to a cause of action,
she could not, at law, be prosecuted to judgment. It is true that
husband and wife might be sued jointly for the wife's tort. But this
does not in reality change the rule, because the addition of the wife
was (at common law) a matter of form only, the husband being the
party who would be looked to for satisfaction of the judgment. Ac-
cordingly it is held, on common law principles, that a personal judg-
ment against a married woman is void and a mere nullity.* A prom-
issory note, for example, signed by a feme covert cannot be enforced
against her by any proceeding at law, and a judgment by default
against her on such note is a nullity, and equity will enjoin the
enforcement of it against her separate estate.* The doctrine is stated,
in its most strict and uncompromising form, in a West Virginia
decision, as follows : A judgment rendered by a court of common
law against a married woman, either in her own name or in the
name of a company, under which she doe§ business, upon a contract
made during her coverture, is absolutely void, and an execution or
suggestion sued out upon such judgment is invalid and ineffectual
for any purpose, and the judgment may be attacked in any collateral
proceeding.* It was otherwise in equity. For there the wife was
considered to have a separate personality for some purposes, and
consequently she might be sued in chancery in respect to her sepa-
rate estate. But even in those courts she could not walk with per-
fectly free foot, and safeguards were provided for her analogous to
those obtaining at common law.^
* Morse v. Toppan, 3 Gray (Mass.) 411; HIggins v. Pritzer, 49 Ma 152:
Weil V. Simmons, 66 Mo. 617; Griffith v. Clarke, 18 Md. 457; Robe! v.
Bushnell, 91 Ky. 251, 15 S. W. 520. See Smith v. Borden, 17 R. L 220, 21
Atl. 351, 11 L. R. A. 585, 33 Am. St. Rep. 867.
» Griffith v. Clarke, 18 Md. 457; Hoffman v. Shupp. 80 Md. 611. 31 Atl. 5(Ci.
• White V. Foote I^umbcr & Manuf'g Co., 29 W. Va. 385, 1 S. E. 5?i.
« Am. St. Rep. 650.
T See O'Hara v. McConneU, 93 U. S. 150, 23 L. Ed, 840.
(270)
Ch. 11) VALJDITT, AS AFFECTED BY STATUS OF PARTIES. | 189
{ 189. For Debt oontrmoted Dmii SoIa*
If a suit is begun against a woman while she is sole, she cannot
deprive the plaintiff of his remedy or abate the action, even at com-
mon law, by marrying ; but the suit will proceed without any regard
to her coverture, and a personal judgment may be rendered against*
her.* The same is true if the suit, though not instituted until after
marriage, is upon her debt contracted while single. That is, if the
declaration shows that the contract was made while the defendant
was a widow or sole, her coverture at the time of the suit is no
obstacle to the recovery of such a judgment against her as might be
rendered against any other defendant.* This case is also specifically
covered, in several of the states, by statutes which provide for and
authorize a personal judgment against a married woman upon her
contract made before marriage, to be enforced, however, only against
her separate property.*® And in some others, the law provides that
an action upon the wife's debt, contracted before the marriage, must
be brought against the husband and wife jointly.** Dissolution of
the marriage of course restores both parties to their former status.
A judgment against a divorced wife for her debt, and also against
the husband as to any property received by the marriage, if void as
to him, cannot prejudice her and is not void as to her.** '
• Uoyley t. White, Cro. Jac. 323; King v. Jones, 2 Ld. Raym. 1525; Evans
T. Chester, 2 Mees. & W. 847; Cooper v. Hunchln, 4 East, 521; Roosevelt
T. Uale. 2 Cow. (N. Y.) 581; PhlHIps v. iStewart, 27 Ga. 402; Evans v. Lips-
comb. 28 (Ja. 71; Sackett v. Wilson, 2 Biackf. (Ind.) 85; Parker v. Steed,
1 Lea (Tenn.) 206.
• Travis T. Willis, 55 Miss. 557.
»« Kev. St. Me. 1883, c. 61, §4; Acts N. Y. 1853, c. 576, S 1; Acts Md.
1*^M>. p. 233; Acts Va. 1875, c. 359. § 3; Rev. St. W. Va, 1878, c. 122. § 10;
Code N. C. f 1823; Gen. St. Colo. § 2275; Comp. Laws Wyo. c. 82, § 7; 2
Rev. St. Ind. § 5127, construed in Smith v. Beard, 73 Ind. 159.
u Pub. St. R. I. c. 166, § 16; 2 Rev. St. Ind. 9 5127; Acts Md. 1880. p. 253;
Acta Va. 1875, c. 359. $ 3; Rev. St. W. Va. 1878, ۥ 122, 8 10; Gen. St.
Colo. 8 2275; Comp. Laws Wyo. c. 82, 5 7.
i2Joye8 V. UamUton, 10 Hush (Ky.) 544.
(277)
§' 190 LAW OF JUDGMENTS. (Ch. 11
I 190. Effeoi of Omlsflion to plead Corertiire.
The most difficult question which has arisen in connection with
this subject, and the one which has chiefly engaged the attention of
the courts, is this : What effect is to be given to a personal judgment
rendered against a married woman, by default, in an action to which
her coverture, if pleaded, would have been a complete defense? Is
it a mere nullity, or is it voidable on motion, or is it merely errone-
ous ? In some of the states, the doctrine is firmly held that such a
judgment is absolutely void and may be so treated whenever it is
brought in question.** These decisions proceed upon the ground of
the total disability of a feme covert tp contract the species of debt
assumed by the hypothesis, her incapacity to retain an attorney to
appear and plead for her, and the consequent want of jurisdiction in
the court for lack of a juristic person to act upon. Some of the de-
cisions cited are ably considered and well reasoned.
On the other hand, it is held by a long line of authorities (includ-
ing some English cases) that such a judgment against a married
woman is not void, and even though erroneous or voidable, by rea-
son of the absence of enabling statutes, is still valid and binding
upon her in any collateral proceeding and until set aside or reversed
in some proper manner.** The practical importance of the question,
i« Morse V. Toppan, 3 Gray (Mass.) 411; Norton v. Meader, 4 Sawy. 003.
Fed. Cas. No. 10,351; Hartman v. Ogborn, 54 Pa. 120, 93 Am. Dee. 679:
Graham v. liong, 65 Pa. 383; Swayne v. Lyon, (57 Pa. 439; Vandyke v. Well?,
103 Pa. 49; Griffith v. Clarke, 18 Md. 457; Davis v. Foy, 15 Miss. 6i; Gary
V. Dixon, 51 Miss. 593; Mallett v. Parham, 52 Miss. 921; White t. Bird. 20
LSL. Ann. 281; Parsons v. Spencer, 83 Ky. 305; Stevens v. Deering (Kv.)
9 S. W. 292; Higgfns v. Peltzer, 49 Mo. 152; WeU v. Simmons, 66 Mo. 617:
Corrlgan v. Bell, 73 Mo. 53.
1* Dick V. Tolhausen, 4 Hurl. & N. 695; Moses v. Richardson. 8 Bare.
& C. 421; Frazier v. Felton, 8 S. C. 231; Green v. Branton. 16 X. C. 504;
Vick V. Pope, 81 N. C. 22; Glover v. Moore, 60 Ga. 189; Mashbum t. Gouge,
61 Ga. 512; Howard v. North, 5 Tex. 290, 51 Am. Dec. 769; Phelps v. Brack-
ett, 24 Tex. 236; Spalding v. Wathen, 7 Bush (Ky.) 659; Chatterton t.
Young, 2 Tenn. Ch. 768; HoweU v. Hale, 5 Lea iTenn.) 405; Sheppard v.
Kendle, 3 Humph. (Tenn.) 81; Keith v. Keith, 26 Kan. 26; Callen t. EUison,
13 Uliio St. 446, 82 Am. Dec. 448; McCurdy v. Bau?hman, 43 Ohio St. lis
1 N. E. 93; Burk v. Hill, 55 Ind. 419; Wilson v. Coolidge, 42 Mich. 112, 3
(278)
Ch. 11) VALIDITY, AS AFFBCTBD BY STATUS OP PARTIES. § 1^0
it will be observed, comes to light when we inquire whether such a
judgment may be impeached collaterally, and what is its effect upon
third persons. For this will depend entirely upon whether it is void '
or voidable. And the decisions which hold it to be merely voidable
generally support their conclusion by a species of argument ab in-
convenienti, namely, the harm that might accrue to innocent stran-
gers if such judgments were to be treated as mere nullities. Thus
the supreme court of California says : "There would be no safety in
purchasing at judicial sales, under judgments rendered after due
service of process on female defendants, if the title of the purchaser
could be defeated by proof, in a collateral action, that the defendant
in the judgment was a married woman at the time of the institution
of the suit, or that she was incapable in law of contracting the debt
for which the judgment was rendered."*" In order to reach. this
result it is necessary to agree that, no matter what the status of
the woman may have been, if she was duly served with process, she
was fully within the jurisdiction of the court, so that the judgment,
though upon a contract which she had no power to make, would be
at most erroneous as a matter of law. And this is the ground of
the decision in the recent important case of McCurdy v. Baugh-
raan,** where the court, after a critical and exhaustive review of the
authorities, announced the doctrine stated at the beginning of this
paragraph, and added: "Indeed, this is but to reassert the doctrine
constantly maintained in this court, that 'the judgment or final or-
der of a court having jurisdiction of the subject-matter and parties,
however erroneous, irregular, or informal such judgment or order
may be, is valid until reversed or set aside.' "' In Alabama it is held
that in the absence of fraud in its procurement, or other special cause
shown, a consent decree is as binding on a married woman as on a
person who is sui juris.*^ In another state it is considered that as a
judgment against a married woman may be valid (for it may be for
her tort or for a debt contracted before marriage), in a proceeding
N. W. 285; Vantllburg v. Btack, 3 Mont. 459; Gnmbette v. Brock, 41 CSal.
78; Guthrie v. Howard, 32 Iowa, 54; Farrls v. Hayes, 9 Or. 81.
isGambette v. Brock, 41 Cal. 78.
»« 43 Ohio St 78, 1 N. E. 93.
IT Winter v. City CouncU of Montgomery, 79 Ala. 481.
(279)
§190 LAW OP JUDGMENTS. (Ch. 11
to enforce such a judgment it should not be held conclusively to be
void, but neither should the defendant be estopped from showing
'that it is void.^* And in Pennsylvania the court has lately held —
though without departing from its earlier rulings — ^that a judgment
by default against a married woman, in an action to which she might
have pleaded coverture, is impervious to collateral attack, and void-
able at most, when the proceeding was in rem, as, for the enforce-
ment of a mechanic's lien.^*
The solution of this vexed question must depend upon the view
which we are to take of the common law status of a married woman.
If it is merely a protection, — a barrier which she may raise in the
path of one who pursues her at law, and which the courts are bound
to erect in her behalf, — then it may readily be conceded that she
may be brought within the juri'sdiction by a proper service of process,
so that the subsequent proceedings will at any rate not be void,
although the court, to save itself from error, should not give a per-
sonal judgment against her on a debt she could defend against by
coverture. This theory, however, is far from satisfactory as an ac-
count of the common law notion. The doctrine seems rather to
have been that marriage, except for certain special purposes, put the
personality of the wife entirely in abeyance. And therefore, in the
generality of cases, her contracts and business transactions could
have no validity whatever ; for it is only a juristic person whose acts
can have the effect of creating or transferring rights. For the same
reason she would be beyond the authority of the courts, — as much so
• as the sovereign himself, — and no court could acquire jurisdiction of
her (in the cases falling within our hypothesis), because process can-
not issue except against a person known to the law as an individual.
If, then, a suit was instituted against her, and she suffered a default,
still no valid judgment could be given. The whole proceeding would
be void ab initio and could result in nothing effectual. It seems to
us that the vital point is clearly indicated in the following remark
of the court of appeals of Kentucky : "If, as is unquestionably true,
a judgment is void if the court rendering it had no jurisdiction for
/ want of service of process, then it seems to us that it should be
18 I'arsons v. Spencer, 83 Ky. 305.
18 Sliryock v. Buckman, 121 Pa. 248, 15 AU. 480, 1 U R. A. 533,
(280)
Ch. 11) VALIDITY. AS AFFECTED BY STATUS OF PARTIES. § 191
equally so if the one served with process is incapacitated by law from
retaining an attorney, or has no such legal existence as authorizes a
personal liability. In the one case the court has no jurisdiction, and
in the other there is nothing within its jurisdiction which has a legal
existence," *•
I 191. Under P»rtially eaablins Statutes.
Thus far we have considered the validity of judgments against
married women at common law. It is now necessary to consider the
enabHng statutes which, both in England and in most of the states,
have introduced the most important changes in their legal powers
and relations. These statutes may be broadly divided into two
i« Parsons r. Spencer, 83 Ky. 305. On another appeal In the same case
iSpencer v. Parsons, 89 Ky. 577, 13 S. W. 72, 25 Am. St Rep. 555), the
coort sustained its ruling by the following convincing line of argument:
''(ienerally, a feme coTert has no personality In law. She is not recognized
by it sare in a few excepted cases, so that a personal judgment can be taken
against her. The contracts of an infant are in general voidable only, while
those of a married woman are void. True, she may, under certain circum-
8taoc*«, bind her separate estate, but not herself personally; the reason be-
ing that she has no personal identity in law. It does not follow because, as
an exceptional case, a personal judgment may go against her for tort, or
upon a contract made by her when single, the reason being that her status
at the making of it is regarded as following it to its completion, that there-
fore all personal judgments against her are merely erroneous, and not void.
If Rbe has no legal status In court, certainty it should have no jurisdiction
to render a judgment binding her personally. Uer existence is merged in that
of the husband, and she can make no contract binding herself personally,
or suhjeoting her to a judgment in personam. Her contract is void in law.
In equity, it may be enforced against her separate estate, if she so intended;
hut she Incurs no personal liability by it, oecause she has, legally speaking,
no personal existence, and it must be satislied out of her estate by in rem
proceedings. She is by law incapacitated from retaining an attorney, and
no personal liability arises, because she has no legal existence. There is,
therefore, so far as she is concerned, no person within the court's Juris-
diction* If a personal judgment be rendered upon a claim, the alleged lia^
bility is merely placed upon an advanced footing, and if originally it was void
as to her. then the unauthorized judgment should not estop her from resiRting
It from the fact that she was not sui juris, and had no such legal existence
as authorized a personal judgment. We are aware there is a conflict of
authority in this country upon this question; but the views above advanced
j«w»m to OS not only supported by reason, but we know they are sustained
t>y such high authority as the supreme courts of Penus^ivania, Missouri,
and other states."
(-'SI)
§ 191 LAW OF JUDQMBNT& (Ch. 11
classes, those which fully emancipate the wife, and those which re-
lease her only partially from the common law disabilities. Statutes
of the latter class usually give the married woman power to make
contracts with respect to her separate estate, to incur debts for its
repair and improvement, to make herself liable for supplies for the
maintenance of the family, and to sue and be sued in respect to such
contracts and debts. It is generally held, under an enabling statute
allowing a married woman to charge her separate estate by certain
kinds of contracts beneficial to herself or the estate, that a judgment
against her, founded on such a contract, will be erroneous (or void,
according to the doctrine prevailing in the particular state), unless
the record itself shows that the debt is one for which her separate
estate is liable.'^ Thus, under a law in Pennsylvania, that a judg-
ment against a wife in a joint action, so as to bind her separate
estate, shall not be rendered unless it shall be proved that the debt
sued for was contracted by the wife for necessaries for the family, a
default judgment which does not show that any testimony was taken
is void.** And in any case no general judgment can be given; it
must be limited to the separate property of the wife in reference to
which the contract was made.*' In Alabama, the judgment must
specify the property to be bound. "A general judgment, or a judg-
ment which pretermits the ascertainment of the estate of the wife con-
demned to its satisfaction cannot be rendered. * * * There can
be no personal judgment against the wife; the only judgment that
81 Lewis V. Perkins, 30 .\. J. Law, 133; Swayne v. Lyon, 67 Pa. 436:
Hecker t. Haak, 88 I'a. 238; Magruder v. Buck, 56 Miss. 314; Gary t.
Dixon, 51 Miss. 5U3; Albree v. Johnson. 1 Flip. 341, Fed. Cas. Xo. 146; \\Tilte
r. Ballllo, 12 La. Ann. 6(>3; Kobson v. Shelton, 14 La. Ann. 712; TrimWe v.
Miller, 24 Tex. 214; Menard v. SSydnor, 29 Tex. 257; McGlaughlln v. 0*Roarke,
12 Iowa, 459; March v. MeCardle, 1 Pa. Dist. R. 677; Green v. Ballard. 116
X. C. 144, 21 S. E. 192. Compare Weldy v. Young. 21 Pa. Co. Ct R. 15.
2 2 (Jould V. McFall, 111 Pa. 66. 2 Ati. 403; Brown v. McKinney. 130 Pa.
365, 18 Atl. 642; Kauch v. Young, 9 Pa. Co. Ct. R. 416.
23 Crockett v. Dcrlot, 85 Va. 240, 3 S. E. 128; Foertsch t. Germnlller,
9 App. D. C. 351; Holtby v. Hodgson, 24 Q. B. Div. 103. In an action on an
English judgment against a married woman, containing a provision limiting
its execution to her separate estate, it is erroneous to enter a general per-
sonal Judgment against the defendant, without adding thereto the limitation
imposed by tlie Knglish Judgment )Sangulnuettl v. Roche, 60 Huu, 5SI.
15 X. Y. Supp. 185.
(282)
Ch. 11) VALIDITY, AS APFBCTBD BY STATUS OP PARTIES. § 192
can be rendered is a judgment in rem, a judgment of condemnation
of the statutory estate described in the complaint."** So where an
enabling statute allows her to bind her separate real estate, a judg-
ment against the land is valid, but not a personal judgment against
the woman.** And in an action against a married woman to dispos-
sess her of lands, no personal judgment, either for damages or costs,
can be rendered against her.** But her coverture does not prevent
the rendition of a decree against lands descended to her, for contri-
bution to the other heirs on account of a debt of the ancestor which
they have paid.*^ Where a married woman is allowed to mortgage
her separate estate, but there is no statute allowing her to sue and be
sued as a feme sole, the remedy is by charging the property in equity ;
but a personal judgment against her on the mortgage note is erro-
neous.** According to the law in Louisiana, a judgment against a
married woman is void and of no effect when her husband has not
been cited with her, and she is not authorized by him or by the judge
to defend the suit.** As to confessions of judgment by married
women, under these enabling statutes, the reader is referred to sec-
tion 55 of this volume.
I 192. Statutes removing Disability of Coverture.
In many of the states there are statutes which abolish all disa-
bilities from coverture and allow a wife to sue and be sued in like
manner as if she were sole.*® In these states it is universally held
>« Lee T. Ryall, 68 Ala. 354.
»» Sweeney v. Smith, 15 B. Mon. (Ky.) 325, 61 Am. Dec. 188,
2« Steed T. Koowles, 84 Ala. 205, 3 South. 8i)7.
«T Winston T. McAlpine, 65 Ala, 377.
*• Johnson County v. Kugg, 18 Iowa, 137; Wolff v. Van Metre, 19 Iowa,,
m; Beed v. King, 23 Iowa, 500; Patton v. Stewart, 19 Ind. 233; Kirby
T. Chlldii, 10 Kan. U39; Femberton v. Johnson, 46 Mo. 342; Keating v.
Korfhage, 88 Mo. 524. The same Is true of actions on mechanics' liens.
Borgwald v. Weippert, 49 Mo. 60; Seeman v. W'eippert, 49 Mo. 61.
2»D!nneyer v. O'Hern, 39 La. Ann. 961, 3 South. 132; Washington v.
Uackett, 19 t.a. Ann. 146.
»• Pub. St. Mass. c. 147, § 7; Gen. Laws N. H. c. 183, § 12; Acts Vt. 1884,
Xo. 140. S 1; Code Civ. Proc. N. Y. S 450; Kev. St. N. J. "Married Women,"'
10. 11: Act Pa. June 3, 1^87, S 2 (P. L. 333); Kev. St. Ohio, § 4900: Hev.
8t IIL c. 68» I 1; Bey. Code Iowa, 8 2562; Gen. St. Minn. c. 66, § 29; Comp.
(283)
§ 193 liAW OF JUDGMENTS. (Ch. 11
that a personal judgment against a married woman, if otherwise
regular, is as valid and binding as any other.* ^ Thus, where the
property of a married woman is levied upon by her husband's cred-
itors as his property, and *he interposes a claim, she is bound, just
as any other suitor would be, by the judgment in the claim case."
So where she prefers a suit against her trustee to enforce the trust,
or to. charge the trustee with maladministration, she is concluded by
a judgment against her.'*
i 103. Judgments against Infants.
In respect to their legal disabilities, infants occupy a position
analogous to that of married women. But the courts have shown a
much stronger disposition to sustain judgments given against the
former than those rendered against the latter. Assuming that an
infant defendant has been brought before the court by a proper serv-
ice of process, it is regular and orderly to appoint a guardian ad litem
for him, who then assumes the defense of the action and protects
the interests of the minor. But if a judgment is rendered by a court
having jurisdiction of the parties and subject, it is held, by the great
preponderance of authorities, that it will not be void because the
defendant was an infant and no guardian ad litem was appointed,
although it will be irregular and liable to reversal, or voidable on a
Laws Kan. c. 62, § 3; Comp. St. Neb. pt. 1, c. 52, § 3; Acts Md. 18S2, c.
265; Laws Or. 1878, p. 93, $ 7; Gen. St. Colo. § 2279; Code Wash. S 2396:
Code Civ. Froc. Dak. | 77; Comp. Laws Wyo. 1882, c. 68; Code Miss, i
1167; Comp. Laws Ctah, $ 1021.
»i Labaree v. Colby, 99 Mass. 559; Goodnow v. HUl, 123 Mass. 587; Voa-
burgh V. Brown, 66 Barb. 421; Cashman v. Henry, 75 N. Y. 103. 31 Am.
Rep. 437; Mrst Nat. Bank v. Garlinghouse, 53 Barb. 615; Wilson v. Her-
bert, 41 N. J. Law, 454, 32 Am. Rep. 243; Huff v. Wright, 39 Ga. 41; Glover
V. Moore, 60 Ga. 189; Hart v. Grigsby, 14 Bush (Ky.) 542; McCue v. Sharp
(Ky.) 45 S. W. 770; Williamson v. CUne, 40 W. Va. 194, 20 S. E. 917; Jones
v. Taylor, 7 Tex. 240, 56 Am. Dec. 48; Patrick v. Uttell, 36 Ohio St 79.
38 Am. Rep. 552; Van Metre v. Wolf, 27 Iowa, 341; Jones v. Glass, 48
Iowa, 345; Davis v. First Nat. Bank of Cheyenne, 5 Neb. 242, 25 Am. Kep.
484; Rogers v. Weil, 12 Wis. 6W; Plainer v. Patchin, 19 Wis. 333; Leonard
V. Townsend, 26 Cal. 435; Marlow v. Barlew, 53 CaL 456; Alexander v.
Bouton, 55 Cal. 15.
82 Lewis V. Gunn, 63 Ga. 542.
as Rammelsberg v. MitcheU, 29 Ohio St 22.
Ch. 11) VALIDITY, AS AFFECTED BY STATUS OP PARTIES. § 193
proper proceeding for that purpose.'* The theory is, that the ap-
pointment of a guardian is not a prerequisite to the jurisdiction of
the court ; it attaches upon due service of the process being made.
Consequently, the omission to appoint a guardian does not impair the
authority of the court to proceed in the case, but is at most an irreg-
ularity in the exercise of its lawful jurisdiction, which, on settled
principles of law, may impregnate its judgment with error, but can-
not render it absolutely null. Very important results follow from the
placing of such sentences in the category of voidable judgments, as
distinguished from those which are entirely void. For, first, the
judgment will stand as a valid adjudication, against the infant and
all others who may be interested, until it is set aside or reversed."^
Again, the omission to appoint a guardian ad litem will not vitiate
the judgment on a collateral attack ; it is only voidable by a direct
proceeding.** And if it is set aside, the interest of a bona fide pur-
chaser under the judgment without notice will not be affected.*^
•^C^Hara v. McConnell, »3 U. S. 150, 23 L. Ed. 840; Tucker v. Bean;
« Me. 352; Barber v. Graves, 18 Vt. 292; Q-ockett v. Drew, 5 Gray (Mass.)
'J^; Austlii T. Charleston Fem. Sem., 8 Mete. (Mass.) 196, 41 Am. Dec. 497;
Swan y. Horton, 14 Gray (Mass.) 179; Hill v. Keyes, 10 Allen (Mass.) 258;
Sims ▼. New York College of Dentistry, 35 Hun (N. Y.) 344; Moore v. Mc-
Kwen, 5 Serg. & R. (Pa.) 373; Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681;
KobertB y. Stanton, 2 Munf. (Ya.) 129, 5 Am. Dec. 463; Larking y. BuUard.
88 N. C. 35; StancIU y. Gay, 92 N. C. 462; England v. Garner, 90 N. C. 197;
FiDley V. Robertson, 17 8. C. 435; Cook y. Rogers, 64 Ala. 406; Taylor v.
RowlaDd, 26 Tex. 293; Montgomery y. Carlton, 56 Tex. 361; Martin y. Wey-
man, 26 Tex. 400; WaUls v. Stuart, 92 Tex. 568, 50 S. W. 567; Booker v.
Kennerly, 96 Ky. 415, 29 S. W. 323; Simmons y. McKay, 5 Busb (Ky.)
25; AlUson y. Taylor, 6 Dana (Ky.) 87, 32 Am. Dec. 68; Walkenhorst v.
Lewis, 24 Kan. 420; TrapnalFs Adm'x v. State Bank, 18 Ark. 53; Boyd v.
Roane, 49 Ark. 397, 5 S. W. 704; St. Clair y. Smith, 3 Ohio, 355; Blake v.
Douglass, 27 Ind. 416; Carver v. Carver, 64 Ind. 195; Peak v. Shasted, 21
lit 137. 74 Am. Doc. 83; Quiglej' v. Roberts, 44 111. 503; Bonnell v. Holt,
89 lU. 71; Millard y. Marmon, 116 111. W9, 7 N. E. 468; Webster v. Page!
54 Iowa. 461, 6 N. W. 716; Drake y. Hanshaw, 47 Iowa, 291; Powell y.
Gott 13 Mo. 458, 53 Am. Dec. 153; Stupp v. Holmes, 48 Mo. 89; Bailey
y. McGinniss, 57 Mo. 362; I'arker v. Starr, 21 Neb. 680, 33 N. W. 424.
••Bngland y. Gamer, 90 N. C. 197; Bemecker v. Miliar, 44 Mo. 102;
SUnmons y. McKay, 5 Bush (Ky.) 25; Frierson v. Travis, 39 Ala. 150.
*« Millard y. Marmon. 116 111. 649, 7 N. E. 468; Manson v. Duncanson,
106 U. S. 533, 17 Sup. Ct. 647, 41 L. Ed. 1105.
•T England t. Garner, 90 N. C. 197.
(285)
§194 LAW OP JUDGMENTS. (Oh. 11
And further, the avoidance of the judgment is at the election of
the defendant; upon attaining his majority, he may execute a writ-
ten release of errors, which will have the effect to confirm the judg-
ment.'® And while the courts will always be careful of the rights
of infants, they will not in all cases set aside irregular judgments
against them as of course ; they will refuse to do so where it appears
from the record or otherwise that the infant suffered no substantial
injustice.** As respects proceedings to probate a will, no appoint-
ment of a guardian ad litem for any minor interested in the testator's
estate is necessary, and the probate is valid, notwithstanding the
omission of such appointment.*®
i 104. Senioe of Process on Tafowta,
It is indispensable to the validity of a judgment against an infant
that the record should show that he was made a party in some legal
and effectual mode.** Ordinarily the statute requires that personal
service be made upon the infant, if over the age of fourteen years
(and sometimes upon the guardian also), and upon a parent, guard-
ian, or person having charge of the minor, if under that age. This
requirement is jurisdictional ; the law must be strictly followed ; and
neither the infant nor his guardian can accept service, or waive the
due service of process.** The service, as stated, should be personal.
88HU1 V. Keyes, 10 AUen (Mass.) 258.
«» Syme v. Trice, 96 x\. C. 243, 1 S. E. 480; McCrosky v. Parks, 13 S.
U. UO; Phillips V. Dusenberry, 8 Hun (N. Y,) 348; Bickel v. Erskine. 43
Iowa, 213; Fuller v. Smith, 4« Vt. 253; Rankin v. Kemp, 21 Ohio St. 651:
Kemp V. Cook, 18 Md. 130, 79 Am. Dec. 681; Krickow v. Pennsylvania Tar
Manuf g Co., 87 111. App. 653.
40 In re Monsseau's Will, 30 Minn. 202, 14 N. W. 887.
*i Shaefer v. Gates, 2 B. Mon. (Ky.) 453, 38 Am. Dec. 164; Abdil v. AbdU.
26 Ind. 287; Winston v. McLendon, 43 'mIss. 254.
*2 l^enox V. Xotrebe, 1 Hemp. 251, Fed. Cas. Xo. 8.246c; Genobles t. West
23 S. C. 154; Young v. Young, 91 N. C. 359; Winston v. McLendon, 43 Miss.
254; Taylor v. \>'alker, 1 Heisk. (Tenn.) 734; Armstrong v. Wyandotte
Bridge Co., 1 McCahon, 166; Abdil v. Abdil, 26 Ind. 287; Clark v. Thompson.
4Y 111. 25. 95 Am. Dec. 457; Good v. Xorley, 28 Iowa, 188; Kansas City. St
J. & C. B. R. Co. V. Campbell, 02 Mo. 585. "The mode of making infants
parties to an action in a court of record is clearly and expressly prescribed
by statute, and a due and tender regard for the rights and welfare of infants
requires that this statute shaa be strictly followed. An infant is incapable
(2SG)
Ch. 11) VA^iIDITT, AS /^FECTED BY STATUS OP PARTIES, § 194
But it is held in Kentucky, that a judgment against an infant con-
structively served, without the appointment of a guardian ad litem,
is not void, but will stand good until set aside or reversed.*' And
where the statute provides for service on non-resident defendants by
publication, service may be made in that manner upon non-resident
infants.** It is clearly irregular to appoint a guardian ad litem until
after the defendant has been duly brought before the court. Yet
numerous cases hold that, although the infant was never personally
served, or although the service was not in compliance with the stat-
ute, or was otherwise defective, still, if a guardian ad litem was
appointed and an answer filed and the action defended, the judgment
will not be void, though the defendant may have it reversed or set
aside.** But some other authorities maintain the rule that where
infant defendants are not served with process and do not appear,
the court has no authority whatever to appoint a guardian ad litem
for them, and no jurisdiction as to them, and a judgment against
them is utterly void.** There is something to be said in favor of
this position, but both the preponderance of the cases and the drift
of judicial thinking appear to be against it. In Illinois, it is held that
if service is made upon the infant personally, instead of upon his
guardian, as required by the statute, and no guardian ad litem ap-
pointed, the court is without jurisdiction.*' Similarly, when the
infant is under the age of fourteen years, and the summons is not
of making himself or herself a party to an action by accepting service, so
as to be bound by a judgment therein. All the formalities prescribed by
statute must be complied with." Finley v. Robertson, 17 S. C 435.
«s Simmons v. McKay, 5 Bush (Ky.) 25.
«« Bryan v. Kennett, 113 U. S. 179, 5 Sup. Ct. 407, 28 L. Ed. 908; Walken-
horat V. Lewis, 1« Kan. 420.
^'Ueroman v. Louisiana Institute of Deaf and Dumb, 34 La. Ann. 805;
Kobb V. Irwin's Lessee, 15 Ohio, 689; Pi-eston v. Dunn, 25 Ala. 507; Nel-
son T. Moon, 3 :^IcLean, 319, Fed. Cas. No. 10,111; Larkins v. BuUard, 88
N. a 35; Grontier v. Puymiroi, 19 Cal. 629; Cox v. Story, 80 Ky. Gi; Gib-
son ▼. Chouteau, 39 Mo. 536; Kremer v. Haynie, 67 Tex. 450, 3 S. W. 676.
<• Roy V. Rowe, 90 Ind. 54; New York Life Ins. Co. v. Bangs, 103 U. S.
435, 26 U Ed. 58U; AVhitney v. Porter, 23 111. 445. See Galpin v. Page,
18 WalL 350, 21 U Ed. 959; Sprague v. Haines, 68 Tex. 215, 4 S. W. 371;
MrCloskey v. Sweeney, 66 Cal. 53, 4 Pac. 943; IngersoU v. Manga m, 84 N. Y.
t;22.
«T Whitney ?. Porter, 23 III. 445.
(287)
§ VJO LAW OF JUDGMENTS. (Ch. 11
served on his father, mother, guardian, or other person having charge
of him, as the statute prescribes, it has been held that a judgment
against him is void, and a sale of his land thereunder should be set
aside.*'
Summarizing the conclusions reached in this and the preceding sec-
tions as sustained by the majority of the decisions, we may say that,
in order that a judgment against an infant may be entirely regular
and valid, both due service of process and the appointment of a
guardian for the suit are necessary. But if (i) no service is had
upon the defendant, but a guardian is appointed and defends, or if
(2) the infant is within the jurisdiction of the court by personal cita-
tion, but no guardian is appointed for him, — ^in either of these cases,
the judgment will be irregular and voidable, but not a mere nullity.
If neither of these requisites is complied with, the judgment will
ordinarily be utterly void. To the last statement, however, there may
be exceptions in peculiar circumstances. In a case in North Carolina,
where it appeared that there was no service of process upon infant
defendants, and no guardian appointed to protect their rights, but
they were brought in by an order directing them to be made parties
with leave to answer, it was held that a judgment taken against them
was irregular and might be set aside at any time, but it was not
treated as a nullity.** But here we approach the great principle, ap-
plicable to all persons alike, that jurisdiction over them is only ac-
quired by service of process in some regular and recognized mode.
f 105. Appearaaoe by Attorney or Gnardlaji*
Although the law does not regularly permit an infant to defend
his case in person or by attorney, yet a judgment against an infant
for whom no guardian was appointed, but who appeared by attorney,
is voidable only and not void ; it may be set aside on motion after he
*8 Wornock v. Loar (Ky.) 11 S. W. 438; Civ. Code Kj. | 52.
*9 Larkins v. Bullard, 88 N. C. 35; StancUl v. (Jay, 92 N. C. 462. Tbe
Code, 8 387, making valid judgments against infants and certain other per-
sons, in cases where being parties defendant, they are not personally served,
does not apply to cases where there has never been any service upon the
infant, nor upon any person representing him. Id.; Ferry t. Adamii 98
N. C. 167, 3 S. E. 729, 2 Am. St. Rep. 32(5.
(288)
Ch. 11) VALIDITY, AS AFFECTED BY STATUS OP PARTIES. § 196
attains majority, or may be reversed on error. "^® In a case in Cali-
fornia, where, in a suit against infants, there was no personal service
i:pon them, but their general guardian appeared and defended for
them, it was held that such appearance gave the court jurisdiction
of their persons.^* And in many of the states a general guardian,
already appointed, may appear for the minor,*^^ though in others a
guardian ad litem must in all cases be appointed.***
i 106. Effeet of Failure to plead Infancy*
The general disposition of the authorities is to regard the plea of
infancy as a personal privilege, which may be waived, and if it is not
pleaded, a judgment against the infant is binding upon him.** Still
there are some cases which hold, — on analogy to the rule obtaining
in equity, — that a judgment by default cannot properly be rendered
in any case against an infant. °° But the better doctrine is that a
••Powell v. Gott, 13 Mo. 458, 53 Am. Dec. 153; Heeler's Heirs v. Bullitt's
Heirs, 3 A. K. Marsh (Ky.) 280, 13 Am. Dec. 161; Porter's Heirs v. Rob-
iOMD, 3 A. K. Marsh. (Ky.) 253, 13 Am. Dec. 153; Bourne v. Simpson, 0
B. Mon. (Ky.) 454; Austin y. Charleston Fem. Sem., 8 Mete. (Mass.) 196,
41 Am. Dec. 4»7; Bloom v. Burdick, 1 Hill (X. Y.) 130, 37 Am. Dec. 299;
Barter t. Graves, 18 Vt. 290; Martin v. Weyman, 26 Tex. 460; Fulbrlght
T. Cannefox, 30 Mo. 425; MarahaH v. Fisher, 46 N. C. Ill; Whitney v. Por-
ter, 23 111. 445. Infants are not estopped, as against their submission of
their rights to the protection of the court, by the consent of a solicitor to
the entry of a decree, when it does not appear by formal entry, or by proofs,
that such solicitor was in fact employed to represent them. White v. Miller.
158 U. ». 128. 15 8up. Ct. .788, 39 L. Ed. 921.
Bi Smith T. McDonald, 42 Cal. 484.
ft* Wells V. Smith, 44 Miss. 296; Mansur v. Pratt, 101 Mass. 60; Plerson
y, Ultchner, 25 N. J. Kq. 130; Pucket v. Johnson, 45 Tex. 550; Gronfier
T. Poymirol, 19 Oal. 629; Hinton v. Bland's Adm'r, 81 Va. 588.
uKoach ▼. Uix, 57 Ala. 576; Stammers v. McXaughten, 57 Ala. 277;
Fitch V. Cornell, 1 Sawy. 157, Fed. Gas. Xo. 4,834.
'« Blake t. Douglass, 27 Ind. 416. One against whom, when of full age,
a default judgment was rendered on debts incurred while an infant, cannot,
in a proceeding on such Judgment, set up his infancy. Cauthorn v. Berry,
W Mo. App. 404.
»*Rfaoads V. Khoads, 43 111. 239; Peak v. I^ricer, 21 111. 1(U; Lieserowitz
T. West Chicago St. R. Co., 80 111. App. 248; Chalfant v. Monroe, 3 Dana
<Ky.) 35; Massie's Heirs v. Donaldson, 8 Ohio, 377; Metcalfe v. Alter, 31
La. Ann. 389. A counterclaim to the suit of an Infant prosecuted by next
friend cannot be taken as confessed for want of a reply. A guardian ad
1 LAW JUDG.— 19 (289)
§ 197 LAW OF JUDGMENTS. (Ch. 11
judgment rendered upon default against an infant, after due and
proper service of a summons upon him, though without the appoint-
ment of a guardian ad litem, is erroneous and voidable, but not void.
And it is incumbent upon the infant, within a reasonable time after
he attains his majority, having knowledge of the judgment, to take
steps to avoid it, or he will be bound by his own acquiescence.**
i 107. Deorees la Equity affttinst Infanta,
In the courts of equity the rights and privileges of an infant are
generally governed by the same rules as at law, except that chancery
possesses, and will employ, larger and more diversified means of
ascertaining and protecting his interests. In order to make a decree
against a minor, the court must acquire jurisdiction of his person in
some legal and regular manner. Thus where a decree was rendered
against an infant whose guardian was an individual party to the bill,
but not in his capacity as guardian, it was considered that the infant
was not bound by the decree.*^^ So also, a guardian ad litem should
be appointed, just as at law. But though infant defendants may not
have a guardian to protect their interests, yet a decree made against
them is not for that reason void, but it will stand as valid until
reversed.**^ However, if the decree, under such circumstances, is in
favor of the infants, it is valid and cannot be attacked collaterally.**
An important and invariable rule, which must be here noticed, is that
equity will require an investigation of the merits in every case where
infants are concerned ; it will not rest satisfied with the fact that no
defense is set up ; neither will it suffer a guardian to admit away the
litem must be appointed for him and a reply filed, denying every matmal
allegation in the counterclaim, and the circuit court should see that this i>
done. Morris v. Edmonds, 43 Ark. 427.
86 Eisenmenger v. Murphy, 42 Minn. 84, 43 N. W. 784, 18 Am. St Rep.
493; Beckley v. Ne^vcomb, 24 N. H. 359; Childs v. Lanterman. 103 CaL
387, 37 l»ac. 382, 42 Am. St. Rep. 121; Jackson v. Brunor. 16 AUsc Bep.
294, 38 X. Y. Supp. 110; In re Becker, 28 Hun (N. Y.) 207.
B7 Salter v. Salter, 80 Ga. 178, 4 S. E. 391, 12 Am. St. Rep. 249.
58 Porter's Heirs v. Robinson, 3 A. K. Marsh. (Ky.) 2.'>3. 13 Am, Deo.
153; Beeler's Heirs v. Bullitt's Heirs, 3 A. K. Marsh. (Ky.) 280, 13 Am.
iUec. 101.
69 Hanna y. Spotts' Heirs, 5 B. Mon. (Ky.) 362, 43 Am. Dec 132.
(290)
Ch. 11) VALIDITY. AS AFFECTED BY STATUS OF PARTIES. § 197
rights of the ward. Kence a decree cannot pass pro confesso against
an infant.*® A similar rule governs the case of consent decrees.
**Where infants are concerned, the court will not make a decree by
consent, without first referring it to the master to ascertain whether
it is for their benefit. But when once a decree has been pronounced
without that previous step, it is considered as of the same authority
as if it had been referred to the master, and he had made a report
thereupon that it* would be for their benefit."*^ According to the
practice followed in many jurisdictions, a decree against an infant is
first entered nisi ; and a day is given him, after he shall attain full
age, to come in and show cause against making the decree absolute.
If he omits to do so, the decree becomes final and he is conclusively
bound by it.** But whether the omission of the court to secure this
privilege to the infant will invalidate the decree, wholly or in part, is
not so clear upon the authorities. The cases seem to agree that a
decree made absolute in the first instance would not be void, although
it might be voidable.** And there are decisions to the effect that
•• Lane v. Hardwicke, 9 Beav. 148; Bank of U. S. v. Ritchie, 8 Pet. 128,
« L. Ed. 890; Walton v. Coulson, 1 McLean, 120, Fed. Gas. No. 17,132;
Tucker v. Bean, 65 Me. 352; Dow v. Jewell, 21 N. H. 470; Mills v. Dennis.
3 Jolins. Ch. (N. Y.) 367; Wright v. Miller, 8 N. Y. 9, 59 Am. Dec. 438; Thomp-
son T. McDermott. 19 Fla. 852; Jones v. Jones, 56 Ala. 612; Daily's Adm'r
r. Reid, 74 Ala. 415; Hooper y. Hardie, 80 Ala. 114; Wells v. Smith, 44 Miss.
2U6; Mcllvoy v. Alsop, 45 Miss. 365; Johnson y. McCabe, 42 Miss. 255;
Greenwood v. City of New Orleans, 12 La. Ann. 426; Massie*s Heirs v.
Donaldson, 8 Ohio, 377; ChatUn y. Kimbairs Heirs, 23 III. 36; Reddick y.
8Ute Bank, 27 ill. 145; Knos y. Gapps, 12 111. 255; Hamilton y. Oilman,
12 IIL 260; Turner y. Jenkins, 79 HI. 228; Quigley y. Roberts, 44 lU. 503;
Kboads y. Rhoads, 43 111. 239; Hanna y. iSpotts' Heirs, 5 B. Mon. •(Ky.)
362, 43 Am. Dec. 132; Cowan y. Anderson, 7 Cold. (Tenn.) 284; Heath's
Adm'r y. Ashley's Adm'r, 15 Mo. 393; English v. Savage, 5 Or. 518; Burt v.
McBain. 29 3kfich. 260; Barker y. Hamilton, 3 Colo. 291.
•1 Dow y. JeweU, 21 N. H. 470, 487.
•MVright y. MUler, 1 Sandf. Cb. (N. Y.) 103, 59 Am. Dec. 447; Ralston
y. Lahee, 8 Iowa, 17, 74 Am. Dec. 21>1; Long v. Mulford, 17 Ohio St. 484,
«J Am. Dec. 638; Cox y. Story, 80 Ky. 64; Kucheubelser v. Beckert, 41
Hi 172; Seward y. Clark, 67 Ind. 289; Simpson y. Alexander, 6 Cold. (Tenn.)
619; Coffin v. Heath, 6 Mete. (Mass.) 76; Dow y. Jewell, 21 N. H. 470;
Lafferty v. l^fferty. 42 W. Va. 783, 26 S. E. 262.
•» Lookwood y. Stradley, 1 Del. Ch. 296, 12 Am. Dec. 97; Anderson's
Adm*r T. Irvine, 11 B. Mon. (Ky.) 341; Creath y. Smith, 20 Mo. 113: Hanna
(291)
§ 198 LAW OF JUDGMENTS. (Ch. 11
such a decree would be set aside on the application of the infant,
after his majority, as by bill of review ; on the ground that the infant
defendant has an absolute and indefeasible right to show cause
against the decree.** But the weight of the authorities is against
this contention. The general disposition is to regard such a decree
as valid and conclusive. "An infant defendant is as much bound
by a decree in equity against her as a person of full age ; and there-
fore if there be an absolute decree against a defendant who is under
age, she will not be permitted to dispute it, unless upon such grounds
as an adult might have disputed it, as fraud, collusion, or error.*' **
I 198. Infant Plaintiffs.
Regularly an infant can sue only by his guardian or by next friend.
But it is held that a minor who has commenced and prosecuted an
action to judgment is bound by the result.*' And as a general rule
infant plaintiffs are as much bound by a decree as persons of full
age. But they are not so bound in a proceeding by an ofHcial plain-
tiff, though they are styled relators, without the intervention of a
prochein ami.*^
V. Spotts' Heirs, 5 B. Mon. (Ky.) 362, 43 Am. Dec. 132: Joyce v. McAvoy.
31 Cal. 273, 89 Am. Dec. 172; Field v. WUliamson, 4 Sandf. Ch. cN. Y.) 613.
«*Be€ler v. Bullitt, 4 Bibb (Ky.) 11; Wright v. Miller, 4 Barb. (N. V>
.600; Harris v. Youman, 1 Hoff. Ch. (X. Y.) 178; Townsend v. C03C 45 Mo.
401; Comn V. Heath, 6 Mete. (Mass.) 76; Loyd v. Malone, 23 IlL 43, 76 Am.
Dec. 179.
«B Ralston v. Lahee, 8 Iowa, 17, 74 Am. Dec. 291; English v. Savasre.
5 Or. 518; In re Hogton, L. R. 18 Eq. 573; In re Livingston, 34 N. Y. uTvl:
. Rivers v. Durr, 46 Ala. 418; McLemore v. Chicago, St I*. & N. O. R. Co..
58 Miss. 514; Marshall v. Fisher, 46 N. C. Ill; Smith v. McDonald, 42 Cal.
484; Wills v. Spraggins. 3 Grat. (Va.) 567; Harrison v. Wallton's Ex'r.
95 Va. 721, 30 S. E. 372, 41 L. R. A. 703, 64 Am. St. Rep. 830; MarUn v.
Weyman, 26 Tex. 460; Allman v. Taylor, 101 III. 185; Lloyd v. Khrkwood.
112 111. 32i); Simmons v. Goodell, 63 N. H. 458, 2 Atl. 897; Ashton T. Ash-
ton, 35 Md. 496.
66 Gray v. Winder, 77 Cal. 525, 20 Pac. 47. An infant who sues by bis
next friend is as much bound by the judgment (the court having jurisdictl<» i«
as If of full age. Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. CL A.
468, 76 Fed. 429.
67 Beeton v. Becton, 56 N, C. 419.
(292)
Ch. 11) VALIDITY, AS AFFECTED BY STATUS OF PARTIES. § 199
S 100. Judgments •galmt Deceased Parties.
At the common law an action was abated by the death of a sole
plaintiff or defendant. And in some of the states the doctrine ap-
pears to be irrevocably settled that a judgment against a person who
was dead at the time of its rendition is absolutely null and void.'®
It is said in a recent case in Illinois : "A careful examination of the
authorities clearly shows that a judgment by the common law, in the
absence of any statutory provisions on the subject, against a dead
person, either natural or artificial, is absolutely void, and the fact
that service may have been obtained, or the suit commenced, before
the death of the party, makes no difference in this respect." •• So in
the practice of the appellate courts ; an order or judgment rescind-
ing an order of appeal previously obtained by a party to a suit will
be annulled and set aside, as void, if it appears that the rescinding
order was rendered after the death of the party who had obtained
the appeal.'^ Nor is the judgment saved by the fact that the defend-
ant's sole executor was also a defendant in the same action, if he
was joined in his individual capacity.'^ In Pennsylvania the courts
have not committed themselves to this extreme view. Still they hold
that a judgment against a defendant who was dead at the time of its
entry, — this fact appearing of record, — will be stricken off.'* And so
a judgment entered on a warrant of attorney after the death of the
•«New Orleans & C. K. Co. v. Bosworth, 8 La. Ann. 80; Norton v.
Jamison, 23 La. Ann. 102; Edwards v. Whited, 29 La. Ann. (W7; Lee v.
iJarrtlner, 2« Miss. 521; Parker v. Home, 38 Miss. 215; Tarleton v. Cox,
45 Miss. 430; Colson's Ex'rs v. Wade's Ex'rs, 5 N. C. 43; Burke v. Stokely,
«w X. C. 509; Carter v. Carriger's Adm'rs, 3 Yerg. (Tenn.) 411, 24 Am. Dec.
rkK".: Morrison v. Deaderick, 10 Humph. (Tenn.) 342; Collins v. Knight, 3
Tcnn. Ch. 187; McCreery v. Everdlng, 44 Cal. 284; Lynch's Ex'x v. Tunnell,
4 Har. (Del.) 284; Meyer v. Hearst, 75 Ala. 390; Guyer's Adm'r v. Guyer,
« Houst. (Del.) 430; Greenstreet v. Thornton, 60 Ark. 369, 30 S. W. 347,
'JT L, R. A. 735; Wels v. Aaron, 75 Miss. 138, 21 South. 763, 65 Am. St.
Uoi). 594; Watson v. Adams, 103 Ga. 733, 30 S. E. 577; Kager v. Vlckery.
01 Kan. 342, 59 Pac. 628, 49 L. K. A. 153, 78 Am. St. Rep. 318.
••' Life Association v. Fassett, 102 111. 315, 325.
"<> .Succession of Hoggatt, 36 La. Ann. 337. See Green v. Taney, 16 Colo.
31W, 27 Pac. 249.
'* Bragg V. Thompson. 19 S. C. 572.
'> Tobias y. Dorsey, 2 Wkly. Motes Cas. 16b
(203)
§ 200 LAW OF JUDGMENTS. (Ch. 11
defendant should be stricken off.^' The consequences of holding the
doctrine of the absolute nullity of the judgment, in these circum-
stances, are most important. For in the first place, no one would be
imperilled by entirely disregarding it. It would be unnecessary for
the representatives of the decedent, or his creditors, or any other
persons interested, to take any measures to have the judgment va-
cated or reversed. Whenever it came in question, directly or col-
laterally, for whatever purpose presented, it might be attacked and
overturned by proof of the defendant's death before its rendition.
Neither could it operate as a source or support of any title or right,
nor as the means of divesting any interest. Neither would it be
binding as an adjudication of rights. No person could be estopped
or concluded by its findings. And this is logically the state of the
law in those jurisdictions where this view is adopted. But, as will
appear from the following section, it is by no means universal.
S 200. Judgment asainit Deeedent Voidable only.
The great preponderance of authority is to the effect that, where
the court has acquired jurisdiction of the subject-matter and the
persons, during the lifetime of a party, a judgment rendered against
him after his death is, although erroneous and liable to be set aside,
not void nor open to collateral attack.'* A late important case de-
TBLanning v. Pawson, 38 Pa. 480.
74 City of New Orleans v. Whitney, 138 U. S. 595, 11 Sup. CL 428, 34
L, Ed. 1102; Loring v. Folger, 7 Gray (Mass.) 505; Reld v. Holmes. 127
Mass. 326; West v. Jordan, 62 Me. 4Hi; Holt v. Thacher, 52 Vt. 592; Yaple
V. Titus, 41 Pa. 195, 80 Am. Dec. 604; Carr v. Townsend's Ex'rs, 63 Pa.
202; Livingston v. Kendall, 59 Barb. (N. Y.) 493; Hooe v. Barber, 4 Hen.
& M. (Va.) 439; Xeale v. Utz, 75 Va. 480; Collins v. Mitchell, 5 Flii. 3«:
PoweU V. Washington, 15 Ala. 803; Wood v. Watson, 107 N. C. 52, 12 S.
E. 49, 10 L. K. A. 541; Wilson v. Smith, 17 Tex. Civ. App. 188. 43 S. W.
1086; Ledbetter v. Hlgbee, 13 Tex. Civ. App. 267, 35 S. W. 801; Milam
Co. V. Kobertson, 47 Tex. 222; McClelland v. Moore, 48 Tex. 355; Giddings
V. Steele, 28 Tex. 732, 91 Am. Dec. 336; Fleming v. Seeligson, 57 Tex. 524:
Spalding v. Wathen, 7 Bush (Ky.) 659; Case v. Rlbelln, 1 J. J. Marsh. (Ky.)
30; Swasey v. Antram, 24 Ohio St. 87; Stoetzell v. Fullerton, 44 111. W:
Clallin V. Dunne, 129 111, 241, 21 N. E. 834, 16 Am. St. Rep. 263; Davies
V. Coryell, 37 111. App. 505; Coleman v. McAnulty, 16 Mo. 173, 57 Am. Dec.
229; Webber v. Stanton, 1 Mich. N. P. 97; Jennings v. Simpson. 12 NeK
558, 11 N. W. 880; Hayes v. Shaw, 20 Minn. 405 (Gil. 355); Bcrkey v. JudJ.
(294)
Ch. 11) VALIDITY. AS AFFECTED BY STATUS OF PARTIES. § 200
clares that "the decided weight of authority seems to be to the effect
that if a court of general jurisdiction, or a court which has acquired
full jurisdiction over the cause and over the parties, renders a judg-
ment for or against a party after the death of such party, the judgment
is not for that reason void. It may be erroneous, but until reversed
by some appropriate proceeding, it is valid." ^* So in Minnesota:
"While the court ought to cease to exercise its jurisdiction over a
party at his death, the neglect to do so is an error to be corrected
by some proceeding in the action in which the error occurs, and the
judgment rendered after the party's death, though erroneous, is not
on that account to be attacked in a collateral action. In other words
the judgment is voidable when properly assailed, but not void." ^*
For illustration, where the accounts of an administrator are settled
and filed in the proper court in his lifetime, showing a balance due the
estate, the court thereby acquires personal jurisdiction, and a judg-
ment rendered after his death, confirming the report and directing
payment of the sum in his hands, is not void when attacked collaterally
in a suit against the surety on his bond, though the judgment might
have been reversed on appeal.'^ So a judgment rendered when both
the plaintiff and defendant are dead is erroneous ; but relief can only
be had by petition in the nature of a bill of review, or for a new trial,
or by motion to set aside the judgment.'® A judgment may be en-
tered up, after the defendant's death, on an agreement for judgment
made by him in his lifetime, but execution cannot issue without a
sdre facias to his executors.*^* On similar principles, a judgment
rendered against a corporation after its dissolution by an act of the
legislature is erroneous but not void.®® The English statute provides
that judgment may be entered up on a verdict within two terms after
the death of the party against whom the verdict was given. But it
n UUUL 475, 8 N. VV. 383; Elliott v. Bastlan, 11 Utah, 452, 40 Pac. 713;
Mosley v. Southern Manurg Co., 4 Okl. 492, 46 Pac. 508.
" MitcheU V. Schoonover, 16 Or. 211, 17 Pac. 867, 8 Am. St. Rep. 282.
•• Stocking T. UansoD, 22 Minn. 542; Hayes y. Shaw, 20 Minn. 405 (GU.
77 Beard y. Roth (C. C.) 35 Fed. 397.
TsjJcCIeUand v. Moore, 48 Tex. 355.
'•Webb V. Wiitbank, 1 Clark (Pa.) 324.
•• MerriU y. Suffolk Bank, 31 Me. 57, 1 Am. Rep. 649.
(295)
§ 200 LAW OF JUDGMENTS. (Ch. 11
IS held that a judgment is valid, although not entered within that
time, if the verdict was returned during the life of the party, and the
delay was occasioned by a motion touching an award.*^
The object of setting aside a judgment rendered against a party
who died before the verdict, is to give his representatives an oppor-
tunity to resist a recovery. For otherwise the plaintiff might profit
by the accidental circumstance, and the consequent cessation of oppo-
sition, to secure a judgment to which he was not entitled." The
method of avoiding the effect of the judgment will depend somewhat
upon the state of the record, and will also vary in the different juris-
dictions. The rule established by the supreme court of Nebraska,
however, commends itself as both reasonable and practical. There
a judgment rendered against a person (and equally so of one ren-
dered in his favor) after his death, is reversible if the fact and time
of death appear on the record, or in error coram nobis ; if the fact
must be shown aliunde, it is voidable and not void and cannot be
impeached collaterally.®* The writ of error coram nobis has fallen
into desuetude in most of the states. But probably a motion in the
court where the record remains, with due notice, and supported by
affidavits, would be everywhere recognized as a proper proceeding to
procure the vacating of a judgment objectionable on this ground but
not disclosing the fact of death.
It is also to be observed that the validity of judgments, in these
circumstances, will sometimes be helped by the fiction of relation.
In an English case, where a judgment was signed at the opening of
the office at its usual hour, ii A. M., and the defendant died at 9:30
on the same morning, the judgment was held regular, on the prin-
ciple that judicial proceedings are to be considered as taking place
at the earliest period of the day on which they are done.** And in an
early Massachusetts decision it was said: "By the common law, all
proceedings in a suit at law are stopped by the death of one of the
parties. If either of them die before judgment, no judgment can be
81 Bridges v. Smyth, 8 Bing. 29.
82 Lynn v. l^we, 88 N. C. 478.
88 Jennings v. Simpson, 11! Neb. 558, U N. W. 580; McCormick t. Tad-
docli, 20 Neb. 486, 30 N. W. 002.
84 Wrlglit V. Mills, 4 11ml. & N. 488.
(290)
Ch. 11) VALIDITY, AS AFFECTED BY STATUS OF PARTIES. § 20 1
entered ; if after judgment, no execution can issue. But to avoid
the inconvenience of this principle, the doctrine of relation has been
resorted to ; so that if judgment be not actually entered in court, or
signed in vacation, as is the practice in England, and either party
die, the judgment shall be considered as entered on the first day of
the term, and an execution may issue bearing teste of that day, so as
to save the fruits of a judgment to the party entitled to it. But this
practice proves the general principle as first stated, and that it was
necessary to resort to fiction in order to avoid the effect of that prin-
ciple." •• It must be added that if the personal representatives of a
deceased defendant were duly made parties to the proceeding previ-
ous to the judgment, it is not enough to vitiate the judgment that it
is entered against the dead man by name, instead of against the rep-
resentatives, for the error is merely clerical.*' ,
§ 201. Deatli of One of Several Defendant!.
By an extension of the principles stated in the preceding section,
it is held that where, in a joint action, one defendant dies before judg-
ment, and his death is not suggested on the record, and judgment is
rendered against all the defendants, the judgment is voidable only,
not void, and is not open to collateral attack, although it may be
vacated on motion.'^ However, in some of the states, where the
strict rule prevails in the case of a sole defendant, it is also held that
a judgment against several, one of whom was dead at its rendition, is
void and a nullity.'* Whether the judgment is void or merely void-
able in respect to the deceased defendant, an important and difficult
question arises as to its effect upon the surviving defendants. If void
as to one, is it void as to all? If voidable as to one, must it be
«BHUdreth v. Thompson. 16 Mass. lUl.
*< Stackliouse v. Zuntz, 41 La. Ann. 415, 6 South. G66.
"King V. Burdett, 28 W. Va. tJOl, 57 Am. Rep. 687; Boor v. Tx)wrey,
KG ind. 4t>8, 8 N. K. 151, 53 Am. Rep. 51U; Burke v. Stokely, G5 N. C.
5C»; Uolman v. G. A. iStowers Furniture Co. (Tex. Qv. App.) 30 S. W. 1120.
A judgment which passes by operation of law upon the return of a forfeited
forthcoming bond is not vitiated by the fact that one of the obligors Is dead
and incapable of suffering a Judgment, but is valid as to the surviving obligors.
Moody V. JUarper. 38 Miss. 51K).
••McCioskey v. Winglield, 29 La. Ann. 141.
(207)
§ 202 LAW OF JUDOMBNTS. (Ch. 11
vacated as to all ? Some of the cases hold that although a judgment
or decree taken against a person by name, then dead, jointly with
others, may be void as to the decedent, it would prima facie be good
as to the other defendants.** But there are also decisions to the
eflfect that such a judgment cannot be permitted to stand even against
the survivors.*® The solution of this question must ultimately de-
pend upon whether a joint judgment is to be considered an entirety
or not, — a point which will be discussed in a subsequent section.**
For obviously, if the judgment is an entire thing and not susceptible
of division, the fact that one of the defendants is dead is error which
must cause it to be entirely set aside.
I 202. Entry of JudBmemt agnlmt Deoedemt Niuic pro Tvae.
There is one case in which a judgment against a dead man is of
unquestionable validity, namely, where it is entered nunc pro tunc
as of a time when he was alive. The power to make such entries
is within the common law authority of the courts, and it may be
exercised in cases where the defendant dies in the interval between
the finding of a verdict and the entry of judgment upon it, provided
that the delay was not caused by the laches of the other party, but
was attributable to the act of the court, in advising or deliberating
upon the case after its submission, or to its being tied up by a mo-
tion for a new trial or similar proceeding. Under these circum-
stances, in furtherance of justice, and to prevent the successful party
from being deprived of the fruits of the judgment to which he is en-
titled, the court will order it to be entered as of the time when the
verdict was returned or the cause submitted.** So where a garnishee
has answered, and the cause is continued, and he dies before the en-
try of judgment, judgment may be rendered against him as of the
8 0 Collins V. Knight, 3 Tenn. Ch. 183. And see Aldrlch ▼. Honsh, 71 IB.
App. GOT.
»o Lewis v. Ash, 2 Miles (Pa.) 110. Compare Uartman v. Hesserich, 8
Wkly. Notes Cas. 483.
»i Infra, § 211.
82 Wllklns V. Waiuwright, 173 Mass. 212, 53 N. E. 397. Where the death
of either partj- Is suggested after verdict, Judgment may be entered as of
the term when the verdict was rendered. Lewis v. Soper. 44 Me. 72.
(208)
Ch. 11) VALIDITY, AS AFFECTED BY STATUS OF PARTIES. § 204
term when he made his disclosure.*' This subject has already been
considered in detail.**
S 203. Jvrifldietion miist be acquired before Party's Deatb.
If the court has jurisdiction of the parties and the subject-mat-
ter, and the defendant, after having appeared and pleaded, dies, the
judgment subsequently entered against him will at most be voidable,
and may in some cases be made entirely valid by retroactive entry.
But it is essential that jurisdiction should have attached during the
defendant's life ; and if the action is commenced against one already
dead, the judgment will be absolutely void for want of jurisdiction.*'^
§ 204. Judcmeiit for Deeeased Plaintiff.
In regard to the validity of a judgment rendered in favor of a plain-
tiff, after his death, the books contain contradictory expressions.
Some cases hold that such a judgment is not void, but voidable at
most, cannot be collaterally impeached, and is valid until reversed or
vacated.*' Other decisions regard it as a mere nullity, invalid for
ever}' purpose, and liable to be overturned whenever and wherever
brought in question.*' In order to arrive at just conclusions on this
point, it is necessary to take into account the time or stage of the
cause at which the decease of the plaintiff occurs. And first, if an
•» Han V. Harvey, 3 N. H. 61.
»* Supra, Si 126-130.
•>Reid v. Holmes, 127 Mass. 326; M. T. Jones Lumber Co. v. Rhoades, 17
Tei. CiT. App. (MJo, 41 8. W. 102; Loring v. Folger, 7 Gray (Mass.) 505;
tJrtewold v. Stewart, 4 Cow. (N. Y.) 457; Crosley v. Hutton, 98 Mo. 196, 11
J5. W. 613; daflin v. Dunne, 129 111. 241, 21 N. E. 834, 16 Am. St Rep. 263.
»« Hayes v. Shaw, 20 Minn. 405 (Gil. 355); Walter v. Erdman, 4 Pa. Super,
rt. 5M«; Best v. Nix, 6 Tex. Civ. App. 349, 25 S. W. 130; Kennedy v. Pick-
ering, Minor (Ala.) 137; Webber v. Stanton, 1 Mich. X. P. 97.
•'Young V. Pickens, 45 Miss. 553; Tarleton v. Cox, 45 Miss. 430. Where
a sole plaintiff dies during the pendency of the suit, a Judgment rendered in
iJl« name is a nullity, and the court in which it was rendered may set It
aside at a subsequent term and re-instate the cause on the docket. Moore
T. Ea.<(ley, 18 Ala. 619. An order of revivor upon the plaintiff's death must
lw» served upon the defendant like an original summons, or the subsequent
Judgment wUl be void. Amyx v. Smith's Adm'x, 1 Mete. (Ky.) 529.
(299)
§ 204 LAW OF JUDGMENTS. (Ch. 11
action is commenced in the name of a person already dead (as where
the decedent is the nominal plaintiff, and the one for whose benefit
the suit is prosecuted is the real party in interest), or if one of sev-
eral joint claimants is dead before action brought, it is held that the
defendant must take advantage of the fact by plea in abatement, at
the peril of being estopped by his silence, and the judgment for plain-
tiff will not be disturbed.®* But it may also happen that the plain-
tiff dies during the pendency of the suit and before verdict. In this
case, supposing the cause of action to be one which survives, the reg-
ular practice is to revive the action in favor of his personal repre-
sentatives. But if this is omitted, and the suit proceeds to judgment
in the name of the decedent, it is more reasonable to hold it voidable
only than to consider it entirely null. For the case cannot be dis-
tinguished in principle from that of a defendant dying while the ac-
tion is pending, where, as already shown (section 200), the great pre-
ponderance of authority sustains the rule that the judgment is at
least impervious to collateral attack and must be vacated or re-
versed by proper proceedings. Both cases are equally governed by
the principle that when once the jurisdiction of the court has attach-
ed, no subsequent error or irregularity in the exercise of that juris-
diction can make its judgment void. Yet it would be too much to
predicate entire validity of the judgment in the case supposed. Un-
doubtedly it would be irregular, and the court would vacate it on a
proper application.** If the plaintiff dies after a verdict, or after
trial and submission to the court, it is proper to enter judgment nunc
pro tunc as of the date of the verdict or submission. But if the
judgment is entered as of the actual date when rendered, it is not
void, and suit may be brought upon it by the personal representative
»8 Baragwanath v. Wilson, 4 111. App. 80; Powell v. Washington. 15 Ala.
803. In West Virginia, it is held that a Judgment so rendered wHI be e^
roneous, but not void. Watt v. Brookover, .35 W. Va. 323. 13 S. B. 1007,
29 Am. St. Rep. 811; McMillan v. Hickman, 35 W. Va. 705, 14 S. E. 227.
99 Wentz V. Bealor, 14 Fa. Co. Ct. R. 337. In Broas v. Merserean, IB
Wend. (N. Y.) 653, it was held that a verdict may be taken after the death
of a sole plaintiff, where the death happens on the first day of the circait
This on the theory that "the whole time of the circuit relates to the first
day, so that if the party die on any day during the circuit, though before
the trial, this is regarded as a death after verdict."
(300>
Ch. 11) VALIDITY. AS AFFECTED BY STATUS OF PARTIES. § 204
of the deceased plaintiff.**® "As to rendering judgment on a verdict
found before the death of the plaintiff," says the court in Missouri,
"our statute expressly authorizes it, notwithstanding his subsequent
death, and the statute is merely a codification of the common law,
which never allows a delay occasioned by the court to change the
condition of a suit." *®* Still, the better practice clearly is to enter
the judgment as of the term in which the verdict was returned.^^*
It is also to be remarked that a judgment may be amended so as to
show that, instead of being rendered in favor of the deceased plain-
tiff, it was really rendered in favor of his personal representatives,
and this may be done without notice to the defendant, or after his
death.*** Finally, if the court renders judgment during the lifetime
of the plaintiff, the clerk may perform the ministerial act of entering
and recording it after his death.^**
i«o Webber v. Stanton, 1 Mich. X. P. 97; Wood v. Bojle. 177 Pa. 620,
35 AU. «53, 55 Am. St. Rep. 747. See Gllman v. Donovan, 53 Iowa, 362,
5 N. W. 560. After a verdict was found for the plaintiff in an action, cer-
tBln questions of law were reserved, but upon a hearing Judgment was ren-
dered on the verdict. In the meantime the plaintiff had died, but this fact
being unknown to his counsel, the execution was issued In his favor. The
court, upon the execution being returned unexecuted and cancelled, vacated
the judgment and permitted the administrator to come In and prosecute the
action. It appearing that the rights of third persons would not be affected
thereby. Stickney v. Davis, 17 Pick. (Mass.) 169.
^•lUomerv. Nicholson, 56 Mo. 226, clUng Wag. St. p. 1050, § 7. But
this view does not go uncontradicted. In the case of West v. Jordan, 62
Me. 4M, it appeared that plaintiff and her husband brought case for per-
sonal injuries to her, there was a verdict for plaintiff, the defendant moved
to set aside the verdict, then the plaintiff died. The motion was overruled,
and the clerk entered up Judgment as of the then current term. Afterwards
tile husband took out administration on the plaintiff's estate, and moved
the court to bring forward the action ''that the proper Judgment may be
made up." The court then made an entry reciting the death of the plaintiff,
withdrawal and discontinuance as to the husband, his appearance as admiu-
latrator. and judgment on the verdict. The defendant objected that there was
already one Judgment standing against him, and he might be doubly liable.
But it was held that the first Judgment was absolutely invalid, and at any
rate the old record was effectually vacated by the allowance of the motion
to bring forward.
»«2<Joddard v. Bolster, 6 Me. 427, 20 Am. Dec. 320.
»«'J(;unn r. Uowell, 35 Ala. 144, 73 Am. Dec. 484; Dawson v. Hardy, 33
Tex. im.
i«4 Franklin t. Merida, 00 Cal. 28i>.
(301)
§ 205 * LAW OF JUDGMENTS. (Ch. 11
I 206. Judgmeiits asainit Iiisaae Pert
An insane person may be sued and jurisdiction over him acquired
by the like process as if he were of sound mind. But when it is
made to appear to the court that a party to the suit is insane, it is
the duty of the court to appoint a guardian ad litem for him, or to
have his committee or conservator made a party. "And no doubt
it is the duty of a plaintiff who sues an insane person, if he has knowl-
edge of the insanity, to inform the court thereof. But the failure to
perform any of these duties does not affect the jurisdiction of the
court, but only the regularity of the proceedings. Therefore it is,
that the judgment of a court having jurisdiction of the subject-mat-
ter of the suit, and of the person of such a party, notwithstanding
such irregularity, is not absolutely void." ^•^ On this principle, it is
held by all the courts that a judgment against a person who was non
compos mentis at the time of its rendition, though without joining
his legal guardian, is binding and conclusive upon him, is not to be
impeached in any collateral action, and stands as a valid adjudica-
tion until annulled or reversed in some direct proceeding for that
purpose.^®* "The only question presented in this case is, whether a
judgment by default against a lunatic, upon service of process on him
alone, be void because his committee was not a party ; and it is our
opinion that, though evidently erroneous, the judgment is not
lOBjoiinson v. I'omeroy, 31 Ohio St. 247.
loe Beverley's Case, 4 Coke, 123; Mansfield's Case, 12 Coke, 124; King v.
Kobinson, 33 Me. 114, 54 Am. Dec. 614; Lamprey v. Xudd, 29 X. H. 29H:
Steriibergii v. Schoolcraft, 2 Barb. (N. Y.) 153; Wood v. Bayard, 63 Pa. 32H;
Stigers v. Brent, 50 Md. 214, 33 Am. Rep. 317; Brittain v. Mull, 99 X. C.
483, 6 S. E. 382; Foster v. Jones, 23 Ga. 1($8; XeweU v. Smith, 23 Ga. 1T<»:
Walker v. Clay, 21 Ala. 807; Ewlng v. Wilson, 63 Tex. 88; Johnson v. Pom-
eroy, 31 Ohio St. 247; Dickerson v. Davis. Ill lud. 433, 12 X. E. 145: Ma-
loney v. Dewey, 127 111. 395, 19 N. K. 848, 11 Am. St. Rep. 131; Heanl r.
Sack, 81 Mo. 610; Sacramento Sav. Bank v. Spencer, 53 Cal. 737; Wiihrww
V. Smithson, 37 W. Va. 757, 17 S. E. 316, 1» L. R. A. 762: Spurlock v. Noe
(Ky.) 43 S. W. 231, 39 U R. A. 775; Xoel v. Modem Woodmen of America.
61 111. App. 597; Pollock v. Horn, 13 Wash. 626, 43 Pac. 885, 52 Am. St.
Rep. 66; White v. Hinton, 3 Wyo. 753. tW Pac. 953, 17 L. R. A. 66. But
compare Ex parte Kibler, 53 S. C. 461, 31 S. E. 274; In re Wing, 83 Hun.
284, 31 X. 1. Supp. \ni; Heff V. Cox, 5 Ohio X. P. 413.
(302)
Ch. 11) VALIDITY, AS AFFBCTED BY STATUS OP PARTIES. § 205
void."*®^ So in New Hampshire: "The fact that a person against
whom a suit is commenced is, at the service of the process upon him,
a person of insane mind, and that he so continued until judgment
rendered, and that he appeared in person or by attorney, or not at
all, is good cause to reverse the judgment upon a writ of error;
though for reasons which we think inapplicable and without force
here, and perhaps little creditable to the jurisprudence of an enlight-
ened country, it seems not to have been so held in England. But in
such case the defect in the proceedings renders them only voidable
and not void." *®® That a person of unsound mind should be irrev-
ocably bound by proceedings of which he could have no intelligent
consciousness seems a legal anomaly. It is true a court may acquire
jurisdiction of his person, but only in the sense that it obtains juris-
diction of a chattel, for example, by its attachment. And the unfor-
tunate defendant lacks those means of defending himself and of chal-
lenging the claims asserted against him which justice dictates as the
inviolable right of every person. We should therefore expect that
a judgment against him would be regarded at least as voidable by
the court which pronounced it. And this is undoubtedly the better
doctrine, and the one prevaiHng in most of the states,^^* although
there are some cases which hold that such a judgment is not even
voidable, and that no relief can be had against it except by an appli-
cation to chancery for an injunction against its enforcement.*^* And
it will be remembered that a court of equity would in such a case
inquire into the merits of the judgment, and would not enjoin it on
account of the defendant's lunacy, but only because its execution
should appear to be against, conscience and inequitable. If the fact
of lunacy appeared anywhere in the record, we are much inclined to
•
i«TAlU8on v. Taylor, 6 Dana (Ky.) 87, 32 Am. Dec. 68. An Insane de-
fendant Blionld not be defaulted for want of appearance and answer. Taylor
V. LoTering, 171 Mass. 30», 50 N. E. 012.
«•« Lamprey v. Nudd, 29 N. H. 2U9.
!•» Dlckerson v. Davis, 111 Ind. 433, 12 N. E. 145.
"•Clarke v. Dnnham. 4 Denio (N. Y.) 262; Sternbergh y. Schoolcraft
2 Barb. (N. Y.) 153; Robertson v. Lain, 19 Wend. (N. Y.) 650. Though a
Judgment confessed by a lunatic may be set aside, the rights of a third per-
son, buying at execution sale thereunder, without notice, before proceedings
to set it aside, cannot be disturbed. Crawford y. Thomson, 161 111. 161,
43 N. K. 617.
(303)
§ 206 LAW OF JUDQMBNTS. (Ch. 11
think that it would be within the province of an appellate court to
reverse the judgment on error.
S S(P6. Joint Parties at Cominoii Law.
At common law, if several defendants were joined in an action ex
contractu, and all were brought before the court by service or appear-
ance, it was absolutely essential to the plaintiff's recovery that he
should establish a joint liability; in other words, he must recover
against all or none; it was not competent to enter a judgment in
favor of one defendant and against another.^** And this rule still
obtains in many of the states which have not departed widely from
the common law practice. The rule, however, is subject to one im-
portant exception. Though the obligation in suit is joint, or joint
and several, yet if one defendant pleads matter which goes to his
personal discharge, such as bankruptcy, or to his personal disability
to contract, such as infancy, or any other matter which does not go
to the nature of the writ, or pleads or gives in evidence matter which
is a bar to the action as against himself only, and of which the others
could not take advantage, judgment may be rendered for such defend-
ant against the rest.*^* "That rule was always adopted," says the
court in Massachusetts, "with this exception, — ^that when one defend-
ant pleaded in his discharge some matter personal to himself, as a
discharge under a bankrupt act or insolvent law, and upon such plea
had a verdict, the other defendants were still liable. The reason of
the distinction is obvious, and it is this ; that such a special personal
defense does not falsify the averment of an original joint promise, but,
111 Metropolitan Washing Mach. Co. v. Morris, 39 Vt 393; Platner v. John-
son, 3 Hill (N. y.) 476; Earlier v. Ayers.-S Md. 202; Rohr v. Davis, 9 Leigh
(Va.) 30; Park v. Edge, 42 Ala. (531; Helm v. Van Vleet, 1 Blackf. (Ind.) 342,
12 Am. Dec. 248; People v. Organ. 27 lU. 27, 79 Am. Dec. 391; Griffith t.
Furry, 30 111. 251, 83 Am. Dec. 186; Flake v. Carson, 33 lU. 518; Goodale v.
Cooper, 6 m. App. 81; Kingsland v. Koeppe, 137 lU. 344, 28 N. E. 48, 13 L. K. A.
649; Stitt v. Kurtenbach, 85 111. App. 38; Schmelzer v. Chicago Ave. Sash &
Door Manurg Co., Id. 596; Bedwell v. Ashton, 87 111. App. 2T2; Finance Co. v.
Hanlon, 75 111. App. 188; Brady v. Madden, 67 111. App. 637; Anderson t. Chil-
son, 8 S. D. 64, 65 N. W. 435; Rupe v. New Mexico Lumber Ass*n, 3 X. M.
(Johns.) 201, 5 Pac. 730.
J 12 snydtr v. Snyder, 9 W. Va. 416; Coe v. HamUton, 1 Morris (Iowa) 319;
Robinson v. Brown, 82 111. 279,
(204)
Ch. 11) VALIDITY, AS AFFECTED BY STATUS OF PARTIES. § 206
admitting it, avoids it by the averment of matter subsequent." ^^*
But, supposing the exception not to arise in the particular case, so
strictly was the rule enforced that not even the most conclusive proof
or unqualified admission of the liability of one defendant would enti-
tle the plaintiff to a verdict against him alone. ^** It has been held,
however, that the rule has no proper application to an action against
administrators as such.^** And it should be observed that the rule
applies only where all the defendants are brought before the court or
named as parties in the writ. A judgment against one of several
makers of a note, without process against the others, releases those
who are not sued.^^* And in some of the states, in derogation of
the common law rule, a distinction is taken between joint contracts
and such as are joint and several, the courts holding that in an action
upon the latter species of obligation the plaintiff may enter a nol. pros,
against one of the defendants and proceed to judgment against the
others.**' But where the plaintiff insists that he is entitled to judg-
ment against all the defendants or none, and it proves that he is not
entitled to judgment against some of them, he waives his right to the
determination of the question as to whether he is entitled to judgment
against any.*** A judgment otherwise joint in form is not rendered
several by a finding as to which of the defendants is the principal
debtor, and which are the sureties.*** And though one of two de-
fendants sued as individuals on a note to which their names were
signed as such did not in fact sign the note, judgment should go
against both on proof of their liability as partners.**® Under the
main rule here considered it is plainly erroneous to render a final
"« Hathaway v. Crocker, 7 Mete. 262.
>i« Barker v. Ayera, 5 Md. 202.
"•Gray's Adm'rs v. White, 6 Ala. 490.
»«• MitcheU v. Brewster, 28 lU. 163; Bell v. State, 7 Blackf. and.) 33.
'"Peyton v. Seott, 2 How. (Miss.) 870. Where all the defendants are
l)roiight into court, judgment rendered by agreement against one is tanta-
mount to a dismissal as to the others. Henry v. Gibson, 55 Mo. 570.
lis Valentine v. Duff (Ind. App.) 33 N. B. 52t>.
"•Famey v. Hamilton County, 54 Neb. 797, 75 N. W. 44. Where the
surety on an appeal bond is dead, judgment in an action on the bond is not
void because it is entered against the principal alone. Lewis v. Maulden, 93
Ga. 768, 21 8. E. 147.
120 Johnson v. Bonlirld (Ky.) 40 &• W. 607.
1 LAW JUDQ.-20 (305)
§ 206 LAW OF JUDGMENTS. (Ch. 11
judgment against a part of several defendants while the cause remains
undisposed of as to the others."* Hence if one of the defendants
suffers a default, and an interlocutory judgment is entered up against
him, it cannot be made final until the case is finally concluded as to
the other defendants ; and even then, if they should succeed in main-
taining a defense which went to the whole right of action, the verdict
in their favor will enure to the benefit of the defaulted party, and
judgment must be given for him, equally with the rest, notwithstand-
ing the default."* And in a case in Texas, where the court declined
to enter judgment against one defendant, and continued the case as
to him, this was held to make the judgment entered against the other
defendant void.*^'
At common law, there is also a rule (converse to that above stated)
that, in a joint action by several plaintiffs, there can be no recovery
by any of them unless all are entitled to a judgment."* But this is
applicable only where the cause of action is joint, and does not apply
to an action in which a number of creditors unite to set aside a fraud-
ulent conveyance or attachment of their debtor*s property.*** And
this rule also has been changed or modified by statute in some of the
states. Thus, in Indiana, under a law authorizing the court to deter-
mine the ultimate rights of the parties on each side, or between them-
selves, where justice requires it, the court may order judgment in
favor of the one plaintiff who shows himself entitled to recover,
though the cause of action is joint and breaks down as to the other
plaintiffs."*
121 Davidson v. Bond, 12 lU. 84; Barbour v. White, 37 lU. 1G4: Prewett
V. Caruthers, 7 How. (Miss.) 304; Godding v. Decker, 3 Colo. App. 198, 32 Pac.
832.
122 Taylor v. Beck, 3 Rand. (Va.) 316; Rohr v. Davis, 9 Leigh (\'a.) 30;
Woodward v. Newhall, 1 Pick. (Mass.) 500; supra, S 82.
128 Wootters v. Kaultman, 67 Tex. 488, 3 S. W. 465.
124 Walker v. Pope, 101 Ga. 665, 29 S. E. 8; McLaran v. WiUielm, 50 Ma
App. 658; Dempster Mill Manuf'g Co. v. Fitzwater, 6 Kan. App, 2A, 49
Pac. 624.
126 Henderson v. J. B. Brown Co., 125 Ala. 566, 28 South. 79.
126 Mlssissinewa Min. Co. y. Andrews, 22 Ind. App. 523, 54 N. B. 140.
(306)
Ch. 11) VALIDITY, AS AFFBCTBD BT STATUS OF PARTIES. § 207
S 207. In Aotions of Tort.
The ru!e stated in the preceding section must be restricted in its
application to actions ex contractu ; it does not govern in the case of
actions ex delicto. In a suit founded upon tort, against several de-
fendants, the plaintiff may recover against as many and only such
defendants as he proves to be guilty, and any defendant, as against
whom the proof fails, is entitled to a verdict."^ In Maryland, in an
action of this kind, if, at the conclusion of the plaintiff's case, there
is no evidence against one of the defendants, he is considered entitled
to be acquitted ; and this practice is necessary, as the court observes,
for otherwise the plaintiff could deprive the defendant of material
and competent witnesses by joining them as parties to the action.**®
So if a verdict is returned against all the defendants sued jointly in
tort, but in respect to one of the defendants it is not sustained by the
evidence, it will be set aside, as against that defendant, upon his
proper application, and the judgment be permitted to stand as against
the party proven guilty of the injury complained of.*^* If the jury
find a verdict against one of the joint defendants, without mentioning
the other, this will justify the entry of a judgment against the former
and in favor of the latter.**® In Tennessee, it is said that joint tort
feasors sued jointly are not entitled to have the damages assessed
against them severally.*** But in other states, it appears to be no
ground of complaint that judgments are rendered separately against
the defendants for separate and different amounts.*** And if one of
the defendants obtains a new trial, a judgment for a less amount may
i«T Albright v. McTiffhe (C. C.) 49 Fed. 817; Winslow v. Xewlan, 45 111.
345; Harris v. Preston, 10 Ark. 201; Jausen v. Varnum, 89 111. 100; Howard v.
Dayton Coal & Iron Co., 94 Ga. 416, 20 S. E. 386; Emerson, Talcott & Co.
r. Skldmore, 7 Tex. av. App. 641, 25 S. W. 671; Williams v. (Joff (Tex. Civ.
App.) 54 S. W. 428; Mendenhall v. Stewart, 18 Ind. App. 262, 47 N. E. ?M3.
i»8 Hambleton y. McGee, 19 Md. 43.
"• Uayden v. Woods, 16 Neb. 306, 20 N. W. 345. And see Cauthorn v.
King, 8 Or. 138.
!»• Kinkier v. Junicn. 84 Tex. 116, 19 S. W. 359. A Judgment against a
rcirtloD of the defendants in an action of tort amounts to a dismissal of the
<:tu8e as against tbe other defendants. Davis v. Taylor, 41 111. 406.
»a« NafthvHle. C. & St. L. Ry. v. Jones, 100 Tenn. 512, 45 S. W. 681.
i<2 Uowan y. Daniel, 20 Tex. ClT. App. 321, 49 S. W. 686w
(307)
§ 208 LAW OF JUDGMENTS. (Ch. 11
be rendered against him, while the original judgment remains in force
against the other.***
I 208. Joint Debtor Acts*
In many of the states, the common law rule in respect to the
recovery in actions against several defendants has been changed by
statutes. These statutes— -commonly called "joint debtor acts" — ^pro-
vide that judgment may be given "for or against one or more of
several plaintiffs, and for or against one or more of several defend-
ants," and usually contain a further provision that "in an action
against several defendants, the court may, in its discretion, render
judgment against one or more of them, leaving the action to pro-
ceed against the others, whenever a several judgment is proper." "*
Under these statutes, if a plaintiff commences an action against two
or more defendants upon a joint obligation, he is no longer com-
pelled to establish a joint, cause of action against all, but a judgment
may be taken against the party or parties shown to be liable, when
the others are not liable."* Thus, when two defendants are sued
jointly on a contract which, on its face, is the joint contract of both,
but which in legal effect was at all times the contract of one only, a
judgment may be rendered against the party liable and in favor of the
i»» Dawson v. Schloss, U3 Cal. 194, 29 Pac. 31.
i»* Rev. St. Me. c. 82, § 84; Gen. St. Conn. § 1108; Code Civ. Proc. X. T.
S 1204; Code Md. art. 50. § 12;. Code Va. 1887, § 3395; Code S. a I 2J>6:
Code Ark. §S 4701, 4704; Code Civ. Free. Ohio, S 371; Burns' Rev. St. Ind.
1894, S 679; Code Iowa, § 1815; Wag. St. Mo. p. 1019, § 32; Code Wis. S ISi:
Code Civ. Proc. Cal. §§ 578, 579; Hill's Code Or. §§ 244, 245; Comp. Laws S.
D. § 4901. By virtue of Rev. St. U. S. S 914. where the law .of the state con-
tains a provision of this sort, the same practice will be adopted by the federal
courts sitting within that state. Witters v. Sowles (C. C.) 34 Fed. 119.
18 0 Gleason v. Sanitary Milk-Supply Co., «« Me. 644, 45 Atl. 825. 74 Am, St
Rep. 370; Owen v. Conner, 11 N. Y. Supp. 352; Stlmson v. Van Pelt 66 Barb.
(N. Y.) 151; Westheimer v. Craig, 76 Md. 399, 25 Atl. 419; Longstreet ▼. B«,
62 Ala. 195; Kuykendall v. Coulter, 7 Tex. Civ. App. 399, 26 S. W. 748; Lamp-
kin v. Chisom, 10 Ohio St. 450; Hunt v. Standart, 15 Ind. 33, 77 Am. Dec.
79; Murray v. Ebright, 50 Ind. 362; Stafford v. Nutt, 51 Ind. 535; Ricbard-
son V. Jones, 58 Ind. 240; Eyre v. Cook, 9 Iowa, 185; Roggenkamp v. Ear-
greaves, 39 Neb. &40, 58 N. W. 162; Mock v. City of Santa Rosa, 120 Cal. SHi^.
68 Pac. 826; Hamm v. Basche, 22 Or. 513, 30 Pac. 501; Ah Lep v. Gong Cboj.
13 Or. 205, 9 Pac. 483; Ross v. Wait, 4 S. D. 584, 57 N. W. 497.
(308)
Ch. 11) VALIDITY, AS AFFECTBD BT STATUS OF PARTIBS. § 208
Other."' So where several persons are sued as partriers on a note
signed by one, and the evidence shows that there was no partnership,
judgment may be rendered against the one who signed, and a nonsuit
may be ordered as to the others.^'^ Or a plaintiff, suing several as
partners for a breach of a contract, may recover against such as he
can prove to be parties to the contract, without proof of the part-
nership.*" And where an action is brought against two or more
upon a joint contract, an equitable defense peculiar to one defendant
Being set up by him, the court may g^ve judgment for the plaintiff
against the other defendants, and for the one defendant against the
plaintiff."* And a recovery may be had against one defendant alone,
in a proper case, notwithstanding another of the debtors has been
released by the plaintiff upon a compromise.^*® And it is held that
a statute of the character above described is a provision as applicable
to suits by attachment as to suits in any other form; and hence,
where an attachment is sued out against two persons jointly, it may
be sustained as against the separate property of one alone.*** It is
a further consequence of acts of this nature, that where the verdict
is in favor of a part of the defendants and against the others, the
judgment thereon, if entered against "the defendants" generally, will
not be erroneous ; for the judgment will be construed with reference
to the verdict, and will be held to be against only those defendants
against whom the verdict was given.*** But if the verdict, or the
finding of the court, is against all the defendants jointly, it would be
*»• Claflln V. Butterly, 6 Duer (X. Y.) 327.
*"Stoddart v. Van Dyke, 12 Cal. 437; WiUis v. Morrison, 44 Tex. 27;
nelden v. Ijiliens, 2 Abb. Dec. (X. Y.) 111.
*«« Crews V. J^ackland, C7 Mo. 619; Bibb v. Allen, 149 U. S. 481, 13 Sup.
Ct 950. 37 L. Ed. 819; Salomon v. Hopkins, 61 Conn. 47, 23 Atl. 716; Morgan
V. Rlghettl (Cal.) 45 Pac. 200; Shafer v. Hewitt, 6 Colo. App. 374, 41 Pac. 509.
"•Barker v. Cocks, 50 N. Y. 689. But a statute allowing Judgment to be
^d against one or more defendants In an action on contract, according to
the rights of the case, has no application where the defendants file a Joint
plea of non-assumpsit, and there is nothing to indicate that the defense is
merely personal as to one defendant. Gibson v. Beveridge, 90 Ya. 696, 19
S. E. 785.
"• Moss V. Jerome. 10 Bosw. (N. Y.) 220.
>«J Allen V. Clayton a\ C.) 11 Fed. 73*
i«> Lamar t. U illiams, 39 Miaa. 842.
(309)
§ 209 LAW OF JUDOMBNT8. (Ch. 11
error to render a judgment thereon against a part only, dismissing
the action as to the others.^'* Under that clause of the joint debtor
acts which provides that the court may render judgment against one
of the defendants, leaving the action to proceed as to the others,
whenever a several judgment would be proper, the cases hold that
the true test, as to whether a separate judgment may be had, is
whether a separate action could have been maintained.^** As these
statutes are framed in some of the states they permit a plaintiff, suing
upon a joint cause of action against two defendants, to recover a
separate judgment against each for one-half of the claim."* And
where the statute also permits the court to grant affirmative relief to
defendant, it may give judgment for one of the defendants as against
another, if that can be done without injury to the plaintiff."* But a
judgment against a garnishee, when there has been no judgment
against the defendant in the suit to which the garnishment is ancil-
lary, is void.^*^ And the fact that persons have been improperly
joined as parties defendant does not warrant the entry of a judgment
in their favor, but the action should be dismissed as to them."*
( 209. One Bef endant sidlerinK Bef anlt.
In an action of contract against several defendants, if one of them
suffers default, and another, under the general issue, sets up and
maintains a defense which negatives the plaintiff's right to recover
against either of the defendants and shows that he had no cause of
action, the plaintiff will not be entitled to judgment against the one
who was defavilted, but on the contrary the successful defense will
enure to the latter's benefit, and judgment must be rendered for both
the defendants.*** So if one defendant interposes an objection by
1" Kellogg, Johnson & Co. v. Gilman, a N. D. 538, 58 X. W. 339: Boys
V. Shawhan, 88 Cal. Ill, 25 Pac. 1063. The verdict having been rendered
Jointly against both plaintiffs, and the Judgment against one of them alone,
he is entitled to a reversal. Frisble v. McFarlane, 190 Pa. 110, 46 AtL 359.
144 Van Ness v. Corkins, 12 Wis. 186; Parke v. Meyer, 28 Ark. 28L
14 5 Hassler v. Hefele, 151 Ind. 391, 50 N. E. 361.
i4« Beattie v. Latimer, 42 S. C. 313, 20 S. E. 53.
147 Shoemaker v. Pace (Tex. Civ. App.) 41 S. W. 408.
148 (Jiilum V. St. Louis, A. & T. Ry. Co., 4 Tex. Civ. App. 622. 23 S. W. HG.
14 O.Bowman v. ^'oyes, 12 N, H. 302; Adderton v. UolUer, 32 Mo. 507; State
(310)
Ch. 11) VALIDITY. AS AFFECTED BY STATUS OF PARTIES. § 209
way of demurrer, going to the plaintiff's right to recover, and not
merely a personal matter of discharge, which is sustained, and judg-
ment rendered on it in his favor, it will enure to the benefit of his
co-defendant.**® But this rule also is modified by the joint debtor
acts. Thus, under a provision that judgment may be given for or
against one or more of several defendants, it is held that, where
three persons are sued as partners, and two of them suffer default,
but the other answers, denying that he was a member of the firm,
judgment may be entered against those in default, though it is ren-
dered in favor of the answering defendant.*'** So an action on a
joint and several obligation against two defendants, only one of
whom appeared and answered, can be tried, and verdict and judgment
rendered for or against the party answering, without regard to the
proceedings against his co-defendant.***
On the other hand, if one of the defendants makes default and
the other goes to trial, the effect is to suspend the judgment against
the defaulting defendant until the result of the trial is ascertained,
and if the plaintiif obtains a verdict, he is then entitled to a joint
judgment against all the defendants.**' Nor is there any necessity,
in such a case, of having previously taken an interlocutory judgment
by default against the party failing to answer.*** Where, in a joint
V. Gibson, 21 Ark. 140; Rich v. Uusson, 4 Sandf. (N. Y.) 115; Miller v. Long-
acre, 26 Ohio St. 291; Champlln v. Tilley, 3 Day (Conn.) 303, Fed. Cas. No.
2,5M>; Campbell v. McHarg, 9 Iowa, 354. Compare Town of Storm Lake v.
Iowa t aUs & S. C. Ry. Co., 62 Iowa, 218, 17 N. W. 489.
»• State V. WiUiams, 17 Ark. 371.
191 Bailey Loan Co. v. Uall, 110 Cal. 490, 42 Pac. 962. And see Kings-
land & Douglass Manurg Co. v. MiteheU (Tex. av. App.) 36 S. W. 757.
"•Black Hills Nat. Hank v. Kellogg, 4 S. D. 312, 56 N. W. 1071. In
Illinois, it is said that where, in an action against two defendants, of whom
only one has been served, judgment is entered by default against the defendant
cenred, and the action continued as to the other, such Judgment, though er-
roneous. Is not void. Anderson v. Gray, 134 111. 550, 25 N. E. 843, 23 Am.
St Rep. 606.
»» Town of Fletcher v. Blair, 20 Vt. 124.
«»* Peters v. Crittenden, 8 Tex. 131. But in an action on a joint debt,
plaintiff, after joining all the debtors as defendants, so as to avoid a plea of
nonjoinder, cannot, by neglecting to take Judgment against some of them who
are in default, throw the burden of the common debt on one of them, against
wbom alone he enters judgment. Robinson y. Floyd, 153 Pa. 98, 25 Atl. 1040;
MurUand v. l^loyd, 153 Pa. 99, 25 Ati. 1038.
(311)
§210 LAW OF JUDGMENTS. (Ch. 11
action ex contractu against two defendants, one of them is defaulted,
and the other appears, and separate judgments are rendered against
both of them, if the defendant who appeared enters a review, the
effect is to vacate the judgment as to both defendants and to carry
the whole case to the next succeeding term, notwithstanding a sepa-
rate judgment may have been entered on the record against the de-
fendant who was defaulted.^'*
S 210. JiidKmeiit, wl&en Several, wl&en Joiat.
In general, where an action is brought upon a joint contract or
obligation against several defendants who plead and defend jointly,
the judgment must be joint, and it is error to render several judg-
ments against them for several damages.^*' But where, for example
in an action against partners on a partnership obligation, separate
judgments are entered against each of the defendants, instead of a
joint judgment against all, this is considered merely an irregularity,
which may be corrected on motion within the statutory time.**' But
where there are several defendants, and the items of damages are dis-
tinct, a joint judgment cannot be entered unless each defendant is
liable to the full extent of the verdict.*** And where the action is
upon a joint and several contract, a several judgment would be
proper, as the defendants might have been sued alone in such case;
hence a judgment may be rendered against one or more without
waiting the filial trial.* ^" So where, of two defendants, one is liable
individually, and the other in his representative character, the judg-
«
18 B Downer v. Dana, 22 Vt. 22.
io« Holmes' Heirs v. Gay's Heirs, 6 Bush (Ky.) 47: Rochester v. Ander-
son, 1 Bibb (Ky.) 439; Starry v. Johnson, 32 Ind. 438; HoweU y. Barrett. 3
GUman (HI.) 433. A joint Judgment in favor of defendants for costs is
proper where they are sued Jointly, though they answered separately. Lead-
better V. Ijike, 118 Cal. 515, 50 Pac. 686.
157 Judd Linseed Sperm OU Co. v. Hubbell, 76 N. Y. 543. See, also, Murphy
V. Gage (Tex. Civ. App.) 21 S. W. 396.
188 Chambers v. Upton (C. C.) 34 Fed. 473. Judgment may be entered for
different sums against several defendants, where plaintiff Is entitled to re-
cover more costs as against some of them than against the others. F\>x r.
Muller, 31 Misc. Rep. 470, 64 N. Y. Supp. 388.
169 Sears v. McGrew, 10 Or. 48. See, also, Croasdell v. lYillant, 83 Pa. 193;
Fh-st Nat. Bank v. Burkhardt, 71 Mimi. 185, 73 N. W. 858.
(312)
Ch. 11) VALIDITY, AS AFFECTED BY STATUS OF PARTIES. § 211
ment against them should be several.*** And in an action to subject
assets descended to several heirs to a debt of their ancestor, the judg-
ment, if for the plaintiff, should be several against each of the heirs
for the amount received by him from the ancestor, not to exceed,
however, the amount to which the plaintiff is entitled.*** But al-
though a judgment be rendered against two parties jointly, yet it must
be remarked that the judgment itself is a joint and several obligation,
and consequently an action can be maintained upon it against either
of the judgment-debtors separately, and it can in like manner be useo
as a set-off against either.***
§ 211. Joint JudKineiit as an Entirety*
There are numerous expressions in the books to the effect that a
judgment is an entirety, and that if it is rendered against several
defendants jointly, it is not susceptible of division or apportionment, so
as to be purged of the error or irregularity it may contain as to one
of them, while standing good against the rest. Accordingly it is held
in a number of the states, that if the judgment is void as against one
defendant, for want of jurisdiction over him, it must be considered as
void as to all the defendants, and therefore a mere nullity.*** This
question might arise, for example, in a case where two persons were
named as defendants, but only one was served with process, the other
being a non-resident or not found, and where after a contest by the
"•Gray's Adm'r v. McDoweU, 6 T. B. Mon. (Ky.) 501.
Ki RansdeU v. Threlkeld's Adm'r, 4 Bush (Ky.) 347.
">Uead y. Jeffries, 16 Kan. 534. And see Stout v. Baker, 32 Kan. 113, 4
rac 141.
!•» Shuford V. Cain. 1 Abb. U. S. 302, Fed. Cas. No. 12,823; HaU v. WiUlams,
6 Pick. (Mass.) 232. 17 Am. Dec. 356; Richards v. Walton, 12 Johns. (N. Y.) 434;
Holbrook v. Murray, 5 Wend. (N. Y.) 161; Rangely v. Webster, 11 N. H. 299;
Knapp Y. Abell, 10 Allen (Mass.) 485; Buffum v. Ramsdell, 55 Me. 252, 92 Am.
Dec 589; Diekerson v. Chrisman, 28 Mo. 134; Hulme v. James, 6 Tex. 242. 55
Am.Dec.774: Long v. Garnet^ 45 Tex. 400; Thomas v. Lowry, GO 111. 512; Brock-
man T. McDonald, 16 Ul. 112; WMUiams v. Chalfant, 82 111. 218; Roberts v. Paw-
ley, 50 S. C. 491, 27 S. E. 913; Grace v. Casey-Grimshaw Marble Co., 62 111. App.
149; West Chicago St. Ry. Co. v. Annis, Id. 180; Meyer v. Kuhn, 13 C. C. A.
298, 65 Fed. 705; Van Renselaer v. Whiting, 12 Mich. 449; Hughes v. Lind-
»ey, 10 Ark. 555; Smith's Adm'r v. Rollins, 25 Mo. 408; Winslow v. Lam-
bard, 57 Me. 356; Burt v. Stevens, 22 X. H. 229; Donnelly v. Graham, 77
i'a. 274; City of St. Louis v. Gleason, 15 Mo. App. 25.
(313)
§211 LAW OF JUDOMBNIU (Ch. 11
defendant served, judgment should be rendered against both. Ac-
cording, then, to the foregoing rule, the judgment could have no
more effect against the defendant who was served than against the
other. Hence, to carry the supposition a step further, if the judg-
ment were made the basis of an action, whether in a domestic or
foreign tribunal, against the defendant served, he might show the
irregularity of the proceedings in respect of his co-defendant, and
that would be sufficient to defeat a recovery against himself. The
result seems scarcely consonant to reason and justice. Yet some of
the decisions, arguing from the entirety of the judgment, have felt
obliged to hold precisely that position.*** But there are many other
authorities which hold that although a judgment may be void as
against one of the defendants, for lack of jurisdiction, still it maybe
valid and binding upon the others, or at most voidable, but not void
in toto.**" And if this view is adopted, it is evident that the judgment
will be attended by its usual incidents, as against the defendant over
whom jurisdiction attached, until it is regularly reversed or vacated.
Until that time an action will lie upon the judgment against him, and
he will not be permitted to attack it collaterally. There are other
grounds on which the judgment may be void as to one of several de-
fendants, such as legal disability or his previous decease. But the
same principle is understood to govern these cases also, and there
i«4 Hanley v. Donoghue, 59 Md. 239, 43 Am. Rep. 554; HoUirook ▼. Mur-
ray, 5 Wend. (N. Y.) 1(51.
icoNewburg v. Munshower, 29 Ohio St. 617, 23 Am. Rep. 7«9; Douglass*
Lessee ▼. Massle, 1(5 Ohio, 271, 47 Am. Dec. 375; Ash ▼. McCabe, 21 Ohio
St. 181; Jamleson v. Pomeroy, 9 Pa. 230; ShaUcross v. Smith, 81 Pa. 132;
Kitchens v. Hutchlns, 44 Ga. 020; Green v. Reals, 2 Calnes <N. Y.) 2M:
Crane v. French, 1 Wend. (N. Y.) 311; Rrlttin v. Wilder, 6 HIU (N, Y.)
242; St. John v. Holmes, 20 Wend. (X. Y.) 609, 32 Am. Dec. 603; York
Rank's Appeal, 36 Pa. 4(50; North v. Mudge, 13 Iowa, 498, 81 Am. Dec.
441; Winchester v. Reardin, 10 Humph. fPenn.) 247, 51 Am. Dec. 702;
Collins V. Knight, 3 Tenn. Ch. 183; Mercer v. ^ James. 6 Neb. 406; Conwil
RluflTs Sav. Rank v. Griswold, 50 Neb. 753, 70 N. W. 376; Keith Rros. &
Co. V. Stiles, 92 Wis. 15, 65 N. W. 860; Wise v. Hyatt, 68 Miss. 7W. 10
South. 37; Rurton v. Perry, 146 111. 71, 34 N. B. 60; Remington v. Cummlnss.
5 Wis. 138; Ralley v. McGinniss, 57 :^fo. 362; Cheek v. Pugh, 19 Ark. 574:
Murphy v. Orr, 32 111. 489; Valentine v. Cooley, Meigs (Tenn.) 618, 33 Am.
Dec. 166; Crank v. Flowers, 4 Heisk. (Tenn.) 629; Smith V. Topper, 4
Smedes- & M. (Miss.) 261, 43 Am. Dec. 483.
(314)
Ch. 11) VALIDITT, AS AFFECTED BY STATUS OF PARTIES. § 211
exists the same diversity of opinion in regard to them. Some of the
cases bold that if a joint judgment is void as to one defendant, be-
cause that defendant was a slave, an infant, a married woman, or was
dead before its rendition, it is void as to all ; or, if an incapacity of
that kind is conceived as rendering the judgment voidable only as
against the person affected, these cases hold it to be equally voidable
as against the co-defendants. *•• But other decisions take the ground
that a judgment rendered jointly against a married woman (for in-
stance) and others who are sui juris is not, as to the latter, void and
collaterally assailable, although as to the married woman it is a
nullity, and although, also, it is an entirety for the purooses of review
on appeal or error, and would be reversed as to all the defendants if
thus directly assailed.**' When we inquire as to the proper disposi-
tion to be made of a joint judgment against several defendants, which
is void as to one of them, when it is brought before a court of review
by writ of error or appeal, we find the authorities more nearly har-
monious. In general, they agree that it cannot be affirmed as to
one defendant and reversed as to another, but must be reversed as
an entirety.**' And conversely, if in favor of the defendants, inva-
lidity as to one will vitiate it as to all. "The judgment, being joint
in favor of all the defendants and erroneous as to one, will have to
be reversed as to all. A judgment jointly entered in favor of several
defendants, whether in an action upon contract or for tort, cannot
be affirmed as to one and reversed as to another. Such a judgment
is an entirety, and must stand or fall together." *•• The acceptance
"•Stenhouae v. Bonum, 12 Rich. Law (S. C.) 620; TedUe v. Dill, 3 Ga. 104;
Randans ▼. Wilson, 24 Mo. 76.
»«T Helton v. Towner, 81 Mo. 360; ShaUcross v. Smith, 81 Pa. 132.
"•Sargeant v. I'Yench, 10 N. H. 444; Sheldon v. Qulnlen, 5 Hill (N. Y.)
441; Hickman v. Branson. 1 Honst. (Del.) 429; Murphy v. O'Reiley, 78 Ky.
I'©; Draper v. State, 1 Head (Tenn.) 282; Ellison v. State, 8 Ala. 273; Wood
V. 8mlth, 11 Tex. 367; Dickson v. Burke, 28 Tex. 117; Frazler v. Williams,
IM Ohio St. eS25; Cavender v. Smith's Heirs, 5 Iowa, 157; P^iUer y. Robb,
2B IIL 246; KimbaU v. Tanner, 63 111. 519; Covenant Mut. Life Ins. Co. v.
riorer. 36 Mo. 392; Powers v. Irish, 23 Mich. 429.
»•» McDonald v. Wilkie, 13 111. 22, 54 Am. Oec. 423, citing Harman v.
Brotherson, 1 Denio (N. Y.) 537; Cruikshank v. Gardner, 2 Hill (N. Y.)
3:«: Sheldon v. Qulnlen, 5 Hill (X. Y.) 441; Gaylord v. Payne, 4 Conn. 190;
Bac. Ahr^ tit "Krror," M.
(315)
§ Jill LAW OP JUDGMENTS. (Ch. 11
of this rule, however, is not quite universal. It is said to have no
application under the statutes and system of practice in Nevada."*
And in California, if one of several defendants appeals from a judg-
ment which is erroneous as to him, on account of insufficient service,
the court will not reverse the judgment as to the other defendants,
but will only reverse it as against the appellant.*'* In Virginia it is
held that although at common law a joint judgment which is erro-
neous as to one defendant must be reversed as to all, yet if the
alleged judgment against one is not merely erroneous but absolutely
void and a mere nullity, this rule does not apply.*'* Before leaving
the subject, it is necessary- to remark that if the judgment is several
as to the parties, there may well be cases in which it will be good as
to one though invalid as against another, and in which an appellate
court would reverse it in part and affirm it in part.*'' Further, the
rule that a judgment void as to one defendant is void as to all is con-
sidered to apply only to judgments at law and not to decrees in eq-
uity.*'*
It will be obvious from the foregoing review of the authorities that
the cases on this topic cannot be reconciled. But it will also appear
that some of the courts holding the entire invaUdity of a joint judg-
ment, which is void as to one defendant, have been forced to an ex-
treme length in the matter by the highly technical conception of such
a judgment as an ideal entirety. Sound legal reason appears to
suggest that while such a judgment is undoubtedly erroneous and
liable to be reversed on appeal, yet, while unreversed, it ought not
to be open to impeachment, by the debtor as to whom no irregularity
exists, in any collateral proceeding. It also seems consonant to jus-
tice that judgments of this character should not be vacated or set
aside on the application of the party legally bound, because, pre-
sumably, it is the other only who has been deprived of his rights or
injured by an irregular or erroneous practice. As to the former,
170 Wood v. Olney, 7 Nev. 109.
171 Ricketson v. Richardson, 26 Cal. 149. And see Saffold v. Navarro. 15
Tex. 7(5.
1T2 Gray v. IStuart, 33 Grat. 351.
17 8 i»owers v. Irish, 23 Mich. 429, 438; Buff urn v. RamsdeU, 65 Me. 252,
92 Am. Dec. 589.
174 Voorhis v. Gamble, 6 Mo. App. 1; Dlckerson y. Qirisman, 28 Mo. 1^
(316)
Ch. 11) VALIDITY. AS AFFECTED BY STATUS OF PARTIES. § 212
the judgment should not be shorn of its usual consequences, and
there seems to be no adequate reason why it should not constitute a
good cause of action against him. Finally, it is too much to say
that the judgment supposed would be absolutely void as to both or
all the defendants. For a void judgment is a mere nullity and binds
no one, and no one can acquire any rights under it ; whereas many
of the cases (even those which use the expression "void*' in applica-
tion to such judgments) hold that a purchaser under such a judg-
ment will be protected, that the record may be amended, that such
a judgment merges the cause of action, that execution may be di-
rected against one defendant and restrained as to the other, and so
on, none of which consequences could follow if the judgment were
merely null and void.
I 212. ConfeMioB of Judgmemt by Joint Defendants.
A judgment cannot be confessed by one of several joint debtors so
as to bind those not joining in the confession.^^' But a more 9if!i-
cult question arises in regard to the validity of a judgment by con-
fession entered upon a warrant or statement signed by a part only of
those who are named in the judgment. Clearly it is nugatory as to
any defendant not signing. But will it stand, notwithstanding this,
as a good and valid judgment against those who did sign or execute
the authority? Some of the decisions answer this question in the
affirmative.*^* And their position seems to be supported by sound
reason and justice. In California, however, on the principle of the
entirety of a judgment, it is held that if the warrant authorizes the
'entry of judgment against a certain number, no judgment can be en-
tered against a less number, and it will be void as to all.*^^
"i Tripp V. Saunders, 59 How. Pmc. (N. Y.) 379.
"•North V. Mudgc, 13 Iowa, 4iK>, 81 Am. Dec. 441; Mercer v. James,
6 Xeb. 406; York Bank's Appeal, 36 Pa. 458; Knox v. Wlnsted Sav. Bank,
57 111. 330.
1" Ctaapin y. Tbompson, 20 Cal. 681.
(317)
§213 LAW OF JUDQMBNTS. (Ch. 11
§ 213. Mlmomer of Parties.
It is a well established rule that if process in an action is served
upon the person really intended to be sued, although a wrong name
is given him in the writ and return, and he suffers a default, or, after
appearing, omits to plead the misnomer in abatement, and judgment
is taken against him, he is concluded thereby, and in all future liti-
gation he may be connected with the suit or judgment by proper
averments.^^' "The point of the objection to the judgment of the
lower court is, that the defendant having been sued and served wth
process by a wrong name, the court acquired no jurisdiction of him,
and could render no valid judgment against him. The objection
gives the name quite too much importance. A name is a means of
identity, but the change of the name or the application of a wrong
name does not change the thing identified. It is not the name that is
sued but the person to whom it is applied. Process served on a man
by a wrong name is as really served on him as if it had been ser\'ed
on him by his right name, and if in such case he fails to appear, or,
appearing, fails to object that he is sued by the wrong name, and the
judgment be rendered against him by such name, he is as much
bound by the judgment as if it had been rendered against him by his
right name." ^^* Exactly the same rule applies in the case of a cor-
poration ; though sued by a wrong name, it is bound, if duly serv-
ed.^*® But in California, and probably in other states having sim-
ilar statutory provisions, a judgment against a defendant served by
a fictitious name, who appears and answers in his real name, cannot
be supported unless the complaint is amended by inserting the true
1T8 Oakley v. Giles, 3 East, 168; Lafayette Ins. Co. v. French, 18 How.
40a 15 L. Ed. 451; Smith v. Bowker, 1 Mass. 76; fltzgerald v. Saleotiiie,
10 Mete. (Mass.) 486; First Xat. Bank v. Jaggers, 31 Md. 38y 100 Am. Dec. 53:
Althoiise V. Hunsbcrger, 6 Fa. Super. Ct. 160; Waldrop v. Leonard, 12 S. C
118; Bloomfield K. Co, v. Burress, 82 Ind. 83; Kingen v. Stroh. 136 Ind.
010, 36 N. E. 510; Griffith v. Milwaukee Harvester Co., 92 Iowa, OW. 61
X. W. 243, 54 Am. St. Rep. 573; ParrV v. Woodson, 33 Mo. 347, 84 Am.
Dec. 51; Welsh v. Kirkpa trick, 30 Cal. 202, 89 Am. Dec. 85; Suttw T. Cox.
6 Cal. 415; Guiuard v. lleysinger, 15 111. 288.
179 l>arry v. Woodson, 33 Mo. 347, 84 Am. Dec. 51.
180 Hoffleld V. Board of Education, 33 Kan. 044, 7 Pac. 21S.
(318)
Ol. 11) VALIDITY, AS AFFECTED BT STATUS OF PARTIES. § 213
name, as required by the code.*®* Moreover, it is essential to the
plaintiff's recovery that it shoulcl be proved, not only that the real
person was sued, but that he was duly served with process though
under a mistaken name.*®* In a case where the complaint was
against " Doyle" and others, and a summons was issued but
there was no evidence that it was served, and John Doyle answered,
and judgment was rendered against James Doyle, it was held to be
void, because the party against whom it was given did not appear to
be a party to the suit.*®'
Similar principles apply to the case of a misnomer in the judgment
itself, where the defendant was correctly named in the writ or the
pleadings. The judgment will not be avoided by such misnomer, if
the record contains data by which the judgment can be amended,
or if the record and the judgment together point out the persons to
be bound by the judgment, with unmistakable certainty.*®* Further,
a misnomer in a, judgment may be cured, in a proper case, by the
principle of "idem sonans.*' Thus, where a bill is filed to set aside
a decree on the ground that the complainants were sued by a wrong
name and therefore were not before the court, if the names given
are idem sonantes, the bill will be dismissed.*®* So where a judg-
ment is rendered and execution issued against "Rosina Coons," it
is not sufficient reason for setting aside a sale of real estate made on
such execution that the right name of the defendant is shown to be
''Rosina Kuhn.'' *®® It may also happen that the process will contain
a misnomer of the plaintiff. And some of the cases, having a regard
»•! MeKinlay v. TotUe, 42 Cal. 571; City and County of San Francisco v.
Burr <Cal.) 3« Pac 771; Alameda County v. Crocker, 125 Cal. 101, 57 Pac. 766.
Its Fitzgerald v. Valentine, 10 Mete. (Mass.) 436.
"» Ford V. Doyle, 37 Cal. 346.
"* Ohleago Clock Co. v. Tobin, 123 Cal. 377, 55 Pac. 1007; Ex parte How-
ard-Harrison Iron Co., 119 Ala. 484, 24 South. 516, 72 Am. St Rep. 928. A
mlsrccital In a decree, to tbe effect that an intervener, who resisted plaintiff's
cUilm, was a defendant, is not fatal. Newman v. Bullock, 23 Colo. 217, 47 Pac.
379.
»»5 Rol)ertson v. Winchester, 85 Tenn. 171, 1 S. W. 781. Where a Judgment
on a forfeited bond signed with the Christian name "Noberto" was entered
against "Norberto," it was held not to be a fatal variance. Salinas v. State,
39 Tex. Or. R. 319, 45 S. W. 900.
!•• Kuhn T. Kilmer, 16 Neb. 699, 21 N. W. 443.
(319)
§213 LAW OF JUDGMENTS. (Oh. 11
to the defendant's right to be fully informed as to the person whose
demand he is required to answer, have held that if the process mis-
names the plaintiff it does not give sufficient notice of the suit to the
defendant, the court acquires no jurisdiction, and a judgment against
the defendant by default is null and void. It was so ruled in a case
where one Cunningham, plaintiff in the action, was described as
"Cunnington." ^•^ But the better reason is with the cases which
hold that service of process in favor of the right party by a wrong
name is good, and a judgment in favor of the right party by his
proper name will after trial cure a misnomer in the complaint, the
summons, or the other proceedings.**® So a judgment and execu-
tion in the name of the treasurer of a township, instead of the trus-
tees as directed by law, cannot be held void, but voidable only.***
A judgment for or against a partnership is not rendered invalid by
the fact that it incorrectly names the partnership, if it also gives cor-
rectly the names of the individuals composing the firm.*** The
'-jmission of the initial letter of the middle name of a defendant, in
the entry and docketing of a judgment recovered against him, does
not render it invalid or prevent its becoming a lien upon his real es-
tate as against subsequent purchasers from him in good faith. As
observed by Daniels, J.: "It was enough that one Christian name
was properly added to the surname of the defendant, for in legal pro-
ceedings the law recognizes but one Christian name, and where a
party is sued by that alone, the proceedings taken may regularly be
18T Ex parte Obeatham, 6 Ark. 531, 44 Am. Dec. 525.
188 ivronski v. Missouri Pac. Ry. Co.» 77 Mo. 362; McGaughey v. Woods,
106 Ind. H80, 7 N. E. 7; Terry v. French. 5 Tex. Civ. App. 120, 23 S. W. 91 L
A judgment In favor of "The United States National Bank" is sufficient to
support an action thereon by "The United States National Bank of New York,
N. Y." United States Nat. Bank y. Venner, 172 Mass. 449. 52 N. E. W3. But
where an amended petition states the plaintiff's name differently ftom the
original petition, a Judgment in favor of the plaintiff by the name given in
the original petition is not a final judgment to which a writ of error will Ue.
Green v. Brown (Tex.) 15 S. W. 37.
189 Hart's Lessee v. Johnson, 6 Ohio, 87.
i»o Bailey v. Crittenden (Tex. Olv. App.) 44 S. W. 404. See, also, MUs v.
Jones. 51 Mo. 180. Where a person does bushiees individually under a firm
name, and as such firm becomes a joint lessee, a judgment against him indi-
vidually for rent Is proper. Ding y. Kennedy, 7 Colo. App. 72, 41 Pac 1112.
(320)
Ch. 11) VALIDITT, AS AFFECTED BY STATUS OF PARTIES. § 214
continued to judgment in that name, and the fact that he may have
one or more other names between his first Christian name and his
surname will in no way affect their validity. This is an old and well
established rule of the common law that has in no manner been
changed, either by legislation or the rulings of the courts, in this
state." *^* So there is no material variance where a judgment is en-
tered in favor of "Laura Wilcox, guardian of W. L. Wilcox/' when
the correct name of the infant is W. B. Wilcox.^ ®^
f 214. Desoriptio Personse.
The fact that a descriptive word or phrase is added to a party's
name in a judgment neither affects the validity of the judgment nor
changes the legal rights and relations which it engenders. Thus the
addition of the word "executor" to a defendant's name in a decree,
without more, does not prevent the decree from binding his own
property; the addition is mere surplusage.^*' So a judgment
against "D., treasurer," is a personal judgment, the word "treasurer"
being merely descriptio personae.*"*
"» Clute V. Emmerich, 26 Hun (N. Y.) la
1" Crawford v. Wilcox, 68 Tex. 109, 3 S. W. 695; Hicks v. Riley, 83 Ga.
332, 9 8. E. 771.
»•* Tfnsley v. Lee, 51 Ga. 482; Hall v. Oralge, 68 N. C. 305. In determining
whether a judgment against one as executor was obtained against him In his
representntive capacity, or Individually, the pleadings in the action In which
it was rendered may be considered. Groom v. Winston, 18 Tex. Civ. App. 1, 43
S. W. 1072. In an action against one as agent for an estate, on a bill accepted
by him as such agent, a judgment against him as agent Is proper, as execu-
tion thereon will not go against his Individual property, but be levied on as-
sets In his hands as agent. Rudd v. Deposit Bank (Ky.) 49 S. W. 207.
»•* Dougherty v. McManus, 36 Iowa, 657; Rockwell v. Tupper, 7 Pa. Super.
Ct. 174; Sass v. Hlrschfeld, 23 Tex. Civ. App. 306, 56 S. W. 941. Where a
defendant, sued for a tort as an Individual, defended in a representative ca-
pacity as assignee of an insolvent, the effect of a judgment against him in
terms both as an Individual and as assignee is simply to hold him liable In-
dividually. O'Brien v. Ballon, 116 Cal. 318, 48 Pac. 130. So, a personal Judg-
ment against a tax collector is not vitiated by the addition of the words "tax
t-ollector'* to defendant's name. Stewart v. Atlanta Beef Co., 93 Ga. 12, 18
S. E. 981, 44 Am. St. Rep. 119. See, also, Rutan t. Wolters, 116 Cal. 40;{, 48
Pac. 385.
II4AWJUDG.— 21 (32 1)
§215 LAW OF JUD0B1ENT8. (Ch. 12
CHAPTER XIL
THE VALIDITY OF JUDGMENTS AS DEPENDENT UPON JURISDIC-
TION.
f 215. Jurisdiction definecl.
216. Sources of Jurisdiction.
217. Consent cannot confer Jurisdiction.
218. Judgment without Jurisdiction is Void.
219. Judgment against One not a Party.
220. Notice to Defendant.
* 221. Statutes dispensing with Citation.
222. Statutes regulating Mode of Citation.
223. Defects in the Process.
224. Defects in the Service.
225. Appearance as a Waiver of Citation.
226. Defendant's Right to be heard.
227. Judgments against Non-Kesldents.
228. Extra-Territorial Service of Process.
229. Jurisdiction by Attachment of Non-Resldent*8 Property.
230. What Property bound.
231. Service by Publication without Attachment.
232. Statutes authorizing Constructive Service to be strictly construed.
233. Joint Defendants.
234. Joint Judgment as an Entirety.
235. Joint Judgment authorized by Statute.
236. Statutory Several Judgment.
237. Judgment against Partners.
238. Appearance for Defendant not Served.
239. Construction of Judgment against '^Defendants" generally.
240. Jurisdiction of the Subject-Matter.
241. Sufficiency of Declaration.
242. Jurisdiction of Question decided.
243. Loss of Jurisdiction.
244. Jurisdiction attaching, Error does not Vitiate.
§ 215. JnrisdIotioA defined.
Etymologically the word "jurisdiction" signifies the power or duty
of "declaring right," that is, of declaring, in the official character
of a judge, what is the law applicable to a given state of facts, or
what are the respective rights of parties, as determined by the ap-
plication of law to the facts before the tribunal. Technically, it may
Jt>e defined as the power and authority constitutionally conferred upon
(322)
Ch. 12) VAUDITT. AS DEPENDENT UPON JURISDICTION. § 216
(or constitutionally recognized as existing in) a court or judge to
pronounce the sentence of the law, or to award the remedies pro-
vided by law, upon a state of facts, proved or admitted, referred to
the tribunal for decision, and authorized by law to be the subject of
investigation or action by that tribunal, and in favor of or against
persons (or a res) who present themselves, or who are brought, be-
fore the court in some manner sanctioned by law as proper and suf-
ficient.* If this definition appears complicated, it is because of the
necessity of grouping three very different elements. For jurisdic-
tion naturally divides itself into three heads. In order to the validity
of a judgment, the court must have jurisdiction of the persons, of the
subject-matter, and of the particular question which it assumes to
decide. It cannot act upon persons who are not legally before it,
upon one who is not a party to the suit, upon a plaintiff who has
not invoked its arbitrament, or upon a defendant who has never been
notified of the proceeding. It cannot adjudicate upon a subject
which does not fall within its province as defined or limited by law.
Neither can it go beyond the issues and pass upon a matter which
the parties neither submitted nor intended to submit for its deter-
mination. These several elements of jurisdiction will be taken up
and considered in their orden
§216. Soiiroes of JnrisdiotloA.
Since the administration of justice is a part of the business of
government, and since judicial tribunals are the agencies devised for
eflFecting this purpose, their jurisdiction must ultimately depend upon
their institution by the sovereignty of the particular state or country.
Hence the validity of their judgments may sometimes require to be
tested on public or political grounds. We have elsewhere seen that
the courts of a de facto government, or the de facto courts of a law-
ful government, are generally recognized as having jurisdiction.^
But jurisdiction cannot be predicated of any voluntary or self-consti-
X See Windsor t. McVeigh, 03 U. S. 277, 23 L. Ed. 914; United States v.
ArrodoDdo, 6 Pet 700, 8 I.. Ed. 547; Rhode Island v. Massachusetts, 12 Pet.
71S. 9 L. Ed. 1233; Sheldon's Lessee t. Newton, 3 Ohio St 494; Ex parte
Boniiett. 44 Cal. 84.
s Supra, § 173.
(323)
t 216 LAW OF JUDGMBNT3. C^h. 12
tuted tribunal, lacking the color of governmental authority. Its pro-
ceedings must at least appear to be had under the authority and
sanction of the sovereign.' But supposing a legally constituted
court, we are told that "by jurisdiction over the * subject-matter' is
meant the nature of the cause of action or relief sought ; and this is
conferred by the sovereign authority which organizes the court, and
is to be sought for in the general nature of its powers or in the au-
thority specially conferred. Jurisdiction of the 'person' is obtained
by the service of process, or by the voluntary appearance of the party
in the progress of the cause. Jurisdiction of the 'res' is obtained
by seizure under the process of the court, whereby it is held to abide
such order as the court may make concerning it." * By way of sup-
plement to the above description we may add that the jurisdiction of
a particular court, in respect to the matters of which it may take
cognizance, may be defined in the constitutional or statutory enact-
ment which creates it, or may be left to be inferred from the general
nature of the court or the absence of specific limitations upon its
powers, or may be enlarged or abridged by subsequent legislation.
But where the constitution establishes a particular court and fixes its
jurisdiction, it is not competent for the legislature to pass any stat-
ute abolishing the court, or either enlarging or abridging its juris-
diction.* And conversely if the constitution organizes a court and
« Rogers v. Wood, 2 Barn. & Adol. 245.
* Cooper V*, Reynolds, 10 WaU. 316, 19 L. Ed. 931; Fithlan v. Monks, 43
Mo. 515.
6 Commonwealth v. Allegheny County Com'rs, 37 Pa. 237; Gibson v. Temple-
ton, 62 Tex. 555; State v. Biink of East Tennessee, 5 Sneed (Tenn.) 573; Ward
V. Thomas, 2 Cold. (Tenn.) 565; Gibson v. Emerson, 7 Ark. 172; State v. Jones.
22 Ark. 331; Haight v. Gay, 8 Cal. 297, 68 Am. Dec. 323; Decks Estate v.
Gherke, 6 Cal. 6(J6; Zander v. Coe, 5 Cal. 230. See 2 Story, Const, ft 177S,
1774; Duroiisseau v. United States, 6 Cranch, 307, 3 L. Ed. 232; United States
V. More, 3 Cranch, 159, 2 L. Ed. 397; Ex parte McOardle. 7 WaU. 506, 19 L.
Ed. 204; United States v. Peters, 5 Cranch, 115, 3 L. Ed. 53; Ex parte Knowles,
5 Cal. 3r)0; Fen-is v. Coover, 11 Cal. 175; Greely v. Townsend, 25 Cal. ei>4.
Thus, where the constitutional jurisdiction of the supreme court Is appellate
only, the legislature cannot confer upon it original Jurisdiction in any case.
Ward V. Thomas, 2 Cold. (Tenn.) 565; State v. Bank of East Tennessee. 5
Sneed (Tenn.) 573. The legislature cannot confer upon courts created by
statute Jurisdiction exclusive of that which the constitution gives to conns
established by the constitution Itself. Montross v. State, 61 Hiss. 42a 5:>ee
Eaton & H. R. Co. v. Hunt, 20 Ind. 457.
(3^)
Ch. 12) VALIDITY. AS DEPENDENT UPON JURISDICTION. § 217
confers powers upon it, it does not require the aid of legislation to
enable it to exercise those powers.** But if the alleged jurisdiction of
a court to take any particular action is derived from a statute, and
that statute is shown to be unconstitutional, the proceedings of the
court must be considered void ; for as the stream cannot rise higher
than its source, no jurisdiction can be derived from a void act.'' The
question of the validity of a judgment, if depending on jurisdiction,
must be determined by the jurisdiction of the court as existing at
the time when the judgment was rendered.'
§ 217. CoBseiit oannot ooiifer Jurisdiotion*
As jurisdiction is given by the law, the consent of the parties can-
not confer the right to adjudicate upon any cause which the law has
withheld from the cognizance of the particular court.® This rule
may apply to cases where the territorial jurisdiction of the court is
limited. Thus, under a constitutional provision that all civil suits
shall be tried in the county wherein the defendant resides, a judg-
ment obtained in a county other than that of the defendant's resi-
dence, by an agreement between the plaintiff and defendant, the lat-
ter agreeing to acknowledge the jurisdiction, is considered to be void
as against the rights of subsequent judgment-creditors who obtain
their judgments in the manner and place prescribed by law.*® But
• State T. Gleason, 12 Fla. 190.
" Horan v. Wahrenberger. 0 Tex. 313, 58 Am. Dec. 145; Reed ▼. Wright 2
<-. Greene (Iowa) 13. Compare Arnold v. Shields, 5 Dana (Ky.) 18, 30 Am.
Dee. 600.
■^ I'kamplin v. Bakewell, 21 La. Ann. 353.
•Home Ins. Co. v. Morse, 20 Wall. 451, 22 L. Ed. 365; Santom v. BaHard.
1:3 Mass. 465; State v. Fosdiek, 21 La. Ann. 258: Mora v. Kuzac, 21 La. Ann.
754; Richardson v. Hunter, 23 La. Ann. 255; Flelschman v. Walker, 91 111.
.^IS: Dieks v. Hatch. 10 Iowa, 380; Mooi-e v. Ellis, 18 Mich. 77; Damp v.
Town of Dane, 29 Wis. 419; Peabody v. Thatcher. 3 Colo. 275.
i« Georgia K. & B. Co. v. Harris, 5 Ga. 527, But under the ac^ of congress
of March 3, 1887. § 1 (25 Stat. 433), providing that "no civil suit shall be
brought before either of said courts [United States circuit or district courts]
against any person ♦ • ♦ in any other district than that wihereof he is
an inhabitant," it la held that the right to be sued only in the district of his
rwldence Is a personal privilege, which the defendant may waive; and he
do«j waive it by pleading to the merits. St. Louis & S. F. R. Co. v. McHride,
141 U. S. 127, 11 Sup. Ct. 082, 35 K Bd, 659; Texas & P. R. Co. v. Cox, 145
(325)
§ 218 LAW OF JUDGMENTS. (Ch. 12
a more familiar application of the rule is in the case of an attempt
to bring within the cognizance of the court a subject-matter of which
by law it has no jurisdiction. Indeed we are told that it is only
when a judge or court has no jurisdiction of the subject-matter of
the proceeding or action in which an order is made or a judgment
rendered, that such order or judgment is wholly void, and that the
maxim applies that consent cannot give jurisdiction. In all other
cases the objection to the exercise of the jurisdiction may be waived,
and IS waived when not taken at the time the exercise of the juris-
diction is first claimed.*^ And there is certainly good ground for
doubting the applicability of the rule to the matter of jurisdiction of
the person. For a defendant may cure a defective service of process,
or waive the want of it, by appearing without exception. And this
he appears also to do in confessing a judgment without action.** So
there are many cases holding that a person under legal disabilities
may consent to the jurisdiction of the court, or waive an objection to
it, by suffering a default, at least so far that the judgment will not
be entirely void, though it may be erroneous or voidable.** And it
has even been held that a judgment in a state court against a consul
of a foreign nation, taken upon default, is valid ; on the ground that
his not appearing and pleading to the jurisdiction of the court is a
waiver of the want of jurisdiction over him.**
§ 218. Judgmeiit without JurisdiotioA !■ Void.
It is a familiar and universal rule that a judgment rendered by a
court having no jurisdiction, of either the parties or the subject-mat-
ter, is void and a mere nullity, and will be so held and treated when-
ever and wherever and for whatever purpose it is sought to be used
U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Central Trust Co. v. MeGoorgte, lot
U. S. 129, 14 Sup. Ct. 286, 38 I^ Ed. 98.
11 Hobart v. Frost, 5 Duer (N. Y.) 672.
12 A decree purporting to be rendered by consent of parties Is not void on its
face because it declares the title to the premises in controversy to l)e iu a per-
son other than one of the parties to the record, wlien it appears that such
person was a purchaser pendente lite from one of the parties. Beardslej- t.
Ililson, 94 Ga. 50, 20 S. E. 272.
13 Supra, §§ 190, 196.
14 Hall V. Young, 3 Pick. (Mass.) 80. 15 Am. Dec 180.
(326)
Ch. 12) VAUDITT. AS DEPENDENT UPON JURISDICTION. § 218
or relied on as a valid judgment.*'* The effect of a want of jurisdic-
tion is clearly stated in an early decision of the United States supreme
court in the following language: "Where a court has jurisdiction,
it has a right to decide every question which occurs in the cause, and
whether its decision be correct or otherwise, its judgment, until re-
versed, is regarded as binding in every other court. But if it act
without authority, its judgments and orders are regarded as nullities.
They are not voidable but simply void, and form no bar to a recovery
sought, even prior to a reversal, in opposition to them. They con-
stitute no justification ; and all persons concerned in executing such
judgments or sentences are considered in law as trespassers." *"
Hence, for example, if a judgment is merely erroneous, the title ac-
quired by a sale under it is valid and cannot be impeached collaterally ;
bat if it is void for want of jurisdiction, the^ vendee takes no title
whatever, and the sheriff's deed does not even create a cloud on the
title which a court of equity can remove.*^ So, although a judgment
upon a note rendered by a court having no jurisdiction of the case is
void, the note is still a valid security ; it is not merged in the judg-
ment.** But in connection with this rule it is necessary to remem-
ber the legal presumptions in favor of the judgments and proceed-
ings of courts of general jurisdiction and the rule against collateral
attacks upon such judgments. The result deducible from a majority
15 Fisher t. Hamden, 1 Paine, 55, Fed. Cas. No. 4,819; Towns v. Springer,
9 Ga. 130; Mobley v. Mobley. Id. 247; Beverly v. Burke, Id. 440, 54 Am. Dec.
351; Central Bank y. Gibson, 11 Ga. 453; Johnson v. Johnson, 30 111. 215; St.
Louis & S. Coal Co. t. Sandoval Ck)al & Mining Co., Ill 111. 32; Swiggart ▼.
Harber. 4 Scam. (lU.) 364, 39 Am. Dec. 418; Miller v. Snyder, 6 Ind. 1; Seely
T. Held, 3 G. Greene (Iowa) 374; Bruschke v. Der Nord Chicago Schuetzen
Vereln, 145 111. 433, 34 N. B. 417; Dowell v. Applegate, 24 Or. 440, 33 Pae.
037; Ex parte Gardner. 22 Nev. 280, 39 Pac. 570. Some of the eases discrim-
inate In favor of judgments for the defendant, where there was Jurisdiction
of the Bubjeet-matter, though not of defendant's person. See City of Fostoria
V. Fox, 60 Ohio St 340, 54 N. E. 370.
"Elliott V. Pelrsol. 1 Pet. 328, 340, 7 L. Ed. 164, Trimble. J. See, also,
Latham v. Edgerton, 9 Cow. (N. Y.) 227. A person against whom judgment
has been rendered without serylce of process Is not precluded by any lapse of
time from contesting Its validity; he can wait until It Is sought to be enforced
against him. Harper v. Cunningham, 8 App. D. 0. 430.
" Bowers t. Chaney, 21 Tex. 363; Holland v. Johnson, 80 Mo. 34.
It Linn V. Carson's Adm'r, 32 Grat (Va.) 170.
(327)
§218 LAW OF JUDGMENTS. (Ch. 12
of the cases seems to be that it is only when the judgment appears
upon its face to have been rendered without jurisdiction that it can
be considered a mere nullity for all purposes. This will be shown
more fully in the succeeding chapters.
It has been held that a void judgment may be accepted as valid by
the consent of the parties, so the rights of third persons be not preju-
diced. "All the parties interested may lawfully agree to confirm an
invalid transcript, or nugatory judgment, provided the confirmation
is to be efficacious, and give a lien, only from the time of the agree-
ment properly appearing." *® But other authorities maintain that
proceedings void for want of jurisdiction cannot be cured by ratifica-
tion or waiver.^** And it is clear that a void judgment cannot be
validated by citing the party against whom it was entered to show
cause why it should not be declared valid,** nor by the court's ap-
proval of a sale on execution under it,** nor by the subsequent taking
and dismissing of an appeal from such judgment.*^ And a void judg-
ment does not fall within the class of subjects upon which a legis-
lature may operate retroactively by a curative or confirmatory stat-
ute. An act of the legislature undertaking to validate a judgment of
a court which was void for want of jurisdiction, would be an attempted
exercise of judicial power by the legislature, since, the proceedings in
court having been void, it would be the statute alone which should
constitute an adjudication upon the rights of the parties ; and it would
also be objectionable as contravening the constitutional provision
which secures to every man the enjoyment of his property except as
the same may be taken from him by "due process of law," for this
last phrase includes the attaching of jurisdiction, due notice, and an
opportunity to be heard.** So when property has been attempted to
19 Ramsey v. Linn, 2 Rawle (Pa.) 229.
20 Laughtou V. Nadeau (C. C.) 75 Fed. 789.
21 JeAvett V. Iowa Land Co., 64 Miun. 531, 67 N. W. 639, 58 Am. St RfP-
555.
22 Willamette Real-Estate Co. v. Hendrix, 28 Or. 485, 42 Paa 514, 52 Am.
St. Rep. 800.
23 Joues V. Pilaris, 59 Mo. App. 254.
2* Richards v. Rote, (38 Pa. 248; Lane v. Nelson, 79 Pa. 407: Pryor t.
Downey. 50 Cal. 388, 19 Am. Rep. 656; Griffin's Ex'r v. Cunningham. JO (Jrat
(Va.) 109: McDauiel v. Correll, 19 111. 220, G8 Am. Dec. 587; Denny v. MattooD,
(328)
(%. 12) VAX.IDITY. AS DEPENDENT UPON JURISDICTION. § 219
be taken by a judicial proceeding which is void for want of jurisdic-
tion, the legislature, for similar reasons, cannot validate it."^ But
if the judgment is merely defective, erroneous, or irregular, in con-
sequence of the non-observance of some formality which the legis-
lature might have dispensed with in advance, but is not objectionable
on jurisdictional grounds, then it may be confirmed or validated by a
retroactive statute.**
§ 219. JudKineiit asainat One not a Party.
A judgment rendered against one who was not made a party to
the suit, or who does not appear from the record to have been pro-
ceeded against in the action or to have had his day in court, cannot
be regarded as in any sense a vaUd judgment.*^ So a judgment
against a defendant named in the writ, but not made a party, is
merely void.*® A judgment cannot pass against a person who is not
mentioned in the proceedings and who has not joined issue or made
himself a party ; and a mere citation served on such person does not
compel his appearance or justify a judgment by default.** Thus, in
a suit on the bond given by the defendant in an attachment, to ob-
tain a return of the property attached, it appeared that the judgment
ill the original action was rendered against the sureties in the bond,
who were not parties, as well as against the attachment-defendant ;
2 AUen Olass.) 361. 79 Am. Dec. 784; Israel v. Arthur. 7 Colo. 5, 1 Pac. 438;
In re ChristHnsen's Estate, 17 Utah, 412, 53 Pac. 1003, 41 L. R. A. 504. 70
Am. St. Kep. 7»4; Board of Com'rs of Wells Co. v. Fahlor. 132 Ind. 426, 31
N. E. 1112.
" Richards v. Bote, 68 Pa. 248.
»« Lane v. Xelson. 79 Pa. 407; State v. Town of Union, 33 N. J. Law, 350;
Blark, Const. Law (2d Ed.) 632.
" Ford V. Doyle. 37 Oal. 346; Overstreet v. DaTis, 24 Miss. 393; Moseley v.
<^ocke. 7 Leigh (Va.) 225; Deming v. Merchants* Cotton-Press & Storage Co.,
iK) Tenn. 300, 17 S. W. 89, 13 L. R. A. 518; McKinney v. Frankfort & State
Line R. Co., 140 Ind- 95, 38 N. B. 170; Missouri, K. & T. Ry. Co. v. Fulmore
<Tex. Civ. App.) 26 S. W. 238; Johnson v. Block (Tex. Civ. App.) 46 S. W. 85;
Houser v. Smith. 19 Utah, 150, 5(J Pac. 083. A decree rendered by default
against the unknown heirs of a person supposed to be dead is void where
Huch person is in fact alive and is not a party to the suit Burton v. Perry.
U(\ 111. 71, 34 N. K. 60.
'"•Armstrong v. Ilarshaw. 12 N. O. 187.
" Bracey v. Calderwood, 36 La. Ann. 796.
(329)
§ 220 LAW OF JUDQMBNTB. (CSl. 12
and it was held that the judgment was a mere nullity as to the sure-
ties, although it was not void as to the defendant.**
§ 220. Notice to Defendant,
It is an unquestioned principle of natural justice that a man should
have notice of any legal proceeding that may be taken against him,
and a full and fair opportunity to make his defense. The law never
acts by stealth ; it condemns no one unheard. It is true that in pro-
ceedings in rem the notice may be constructive only, but here the
action is directed against the thing itself, and there is no attempt to
fasten a personal liability upon the parties concerned.'^ It is true
also that constructive service of process is authorized in some other
cases, but not for the purpose of a personal judgment. A personal
judgment rendered against a defendant without notice to him, or an
appearance by him, is without jurisdiction and is utterly and entirely
void.'^ "We think it may be regarded as settled, that a judgment of
*»o Cheek v. Pugh, 19 Ark. 574.
>i A late case holds that notice and an opportunity to be heard are essential
to the Jurisdiction of all courts, even in proceedings in rem. Dorr's Adm*r v.
Rohr, 82 Ya. 359, 3 Am. St Rep. 100. Where a suit was commenced by at-
tachment, but no property was attached or garnished, and there was no per-
sonal service on the defendant, held, that a Judgment recorered In such suit
was a nullity. Judah v. Stephenson, 10 Iowa, 493. See Demburg v. Tefft, 63
111. App. 33.
8 2 Hollings worth v. Barbour, 4 Pet. 466, 7 L. Ed. 922; Philadelphia, W. &
B. R. Ck). V. Trimble, 10 WaU. 367, 19 L. Ed. 948; Windsor v. McVeigh. 93 U.
S. 277. 23 L. Ed. 914; Pennoyer V. Neff, 95 U. S. 727, 24 L. Ed. 565; St Clair
V. Cox, 106 U. S. 353, 1 Sup. Ct 354, 27 L. Ed. 222; Freeman v. Alderson, 119
U. S. 188, 7 Sup. Ot. 165, 30 L. Ed. 372; Ward v. Boyce, 80 Hun, 499. 30 N. Y.
Supp. 491; Berkowitz v. Brown, 3 Misc. Rep. 1, 23 N. Y. Supp. 792; McGavock
v. Clark, 93 Va. 810, 22 S. E. 864; Ooger v. Coger, 48 W. Va. 135, 35 S. E. 823:
Gunn V. Miller (Tex. Civ. App.) 26 S. W. 278; Luse v. Rankin, 57 Neb. 632,
78 X. W. 258; Eliot v. McCormick, 144 Mass. 11, 10 N. E. 7a"); Steen v. Steen.
25 Miss. 513; Smith v. State, 13 Smedes & M. (Miss.) 140; Enos t. Smith. 7
Smedes & M. (Miss.) 85; Flint River Steamboat Co. v. Roberts, 2 Fla. 102. 48
Am. Dec. 178; Madden v. Fielding, 19 La. Ann. 505; Wilson v. Johnson. 30
Tex. 490; Capehart v. Cunningham, 12 W. Va. 750; Hawley v. Heyman. 2S
La. Ann. 347; Roberts v. Stowers, 7 Bush (Ky.) 295; North v. Moore, 8 Kan.
143; Ex parte Woods, 3 Ark. 532; Anderson v. Miller, 4 Blackf. (Ind.) 417:
Smith V. Myers, 5 Blackf. (Ind.) 223; Wort v. Finley, 8 Blackf. (Ind.) SSo:
Anderson v. Hawhe, 115 111. 33, 3 N. E. 566; Anderson v. Brown, 9 Mo. 6W>:
Tyler v. Peatt, 30 Mich. 63. But It Is not essential to the validity of a decree
(330)
Ch. 12) VALIDITT, AS DEPENDENT UPON JDAXOSICTION. § 221
any court, in a suit requiring ordinary adversary proceedings, that
appears upon its face or may be shown by evidence (in a case where
it may be shown) to have been rendered without jurisdiction having
been acquired, by notice, of the person of the defendant, or without
jurisdiction of the subject-matter, is void, and may be treated as being
so when it comes in question collaterally.'* •■ Nor is this rule con-
fined to judgments at law. A decree in chancery against a defend-
ant who was never served with process and did not appear, is void
and may be set aside although not appealed from.** And if the court
has not acquired jurisdiction of the person of the defendant, as in the
case that no sufficient process has been served upon him, no judg-
ment, even of abatement, can be rendered against the plaintiff ; for
the defendant must become a party before the court before he can
have a judgment."*
I 221. Statutes dispenslns with Oltation.
It may be made a question whether the legislature of a state can
entirely dispense with notice or citation to the defendant in an action.
That thi* would be withm its competence, is strongly intimated in an
early decision of the supreme court of Georgia. "It is contended,"
said Lumpkin, J., "that the defendant must have notice, actual or
constructive, otherwise no valid judgment could be rendered against
him. We are not inclined to controvert this general rule. On the
contrary we believe it to be well established by the authorities.
There are several suggestions to make, however, as regards this
principle. First, that it only obtains in the absence of positive law.
The legislature may unquestionably authorize a judgment to be ren-
or Judgment that it should be served upon any party to the cause after it is
iiled. Western Security Co. v. Lafleur, 17 Wash. 406, 49 Pac. 1061.
ss Homer v. State Bank, 1 Ind. 130, 48 Am. Dec. 355, citing Bliss v. Wilson,
4 Blackf. (Ind.) I(i9; Smith v. Myers. 5 Blackf. (Ind.) 223; Wort v. Finley, 8
Blackf. and.) 335; Bloom v. Burdick, 1 Hill (N. Y.) 130, 37 Am. Dec. 299;
Buchanan v. Rucker, 9 East, 192; Shaefer v. Gates, 2 B. Mon. (Ky.) 453, 38
Am. Dec. 164; Shriver v. Lynn, 2 How. 43, 11 L. Ed. 172; Westerwelt v. Lew-
is. 2 McLean, 511. Fed. Cas. No. 17,446; Lincoln v. Tower, 2 McLean, 473,
Fed. Cas. No. 8,ai5; Hollingsworth v. Barbour, 4 Pet. 466, 7 L. Ed. 922; Camp-
bell V. Brown, 6 How. (Miss.) 106; Sheilton v. Tiffin, 0 How. 103, 12 L. Ed. 387.
»« Outhwite V. Porter. 13 Mich. 533.
•s King V. Poole, 36 Barb. (N. Y.) 242.
(331)
§ 222 LAW OF JUDQMBNT8. (Ch. 12
dered against a party without notice. If the expression used in the
statute will admit of a doubt, it will not then be presumed that a con-
struction dispensing with notice can be agreeable to the intention of
the legislature, the consequences of which are so unreasonable. But
where the signification is manifest, there is no power of dispensation
in the courts." •• It may be strongly doubted, however, whether this
is not ascribing an excessive power to the legislature. All our con-
stitutions guarantee the rights and property of the individual against
invasion except by "due process of law," which, according to an
eminent writer, means, "in each particular case, such an exertion of
the powers of government as the settled maxims of law permit and
sanction, and under such safeguards for the protection of individual
rights as those maxims prescribe for the class of cases to which the
one in question belongs." '^ We are unable to discover any possi-
bility of bringing a judgment, rendered without any species of notice
to the defendant, within the terms of this definition. The question
is different in regard to the constructive service of process. For
this, as will appear hereafter, can in general only be used in a pro-
ceeding in rem, or one analogous to a proceeding in rem, and is not
usually recognized as giving jurisdiction for a personal judgment,
against the defendant, but only for an adjudication upon the res or
status involved or for a decree which avails only against the property
attached or found within the territorial jurisdiction.
§ 222. Statutes resnlAtins Mode of Cttatioii.
"It is competent for each state to prescribe the mode of bringing
parties before its courts. Although its regulations in this respect
can have no extra-territorial operation, they are, nevertheless, bind-
ing on its own citizens. For in respect to its own resident citizens,
it is undoubtedly competent for the legislature to prescribe such
modes of judicial proceeding as it may deem proper, to direct the
manner of serving process, the notice which shall be g^ven to de-
fendants, and to declare the effect of a judgment rendered in pur-
«« Flint River Steamboat Co. v, Foster, 5 Ga. 202, 48 Am. Dec. 24&
87 Cooley, Oonst. Lim. 356. And see Stuart v. Palmer, 74 X. Y. 190, 30 Am.
Rep. 289; Ex parte Wall, 107 U. S. 2C5, 2 Sup. Ct. 560. 27 L. Ed. 552; Hagar
V. Reclamation Dlst No. 108, 111 U. S. 707, 4 Sup. Ct 663, 28 L. Ed, 568.
(332)
Ch. 12) VALIDITY. AS DEPENDENT UPON JURISDICTION. § 22.*^
suance of such notice." •" Hence a judgment rendered in accordance
with the requirements of the statute, though without actual notice to
the defendant of the pendency of the suit, but upon such citation as
the law authorizes (e. g., leaving a copy of the summons at his last
usual place of abode, though he is then out 6f the state), is conclusive
upon the parties until set aside by some direct proceeding for that
purpose.'* But statutes allowing other than personal service of pro-
cess must be strictly complied with to give the court jurisdiction, and
it is held that this compliance must appear affirmatively in the pro-
ceedings.**
S 223. Defeets in the Prooeis.
If the defendant is to be notified of the pendency of an action
against him, it is obvious that the notice must be in itself sufficient
to bring him properly before the court. Jurisdiction is dependent
on the form and nature of the process to the extent that it can only
arise from a proper service of a notice substantially sufficient to
apprise the party of everything which he is then entitled to know.
If this requirement is met, although there may be a defect in the no-
tice such as to render the subsequent judgment irregular, there will
not be such a want of jurisdiction as to make it void. Mere cog-
nizance of the existence of the action is not a notice in the legal
sense, upon which a valid judgment can be rendered. To be avail-
able, the notice must inform the party whose rights are to be aflPected
of what is required of him and the consequences which may follow
if he neglects to defend the action.*^ Hence a judgment rendered
upon service of a notice which does not state the time or place at
which the defendant is required to appear and defend, is void.** But
where it appears that there was notice, though defective, and serv-
ice, though imperfect, a decision of the court to which the process
*»ThoTivenin v. Rodrlgues, 24 Tex. 4()8.
»» HurJbut V. Thomas. 55 Ccnn. 181, 10 Atl. 556, 3 Am. St. Rep. 43.
loZecharie v. Bowera. 1 Smedes & M. (Miss.) 5M, 40 Am. Dec. 111. A
Judgment rendered against lands for delinquent taxes, without the statutory
notk-e. Is invalid. Fortraan v. Ruggles, 58 111. 207.
" I'eabody v. Phelps, » Cal. 213.
*» Kltsmiller r. Kitchen, 24 Iowa, 163. Acceptance of service Is no waiver
of defects in a summons which gave no notice of any time of appearance.
Kalkner v. GuUd, 10 Wis. 563.
(333)
§ 224 LAW OF JUDGMENTS. (Ch. 12
was returnable that such notice and service were sufficient, will not
be held void in a collateral proceeding.** Thus if a judgment is ob-
tained on unsealed process, and is afterwards revived without objec-
tion, the want of the seal does not impair the validity of the judg-
ment.** So where the ftScer's return upon mesne process is not
signed.** And a judgment is not invalidated by the fact of an un-
necessary indorsement of the amount upon the summons.*' Again,
a judgment in an action in which the required number of days' notice
was not given to the defendant is erroneous, but not void, and can-
not be questioned in a collateral proceeding.*^ So a long summons
issued by a justice's court against a non-resident of the county is
not a nullity, though the statute declares that in such case the justice
shall have no jurisdiction ; the defendant waives the irregularity, and
gives jurisdiction as to his person, if he appears and pleads to the
complaint without objection to the process.**
§ 224. Defeota in the Service*
Although the service of process in an action may have been char-
acterized by some defect or irregularity, it does not necessarily fol-
low that the ensuing judgment will be void. For if the party would
take advantage of such a matter, he must do so in the action itself by
some proper motion or proceeding. It is only when the attempted
service is so irregular as to amount to no service at all, that there
can be said to be a want of jurisdiction. In any other case, there
may be error in the subsequent proceedings, but they will be sus-
tained against a collateral attack.** But a judgment recovered by
•
*8 iSbawban v. Loffer, 24 Iowa, 217.
** Helghway v. Pendleton, 15 Obio, 735.
*5 McElrath V. Butler, 29 X. C. 2118.
46 Larimer v. Clemmer, 31 Ohio St. 4in).
*7 Ballinger v. Tarbell, lt> Iowa. 491, 85 Am. Dec. 527. See Glover T.
Holman, 3 Helsk. (Tenn.) 519; West v. Williamson, 1 Swan (Teoa) 277.
Compare Johnson v. Baker, 38 111. 98, 87 Am. Dec. 293.
48 ciapp V. Graves, 26 N. Y. 418.
4»CampbeU v. Hays, 41 Miss. 561; Christian v. O'Neal, 46 Miss. 669:
Stewart v. Bodley, 46 Kan. 397, 26 Pac. 719, 26 Am. St Rep. 105; W. W.
KimbaU Co. v. Brown, 73 Minn. 167. 75 N. W. 1043; Ford v. Delta & Pine
Land Co. (C. C.) 43 Fed. 181. Where the writ Is directed to an officer of
another county than that where the action is brought, in vlolatton at &
(334)
Ch. 12) VALIDITY. AS DEPENDENT UPON JURISDICTION. § 225
default, upon service of the summons by delivery of a copy to a third
person who is not a resident at the "house of defendant's usual
abode," is void for want of jurisdiction.^® And so a citation ad-
dressed to and served upon a stranger, although he is the author-
ized agent of the defendant, is not binding upon the latter and will
not authorize a judgment against him.'^ So a judgment by default
is void, when the service had upon the defendant consisted only ot
the handing to him by plaintiff's attorney of a copy of the declaration
on the day before the original declaration was filed.'* And the same
consequences were held to result in a case where the return to the
summons was made in the name of a deputy-sheriff instead of in the
name of the sheriff himself.*** And it is said that where the sheriff
who serves the writ is himself the plaintiff, the judgment in the suit
so begun is a nullity, and the defendant may restrain it by injunc-
tion."
§ 225. Appearance as a Waiver of Citation*
A defendant who voluntarily enters a general appearance in an ac-
tion thereby cures a want of citation, or waives any objections which
he may have to defects or irregularities in the notice, process, or
service, so that the court acquires full jurisdiction over his person.*^
statute, the judgment, though erroneous, Is not void. Brown v. Chapman.
W Va. 174, 17 SS. E. 855. "A distinction Is to be made between a case
where there is no service whatever, and one which is simply defective or
Irregular. In the lirst case, the court acquires no Jurisdiction and its Judg-
ment 18 void; in the other case, if the court to which the process is re-
tiunable adjudges the service to be sufficient, and renders Judgment thereon,
such Judgment Is not void, but only subject to be set aside by the court
which gave it, upon seasonable and proper application, or reversed upon
tppfeaL" Isaacs v. Price, 2 Dill. 351, Fed. Cas. No. 7,097. See Cole v. But-
ler, 43 Me. 401; Hcndrick v. Whittemore, 105 Mass. 23.
»• Heffner v. Gunz, 29 Minn. 108, 12 N. W. 342.
»i Waddill V. Payne, 23 La. Ann. 773. In an action against a firm, the error
of rendering Judgment against the members, upon mere service at their place
of business, Is not waived by a motion for a new trial made in the firm
name, but subsequently withdrawn. Marienthal v. Amburgh, 2 Disney (Ohio)
58B.
•2 South Bend Chilled Plow Co. v. Manahan, 62 Mich. 143, 28 N. W. 768.
•• Rowley v. Howard, 23 Cal. 401.
•* Knott V. Jarboe, 1 Mete. (Ky.) 50i.
ii Shields V. Thomas, 18 How. 253, 15 L. Ed« 368; Toland v. Sprague, 12
(335)
§ 225 LAW OF JUDGMENTS. (Ch. 12
"While it is true that a judgment without personal service has no
extra-territorial force, it is equally true that an appearance, either
in person or by attorney, has the same force and effect as personal
service, and a judgment rendered against a party who appears by at-
torney would have the same validity in any state of the Union as
where it was rendered." "• And it is held that a defendant who vol-
untarily appears and answers, although the answer in terms reserves
the right to object to the jurisdiction of the court, is precluded thereby
from objecting that the court has not acquired jurisdiction of his per-
son ; for a voluntary appearance is equivalent to personal service of
the summons.®^ But it is necessary that he should actually enter an
appearance to the action or do some act equivalent thereto. A re-
cital in the record, by the clerk, at the time of rendering judgment,
that the defendant had appeared at a previous term, is not sufficient
evidence of an appearance to warrant a judgment as by default.**
And a general entry that the parties appeared means only that those
who were served appeared. •• It is also to be remarked that, in or-
der to have this effect, the appearance must be general. In the nature
of things, a special appearance, entered for the sole purpose of taking
advantage of defects or irregularities in the process or service, can-
not be construed as a waiver of those objections. •• So an appear-
ance by motion to set aside a default, entered against several defend-
ants served, is not such an appearance as will cure a want of service
Pet. 300, 9 L. Ed. 1093; Segee v. Thomas, 3 Blatchf. 11, Fed. Ca». No. 12.633;
Payne v. l^^rmere' & Citizens' Bank, 29 Conn. 415; Christal v. KeUy, 88 X.
y. 285; Fox v. Reed, 3 Grant, Cas. (Pa.) 81; Reynolds v. Lyon, 20 Ga. 225;
Tipton V. Wright, 7 Bush (Ky.) 448; Mineral Point R. Co. v. Keep, 22 fll
9, 74 Am. Dec. 124; Miles v. Goodwin, 35 111. 53; Baker v. Kerr, 13 lowt,
384; Jenners v. Spraker, 2 Ind. App. 100, 27 X. E. 117; Adams Exp. Co. v.
Hill, 43 lud. 157; Louisville, N. A. & C. Ry. Co. r. Nicholson, 00 Ind. 158;
Fulbright v. Cannefox, 30 Mo. 425; Suydam v. Pitcher, 4 CaL 280; Harris
V. Gwin, 18 Miss. 503; Choteau v. Rice, 1 Minn. 192 (Gil. 166); Anderson t.
Morris, 12 Wis. (>89; Lane v. Leech, 44 Mich. 163, 6 N. W. 228.
66 Wilson V. Zeigler, 44 Tex. 657.
B7 Mahaney v. Penman, 4 Duer (N. Y.) 603.
88 Kimball v. Merrick, 20 Ark. 12.
B» Chester v. Miller, 13 Cal. 558. ^See Barker v. Shepard, 42 Miss. 277.
eo Ames v. >\insor. 19 Pick. (Tenn.) 207; Allen v. Lee, 6 Wis. 478; Camp-
bell V, Swasey, 12 Ind. 70; Nye v. Liscombe, 21 Pick. (Tenn.) 263; Standley
V. Arnow, 13 Fla. 361; Mlchels T. Stork, 44 Mich. 2, 5 N. W. 1034.
(336)
Ch. 12) VALIDITY, AS DEPENDENT UPON JURISDICTION. § 226
upon Others, and it is error to render a final judgment pending such
a motion.'* But where a defendant, after appearing specially and
obtaining an order setting aside the service of an original process,
submits the cause for decision on a demurrer to the bill, such sub-
mission constitutes a voluntary appearance and gives the court juris-
diction of the person.'* The defendant may also appear by his au-
thorized attorney, and this is equally efficacious, in waiving irreg-
ularities and conferring jurisdiction, as an appearance in person.
Questions may sometimes arise as to the right of an attorney to ap-
pear for the defendant, but usually such an appearance will be pre-
sumed to have been entered with authority.** And the record show-
ing that complainants appeared by attorneys, it will be presumed that
the attorneys had authority to appear for all the complainants.'*
There are also cases holding that a judgment recovered against a
defendant who was not served with process and had no knowledge
of the suit, but for whom an attorney appeared without authority,
cannot be attacked for want of jurisdiction in any collateral proceed-
ing and is binding upon the defendant.** We shall consider this
point in a later section, in connection with the rule against the col-
lateral impeachment of judgments.** But however it may be in regard
to domestic judgments, it is very well settled that when the record
comes from another state, a recital in it that the defendant appeared
by attorney is conclusive of the fact of such appearance, but not that
the attorney was authorized to appear, and the latter allegation may
be controverted by the defendant.*^ It is scarcely necessary to add
that if the court has not jurisdiction of the subject-matter, that ob-
•1 Klemm ▼. Dewes, 28 lU. 317.
«s Lente v. Clarke, 22 Fla. 515, 1 Sontb. 149. And where a defendant, after
the entry of a decree against him In a contested action, flies a bill of review,
alleging want of jurisdiction over him personally, he thereby submits to the
ooart the question of the binding force of the decree, and its decision thereon
li conclnaive. Lawrence v. Nelson, 143 U. S. 215, 12 Sup. Ct 440, 36 L. Ed.
130.
•B ^fartln t. Judd, 00 lU. 78; LesUe y. Fischer, 62 lU. 118.
•* Potter V. Farsons, 14 Iowa, 28«.
•i Brown y. Nichols, 42 X. Y. 26; England y. Garner, 90 N. C. 197.
••Infra, i 272.
•1 Infra, toI. 2, « 903.
1 LAW J UDG.-22 (337)
§ 227 LAW OP JXTDOMENTa. (Ch. 12
jection is not waived by appearing to the action. For here the rule
applies that "consent cannot confer jurisdiction."
S 226. Defendant's Bli^t to be heard.
It has been declared by the supreme court of the United States
that "a sentence of a court pronounced against a party without hear-
m
ing him or giving him an opportunity to be heard, is not a judicial
determination of his rights, and is not entitled to respect in any other
tribunal." In the case at bar, the trial court had caused the appear-
ance of the defendant to be stricken out, but had nevertheless pro-
ceeded with the case arid passed a judgment affecting his rights.
This, in the opinion of a majority of the court, was equivalent to deny-
ing him the benefit of the citation. For jurisdiction, it was said,
was the right to hear and determine, not to determine without hear-
ing. And where, as in that case, no appearance was allowed, there
could be no hearing or opportunity of being heard, and therefore
there could be no exercise of jurisdiction. By the action of the court
the defendant was excluded from its jurisdiction.*" And this doc-
trine derives some support from the cases holding that opportunity
to be heard is absolutely essential to the guarantee of "due process
of law." *• Nevertheless, for the reasons stated in the beginning of
this chapter, in defining jurisdiction, we are not convinced that irreg-
ularities in the action of the court, even so gross as those mentioned,
can properly be said to deprive it of all jurisdiction and make its de-
cision a mere nullity.
§ 227. JvdKnients agalnat Non-Residents.
It IS a principle of law, too well settled to require the citation of
authorities in its support, that the sovereignty of a state or country,
for judicial as well as other purposes, extends only to its own citi-
zens, or resident aliens, or persons temporarily within its borders,
and to property within its territory, but not to absent non-residents.
In many of our states, however, there are statutes authorizing the
68 Windsor v. McVeigh, 93 U. S. 274, 23 Lu Ed. 914; Hovey v. fiaUott, 169
U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215.
69 Stiiart V. Palmer, 74 N. Y. 190, 30 Am. Bep. 280.
(338)
Ch. 12) VALIDITY. AS DEPENDENT UPON JURISDICTION. S 227
•
commencement of certain classes of actions by a merely constructive
service of process, and these acts apply almost exclusively to pro-
ceedings against non-residents. The validity of judgments rendered
under them has been much in question before the courts, and prin-
cipally in cases where a judgment so given in one state has been
sought to be enforced in another. This aspect of the subject will be
fully considered in the chapter on judgments of a sister state, to
which the reader is referred. But there are certain divisions of the
topic which must be treated in this connection. And first, a distinc-
tion must be carefully noted between the jurisdiction over the state's
own citizens and that over aliens. Every sovereignty has plenary
control over its own subjects, and it may authorize a judgment to be
rendered against one of its citizens, upon a constructive notice only,
and although he is temporarily absent from its dominions, and such
a judgment must be everywhere recognized as valid and of binding
force and effect.^* This much being premised, the contrary rule may
be stated, viz. : that a personal judgment (as distinguished from an
adjudication upon status or an adjudication which is substantially in
rem) rendered against a non-resident upon a species of constructive
service only, in an action to which he did not appear, is limited in
its effects to the state or country where rendered, and elsewhere is a
mere nullity J* For example, while tax assessments may be enforced
f « Board v. Beard, 21 Ind. 321; Douglas v. Forrest, 4 Bing. 686; Becquet
T. McCarthy, 2 Bam. & Adol. U51; McRae v. Mattoon, 13 Pick. (Mass.) 53;
Henderson v. Staniford, 105 Mass. 504, 7 Am. Rep. 551; Orcutt v. Ranney,
10 CTOh. (Mass.) 183; Welch v. Sykes, 3 Gilman (lU.) 197, 44 Am. Dec. 689;
Price V. HJckok, 39 Vt. 292; Spencer v. Brockway, 1 Ohio, 259, 13 Am. Dec.
«irj; Rangely v. Webster, 11 X. H. 299; Hinton v. Townes, 1 Hill (S. C.)
439; Hunt V. Lyle, 8 Vcrg. (Term.) 142; Gilman v. Lewis, 24 N. J. Law, 246,
note.
Ti Schibsbr v. Westenholz, L. R. 6 Q. B. 155; Buchanan v. Rucker, 0 East,
192; I'ennojer v. Xeff, 95 U. S. 714, 24 L. Ed. 565; Blschoff v. Weathered,
9 WaU. 812, 19 L. Ed. 829; Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931;
llioDipson V. Whitman. 18 Wall. 457, 21 L. Ed. 897; Knowles v. Logansport
CJagilght & Coke Co.. 19 Wall. 58, 22 L. Ed. 70; D'Arcy v. Ketehum, 11 How.
165, 13 L. Ed. VAH; l»helj)8 v. Brewer, 9 Cush. (Mass.) 390, 57 Am. Dec. 56;
Xewcomb v. I'eck, 17 Vt. 302, 44 Am. Dec. 340; Carleton v. Blckford, 13
Gray (Mass.) 5ta, 74 Am. Dec. 652; Hoffman v. Hoffman, 46 N. Y. 30, 7 Am.
Rep. 299; Zepp v. Hager, 70 111. 223; Aldrich v. Kinney, 4 Conn. 380, 10 Am.
Uec. 151; Beber v. Wright, 68 Pa. 471; Pagett v. Curtis, 15 La. Ann. 461;
(339)
§ 227 LAW OF JUDGMENTS. (Oh. 12
against the property liable, without regard to the residence of the
owner, yet a statute attempting to make a nonresident property
owner personally liable for assessments for local improvements is an
attempt to take property without due process of law, and a personal
judgment against such owner would be void.^^ Again, in a suit to
foreclose a mortgage or vendor's lien, where the defendant is a non-
resident and is cited by pubHcation only and does not enter an appear-
ance, the court has no jurisdiction to render a personal judgment
against him.''* And where, in an action for the specific performance
of a contract for the conveyance of lands, defendant is served only
by publication, the plaintiff cannot recover damages for breach of the
contract.''* Nor can a personal judgment for costs be rendered in
an action for partition, as against non-residents who were not served
with process, except constructively, and who did not voluntarily ap-
pear.''*
But if a non-resident defendant, being within the state, is there per-
sonally served with process,^* or if he appears in the action by a duly
authorized attorney,^ ^ in either case the court has jurisdiction over
him and the subsequent judgment is universally to be regarded as
valid. And error in rendering a personal judgment on default against
a defendant who is a non-resident, and had notice only by publica-
Park v. Park, 24 Misc. Rep. 372, 53 N. Y. Supp. 677; Belcher v. Sheehan. 171
Mass. 513, 51 N. E. 19; LoulsvUle & N. R. Co. v. Nash, 118 Ala. 477, 23
South. 825, 41 L. R. A. 331, 72 Am. St. Rep. 181; Bradley v. Burnett (Tex.
Civ. App.) 40 S. W. 170; Fowler v. Brown. 51 Neb. 414, 71 X. W, 54.
T2 Dewey v. City of Des MoiDes, 173 U. S. 193, 19 Sup. Ct 379. 43 L. Ed.
(K>5.
73 Ward V. Green (Tex. Civ. App.) 28 S. W. 574; Spence v, Morris (Tex, Civ.
App.) 28 S. W. 405.
74 Tempel v. Dodge, 11 Tex. Civ. App. 42, 31 S. W. 686. See Hardy t.
Beaty, 84 Tex. 502, lt> S. W. 778, 31 Am. St. Rep. 80.
T5 Freeman v. Preston (Tex. Civ. App.) 29 S. W. 495.
7« Mowry v. Chase, 100 Mass. 79; Downer v. Shaw, 22 N. H. 277; Murphy
▼. Winter, 18 Ga. 090.
77 Holt V. AHoway, 2 Blackf. (Ind.) 108; Walker v. Lathrop, 6 Iowa, 516;
Davis V. Davis. 9G Ga. 136. 21 S. B. 1002. A court has jurisdiction to render
a valid judgment against a corporation of a foreign state, whenever the cor-
poration appears generally by attorney, or when legal service has been made
upon it according to the laws of the state where the court sits. Mardi v.
Eastern R. Co., 40 N. H. 548, 77 Am. Dec 732,
(3^0)
Ch. 12) VALIDITY. AS DEPENDENT UPON JURISDICTION. § 228
tion, IS not available on behalf of a co-defendant who appeared.^' In
some of the states there are also statutory provisions that an action
can be commenced and judgment rendered only in the county in
which the defendant resides. And it has been held that this requisite
is so jurisdictional in its character that a judgment rendered in an-
other county is void and incapable of ratification."'* But the better
view appears to be that the defendant may waive this objection.'**
§ 228. ZhEtra-Terrltorial Serrioe of Process.
It is a recognized rule of international law that "no sovereignty
can extend its process beyond its own territorial limits to subject
either persons or property to its judicial decisions. Every exertion
of authority of this sort beyond this limit is a mere nullity, and inca-
pable of binding such persons or property in any other tribunals." '^
And this principle is fully adopted by the American cases. "Process
from the tribunals of one state cannot run into another state and
summon parties there domiciled to leave its territory and respond to
proceedings against them. Publication of process or notice within
the state where the tribunal sits cannot create any greater obliga-
tion upon the non-resident to appear. Process sent to him out of
the state, and process published within it, are equally unavailing in
proceedings to establish his personal liability." •* Therefore if a
summons is sent by mail to a non-resident defendant and comes to
his hands, or is served upon him at his own domicile by an officer of
the law, although it does actually apprise him of the suit against him,
yet it has no greater or other effect than a purely constructive or
fictitious service. It fails for lack of authority in the sovereignty
whence it emanated. It does not bind him to appear, and no judg-
ment can be rendered on it which will be recognized as valid beyond
the limits of the state which rendered it.'* In some of the states,
»• Pattlfion y. Smith. 03 Ind. 447.
^» Rk-banlson v. Hunter, 23 La. Ann. 255; Georgia Railroad & Banking Co.
T. Harris. 5 <;«. ri27.
•• Leach v. Kohn, 36 Iowa. 144.
•1 Story. Ooiifl. I.aw«. i 539.
•» Pennoyer t. Xeff. 05 U. S. 714, 727, 24 L. Ed. 565.
»» Wnson V. (Iraham. 4 Wash. C. C. 53. Fed. Cas. No. 17.804; Hall v. WIl-
Uams, 6 Pick. (Mass.) 232, 17 Am. Dec. 356; Folger y. Columbian Ins. Co.. 09
(341)
§ 229 LAW OF JUDGMENTS. (Ch. 12
however, an attempt is made to discriminate between the two species
of service, and to attach a slightly higher value to actual service,
though extra-territorial, than to service by published advertisement,
probably in view of the fact that, by the former method, it is certain
that the defendant will at least be informed of the proceedings against
him. Thus in Iowa, under a statute providing that "when a judg-
ment has been rendered against a defendant or defendants, served
by publication only, and who do not appear," such defendant may
appear within two years and move the court for a retrial, it is held
that this provision does not apply to the case of a defendant who
was personally served outside the state and did not appear in the
action.**
fi 220. JurUdiotlon by AttaohmeBt of Non-Resident's Property.
Although a person may not reside in a particular state, it fre-
quently happens that he may have property there, either real or per-
sonal. And this, it is said, will give the courts of that state juris-
diction of actions against him. Accordingly, there are statutes in
most of the states providing for the institution of suits against non-
residents by the attac' *-^ent of their property within the territory.
But it must be carefu. ^ noted that the jurisdiction is in realty over
the property, not the person. The existence of property within a
state gives its courts power and authority to adjudicate upon that
Mass. 267, 96 Am. Dec. 747; Price v. Hlckok, 39 Vt 292: Steel v. Smith, 7
Watts & S. (Pa.) 447; Holmes v. Holmes, 4 Lans. (N. Y.) 388; Drnn v. Dunn.
4 Paige (N. Y.) 425; Lutz v. Kelly, 47 Iowa. 307; Irby v. Wilson, 18 N. C. 5*W:
Weil V. Lowenthal, 10 Iowa, 575; .a^tna Life Ins. Co. v. Lyon Coimty (G C)
95 Fed. 325; In re James* Estate, 78 Hun, 121, 28 N. Y. Supp. 992; Hinton
V. Penn Mut Life Ins. Co., 120 N. C. 18, 35 S. E. 182, 78 Am. St. Rep. tS3«;
Perry v. Bassett, 16 Tex. Civ. App. 288. 41 S. W. 523; Higgins v. Beokwitli.
102 Mo. 456, 14 S. W. 981. The rule applies also as between one of tlie United
States and any foreign country. The Judgment of a Canadian or any foreign
court, upon service of its process made in Michigan, is not binding on a de-
fendant who refused to recognize its jurisdiction, and it will not support an
action in the courts of Michigan. McEwan v. ZImmer, 38 Mich. 765, 31 Am.
Rep. 332. But Jurisdiction over one outside the territorial jurisdiction of the
court is conferred by his acceptance of "due personal service" of the writ
Jones V. Merrill, 113 Mich. 433, 71 N. W. 838. 67 Am. SL Rep. 475.
8* McBride v. Ham, 52 Iowa. 79, 2 N. W. 962.
(342)
Ch. 12) VALIDITY. AS DEPENDENT UPON JURISDICTION. § 229
property and to cause it to be applied in satisfaction of the debts of
its owner, whoever and wherever he may be. But if they assume to
investigate the owner's duties and determine his obHgations, their
authority to do so is merely incidental to their jurisdiction over his
property, and because such an inquiry is a necessary preliminary to
a right disposition of the property, but not because they have any
control over his person. Consequently, "when the person is not
within the jurisdiction of the court, and his property is within its
jurisdiction, a judgment against him will be effectual only as a judg-
ment in rem acting upon that property." *• Hence, also, if the de-
fendant was beyond the jurisdiction and was only constructively noti-
fied of the action, though his property was attached within the state,
there is no warrant for_a-PC£sonal judgment agfainst himj. and if the
judgment is expressed in general language, it cannot be considered
or treated as a judgment in personam, but only as a judgment in
rem.** Further, a judgment founded upon this species of jurisdic-
tion will have no force or eflfect, beyond the state where it was ren-
dered, further than to bind the property attached and disposed of.'^
For the further elucidation of this subject we quote the following
from an opinion of the supreme court of Minnesota. "Such a judg-
ment, though in form a judgment in personam, is in eflfect only a
judgment in rem. It is a judgment for no other purpose than to
•» Lorejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630; Molyneux v. Seymour,
30 Ga. 440, 76 Am. Dec. 662; Du Pont v. Abel (C. C.) 81 Fed. 634; McAUister
T. Gnicj^enhelmer, 91 Va. 317, 21 S. E. 475; Exchange Nat. Bank y. Olement,
109 Ala. 270, 19 8outh. 814.
•• Johnson ▼. Dodge, 19 Iowa, 106; Payne v. Witherspoon, 14 B. Mon. (Ky.)
270; Mickey v. Stratton, 5 Sawy. 475, Fed. Cas. No. 9,530; Packard v. >Iat-
thewe, 9 Gray (Mass.) 311. See Brown y. Tucker, 7 Colo. 30, 1 Pac. 221. The
fact that the court rendered a personal, and therefore yold, judgment against
a non-resident defendant not seryed, will not yitlate so much of the Judgment
as Unds the amount due to the plaintiff and orders the sale of attached prop-
erty. Barelli v. Wogner, 5 Tex. Ciy. App. 445, 27 S. W. 17.
»T Phelps r. Holker, 1 Dall. (Pa.) 261, 1 L. Ed. 128; Galpin v. Poge, 18 Wall.
35a 21 L. Ed. 959; Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931; Pen-
Doyer v. Neff. 95 IJ. S. 725, 24 L. Ed. 505; Pawling v. Willson, 13 Johns. (N. Y.)
192; McDermott t. Clary, 107 Mass. 501; Amdt v. Amdt, 15 Ohio, 33; Wood-
ruff T. Taylor, 20 Vt 65; McVlcker v. Beedy, 31 Me. 314, 1 Am. Rep. 606;
WiUlams t. Preston, 3 J. J. Marsh. (Ky.) 600, 20 Am. Dec. 179; Story, Confl.
Laws, i 549. See infra, yol. 2, § 904.
(343)
§ 229 LAW OF JUDGMENTS. (Ch. 12
reach the property which a non-resident may have in the state, but
who is not personally served with process therein. It is confined
exclusively to such property, and is of no further force when that is
exhausted. Beyond this it is evidence of nothing ; nor does it bind
or conclude the defendant in anything. An action could not be
maintained on it in any other court here or elsewhere ; nor, in my
opinion, would the party in whose favor it was rendered be pre-
cluded thereby from still bringing another action on the original con-
sideration, for any balance that might be due to him after exhausting
the property which was in the state at the time jurisdiction attached.
To hold that a judgment thus rendered has any vitality after ex-
hausting the only thing over which the court rendering it had juris-
diction, is violative of a principle inherent in all free governments and
which constitutes an inflexible rule at common law, viz., that no one
can be condemned unheard." ** Very important consequences fol-
low from considering a judgment of this character as one in rem
only. Thus it cannot be rfiade the basis of an action of debt.**
Nor can proceedings be taken against the defendant to compel him
to submit to an examination concerning his property; nor can the
plaintiff have a warrant for his arrest, as prescribed by the code, on
account of his refusal to apply property in satisfaction of such judg-
ment.®® So again, the power of a court to render a personal judg-
ment against the mortgagor for a deficiency, in an action for the
foreclosure of the mortgage, does not extend to a case where the
mortgagor is a non-resident and has neither appeared in the action
nor been served with process within the state. The remedy of the
plaintiff in such case is Hmited to the foreclosure and sale of the
equity of redemption in the mortgaged premises.** In a case^
88 stone V. Myers, 9 Minn. 303 (Gil. 287), 86 Am. Dec. 104.
80 Easterly v. Goodwin, 35 Conn. 273. Where a Judgment Is rendered In
rem, and the property attached is exhausted, service of a summons to renew
the execution, and an order of court granting a renewal, do not make the
Judgment one in personam. Stanley v. Stanley, 35 S. O. M, 14 S. E. 675.
90 Bartlett v. McNeil, GO N. Y. 53.
91 Schwlnger v. Hlckok, 53 N. Y. 280; Heady y. Bexar Bldg. & Loan Ass'n
(Tex. Civ. App.) 26 S. W. 468; Ward v. Green (Tex. dv. App.) 28 8. W. 574.
Where a plaintiff in possession of land obtained a Judgment against a defend-
ant a non-resident of the state, upon service by publicaticm only, and without
bis appearance in court, and after\vai*ds the defendant in such action brougbt
(344)
Ch. 12) VALIDITY, AS DEPENDENT UPON JURISDICTION. § 230
where, after attachment of property and publication of a citation,
the plaintiff filed an amended petition, setting up an entirely new
cause of action, on which judgment by default was rendered without
any further citation being published or service had, it was held that
the court acquired no jurisdiction and the judgment was entirely
void.** But after an appearance and plea by the defendant in a
suit commenced by attachment, in which there has been only con-
structive service by publication, the suit becomes one in personam,
and a personal judgment may properly be rendered against him.**
So where the non-resident defendant acknowledges service of the
writ and waives the benefit of the statutes respecting absent defend-
ants.**
f 230. Wliat Propiertjr bound*
There are numerous intimations in the books (though perhaps no
direct decision) to the effect that a judgment against a non-resident,
founded upon constructive service and attachment of property, will
be valid and enforceable, not only against the property actually
seized, but also against any other property of his within the state.
In other words, that any property of the defendant found within the
territorial jurisdiction may be subjected to execution under the
judgment, although it is not a personal obligation against him. And
a case in New York holds that such a judgment is effectual against
any property within the jurisdiction during the pendency of the ac-
tion and which was or might have been seized under attachment
therein.** That these views are entirely untenable will be at once
apparent if we consider the real nature of such a proceeding. It
Bootber action, as plaintiff, against the former plaintiff, as defendant, in the
coutg of another state, held, that in the trial of such subsequent action, the
judgment in the first action was conclusive of the rights of said parties to the
land in dispute. Venable v. Dutch, 37 Kan. 515, 15 Pac. 520, 1 Am. St Uep.
260.
»« Stewart v. Anderson, 70 Tex. 588, 8 S. W. 295.
•» Kerr v. Swallow, 33 111. 379; Darrah v. Watson, 36 Iowa, 116.
*« Rlchardiion v. Smith, 11 Allen (Mass.) 134.
»» Fiske V. Anderson, 33 Barb. (N. Y.) 71. And in Vermont it is held that a
Judgment against a non-resident defendant, rendered without notice, will not
•'♦» adjudged invalid as a matter of law, because the property returned as at-
tached was of merely nominal value. Stevens v. Fisher, 30 Vt 200.
(345)
§ 231 LAW OF JUDGMENTS ((%. l2
was shown in the preceding section to be substantially a proceeding
in rem. But in a proceeding in rem jurisdiction is acquired only by
seizure of the res, and the judgment is enforceable only against the
res. It is therefore contrary to fundamental principles to attempt
to extend its operation against property which was not seized, al-
though, being within the territorial limits of the state, it might have
been attached. And many well considered cases are explicit in de-
claring that such a judgment has no other force or validity whatever
than to justify the disposition made of the property which was actu-
ally attached upon mesne process in the action.**
i 231. Serrioe hj PnbUoatioa witkont Attm«]uii6Bt.
Some of the decisions hold that constructive service by publica-
tion, without attachment of property, will give the court such juris-
diction over a non-resident that its judgment, though not enforce-
able beyond the state, may be satisfied out of any property of the
defendant found within the borders of the state ; '^ or any property
which was within the state at the time the order for publication was
made, and which is not removed or sold to a bona fide purchaser be-
fore the judgment."* But this position was successfully contro-
verted in the important and leading case of Pennoyer v. NeflF,** and
the rule established that such a judgment (except in an action for
divorce, which is governed by special rules, to be considered here-
after ^^^) is simply and entirely void for all purposes'. The correct
view is so clearly and ably stated in this decision that we quote at
some length from the opinion. "The want of authority," said Field,
»« Pennoyep v. Neff, 95 U. S. 714, 24 L. Ed. 565; Graham v. Spencer (C. C.)
14 Fed. 608; Eastman v. Wadleigh, 65 Me. 251, 20 Am. Rep. 695; ColemaD*s
Appeal, 75 Pa. 441; Tabler v. MitcheH, 62 Miss. 437; Johnson T. Holley. 27
Mo. 594.
•7 Quarl V. Abbett, 102 Ind. 233, 1 N. E. 476, 52 Am. Rep. 662.
»8 Jarvis v. Barrett. 14 Wis. 591.
»» 95 U. S. 714, 24 L. Ed. 5C5.
100 infra^ vol. 2, §§ 924r-933. In an action for maintenance without dlTorce.
against a non-resident husband, who is served by publication and does not ap-
pear, a provision of the Judgment requiring him to give bond to comply with
a condition of the judgment as to alimony Is invalid. Murray v. Murray, 11^
Cul. 2(;n, 47 Vac, 37, 37 L. R. A. 020, oO Am. St Rep. 97.
(340)
Ch. 12) VAUDITY. AS DEPENDENT UPON JURISDICTION. § 231
J., "of the tribunals of a state to adjudicate upon the obligations of
non-residents, where they have no property within its limits, is not
denied by the court below ; but the position is assumed that, where
they have property within the state, it is immaterial whether the
property is in the first instance brought under the control of the
court by attachment or some other equivalent act, and afterwards
applied by its judgment to the satisfaction of demands against its
owner; or such demands be first established in a personal action,
and the property of the non-resident be afterwards seized and sold
on execution. But the answer to this position has already been
given in the statement that the jurisdiction of the court to inquire
into and determine his obligations at all is only incidental to its ju-
risdiction over the property. Its jurisdiction in that respect cannot
be made to depend upon facts to be ascertained after it has tried
the cause and rendered the judgment. If the judgment be previ-
ously void, it will not become valid by the subsequent discovery of
property of the defendant, or by his subsequent acquisition of it.
The judgment, if void when rendered, will always remain void; it
cannot occupy the doubtful position of being valid if property be
found and void if there be none. Even if the position assumed were
confined to cases where the non-resident defendant possessed prop-
erty in the state at the commencement of the action, it would still
make the validity of the proceedings and judgment depend upon the
question whether, before the levy of the execution, the defendant
had or had not disposed of the property. If before the levy the
property should be sold, then according to this position, the judg-
ment would not be binding. This doctrine would introduce a new
element of uncertainty in judicial proceedings. The contrary is the
law; the validity of every judgment depends upon the jurisdiction
of the court before it is rendered, not upon what will occur subse-
quently." ^0*
i«i Pennoyer v. Neff. 05 U. S. 714, 24 L. Ed. 565. And see Mltcheirs Adm'r
T. Gray. 18 Ind. 123; Smith v. McCutclien, 38 Mo. 415; Remer v. McKay (O.
C.) 54 Fed. 432; SouUiern Bldg. & Loan Ass'n v. Brackett (Tex. CM v. App.) 39
8. W, 610; Evans ▼. Breneinan (Tex. Civ. App.) 46 S. W. 80; McMahon v.
Tumey. 45 Mo. App. 103; Plummer v. Hatton, 51 Minn. 181, 53 N. W. 460;
WilUmette Ueal-Estate Co. y. Hendrix, 28 Or. 485, 42 Pae. 514, 52 Am. St
Rep.80a
(347)
§ 232 LAW OF JUDGMENTS. (Ch. 12
§ 8S2. Statutes antliorisiiis OonstmctiTe Service to be ttrietly
eonitrued*
All exceptional methods of obtaining jurisdiction over persons,
natural or artificial, not found within the state, must be confined to
the cases and exercised in the way precisely indicated by the stat-
ute.^®* Hence the statutory provisions for acquiring jurisdiction
of a defendant by publication of the summons, in the stead of a per-
sonal service, must be strictly and exactly pursued.^®' As it has been-
well said, "no principle is more vital to the administration of justice
than that no man should be condemned in his person or property
without notice and an opportunity to make his defense. And every
departure from this fundamental rule, by a proceeding in rem, in
which a publication of notice is substituted for a service* on the
party, should be subjected to a strict legal scrutiny. Jurisdiction is
not to be assumed and exercised in such cases upon the general
ground that the subject-matter of the suit is within the power of the
court. This would dispense with the forms of law, prescribed by
the legislature for the security of absent parties. The inquiry
should be, have the requisites of the statute been complied with, so
as to subject the property in controversy to the judgment of the
court, and is such judgment limited to the property named in the bill?
If this cannot be answered in the affirmative, the proceedings of the
court beyond their jurisdiction are void." *•* Thus, defendants can-
not be summoned by publication unless shown to be non-resi-
102 Hebel v. Amazon Ins. Co., 33 Mich. 400.
108 People V. Huber. 20 Cal. 81; Pinkney t. Pinkney, 4 G. Greene (lowt)
324; Hodges v. Brett. Id. 345; Edrington v. Ansbrooks, 21 Tex. ISo; Israel v.
Arthur, 7 Colo. 5, 1 Pac. 438; Myer v. Kuhn, 25 U. S. App. 174. U Q C A.
208, 65 Fed. 705; Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs
& M. R. Co., 139 U. S. 137. 11 Sup. Ct. 512. 35 L. Ed. 116. Thus, it to essen-
tial that the published notice shall correctly state the parties to the suit and
their names. Myer v. Kuhn, supra; City of Detroit v. Detroit City R. Oo. iC
C.) 54 Fed. 1; Colton v. Rupert, 60 Mich. 318, 27 N. W. 520; Entrekin ▼.
Chambers, 11 Kan. 3G8; Chamberlain v. Blodgett, 96 Mo. 482. 10 S. W. 44.
As to trifling misnomers and minor mistakes which do not necessarily Titrate,
see Hirsh y. Weisberger, 44 Mo. App. 506; White y. McClellan, 62 Md. ^7;
Fanning y. Krapfl, 61 Iowa, 417, 14 Xt W. 727; Lane y. Innea, 43 Mino. 137.
45 N. W. 4.
104 BosweU y. Otis, 9 How. 336, 350, 13 L. Ed. 164.
(34S)
Ch 12) VALIDITY, AS DEPENDENT UPON JURISDICTION. § 282
dents.*** And where, under the statute, a summons and return are
necessary to give the court jurisdiction, an indorsement on the writ
acknowledging service is not sufficient,*®' So a judgment follow-
ing a service of summons purporting to be by publication, but which
was made without affidavit and order, is void.*®^ And so if the affi-
davit upon which the order for publication issued was substantially
defective, there is no jurisdiction of the defendant.*®' Again, a
judgment which is invalid because, service being made by publica-
tion, it was- not shown that a copy of the petition and notice was
mailed to the defendant, or that his residence was unknown (that
being required by the usual wording of the statute), cannot be cured
by giving such proof afterwards.*®* In case of notice by publica-
tion, the court acquires no jurisdiction until proper proof of a com-
pliance with the statute requisitions is made to appear of record.**®
And an order of the court directing non-resident defendants to be
notified by publication, will not authorize a judgment against resi-
dent defendants who have not been duly served with process.^**
Before leaving the subject of constructive service of process, it
must be remarked that a non-resident may be brought within the
jurisdiction of an appellate court by mere publication of the notice,
when it appears that he was personally cited or duly appeared in
the action in the trial court. This is not a real exception to the rule
of jurisdiction, but is based upon the consideration that the whole
controversy, from its inception in the court below to its final deter-
mination by the court above, is but one suit. "Actual notice ought
to be given in all cases where it is practicable, even in appellate tri-
bunals ; but whenever personal service has been rendered impossible
by the removal of the appellee or defendant in error from the juris-
!•» Johnson v. Patterson, 12 Ind. 471.
!•• Ohickering v. Failes, 26 IH. 507.
!•? People V. MuHan, 65 Cal. 306, 4 Pac. 34&
!•• Braly V. Seaman, 30 Cal. 610.
"• Hodflon V. Tlbbetts, 16 Iowa. 97.
!»• Tania v, Withrow, 10 Iowa, 305, 77 Am. Dec. 117; Byram t. McDowell,
^ Lea (Tenn.) 581. Parol evidence tending to show defendant's knowledge
of the salt will not validate a Judgment which must rest on proof of a strict
compliance with the statute in regard to service by publication. Roberts v.
Koberts, 3 Colo. App. 6, 31 Pac. 941.
Ill Pomeroy t. Betts, 31 Mo. 419.
(349)
5 233 LAW OP JUDGMENTS. (Ch. 12
diction, service by publication is sufficient to give the appellate tri-
bunal jurisdiction of the subject and the person, provided it appears
in the record that personal notice was g^ven in the subordinate
court, and that the party there appeared and litigated the merits of
the controversy." ^**
f 233. Joint Befemdaats.
By the common law, where process issued against two, on a joint
cause of action, and only one appeared, the other must'be outlawed
before there could be any further proceedings.^** And in this
country, — independently of statutes, — where a suit is instituted
against several defendants jointly, and one is not served with pro-
cess, and the court assumes jurisdiction and proceeds to render
judgment against them all, such judgment is absolutely void, so far,
at least, as concerns the defendant not served.*** Thus, where suit
is brought against three and process issued to all, but it appears to
have been served upon two only, there being no return as to the
third, and none of the three answer, judgment should not be en-
tered by default generally, without amendment, discontinuance, or
some other action taken in regard to the defendant not served.*"
So where there are several defendants, and part are served in time
112 Nations v. Johnson, 24 How. 105, 16 L. Ed. 628.
113 Edwards v. Carter, 1 Strange, 473.
11* Wilbur V. Abbot, 60 N. H. 40; Odom v. Denny, 16 Gray (Mass.) 114;
McDoel V. Oook, 2 N. Y. 110; Jones v. Reed, 1 Johns. Cas. (N. Y.) 20; Bo«i v.
Heister, 6 Serg. & R. (Pa.) 18; Vandiver v. Roberts, 4 W. Va. 493; Martin
V. wnUams, 42 Miss. 210, 97 Am. Dec. 456; Moody v. Lyles, 44 Miss. 121;
Ayer v. Bailey, 5 How. (Miss.) 688; Faver v. Briggs, 18 Ala. 478; Houston
V. Ward, 8 Tex. 124; Bayless v. Daniels, Id. 140; Johnson v. Vaughan, 9 B.
Mon. (Ky.) 217; Illckey v. Smith, 6 Ark. 456; Dunn v. HaH, 8 Blackf. (lo^iJ
32; Allen v. Chadsey, 1 Ind. 399; Brockman v. McDonald. 16 lU. 112; Swift
V. Green, 20 111. 173; Treat v. McCall, 10 Qil. 511; Proctor v. Lewis, 50 Mich.
329, 15 N. W. 495. In Ohio, it is said that a Judgment against all of several
defendants, where only a part are served with process, is erroneous but not
void. Douglass' Lessee v. Massie, 10 Ohio, 271, 47 Am. Dec. 375. And soe
Forbes v. Bringe, 32 Xeb. 757, 49 X. W. 720; Ward v. Stanley. 41 lU. App.
417; Blyth & Fargo Co. v. Swenson, 15 Utah, 345, 49 Pac. 1027; Boyd T. Ellis,
107 Mo. 394, 18 S. W. 29.
115 Ro^^ers v. Harrison, 44 Tex. 1G9.
(350)
Ch, 12) VALIDITY, AS DEPENDENT UPON JURISDICTION. § 235
and others are not, judgment cannot be entered against any at the
return term, but the case must be continued.^^*
i 234. Joint Jndsmeat as an Ii]itiret7«
Supposing a judgment to be entered in violation of the common
law rule just stated — that is, a joint judgment where some of the
defendants were not served — ^it becomes important to determine
whether it must be regarded as void for all purposes and in respect
to all parties, or merely voidable as against those who were not
notified. This question has been considered in a preceding section ;
and it was there shown that, notwithstanding a great conflict of
authorities, the better opinion was' that such a judgment is at most
voidable as to the defendant not served, while it ought to stand as a
perfectly valid adjudication against the other until reversed, but that,
if carried up by appeal or writ of error, it must be reversed as to
both the defendants.^*^ In case of a purely joint liability there may
be justice in adhering to the stricter view ; but otherwise the con-
ception of a judgment as an entirety appears to be highly technical
and ill adapted to the purposes of justice.
*
f 235. Joint Judgment antl&orlsed by Statnto.
In order to escape the rigor of the common law rule above stated,
several of the states have passed statutes which provide that where
an action is instituted against two or more defendants upon an al-
leged joint liability, and some of them are served with process, but
jurisdiction is not obtained over the others, the plaintiff may still
proceed to trial against those who are before the court, and if he re-
covers, may have judgment against all the defendants whom he
shows to be jointly liable, but it must be so entered as to be enforce-
able only against the joint property of all and the separate property
of those served.*^* But this statute must be strictly followed; the
"• Evans v. GUI, 25 lU. 11(5.
X17 Supra, f 211.
ii»Code N. Y. § 136; Code Clv.Proc. Cal. S 413; Code S. C. § 157; Laws
UL 1895 (Act June 4th) f 5; Rev. St Wis. § 28^. On the construcUon and
application of these statutes, see Roberts v. Fawley, 50 S. C. 491, 27 S. R 013;
(351)
§ 236 LAW OF JUDGMENTS. (Ch. 12
judgment must be in form against both; and a judgment against
the one served alone is erroneous in substance.^** Nor can the
clerk, upon the application of the plaintiff, enter judgment upon de-
fault against the party served only; a judgment so entered is
void.^*® And if it should appear upon the trial that the contract in
suit was not joint, but was made with one of the defendants only,
then of course the statute does not apply, and the plaintiff should be
nonsuited.*** Further, if the defendant who was not served was a
non-resident of the state, and did not appear in the action, the judg-
ment, so far as concerns him, can have no extra-territorial validity
nor be enforced against him in the state of his domicile. And it is
held that even in the courts of the state which rendered the judg-
ment he would be allowed to show, in avoidance of the judgment,
that he was not a joint contractor, as it is that fact alone that makes
such judgment binding upon him.***
f 236. Statutory Soreral Jndsa^eat.
In a number of the states, according to the statute law, or the
practice prevailing in the courts, and in derogation of the common
law, if two or more persons are sued in a joint action, the plaintiff
may proceed against any one or more of them upon service of pro-
cess on them, notwithstanding there may be others not served, and
if his contention is successful, he may have judgment against those
served, excluding the others.*** In Vermont, in a case where pro-
Neal v. PenniniTtOD, 65 III. App. 68; Brawley v. Mitchell, 92 Wis. 671, 68 N. W.
790. A statute of Minnesota (Gen. St 1894, § 5436) provides that, when a
judgment is rendered against one of several persons jointly indebted, those
who are not originally summoned to answer the complaint may be summoned
to show why they should not be bound by the judgment; but the derk oumot
enter judgment against parties so sought to be held on default, or without ex-
press authority from the court Ingwaldson v. Olson, 79 Minn. 2S2, 82 K. W.
579.
!!• Nelson v. Bostwick, 5 Hill (N. Y.) 37, 40 Am. Dec. 310; Stehr T. OUbe^
mann. 49 N. J. iJiw, 633, 10 Ati. 547.
120 Kelly V. Van Austin, 17 Cal. 564.
m Fleming v. Freese. 26 N. J. Law, 263.
122 Marker v. Brink, 24 N. J. Law, 333.
128 ingraham v. Gildemeester, 2 Cal. 88; Hlrsehfield v. Fhinklln, 6 GsL W;
Kelly y. Bandinl, 50 Cal. 530; Simpson y. Prather, 5 Or. 86; Loney T. Bailej,
(3»52)
Ch. 12) VALIDITY. AS DEPENDENT UPON JURISDICTION. § 287
cess was sued against two persons, who were declared against as
joint promisors, and service was made upon one only, the other
not becoming a party in court, and evidence was given showing that
the person served alone made the promise declared on, it was held,
under the law of that state relating to such cases, that a judgment
might be recovered against the person so making the promise.^**
i 237. Jndsment as^^st Partners.
At the common law, where a partnership is sued, each member of
the firm must be brought within the jurisdiction of the court by due
citation. Hence where an action is instituted against several per-
sons constituting a partnership, either before or after its dissolution,
and one partner is not served with process, and judgment is ren-
dered against them all, such judgment will be voidable so far as con-
cerns the partner who was not served.**" On similar principles, and
since one partner cannot bind his co-partner by a forthcoming bond
to which he has signed the latter's name without authority, a statu-
tory judgment on such bond is void as to the partner not signing,
for want of jurisdiction.**' In those states, however, where the
"joint debtor acts'' are in force, if not all the partners are served with
process, still a judgment may be rendered against the firm, to be
43 Md. 10; Hunt ▼. Anderson, 83 Miss. 559; Raney v. McRae, 14 Ga. 589,
m Am. Dec. WW; Moore v. Estes, 79 Ky. 282; CaldweU v. Harp, 2 McCord (S.
C.) 275; Merchants* & Mechanics' Bank v. Evans, 9 W. Va. 373; Norfolk
ft W. R. Co. r. Shippers' Compress Co., 83 Va. 272, 2 S. E. 139; Fender v.
Styles, 31 UL 4W; DUlon v. Porter, 36 Minn. 341, 31 N. W. 56; Bennett v.
I\>wn8aid, 1 Meb. 460; Cunningham v. Dixon, 1 Mary. (Del.) 163, 41 Atl. 519;
Waldner v. Pauly, 141 lU. 442, 30 N. B. 1025; Green v. Shaw, 66 111. App.
74; Bacon t. Green, 36 Fla. 325, 18 South. 870; Edwards y. Helllngs, 103 Cal.
204, 37 Pac. 218; DiUard y. Turner's Adm*r, 87 Va. 660, 14 S. E. 123.
is« Hodges y. Eastman, 12 Vt. 358.
It* UaU y. Lannlng, 91 U. S. 160, 23 L. Ed. 271; Ingraham y. Glldemeester,
2 Cat 88; Schloss y. White, 16 Cal. 68; Inos y. Wlnspear, 18 Cal. 897; St.
John y. Holmes, 20 Wend. (N. Y.) 609, 32 Am. Dec. 603; MltcheU y. Green-
wald, 43 MlsB. 167; Dresser y. Wood, 15 Kan. 344; Harford y. Street, 46
Iowa, CM; Bowler y. Huston, 30 Grat. (Va.) 266, 32 Am. Rep. 673; Faver v.
Brlggs, 18 Ala. 478; Anderson y. Arnette, 27 La. Ann. 237; Gaiennie y. Akln*8
Efr, 17 La. 42, 36 Am. Dec. 604; Dessauer y. Koppin, 8 Colo. App. 115, 32 Pac.
182.
<:• Smith y. Tnpper, 4 Smedes & M. (Miss.) 261, 48 Am. Dec. 483.
1 LAW JUDG.-23 (:^53)
§ 238 I4AW OP iUDOiiVNTi. (Ch. 12
enforced against the ^rtnership property and the individual prop-
erty of the partners served.*"^ But such a judgment will have no
extra-territorial validity against any partner who was not served and
did not appear,*** the case being governed by the same rules which
api^y in any other action against joint defendants. And in Cali-
fornia it is held that, where, in an action against a partnership on a
joint liability, the complaint and summons designate the defendants
individually, with a description that they are partners doing business
under a firm name, the judgment can only be against the parties
served, and not against a defendant not served with summons or
who does not appear, though he be a member of the partnership.
ii»
i 238. Appearance for Bef endaat not SerreiL
In an action upon • contract against several defendants, where
only a part are served with process, but others voluntarily appear,
a judgment for the plaintiff must be against ail the defendants ap-
pearing.**® But where an attorney appears specially for one de-
fendant in an action against two, and afterwards, as attorney for
"the defendant," acknowledges judgment in favor of the plaintiff, it
is a good judgment only as to the defendant for whom such attor-
ney appeared, and a joint execution is erroneous."*
i«7 Newlon v. Heaton, 42 Iowa, 593; Patten v. Ganningham. 63 Tex. 6Wl
A Judgment to the effect that plaintiff do recover of the member aerred a
certain sum **for which let execution iaaue, to be levied upon the gooda and
chattela of the firm and upon the individual property of the defoidant
served with citation," is a valid judgment against the partnership* un-
der which the partnership property, real as well as personal, may be seised
and sold. Alexander v. Stern, 41 Tex. 103.
128 Hall V. Lanning, 91 U. S. ItK), 28 U Ed. 271; Scott t. Bogart. U La.
Ann. 261.
i2» Davidson v. Knox, 67 Oal. 143, 7 Pac. 413.
isoMosher v. Small, 6 Pa. 221; Heaton v. Collins, 7 Blackf. (Ind.) 414:
Hall V. Law, 2 Watts & S. (Pa.) 121. But a judgment entered against one
who has not been served, on an appearance by an unauthorised attorney,
which has not been ratified or confirmed, is absolutely void as against such
defendant. First Nat. Bank v. Wm. B. Grimes Dry Gooda 06^ 45 Kan. SIO.
2ii Pac. 56.
isi Klmmel v. Klmmel, 5 Serg. & U. (Pa.) 2^
(354)
Gb« IS) VALIDITY, AS DBPIINDBNT UPON lURISDICTION. | 340
Where process is served only on a part of the defendants named
in the writ, and judgment is taken against "the defendants," with-
out naming them, and without any appearance of those not served,
the judgment will be understood to be only against those who were
duly served.*** In some of the states, the rendition of a judgment
against a defendant who was not served and who did not appear* is
considered to be a mere clerical mistake which may be amended on
motion in the trial court.***
i 240. JnvUidiotioa of tlu Sabjeot-llattov.
Thus far we have been considering the questions connected with
the acquiiition of jurisdiction over the defendant's person. We turn
now to the equally important subject of the validity of judgments
as dependent upon jurisdiction of the subject-matter. And first, it
is an inflexible rule that any judgment rendered by a court upon a
matter not within its jurisdiction is null and void, incapable of rati-
fication, and subject to collateral impeachment.*** The principles
which govern this point have been well stated in the following lan-
guage: "i. Where the judicial tribunal has general jurisdiction of
the subject-matter of the controversy or investigation, and the spe-
cial facts which give it the right to act in a particular case are aver-
red and not controverted, upon notice to all proper parties, juris-
•
!•« Morgan t. Morgan, 2 Bibb (Ky.) 38»; Clark T. Flnnell, 16 B. Mon.
(Ky.) 329; Boyd v. Baynbam, 5 Uumph. (Tenn.) 386, 42 Am. Dec. 438; V71n-
cbester t. Beardln, 10 Uumph. (Tenn.) 247, 51 Am. Dec. 702; Neal v. Single-
ton, 26 Ark. 491. Per contra, Langley v. GrlU, 1 Colo. 71.
iss lavage v. Walsbe, 26 Ala. 619; Bergen y. Bolton, 10 Mo. 658.
iS4 Smith T. Knowlton, 11 N. H. 191; Morse v. Presby, 25 N. H. 299; Eatou
▼. Badger, 33 N. U. 228: Beel v. Elder, 62 Pa. 308, 1 Am. Rep. 414; Vylea
T. BoUes, 8 iS. C. 258: Ponce v. Underwood, 55 Ga. 601; Wamsley v. Rob*
Inaon, 28 La. Ann. 793; Gilllland v. Seller, 2 Ohio St. 223; Webb v. Carr, 78
iQd. 455. Wh€re a complaint aUeges two causes of action, the fact that the
court bad jurladlctlon of one of them wUl not support a Judgment upon
liotb, where It had no Jurisdiction of the other. Chicago & S. E. Ry. Co.
T. Spencer, 23 Ind. App. 605, 55 N. H 882. Compare StovaU y. Hibbs (Ky.)
o2 8. W« 1087.
(355)
S 240 LAW OF JUDOMBNTS. (Ch. 12
diction is acquired and cannot be assailed in any collateral proceed-
ing. 2. Where the judicial tribunal has not general jurisdiction of
the subject-matter under any circumstances, no averment can sup-
ply the defect, no amount of proof can alter the case, no consent
can confer jurisdiction. 3. Where the judicial tribunal has not gen-
eral jurisdiction of the subject-matter, but may exercise it under a
particular state of facts, those facts must be specially averred and
established, and when so established on a hearing of all proper par-
ties, cannot be impeached in any collateral proceeding."^'* If we
inquire more particularly into the meaning of the terms here em-
ployed, the answer is, that "by jurisdiction over the subject-matter
is meant the nature of the cause of action or of the relief sought;
and this is conferred by the sovereign authority which organizes the
court, and is to be sought for in the general nature of its powers, or
in authority specially conferred." ^'^ Now the powers to be exer-
cised by a court may be prescribed and defined in several diflFerent
ways, though always emanating from the sovereign authority of
m
the state. First, the constitution or statute which creates the court
may specifically enumerate the classes of actions or subjects of con-
troversy to which its jurisdiction shall extend. This is usually the
case in respect to the original jurisdiction of the supreme courts,
and in respect to probate and similar courts. Or else the power
may be conferred in general language ; as where a court of record
is invested with "general original jurisdiction in all cases, civil or
criminal, at law or in equity," or where a separate chancery court
is given general equity powers. And here no subject will be in-
tended to be out of the jurisdiction of the court, unless clearly
shown to be so by law. Or the power to hear and determine a par-
ticular class of actions or proceedings may be granted to a tribunal
specially organized for that purpose or to one of the usual courts
in addition to its common law powers. Or finally, the limitations
of the jurisdiction may be introduced by way of exception or res-
ervation from the general powers granted. And this may be either
by withdrawing certain classes of actions from the cognizance of the
court, as where a justice of the peace is forbidden to try any suit
186 Bumstead v. Head, 31 Barb. (N. Y.) 669.
1S0 Cooper V. Keynolds, 10 WaU. 308, 19 U Ed. 931.
(356)
Ch. 12) VALIDITY. AS DEPENDENT UPON JURISDICTION. § 241
involving the title to real estate ; or by fixing a money limit below
which the jurisdiction shall not attach, as is the case in respect to
most controversies before the circuit courts of the United States;
or by designating the amount above which the jurisdiction shall ter-
minate, as is usual in regard to justices' and other inferior courts. ^'^
But in every case, where jurisdiction of the subject-matter is chal-
lenged, recourse must be had to the sources of jurisdiction, whether
constitution or statute, and if they show a want of authority in the
court to adjudicate upon the particular controversy, its judgment
must be considered incurably void. And an unconstitutional stat-
ute, it will be remembered, can have no avail as a source of jurisdic-
tion; a judgment rendered under it is entirely without validity.*'*
f 841. Svflloieacy of Deolaratioii.
In one of the early cases before the supreme court of the United
States it was said, "if the petitioner states such a case in his peti-
tion that on a demurrer the court would render a judgment in his
favor, it is an undoubted case of jurisdiction." **® But probably this
was not meant as equivalent to saying that if the petition were de-
murrable there would be no jurisdiction. Indeed it would be im-
possible, on any rational theory, to make the jurisdiction depend
upon the validity of the case stated by the plaintiff. For the court
isT Where tbe plaintlff^s demand exceeds the Jurisdiction of the Inferior
coun in which his suit is brought, it should dismiss the cause and transfer
it to a court of competent Jurisdiction; no other judgment or order can
validly he made. Dazey v. Pennington, 10 Tex. CLv. App. 326, 31 S. W.
312. But the fact that a Justice of the peace erroneously allows interest,
which makes' the total amount exceed his jurisdiction, does not deprive
him of original jurisdiction, so as to render the judgment void. McCk>r-
mick Harvesting Mach. Co. v. Marchant, 11 Utah, 68, 39 Pac. 483. In
Jones V. Jones. 14 N. C. 300, it was held that a Judgment of a magistrate
for a sum above his jiu'isdiction being void, no action could be maintained
on it. But some other canes hold that a Judgment of a court of record, founded
n\wn a judgment of a justice of the peace which is In excess of his jurisdic-
tion and consequently void, is erroneous but not void, and will stand good
against collateral attacks. Moore v. Martin, 38 Gal. 428; Hinds v. Wallis,
13 Serg. & U. (Pa.) 213. But it is difficult to see how a nullity can be
made the basis of an action.
iss Supra, $ 216.
!<• United States v. Arredondo, 6 Pet 700, 8 L. Ed. 547*
(357)
§ 242 LAW OF JUDOMBin^ (Cb. IS
must piss upon the sufikkncy of the declaration, and jurisdiction to
proceed at least so far must be acquired by the mefe filing of the
pleading and service of process. But it is equally certain that a
court cannot, in ordinary cases, initiate a proceeding sua sponte.
Its jurisdiction and power remain at rest until called into activity by
the application of a suitor. Jurisdiction of the subject-matter,
therefore, dynamically considered, depends upon the act of the par-
ties in invoking the aid of the law, in some regular manner, for the
determination of their controversy. A court has no more power,
until its action is called into exercise by some sort oi pleading, to
render a judgment in favor of a party, than it has to enter a judg-
ment against him until he has been brought wttliin its jurisdiction
by some method known to the law.***
i 242. Jurisdictioa of Qvestioii d«oldeiL
Besides jurisdiction of the person of the defendant and of the gen-
eral subject-matter of the action, it is necessary to the validity of a
judgment that the court should have had jurisdiction of the precise
question which its judgment assumes to decide, or of the particular
remedy or relief which it assumes to grant. In other words a judg-
ment which passes upon matters entirely outside the issue raised in
the record is so far invalid. "Jurisdiction may be defined to be the
right to adjudicate concerning the subject-matter in the given case.
To constitute this there are three essentials. First, the court must
have cognizance of the class of cases to which the one to be ad-
judged belongs. Second, the proper parties must be present. And
third, the point decided must be, in substance and effect, within the
issue. That a court cannot go out of its appointed sphere, and that
its action is void with respect to persons who are strangers to its
proceedings, are propositions established by a multitude of authori-
ties. A defect in a judgment arising from the fact that the matter
decided was not embraced within the issue has not, it would seem,
received much judicial consideration. And yet I cannot doubt that,
upon general principles, such a defect must avoid a judgment. It is
i*oDunlap v. SoutlierUn, tS3 Tex. 38. And see Humphries t. Bartee, IS
Miss. 2»2.
(358)
*Cb. 12) VALIDITY, AS DBPSNDfiNT UPON JURISDICTION. § 242
impossible to concede that because A. and B. are parties to a suit, a
court can decide any matter in which they are interested, whether
such matter be involved in the pending litigation or not. Persons
by becoming suitors do not place themselves for all purposes under
the control of the court, and it is only over those particular interests
which they choose to draw in question that a power of judicial deci-
sion arises. If, in an ordinary foreclosure case, a man and his wife
being parties, the court of chancery should decree a divorce between
them, it Would require no argument to convince everyone that such
decree, so far as it attempted to affect the matrimonial relation, wds
void; and yet the only infirmity in such a decree would be found,
upon analysis, to arise from the circumstance that the point decided
was net within the substance of the pending litigation. In such a
case the court would have acted within the field of its authority, and
the proper parties would have been present ; the single but fatal flaw
havmg been the absence from the record of any issue on the point
determined. The invalidity of such a decree does not proceed from
any mere arbitrary rule, but it rests entirely on the ground of com-
mon justice. A judgr--nt upon a matter outside of the issue must
of necessity be altogether arbitrary and unjust, as it concludes a
point upon which the parties have not been heard. And it is upon
this very ground, that the parties have been heard, or have had the
opportunity of a hearing, that the law gives so conclusive an effect
to matters adjudicated. And this is the principal reason why judg-
ments become estoppels." ***
On this principle, where a widow brought suit for the sole purpose
of having dower assigned her in her deceased husband's lands, the
heirs at law, who were infants, being made defendants, and the
court not only directed an assignment of dower, but of its own ac-
cord decreed a sale of the residue of the land belonging to the heirs,
141 Monday y. Vail, 34 N. J. Law, 418. To the same effect see Hejnolds
T. Stfx^ton, 43 N. J. Eq. 211, 10 Atl. 385, 3 Am. St Rep. 305; Husted v.
Van Ness, 158 N. Y. 104, 52 N. £. 645; Burns & Smith Lumber Co. v. Doyle,
71 Uonn. 742, 43 Atl. 483, 71 Am. St. Rep. 235; .Wright v. Durrett (Tenn.
Ch. App.) 52 8. W. 710; Maddox v. Summerlln, 92 Tex. 483, 50 S. W. 567;
Uncdn Nat. Bank t. Virgin, 36 Neb. 735, 55 N. W. 218, 88 Am. St. Rep.
747; Carter v. Glbron, 47 Neb. 655, 66 N. W. 631; Barnes v. Chicago, M-
* 8t P. B. Co., 122 U. S. 1, 7 Sup. Ct 1043, 30 L. Ed. 1128.
(359)
§ 242 LAW OF JUDGMENTS. (Cb. 12 *
it was held that, the court having exceeded its jurisdiction, the de-
cree of sale was void and open to collateral impeachtnent.^** Again,
where the issues in a suit in chancery are so framed as to present a
controversy between the complainant on the one side and the de-
fendants on the other, the court should not go beyond the plead-
ings and decree relief as between the co-defendants ; and though the
language of the decree may be broad enough to embrace the deci-
sion of questions disputed by the defendants inter sese, yet it will be
construed in the light of the pleadings, and restricted to the issues
raised thereby.^*' So again, in an action to foreclose a mortgage on
premises described in the complaint, a decree directing the sale oi
lands not mentioned in the pleadings is void, though the owner of
such other lands was made a party.^** And in an action between a
mortgagor and certain mortgagees of chattels, the court has no
power to declare void a mortgage not attacked by the pleadings,
and of which the holder was not a party to the action.*** A judg-
ment foreclosing a trust deed on church property cannot be entered
in a suit between different factions of the church for the possession
of the property, where neither party sought a foreclosure or sale of
' the property.*** Again, upon a motion to discharge an attachment,
the court has no power, besides allowing such discharge, to order
the undertaking to be cancelled, that question not being submit-
ted.**^ And where a ground of liability not suggested by the plead-
ings is submitted to the jury, and they render a general verdict for
the plaintiff, the judgment thereon cannot be sustained unless the
other ground of liability is so clearly established that a verdict might
have been directed.**®
In these cases the court lacked jurisdiction of the subject or ques-
tion which it assumed to pass upon because such matter was not sub-
mitted to it by the parties. But the same result will follow if, being
invested with jurisdiction for a single purpose in a special statutory
1*2 Seamster v. Blackstock, 83 Va. 232, 2 S. E. 36, 5 Am. St Rep. 262.
1*3 Graham v. La Crosse & M. K. Co., 3 WaU. 704, 18 U Ed. 247.
"* Clapp V. McCabe, 84 Hun, 379, 32 N. Y. Supp. 425.
1*8 Kockford Watch Co. v. Manifold, 36 Neb. 801, 55 N. W. 236.
i*« First Baptist Church v. Fort, 93 Tex. 215, 54 S. W. 892, 49 L. R A. 617.
i*7Wymaii v. Hallock, 4 S. D. 469, 57 N. W. 197.
1*8 Springer v. Westcott, 87 Hun, 190, 33 N. Y. Supp. 805.
(360)
Ch. 12) VALronT, as dependent upon jurisdiction. § 243
proceeding, it transcends the limit and attempts to exercise its pow-
ers for other purposes also. Thus where a statute provides for an
action to foreclose a mortgage against a non-resident defendant,
upon publication of summons, and authorizes a decree to be made
for the sale of the mortgaged premises to satisfy the debt secured
thereby, the court exhausts its jurisdiction in making the decree
contemplated, and if, in addition thereto, it proceeds to award a per-
sonal judgment for a sum of money against the defendant, such
judgment, being beyond its power, is void.^**
I 243. Ikim of Jnrifldiotioii.
In general, when jurisdiction has once fully attached in a cause,
it will continue until the final disposition of the controversy. But
this is not invariably the case, and a court may lose the jurisdiction
which it has once rightfully acquired, after which it can make no
further order or judgment. Such is the case when the cause has
been taken up on appeal or error, and especially after the court of
review has pronounced its judgment.^*® So where a pending liti-
gation is removed from the state court to a federal court under the
act of Congress in that behalf. Upon the filing of a proper peti-
tion, in a removable cause, the rightful jurisdiction of the state court
ceases instantly, and every subsequent exercise of jurisdiction by it,
including its judgment if one is rendered, is erroneous, if not abso-
lutely void.**^ The same result would follow, we apprehend, if a
statute should deprive a court in which an action was pending of
jurisdiction over that class of suits and transfer it to another tri-
bunal, provided the law were explicitly made applicable to pending
cases. And sometimes it may happen that jurisdiction is lost by
the expiration of the term, without judgment rendered and without
a proper continuance.^"*
"• Wood V. Stanberry, 21 Ohio St 142; Flthlan v. Monks, 43 Mo. 502; Bos-
weU V. Dlckerson, 4 McLean, 262, Fed. Cas. No. 1,683.
»»• BoyntoD v. Foster, 7 Mete. (Mass.) 415. See Linlnger v. Glenn, 33 Neb.
204. 49 N. W. 1128.
"1 Black, Dill. Rem. Causes, § 102; Roberts v. Chicago, St P., M. & O.
Ry. Oo., 48 Minn. 521, 61 N. W. 478.
1*2 See supra, H 179, 180. In Wisconsin, the faUure of a justice to enter
(361)
I 244 SAW or JVDQUXHTM. (Cai. 12
I t44. JwMUetiOTi attMUstf, E»w d«M
In any case where the court has jurisdiction of the subject-matter
of the action, and the parties are before it by due service of proper
process, the jurisdiction is never ousted by the erroneous exercise of
the power which it confers, and the judgment in the case, thottgh it
may be marked by error which will cause its reversal by a higher
court, is not for that reason void.^'*
In his docket the place, as well as the time, to wbich a cause pending be-
fore him is adjourned, defeats his Jurisdietion (unless the parties voioDtarilr
appear in the action subsequently) and renders all subsequent xiroceedlngs
therein void* Witt v. Ueoge, 58 Wis. 244, Id N. W. 009.
iB« Ex parte Bigelow, 113 U. S. 828, 5 Sup. Ot 642, 28 L. Ed. 1006; Ex
parte Kellogg, 6 Vt. 609; Moore v. Robison, 6 Ohio St. 302; Buckmaster t.
Carlin, 3 Scam. (Itt.) 104; Georgia R. A Banidng Go. v. Pendleton, 87 Gs.
761, 13 S. E. K22.
(362)
(Sl 18) OOLLATEBAL IMPEACHMENT OF JUDQMENTCL § 345
^11
COLLATERAL XMFEACHMJiINT OP JUDGMENTS.
PaKT I ThB QSNlfeltAL RtTLS.
i 245w JuOgments not to be Attacked Collaterally.
24^ To wbat JudgmeDts the Rule applies.
247. Tax Judgmoits.
248. AdJudicatioDB In Bankruptcy.
2I», Awards.
250. Judgments of Inferior Courts.
2$L Co-Ordinate Courts.
252. Wbat constitutes a Collateral Attack.
253. Proceedings to prevent Execution of tbe Jidgment
253a. Proceeding to l«^force Judgment by Mandamus.
254. Habeas Cbrpus Proceedings.
285. Errors and Irregularities not Reylewable.
25ft. Jurisdiction may be examined.
257. Constitutionality of iSUtutes.
25K. Jurisdiction to render the Particular Sentence.
250. Sufficiency of Process or Pleadings.
200. To what Parties the Rule applies.
Part IL For Errors and Irrboularitibs.
261. Erroneous and Irregular Judgments.
2lfil Mistakes in the Judgment.
203. Irregular or Defective Service.
2»4. Objections as to Parties.
2«6. Legal DisabiUty of Parties.
206. Disqualilication of Judge.
267. Judgment for Excessive Amount.
268. Insufficiency of Evidence.
260. illegal or Insufficient Cause of Action.
Part III. For Want of Jurisdictioh*
270. Jurisdiction of Superior Courts presumed.
271. Silence or Incompleteness of the Record.
272. Appearance by Attorney.
273. Jurisdictional Recitals.
274. Decision of the Court upon its own Jiurisdiction.
275. Cases denying Conclusiveness of Record.
276. Arguments on tbe Conclusiveness of Records.
277. Ho Presumption against the Record.
(363)
§ 245 LAW OP JUDGMENTS. (Ch. 13
Part III. For Want of J[7Bisdiction — Con tin tied.
278. Judgment Void on Us Face may be Attacked Collaterally.
279. Superior Courts exercising Special Statutory Powers.
280. Summary Proceedings.
281. Constructive Service of Process.
282. Judgments of Inferior Courts not aided by PresumpUona.
283. Superior and Inferior Courts distinguished.
284. Probate Courts.
285. Federal Courts.
286. Justices of the Peace.
287. Record of Inferior Court, showing Jurisdiction. Is Conclusive.
288. No Presumption of Validity on Direct Attack.
289. Foreign Judgments.
Part IV. For Fraud.
290. Whether Parties can Impeach Judgment for Fraud.
291. Fraud In Procuring the Judgment.
292. Fraud In the Cause of Action.
298. Creditor may show Fraud in a Judgment.
291. Fraud must affect the Creditors.
296. What Creditors allowed to allege l^Yaud. .
296. False Testimony.
Part I. The General Kut.e.
( 245. Judgments not to be Attaeked Collaterally.
Where the court has jurisdiction of the parties and the subject-
matter in the particular case, its judgment, unless reversed or an-
nulled in some proper proceeding, is not open to attack or impeach-
ment, by parties or privies, in any collateral action or proceeding
whatever.^ "The doctrine of this court, and of all the courts of this
1 Elliott V. Plersol, 1 Pet. 340, 7 L. Ed. 1«4; Gray v. Brlgnardello. 1 Wall
(527, 17 Li. Ed. 692; Secrlst v. Green, 3 Wall. 744. 18 L. Ed. 153; Gunn t.
Plant, 94 U. S. 064, 24 L. Ed. 304; Bank of United States v. Voorhees, 1 Mc-
Lean, 221, Fed. Oas. No. 939; Dunham v. Jones, 159 U. S. 584, 16 Sup. (X
108, 40 1m Ed. 267; Woodman v. SmltH, 37 Me. 21; Gorrlll v. Whittier, 3
N. H. 265; Porter v. Glle, 47 Vt 620; Corey v. MorrlU, 71 Vt. 51, 42 AU. 976:
fleudrlck v. Whlttemore, 105 Mass. 23; Smith v. Shaw, 12 Johns. (N. Y)
256; People v. Downing, 4 Sandf. (N. Y.) 189; Kean v. McKinsey.
2 Pa. 30; Billings v. Russell, 23 Pa. 189. 62 Am. Dec. 330; Yaple v. Titus.
41 Pa. 195, 80 Am. Dec. 604; Wood v. Bayard, 63 Pa. 320; Fridge v. State,
8 GIU & J. (Md.) 103, 20 Am. Dec. 463; McNeers Ex'rs v. Aoldridge, 34 W.
Va. 748, 12 S. E. 851; Lancaster v. Wilson, 27 GraL (Va.) 624; Howteon t.
(364)
Ch. 18) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 245
country, is firmly established, that if the court in which the pro-
ceedings took place had jurisdiction to render the judgment which
it did, no error in its proceedings which did not affect the jurisdic-
tion will render the proceedings void, nor can such errors be con-
sidered when the judgment is brought collaterally into question." *
This principle is not merely an arbitrary rule of law established by
the courts, but it is a doctrine which is founded upon reason and
the soundest principles of public policy. "It is one," says the court
in Virginia, "which has been adopted in the interest of the peace of
society and the permanent security of titles. If, after the rendition
of a judgment by a court of competent jurisdiction, and after the
period has elapsed when it becomes irreversible for error, another
court may in another suit inquire into the irregularities or errors in
such judgment, there would be no end to litigation and no fixed
established rights. A judgment, though unreversed and irreversi-
ble, would no longer be a final adjudication of the rights of litigants,
but the starting point from which a new litigation would spring up ;
acts of limitation would become useless and nugatory; purchasers
on the faith of judicial process would find no protection ; every right
Weeden, 77 Va. 704; Fox v. Cottage Building Ass'n, 81 Va. 677; Skinner
T. Moore, 1» N. C. 138, ao Am. Dec. 155; Morris v. Gentry, 8l> N. O. 248;
Reese v. Meetze, 51 S. C. 333, 29 S. E. 73; Bridges v. Nicholson, 20 6a. 90;
Vickery v. Scott, 20 Ga. 798; Archer v. GuUl. 67 Ga. 195; Moore v. Ware,
51 Mi88. 206; Factors' & Traders' Ins. Co. v. De Blanc, 31 La. Ann. 100;
Kent V. Brown, 38 La. Ann. 802; Lee v. Patten, 34 Fla. 149, 15 South. 775;
Brown v. Hearon, 66 Tex. 63, 17 S. W. 395; Brooks v. Powell (Tex. Civ.
App.) 29 S. W. 809; Sutherland v. De Leon, 1 Tex. 250, 46 Am. Deo. 100;
Lee T. Kingsbury, 13 Tex. 68, 62 Am. Dec. 546; Tadiock y. Eccles, 20 Tex.
782. T6 Am. Dec. 213; Willis v. Ferguson, 46 Tex. 496; Paul v. Smith, 82
Ky. 451; Tbacker v. Chambers, 5 Humph. (Tenn.) 313, 42 Am. Dec. 431; Hall
r. Hellley, 6 Humph. (Tenn.) 444; Lewis y. Simon ton, 8 Humph. (Tenn.)
185; Bigelow v. Blgelow, 4 Ohio, 138» 19 Am. Dec. 591; Cochran v. Loring,
17 Ohio, 409; Newnam v. City of Cincinnati, 18 Ohio, 323; Sauer v. Twin-
log, 81 Ind. 366; Keesling v. Doyle, 8 Ind. App. 43, 35 N. E. 126; First
Xat Bank v. Hanna, 12 Ind. App. 240, 39 X. E. 1054; Cody v. Hough, 20
IIL 43; Kern v. Strausberger, 71 111. 303; Harris v. Lester, 80 111. 307; Wright
y. Marsli, 2 Greene (Iowa) 91; Hampson v. Weare, 4 Iowa, 13, 66 Am.
Dec. 116; Callahan v. Grlswold, 9 Mo. 775; Martin v. McLean, 49 Mo. 361;
Teoman v. Younger, 83 Mo. 424; Hall v. Sauntry, 72 Minn. 420, 75 N. W.
720, 71 Am. St. Rep. 497.
> McGoon r. Scales, 9 VVaU. 23, 19 L. Ed. 545, Miller, J.
(3G5)
§ 246 LAW OP JXTDGMBNTS. (Cb- 18
established by a judgment would be insecure and uncertain ; and a
cloud would rest upon every title." • If the sentence last quoted
seems somewhat extravagant, at least it will serve to show the sub-
stantial reasons upon which the rule rests and the inflexibility with
which it is held by the courts. According to the supreme court of
Massachusetts, the rule obt^iins "not because of an apparent author-
ity in the court to render the judgment, but because the remedy by
review or writ of error is held to be more appropriate." * This may
be sufficient as a technical reason, but it cannot be doubted that the
motives which have led to the establishment of the rule rather spring
from the considerations of public policy, and the necessary finality
of judicial decisions, indicated in the opinions previously quoted.
§ 246. To what J«d«memts tlM KvU avpliM.
The rule against collateral impeachment applies to every judg-
ment, order, decree, or judicial proceeding, of whatever species, that
is not absolutely void. If the judgment is void on its face it is of
course a mere nullity and of no avail for any purpose, and this may
be urged against it whenever it is brought in question.* But other-
wise, whether it be regular or irregular, correct or erroneous, valid
or voidable, it is not subject to collateral attack. This rule has been
held applicable to a judgment in rem, where the court had jurisdic-
tion of the res ; • to a judgment condemning property in confisca-
tion proceedings ; ^ to decrees of divorce rendered by courts of com-
petent jurisdiction ; • to an order of naturalization ; • to decrees ren-
dered by a court of equity, when sought to be assailed in the same
or another court ;^® to a judgment in attachment;*^ to orders and
8 Lancaster v. Wilson, 27 Grat. (Va.) 624, 629.
4 Hendrick v. Wliittemore, 105 Mass. 23.
8 See supra, § 170; Infra, § 278.
6 Otis V. The Rio Grande, 1 Woods, 279, Fed. Cas. No. 10,613; Shearer t.
City Xat. Bank, 115 Ala. 352, 22 South. 151.
7 Bragg V. Lorio, 1 Woods, 209, Fed. Cas. Xo. 1,800.
8 In re James' Estate, 99 Cal. 374, 33 Pac. 1122, 37 Am. St Rep. 60.
» State V. Brandhorst, 156 Mo. 457, 56 S. W. 1094, 79 Am. St Rep. 53&
10 Bryan v. Kennett 113 iJ. S. 179, 5 Sup. Ct 407, 28 L. Ed. 908; Estep
11 HaiTison v. Pender, 44 N. G. 78, 57 Am. Dec. 573; Needham v. Wilson
<C. C.) 47 Fed. 97.
(366)
Ch. 13) COLLATERAL. IMP8ACHMBNT OF JUDGMENTS. § 246
judgments in eminent domain proceedings;** to judgments of fore-
closure ; *' to orders of courts calling special elections, under statu-
tory authority for that purpose ; ** to a decree confirming an au-
ditor's report on the distribution of the estate of an assignor for
the benefit of creditors; ** to a judgment forfeiting a recognizance,
that being within the competence of the court ; *• to an order allow-
ing a certain sum to the clerk for costs in insolvent criminal cases ; *^
to an order of court approving the act of an administrator in allow-
ing a claim against the estate; ** to an order granting an allowance
for the support of the widow and children ; *• to a decree author-
izing the receiver of an insolvent corporation to levy an assessment
on the stockholders to pay the debts ; ** to an order setting aside a
judgment by default ; ** and to a decree vacating a former decree
upon a petition to be let in to a defense.** Moreover, the rule
against collateral impeachment applies not only to judgments in
contested actions, but also to judgments by default, provided the
court had jurisdiction,** and to judgments dismissing the action,**
as also to judgments by confession,*" and compromise and consent
T. Watklns, 1 Bland (Md.) 486; Covington v. Ingram, 04 N. C. 123; Lem-
mon ▼. Herb^t, U2 Ya. 653, 24 8. E. 249; Gomez v. Gomez, 81 Uud, 566,
81 N. T. Bupp. 206; Sauer v. Cincinnati St. Ry. Co., 5 Ohio N. P. 108.
It Fairington v. City of New York, 88 Uun, 124, 31 N. Y. Supp. 371; Lovltt
T. Russell, 138 Mo. 474, 40 S. W. 123; Hopkins v. Cravey, 85 Tex. 189,
19 8. W. 1067.
itTooUiaker v. Greer, 92 Me. 546, 43 Atl. 498; Kopp v. Blessing, 121
Mo. 391, 25 S. W. 757; Martina v. Muhlke, 88 lU. App. 12.
t« Jones y. CuUen, 142 Ind. 335, 40 N. E. 124; State y. Mackin, 51 Mo. App.
289.
tfOom. y. Steacy, 100 Pa. 613.
!• Bulmali y. State, 312 Ind. 107. 13 N. E. 877.
IT Doer y. Thweatt, 39 Ga. 578. See State y. Board of Com'rs of Lander
County, 22 Nev. 71, 35 Fac. 300.
!• Fitner y. Flanagan, 17 Tex. 7.
f Lieayerton y. Leayerton, 40 Tex. 218.
i« Kichman y. Hersker, 170 Pa. 402, 33 Atl. 229.
91 Bender y. Askew, 14 N. C. 150, 22 Am. Dec. 714.
39 Southern Bank y. Humphreys, 47 111. 227.
<t Fendexter y. Cole, 66 N. U. 270, 20 Atl. 331.
sAWestbay y. Gray, 116 Cal. 660, 48 Pac. 800; Hang y. Great Northern
Ry. Oo., 42 C. O. A. 167, 102 Fed. 74.
i» P. Mayer Boot & Shoe Co. y. Falk, 89 Wis. 216» 61 N. W. 562; United
(367)
§ 2i7 LAW OF JUDQMBNT8. (Ch. 13
judgments.** Also it is said that if an execution sale is merely void-
able, none but parties to the proceeding can question it, and then
only in the same action or by appeal or writ of error.' ^
The entry of a judgment in the judgment-book, it is said, includ-
ing the date of the judgment and the date of the docketing in the
judgment-docket, while standing as a part of the court's record, can-
not be impeached collaterally.*' And while affidavits may be read
or proof heard, to show that words have been improperly stricken
from a judgment, they cannot be received to falsify a record by
showing that an alteration, correcting it, was improperly made.**
( 247. Tax Jiid«memt«.
The principle that a record cannot be impeached collaterally for
mere errors or irregularities is equally applicable to a statutory judg-
ment against land for taxes as to any other decree. "It is no objec-
tion," said the supreme court of Alabama in a recent case, "to the
application of this principle that the present proceeding is to enforce
the collection of deHnquent taxes. While great accuracy is exacted
in all such proceedings, and strict rules are applied for the protection
of the tax payer, this principle forbidding the collateral assailment
of judgments has often been invoked successfully in actions of this
nature. It has accordingly been decided that there is no sound rea-
son why judicial proceedings for the enforcement of taxes should be
exempted from its influence." •* And it is no reason for departing
states Electric Lighting Co. v. Leiter, 19 D. C. 675; Atwater T. American
Kxcn. Xat. Bank, 152 ill. eH>5, 38 N. E. 1017; Perisho v. Perisho, H DL
App. 222; Chase v. Tuck wood, 86 lU. App. 70; City of Heloia v. United
States, 43 C. C. A. 429, 104 Fed. 113; Wright v. Wright (C. C.) 103 Fed. 680.
20 Biddle V. Pierce, 13 Ind. App. 239. 41 N. E. 475.
27 Magnusson v. Cronholm, 51 111. App. 473.
28 Ferguson v. Kuniler, 25 Minn. 183.
«» Walker v. Armour, 22 111. 658.
so Driggers y. Cassady, 71 Ala. 529; United States Trast Co. T. Meretn-
tile Trust Co., 31 C. C. A. 427, 88 Fed. 140; Newman ▼. City of Chicigo.
153 111. 469, 38 N. E. 1053; People y. Weber, 164 m. 412, 46 N. B. 723;
Young y. Lorain, 11 ill. 637, 52 Am. Dec. 463; Job y. Tebbetts, 6 Gibnan
(111.) 376; Chesnut y. Marsh, 12 111. 173; Reinhardt y. Nealis, 101 Tenn. 1(8.
46 S. W. 446; McCarter v. Neil, 50 Ark. 188, 6 S. W. 731; Bnrcbsm ▼.
TeiTy, 55 Ark. 398, 18 S. W. 458, 29 Am. St. Rep. 42; Scott T. Fleutnt^ n
(368)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 247*
from this rule that the property owner was a non-resident, if the
conrt had jurisdiction of the subject-matter and the usual construct-
ive notice to the owner was given.' ^ Nor can the judgment be im-
peached because it embraces also a personal judgment against the
owner of the land beside the proper judgment against the land it-
self; for that part of the judgment which is directed against the
owner will be regarded as mere surplusage.** The cases even go to
the length of holding that it cannot be shown against such a judg-
ment, collaterally, that the taxes on the particular land had been in
fact paid before the suit,'* or that no assessment was made for the
year in question,** although delinquency is the very f^ct upon which
the jurisdiction of the court must be based. And it is not even per-
mitted to show, in any collateral proceeding, that the assessment on
which the taxes were based was illegal and void, or that the statute
or ordinance authorizing the assessment was unconstitutional or in-
valid.** In Illinois, it was at one time the settled rule that a judg-
ment by default, in a proceeding under the statutes of that state for
the condemnation and sale of land for taxes, was not conclusive
upon the tax payer, and might be collaterally impeached.*® But
this rule has been very much narrowed by an amendment to the
revenue law providing that the tax judgment shall estop all parties
from raising objections which existed at or before the rendition of
the judgment and could have been presented in defense thereto, and
Ark. 3tf4; Dimcan v. Lankford, 145 iDd. 145, 44 N. E. 12; Gibbs v. Southern,
116 Mo. 204, 22 B. W. 713; V^ellsbear v. Kelley, 69 Mo. 343; Hennessy v.
City of Bt Paul, 54 Minn. 219. 55 N. W. 1123; Eitel v. Poote, 39 Cal. 439;
Branson v. Carotliers, 49 Cal. 375; Mayo v. Foley. 40 Gal. 281; Town of
Haywaia v. mmental. 107 Cal. 386, 40 Pac. 545; Gunn y. Howell, 27 Ala.
663, 62 Am. Dee. 785; Cadmus v. Jackson, 52 Pa. 295; Clinton v. City of
Portland, 26 Or. 410, 38 Pac. 407; Black, Tax Titles (2d Ed.) § 177.
»i Neely v. Bucbanan (Tenn. Cb.) 54 S. W. 905; Charley v. Kelley, 120 Mo.
134, 25 8. W. 571; aark v. Kern, 146 111. 348, 35 N. E. 60.
«»Chesnut v. Marsh, 12 111. 173.
<sCtaauncey v. Wass, 35 Minn. 1, 30 N. W. 826; Cadmus v. Jackson, 52
Pa. 295; Black, Tax Titles (2d Ed.) § 1G9.
«* Gibbfl V. Southern, 116 Mo. 204. 22 S. W. 713.
^•Mayo V. Ah Loy, 32 Cal. 477, 91 Am. Dec. 595; Mayo v. Foley, 40 Cal.
281; People v. Ungle, 165 111. 65, 46 N. E. 10. And see Higgin* v. Bordages
(Tex. Civ. App.) 28 S. W. 350.
3« Gage V. Fnmpelly. 115 U. S. 454, 6 Sup. Ot 136, 29 L. Ed. 449.
1 LAW JUDG.~24 (3G9)
§ 248 LAW OF JUD0MSNT8. (C9l. 13
making the judgment conclusive evidence of its own regularity and
validity in all collateral proceedings, except where the tax had been
paid or the land was not liable for it.*^
I 048« Adjndioations la Baakrvptoy*
An adjudication of bankruptcy, made by a court having jurisdic-
tion of the subject-matter and of the person of the defendant, is con-
clusive of the fact decreed, and cannot be attacked collaterally, for
any error or irregularity, in controversies between the trustee in
bankruptcy and persons claiming an adverse interest in the prop-
erty of the bankrupt, or otherwise.** On the same principle, a dis-
charge in bankruptcy remains valid and binding until set aside or
annulled in a suit brought for that purpose in the court where it was
granted ; it cannot be impeached collaterally for fraud, irregularity,
or want of notice in the proceedings in which it was obtained.* • A
state court, for example, can neither annul nor disregard a dis-
87 Drake v. Ogden. 128 III. 608, 21 N. B. 611; Gage v. Goudj, 141 lU. 216, 30
N. E. 320; Black, Tax TlUes (24 Ed.) 1 177.
ss Graham v. Boston, U. & E. R. Co., 118 U. 8. lei, 6 Sup. Ct 1008, SO
L. Ed. 196; Ohapman y. Brewer, 114 U. S. 168, 6 Snp. Ct 799, 29 L. Ed.
83; Michaels y. Foet, 21 Wall. 398, 22 L. Ed. 620; Sloan y. Lewis, 22 WalL
160, 22 L. Ed. 832; Graham y. Boston, H. & Ew R. Go. (C. C.) 14 Fed. 753;
In re Columbia Keal Estate Co. (D. C.) 101 Fed. 966; Hobson y. Markson.
1 Dm. 421, Fed. Cas. No. 6,555; In re GetcheU, 8 Ben. 266, Fed. Cas. Na
5,371; In re lyes, 5 DiU. 146, Fed. Cas. No. 7,115; Mount y. Manhattan Cb..
41 N. J. Eq. 211, 3 Atl. 726. As to questionins the jurisdiction of the
court, the foregoing cases show that this cannot be done, If the objec-
tion to the Jurisdiction concerns the character or number of creditors Join-
ing in the petition, the sufficient allegation of an act of bankruptcy, or
the amount of debts owed by the bankrupt But there are authorities to
the effect that a total want of Jurisdiction oyer the person of the bankrupt
may be shown, eyen collaterally. In re Goodfellow, 1 Low. 610, Fed. Cas.
No. 5,636; Fellows y. Hall, 3 McLean, 487, Fed. Cas. No. 4723; Stnart v.
Aumlller, 37 Iowa, 102, 8 N. B. R. 541.
89 United States y. Griswold (C. G.) 7 Sawy. 311, 8 Fed. 656. The pre-
scribed notice to creditors Is so far essential to the Jurisdiction of tbe court
to grant a discharge in bankruptcy that the want of it wiU be ground for
setting the discharge aside In a direct proceeding for that purpose: though.
Id any collateral proceeding, the certiiicate of discharge is itself coodu-
:Bive eyldence of Jurisdiction to grant it Allen y, Thompson (D. &> 10 Fed.
116.
(370)
Ch. 13) COLLATERAL IMPEACHMENT OF JX7DGMENTS. § 249
charge duly granted by a court of bankruptcy having jurisdiction,
nor allow it to be impeached in any collateral proceeding for any
cause which would authorize the bankruptcy court to revoke or set
it aside ; it can be impeached only in a direct proceeding for that
purpose in the bankruptcy court itself.**
§ 249. Awards,
An award of arbitrators, like a judgment at law, concludes the
parties, and cannot be impeached in a collateral proceeding, even
although erroneous, if it was fairly made.*^ If it appears to be
good on its face, none of the various grounds which might be urged
against its justice or legality in a direct proceeding to set it aside
will avail collaterally. Thus, it was said in an early case: "An
award good upon the face of it cannot be impeached but upon ob-
jections which go to the misbehavior of arbitrators. If the recep-
tion of illegal evidence appear upon the award, it may be set aside,
or if a mistake of fact appear upon the face, or by confession of the
referees, it should be recommitted; but the court cannot inquire
by extrinsic testimony into the justice of the award, for that would
be to try the matters in dispute de novo." **
«• Corey v. Kipley, 57 Me. W, 2 Am. Rep. 19; Stetson t. City of Bangor,
56 Me. 28t>; Parker v. Atwood, 52 N. H. 181; FuUer v. Pease, 144 Mass.
3«U, 11 N. K. C94; Way v. Howe, 10« Mass. 502, 11 Am. Rep. 386; Sheets
T. tiawk, 14 Serg. & U. (Pa.) 173, 16 Am. Dec 486; Ocean Nat. Bank
T. Ulcott, 46 iN. Y, 12; Talbott v. Suit, 68 Md. 443, 13 Atl. 356; Brady v.
Brady, 71 Ga. 71; Gates v. Parish, 47 Ala. 157; Milhous v. Aicardi, 51 Ala.
SM; Stevens v. Brown, 49 Miss. 597; Alston v. Robinett, 37 Tex. 56; Brown
T. Causey, 56 Tex. 340; EweU v. Pitman (Ky.) 27 S. W. 870; Morris v.
Gk«ed, 11 Heisk. (Tenn.) 155; Hennessee v. Mills, 1 Baxt. (Tenn.) 38; Thur-
mond y. Andrews, 10 Bush (Ky.) 400; Smith v. Ramsey, 27 Ohio St 339;
Uowland v. Carson, 28 Ohio St. 625; Wiley v. Pavey, 61 Ind. 457, 28 Am.
Kep. 677; Brown y. Coyenant Mut. Life Ins. Co., 86 Mo. 51; Thornton y.
Uogan, 63 Mo. 143; Seymour y. Street, 5 Neb. 85; Thomas v. Jones, 39
V\ is. 124.
«i Morse y. Bishop, 55 Yt 231.
«2 Jocelyn t. Donnel, Peek (Tenn.) 274, 14 Am. Dec. 753.
(371)
S 250 X^W OF JUDGMENTS (Ch. 13
( 250. Judcmentfl of Inferior Courts*
We shall have occasion, in a later part of this chapter, to discuss
the important distinction between superior and inferior courts, in
respect to the presumptions by which the judgments of the former
are sustained against collateral attacks upon their jurisdiction, and
the requirement that judgments of the latter must show jurisdiction
on their face. But it belongs to the present connection to advert to
the well recognized rule that the judgments and decisions of an in-
ferior court can in no case be assailed indirectly on account of er-
rors or irregularities not affecting the jurisdiction.** Thus the reg-
ularity or legality of a judgment rendered by a justice of the peace,
in a case falling within his competence and in which he had juris-
diction of the parties, so long as it is not reversed or annulled in
some proper proceeding, is not open to collateral attack or impeach-
ment.** On similar principles, an order or decree of a surrogate, or
probate or orphans' court, jurisdiction having attached, is not exam-
inable in any collateral proceeding.** In fact, the orders and judg-
ments of probate courts concerning matters over which they have
*» Comstock V. Crawford, 3 Wall. 396, 18 L. Ed. 34; Grusenmeyer v. City of
Logansport, 76 Ind. 549; Bell v. Raymond, 18 Conn. 100; Long v. Burnett, 13
Iowa, 28, 81 Am. Dec. 40; Roosevelt v. Kellogg, 20 Johns. (N. Y.) 208; Bernal
V. Lynch, 36 Oal. 135; Thompson v. Multnomah Co., 2 Or. 34; Shoemaker t.
Brown, 10 Kan. 383.
44 gearbox v. Hays, 6 Watts (Pa.) 398, 31 Am. Dec. 478; BUlings v. Russell,
23 Pa. 189, 02 Am. Dec. 330; McDonald v. Simcox, 98 Pa. 619; Cumberland
Oo. V. Boyd, 113 Pa. 52. 4 Ati. 346; Allen v. Martin, 10 Wend. (N. Y.) 300, 25
Am. Dec. 564; AVesson v. Chamberlain, 3 N. Y. 331; Lightsey v. Harris, 20
Ala. 409; Reid v. Spoon, 66 N. C. 415; Allen v. Mills, 26 Mich. 123; Nevada
Nickel Syndicate v. National Nickel Co. (C. C.) 103 Fed. 391; Livingston v.
Allen, 83 Mo. A pp. 294. Compare Jones v. Pharis, 59 Mo. App. 254.
45 Welty V. Ruffner, 9 Pa. 224; Gilmore v. Rodgers. 41 Pa. 120; Leedom v.
Lombaert, 80 Pa. 381; City of Boston v. Bobbins, 126 Mass. 384; Van Dyke
V. Johns, 1 Del. Ch. 93, 12 Am. Dec. 76; Ward v. Hudspeth, 44 Ala. 215; Grant
V. Spann, 34 Miss. 2€K4; Ourrle v. Franklin, 51 Ark. 338, 11 S. W. 477; Barney
V. Chittenden, 2 G. Greene (Iowa) 165; Halleck v. Moss, 22 Cal. 266; Haynes
V. Meeks, 10 Cal. 110, 70 Am. Dec. 703. Error of judgment by a surrogate,
however palpable, does not render proceedings under it void, and advantage
can be taken of it only on appeal; It cannot be passed upon in a collateral
suit or action. Woodruff v. Cook, 2 Edw. Ch. (N. Y.) 259.
(372X
Ch. 13) COLLATERAL IMPEACHMENT 07 JUDGMENTS. | 250
jurisdiction are no more open to collateral attack than are the or-
ders and judgment of other courts of general jurisdiction ; they must
have accorded to them the -same intendments and favorable pre-
sumptions which attend the judgments of courts of general com-
mon-law jurisdiction.** This rule applies to an order admitting a
will to probate ; *^ to orders appointing or removing executors, ad-
ministrators, or guardians ; *® to orders allowing claims against the
estate of a decedent ; *• to orders authorizing the sale of land to
pay debts of the estate, or confirming sales made by the exec-
utor ; •• and to decrees of partition made by a probate court having
jurisdiction.*^
The rule is by no means confined to the two species of inferior
courts already mentioned. It extends equally to many varieties of
judicial bodies and special tribunals, all being protected, as to their
judgments, in collateral inquiries, except as to jurisdiction, and, in
some cases, fraud. For example, where a court-martial has cogni-
zance of the charges made, and has jurisdiction of the person of
the accused, its sentence is valid and not impeachable collaterally,
although irregularities or errors are alleged to have occurred in its
*• Bensen v. Manhattan Ry. Co., 164 N. T. 659. 58 N. B. 1085; Murzynowski
r. Delaware, I^ & W. R. Co.. 15 N. Y. Supp. 841; Macey v. Stark, 116 Mo. 481,
21 S. W. 1088; Sherwood v. Baker, 105 Mo. 472, 16 S. W. 938, 24 Am. St Rep.
360; Gallup v. Smith, 59 Oomi. 354, 22 Ati. 334, 12 L. R A. 353.
*Uii re Warfleld'B WUl, 22 Cal. 51, 83 Am. Dec. 40; Bolton v. SchrJever, 135
X. T. 65, 31 N. B. 1001, 18 L. R. A. 242; Varner v. Johnston, 112 N. O. 570,
17 S. E. 483; Belton v. Summer, 31 Fla. 139, 12 South. 371, 21 L. R. A. 146;
CaUoway v. Cooley, 50 Kan. 743, 32 Pac. 372; Halbert v. De Bode (Tex. Civ.
App.) 28 S. W. 58.
*9 Steen v. Bennett, 24 Vt. 303; Loyd v. Waller, 20 C. C. A. 548, 74 Fed. 601;
Winter v. London, 99 Ala. 263. 12 South. 438; Gillespie v. Hauenstein, 72
Miss. 838, 17 South. 602.
*• Yeatman v. Yeatman, 3.j Neb. 422, 53 N. W. 385; Shelton v. Hadlock, 62
Oonn. 143. 25 Atl. 483; Munday v. Leeper, 120 Mo. 417. 25 S. W. 381; Murphy
T. De France, 105 Mo. r>3, 16 S. W. 861.
»• Williams v. Sharp, 2 Ind. 101; Sturdy v. Jacoway, 19 Ark. 499; Tyson
V. Belcher. 102 N. C. 112, 9 S. E. 634; Brown v. Lanman, 1 Conn. 467; Le-
broke v. Damon, 89 Me. 113, 35 Atl. 1028; Watklns v. Lewis, 153 Ind. 648, 55
X. E. 83; Cobb v. Garner, la"* Ala. 467, 17 South. 47, 53 Am. St Rep. 136;
Crawford v. McDonald, 88 Tex. 026, 33 S. W. 325.
51 SnevUy y. Wagner, 8 Pa. 306; Fowler v. Succession of Gordon, 24 La.
Ann. 27a
(373)
§ 251 LAW OF JUDGMENTS. (Ch. 13
proceedings.'^ So, where a board of land commissioners has once
acquired jurisdiction of a matter, its subsequent proceedings there-
in cannot be collaterally questioned.** The same rule applies to
the proceedings of a board of county officers exercising their statu-
tory authority in proceedings for the laying out of a public high-
way or the location of a private way.'* Again, as a state board of
equalization acts judicially in determining what property is to be as-
sessed for taxation, and in fixing the amount of the assessment, its
judgment therein cannot be collaterally impeached.'*
§ 261. Oo-Ordiaate Courts.
A judgment at law cannot be impeached collaterally in equity."
And conversely, the validity of a decree rendered by a court of
equity cannot be impeached in a collateral action at law.'^ A judg-
ment of a state court, no question as to its jurisdiction being in-
volved, cannot be overhauled or corrected in a collateral proceeding
in a federal court." The courts of the United States cannot law-
82 Bz parte Reed, 100 U. S. 13. 25 L. Ed. 538; Bx parte Mason, 106 U. S.
G96» 26 L. Ed. 1213; Keyes T. United States, 109 U. S. 336, 8 Sup. Ct 202. 27
L. Ed. 954; Dynes Y. Hoover, 20 How. 65, 15 L. Ed. 838; Swaim v. United
States, 165 U. S. 553, 17 Sup. Ct 448, 41 L. Ed. 823; United States ▼. Grimley.
337 U. S. 147, 11 Sup. Ct 54, 34 L. Ed. 636.
B« Bernal v. Lyneh, 36 Cal. 135.
B« San Mateo County v. Cobum. 130 Cal. 631, 63 Pae. 78; Helms v. Bdl, 125
Ind. 502, 58 N. E. 707; Thomas y. Chmx^hUl, 84 Me. 446, 24 AtL 890.
BB Mclieod T. Receveur. 18 C. a A. 188, 71 Fed. 455.
«• Redwine v. Brown, 10 Ga. 311.
87 Watson V. Williams, 43 N. C. 232; Alexander v. Nelson, 42 Ala. 4C2.
B8 Chicago & A. R. Co. v. Wiggins Ferry Co., 108 U. S. IB, 1 Sup. Ct 614,
27 L. Ed. 636; Oenti-al Trust Co. y. Seasongood, 130 U. S. 482, 9 Sup. Ct 57a.
32 L. Ed. 985; Simmons y. Saul, 138 U. S. 439, 11 Sup. Ct 369. 34 L. Ed. 1054;
Griswold y. Hazard, 141 U. S. 260, 11 Sup. Ct. 972, 35 L. Ed. 678; Lytle ▼.
Town of Lansing, 147 U. S. 59, 13 Sup. Ct 254, 37 L. Ed. 78. Federal courts
can determine whether or not a state court had Jurisdiction of the parties to
or subject-matter of a cause in which it has rendered Judgment and for this
purpose they may look beyond the record and hear other eyldence; bat it
cannot be shown by parol or extrinsic evidence that the subject-matter In the
record was not that which was adjudicated. Kansas City, Ft S. & M. R. Co.
y. Morgan, 21 C. O. A. 468, 76 Fed. 429. A decree of a state court can be col-
laterally attacked in a federal court only when it is entirely void, either for
want of legal organization of the court, or want of Jurisdiction orer the par-
(374)
Ch« 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 252
fully treat as nullities the judgments of the courts of the several
states, rendered in suits where the latter have jurisdiction of the
cause and the parties, even if they are founded upon an erroneous
construction of the bankrupt act or any other statute of the United
States; the remedy for the correction of the error is by a writ of
error in the supreme court of the United States."* And it is equally
clear that the reverse of this rule must hold good. That is, that
the judgments and decrees of the federal courts, in cases where their
jurisdiction is not disputed, must be impervious to collateral assail-
ment in the courts of the states, although, for example, they may
proceed upon an erroneous construction of a state constitution or
statute.*®
I 262. Wluit ooiuitltiitef a OpUateral Attaok.
We are next to inquire what constitutes a collateral attempt to
impeach a judgment within the meaning of the rule prohibiting such
endeavors. And here we shall find that the word "collateral" is
always used as the antithesis of "direct," and it is therefore wide
enough to embrace any independent proceeding. To constitute a
•
direct attack upon a judgment, it is said, it is necessary that a pro-
ceeding be instituted for Jhat very purpose."^ If an appeal is taken
from a judgment, or a writ of error,** or if a motion is made to va-
ties or the subject-matter. But the fact that such decree is void on its face,
because uncertain and incomplete, does not render it subject to collateral at-
tack; the remedy must be sought in the court which rendered it, by proceed-
ings for its vacation, or by appeal. Wood v. City of Mobile (0. C.) 09 Fed. 615.
»» Klttredge v. Emerson, 15 N. H. 227.
«o Kent y. Lake Superior Ship Canal Ry. &, Iron Co., 144 U. S. 75, 12 Sup.
Ct 650, 36 L. Ed. 352; Anderson v. Elliott, 41 C. C. A. 521, 101 Fed. 609;
Town of Ontario v. First Nat Bank, 59 Hun, 29, 12 N. Y. Supp. 434; Sandwich
Mfg. Co. V. Earl, 56 Mhm. 390, 57 N. W. 938; Mead v. Weaver, 42 Neb. 149,
00 N. W. 385.
•I Nichols V. Wimmer (Tex. Sup.) 19 Reporter, 475.
•s An appeal or writ of error by infants after attaining their majority, to
reverse a judgment irregularly rendered against them, is a direct attack on
the Judgment, not collateral. Moore v. Prince, 5 Tex. Civ. App. 352, 23 S. W.
1113; Warren v. Union Bank of Rochester, 157 N. Y. 259, 51 N. E. 1036, 43 L.
R. A. 256, 68 Am. St. Rep. 777. So of an appeal from a judgment by a third
person, legally entitled to appeal because aggrieved by the judgment. Succes-
sion of Fortler, 51 La. Ann. 15G2, 26 South. 554.
. (375)
§ 252 LAW OF JUDOMBNTS. ((3l. 13
cate or set it aside on account of some alleged irregularity,** the at-
tack is obviously direct, the sole object of the proceeding being to
deny and disprove the apparent validity of the judgment. But if
the action or proceeding has an independent purpose and contem-
plates some other relief or result, although the overturning of Ac
judgment may be important or even necessary to its success, then
the attack upon the judgment is collateral and falls within the rule.
Thus, whether a judgment is irregular or erroneous is not a legiti-
mate inquiry in a suit brought for its enforcement.** So in the dis-
tribution of a fund, the court cannot inquire into the validity of a
judgment regular on its face, or into the consideration on which it
was founded.'" Again, in an action of trespass to try title, any
attack upon a judgment which forms the basis of the title of one of
the parties, or enters into his title, will be considered a collateral im-
peachment of such judgment.'* And in a suit on an appeal bond,
«s An action or motion* to vacate a judgment for want of service of procesfi
on the defendant is not a collateral attack, but direct. Vaule v. MUler, W
Minn. 440. 72 N. W. 452; Keinhart v. Lugo, 86 Cal. 395, 24 Pac 1060, 21 Am.
St. Rep. 52. The same is true of a bUl to set a Judgment aside on the ground
that it was procured by fraud. Mosby.v. Gisbom, 17 Utah, 257, 54 Pae 121;
Thompson v. McCorlsIe, 136 Ind. 4&1, 34 N. E. 813, 43 Am. St. R^. 334. Or
because it was rendered against a minor plaintiff^ who was not represented bj
a guardian. Stephens v. Hewett, 22 Tex. Civ. App. 304, 54 S. W. 301.
64 Rogers v. Rogers, 15 B. Mon. (Ky.) 3G4; Pearse v. Hill, 163 Mass. 493, 40
.N. E. 765. Nor in an action on a promissory note given in satisfaction of the
Judgment. Mitchell v. State Bank, 1 Scam. (111.) 526. A proceeding to re-
vive a Judgment is collateral, and cannot be made the means of impeaching
the original Judgment for error. Foster v. Crawford (C. C.) 80 Fed. WL
And the same is true of a suit in equity to enforce the lien of a Judgment
against real estate of the debtor. First Nat. Bank v. Huntington DistflUng
Co., 41 W. Va. 530, 23 S. E. 792, 56 Am. St. Rep. 878; Baldwin v. Baer, 10
Wash. 414, 39 Pac. 117. Unless a Judgment is void on its face, it cannot be
collaterally attacked in proceedings after execution on exemplification filed
in anotlier county. Toomey v. Rosansky, 11 Pa, Super. Ot 506. Nor can the
correctness of a decree giving a party a lien on property be inquired into on a
motion to vacate a sale made in conformity with such decree. Dryden v.
Parrotte, 61 Neb. 339, 85 N. W. 287.
es Second Nat. Bank's Appeal, 85 Pa. 528; Safe-Deposit & Trust Ca v.
Wright, 44 C. C. A. 421, 105 Fed. 155.
»e Lee v. Kingsbury, 13 Tex. 68, 62 Am. Dec. 546; Crawford v. McDonald.
88 Tex. 626, 33 S. W. 325; Bouldin v. Miller (Tex. Civ. App.) 26 S. W. 133.
Compare Fayssoux v. Kendall County (Tex. Civ. App.) 55 S. W, 5S3; <;rab!im
V. East Texas I-and & Imp. CJo. (Tex. Civ. App.) 50 S. W. 579; Scanlan v.
(370)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 252
the valicMty of the judgment appealed from and affirmed cannot be
drawn in question.*^ The same is true of a suit on a recognizance
entered in an attachment suit; no allegations can be. heard against
the regularity of the judgment in attachment.** Nor can a judg-
ment be attacked in a proceeding to punish defendant for contempt
in disobe3nng it,** nor when it is offered in evidence collaterally in
another suit/* nor when an action is brought to recover land sold
under an execution on the judg^ent.^* Similarly, where a receiver
of an insolvent sues to recover assets of his estate, defendant can-
not assail the validity of the judgment under which the receiver
was appointed.^* And in an action by a guardian on the bond of a
former guardian who had been removed, an objection by defendants
that the court had no jurisdiction to remove such former guardian,
and appoint the plaintiff, cannot be sustained, being a collateral at-
tack on the judgment.^* So where a sheriff is sued for failure to re-
turn an execution, he cannot impeach the judgment on which the
writ issued.'^*
On the other hand, a complaint alleging that a judgment is abso-
lutely void on its face, and yet is apparently a lien on plaintiff's
land, and asking a decree annulling and avoiding such judgment, is
not a collateral attack upon it.^* And it has been held that no im-
proper impeaching of a judgment collaterally is involved in a cred-
itor intervening, in a suit brought by heirs against their mother to
enforce payment for their interest in the deceased father's estate,
CampbeU, 22 Tex. Civ. App. 505. 55 S. W. 501. A cross bill attacking the va-
lidity of a decree of a probate court in ordering sale of land of an insolvent
decedent to pay debts, in a suit to quiet title to the land, is a collateral attack.
Friedman v. Shamblin. 117 Ala. 454, 23 South. 821.
«T Sturjds V. Rogers, 26 Ind. 1; Bostlc v. Love, 16 Cal. 69; Trogdon v.
Cleveland Stone Co., 53 lU. App. 206.
•» Elmer v. Richards, 25 lU. 289. See Tarbox v. Hays, 6 Watts (Pa.) 398,
31 Aiu. Dec. 478.
•» Ketchum v. Edwards, 6 App. Div. 100, 39 N. Y. Supp. 1012.
70 Miller v. White, 46 W. Va. 67, 33 S. E. 332, 76 Am. St Rep. 791.
Ti Brooks V. Powell (Tex. Civ. App.) 29 S. W. 809.
72 Jones V. Blun, 145 N. Y. 333, 39 X. E. 954.
7 a Deegan v. Deegan, 22 Nev. 185, 37 Pac. 360, 58 Am. St. Rep. 742.
74 Vicksburg Grocery Co. v. Brennan (Miss.) 20 South. 845.
7 6 Penrose v. McKenzie, 116 Ind. 35, 18 N. E. 384. See McCampbell v.
Durst, 73 Tex. 410, 11 S. W. 380.
(377)
§ 268 LAW OP JUDGMENTS. (Ch. 13
which she has purchased, for the purpose of opposing the daims d!
the heirsy although their claims are founded on a probate decree
confirming the sale, agreed on by the parties^* And an action by
heirs to quiet the title of property of the decedent, fraudulently sold
to pay his debts, is not a collateral attack on the decree confirm-
ing the sale.''^ In Texas, under a statute allowing persons inter-
ested in the estate of a decedent to have the proceedings in the
county court corrected on certiorari from the district court, where
the cause shall be tried de novo, the proceeding is direct, and not
collateral.^*
I 263. Prooeedinsf to preveiit Exeontioii of tlie JvdsatoBt.
A bill in equity seeking to enjoin the enforcement of a judgment
at law, by execution or otherwise, constitutes a collateral attack
upon the judgment, and cannot be maintained on account of any
mere errors or irregularities, but only upon a showing that the judg-
ment is void/® There are cases, however, holding that a suit to
enjoin the enforcement of a judgment on the ground of a total want
of jurisdiction over the person of the defendant, — ^as, where no pro-
cess was ever served on him, — ^is a direct attack on the judgment,
and not collateral.*® And the same is said to be true where the
ground set up for enjoining the judgment is that it has been satisfied
and released.*^ The validity of a judgment cannot be impeached
76 Bedell v. H&jes, 21 La. Ann. 643. See Slidell v. Germanla Nat Bank, 27
La. Ann. 354.
7 7 Bergin v. Halght, 90 Oal. 52, 33 Pac. 760. Compare I^ynch v. Rooney,
112 Cal. 279. 44 Pac. 565.
78 Wlpff V. Heder, 6 Tex. Civ. App. 685. 26 S. W. 118; Kalteyer ▼. Wlpff
(Tex. Civ. App.) 49 S. V7. 1055.
7» Davis V. D. M. Osborn & Co., 156 Ind. 86, 59 N. E. 279; Kmg t. DaTis.
85 Ind. 309; A. B. Smith Co. v. Bank of Holmes County (Miss.) 18 South. 817:
Kirk V. Duren, 45 S. C. 597, 23 S. E. 954; Hudson v. Yost, 88 Va. 347, 13 S.
E. 436.
80 Smith V. MorriU, 12 Colo. App. 233, 55 Pac. 824; Waite v. Ellis, 5 Ohio
N. P. 415. But a suit to enjoin a judgment on the ground merely that th<>
summons which was served was insufficient is a collateral attack. Missouri.
K. & T. Ry. Co. V. Warden, 73 Mo. App. 117.
81 Smith V. Morrill, 11 Colo. App. 284, 52 Pac 1110; Brakke T. Hoekins, 98
Iowa, 233, 67 N. W. 235.
(378)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 253a
on a motion to quash an execution issued on it. Such a motion
cannot be based on the ground of mere error or irregularity in the
judgment. The jurisdiction not being questioned, and the judg-
ment not having been reversed, vacated, or set aside, such a motion
would constitute a collateral attack upon it.'*
I 253a. Prooeedins to Enf oroe Judgment Tby Mandamus.
When a judgment has been recovered against a municipal cor-
poration, and application is made for a writ of mandamus to com-
pel the proper municipal officers to provide funds for its paypient
by the levy and collection of a tax, it is not permissible for the re-
spondents, in opposition to the motion for mandamus, or in answer
to the alternative writ, to set up any matters impeaching the correct-
ness of the judgment; as against any such collateral attack, the
judgment is impregnable, and it is conclusive of all defenses which
were, or might have been, urged in the original action.®* For ex-
ample, if the suit was upon bonds of the municipality, it is no de-
fense to the proceeding for mandamus that such bonds were ille-
gally issued, or were invalid for any other reason.** Nor can the
municipality contend that the indebtedness on which the judgment
ss Jones v. George, 80 Md. 294, 30 Atl. 635; Merrick v. Merrick, 5 Mo. App.
123, citing Swinney v. Watkins, 22 Ga. 570; Shorter v. Miins, 18 Ala. 658;
Skldmore v. Bradford, 4 Pa. 296.
•« Supervisors v. United States, 4 Wall. 435, 18 L. Ed. 419; Mayor v. Lord, 9
Wall 409. 10 L. Ed. 704; United States v. New Orleans, 98 U. S. 381. 25 L. Ed.
225; Harshman v. Knox County Court, 122 U. S. 306, 7 Sup. Ct. 1171, 30 L.
Ed. 1152; Mayor of New Orleans v. United States, 2 U. S. App. 125, 1 O. C.
A. 148, 49 Fed. 40; Fleming v. Trowsdale, 29 C. C. A. 106, 85 Fed. 189; Cflews
T. Lee County, 2 Woods, 474, Fed. Cas. No. 2,892; Hill v. Scotland County
Court (C. C.) 32 Fed. 716; Loague v. Taxing District of Brownsville (a 0.)
36 Fed. 149; People T. Common Council of Buffalo, 21 N. Y. Supp. 598; Bear
V. Board of Com'rs of Brunswick County, 122 N. C. 434, 29 S. E. 719, 65 Am.
St Rep. 711; Harkness v. Hutcherson, 90 Tex. 383, 38 S. W. 1120; City of
Sherman v. Langham, 92 Tex. 13, 42 S. W. 961; Stevens v. Miller. 3 Kan. App.
192. 43 Pac. 439; Stenberg v. State, 48 Neb. 209, 67 N. W. 190; People v.
Board of Gom'rs of Rio Grande County, 7 Colo. App. 229, 42 Pac. 1032; Id.,
11 Colo. App. 124, 52 Pac. 748i State v. Moss, 13 Wash. 42, 42 Pac. 622.
»* Mayor v. Lord, 9 WaU. 409, 19 L. Ed. 704; Fleming v. Trowsdale, 29 C.
C. A. 106, 85 Fed. 189; Board of Com'rs of Rio Grande County v. Burpee, 24
Cblo. 57, 48 Pac 539; Stenberg v. State, 48 Neb. 209, 67 N. W. 190.
(379)
§ 254 LAW OF JUDGMENTS. (Ch. 18
was based was in excess of the amount fixed by the constitution as
the limit of the debt which it might lawfully incur.'* Neither can it
be alleged in the proceedings for mandamus that the judgment was
entered by consent of the officers of the city, notwithstanding there
was a valid defense to the action, the judgment not being void on
its face.*' But it has been declared by the supreme court of the
United States that when application is made to collect judgments
by process not contained in themselves, — ^as, by mandamus, — and
requiring, in order to* be sustained, reference to the alleged cause of
action on which they are founded, the aid of the court should not be
granted when upon the face of the record it appears, not that mere
error superventd in the rendition of such judgments, but that they
rest upon no cause of action whatever.*^ And it is competent for
the respondents to the writ of mandamus to show that the original
judgment was entirely void for want of jurisdiction.*? The same
principles apply in an action to enjoin the collection of a tax levied
to j^ay a judgment against a municipal corporation. The validity of
the claim on which the judgment rests cannot be questioned; the
judgment being conclusive against collateral attack by the munici-
pality or by any individual taxpayer.**
I 264. Habeas Corpus Prooeedimcs*
The writ of habeas corpus is very frequently sued out to obtain
the release of a person held in custody under the judgment or sen-
9
8B Harshman v. Knox CJounty Court, 122 U. S. 306, 7 Sup. Ct 1171, 25 L. Ed.
225; Board of Ctom'rs of Lake County v. Piatt, 25 C. C. A. 87, 79 Fed. 5G7;
Holt County v. National Tlfe Ins. Co.. 25 C. C. A. 460. 80 Fed. 686; Geer v.
Board of Corners of Ouray County, 38 C. C. A. 250, 97 Fed. 435; aty of Helena
V. United States. 43 0. C. A. 429. 104 Fed. 113; Edmundson v. Independent
School District, 98 Iowa, 639, 67 N. W. 671, 60 Am. St Rep. 224; Howard r.
City of Huron, 5 S. D. 539, 59 N. W. 833, 26 L. R. A. 493; Smith v. Ormsby.
20 Wash. 396, 55 Pac. 570, 72 Am. St Rep. 110.
86 City of Helena v. United States. 43 C. C. A. 429. 104 Fed. 113. And
see United States Trust Co. v. Territory (X. M.> 62 Far. 987.
8T BrownsYille Taxing Dlst v. Loague, 129 U. S. 493, 9 Sup. Ct 327, 32 L.
Ed. 780.
88 Moore v. Town Council of Edgefield (O. C.) 32 Fed. 498. Compare Boasen
V. State, 47 Neb. 245, 66 N. W. 303.
89 Grand Island & N. W. R. Co. y. Baker, 6 Wyo. 309, 45 Pac. 494, 34 L. B.
A. 835. 71 Am. St Rep. 920.
(380)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 255
tence of a court, and in a great many instances the attempt has been
made to impeach such judgment on grounds going to its legaUty
or regularity, or even upon objections to the anterior proceedings.
But the courts have resolutely set their faces against this practice,
refusing to look beyond the judgment itself, except in the single
case where a want of jurisdiction is alleged. A proceeding of this
nature is undoubtedly a collateral attack upon the judgment; and
exceptional as the remedy is, and beneficent as is the purpose it
subserves, there is no good reason for permitting it to be made
the vehicle for objections to the judgment or sentence which could
not be urged against it in any other collateral proceeding.*® Ac-
cordingly the authorities declare that the writ will not be issued when
it appears on the face of the petition that the petitioner is detained
by virtue of the final judgment of a court of competent jurisdiction ; •^
and that such a judgment, valid on its face, is an unanswerable re-
turn to a writ of habeas corpus.®* But while errors or irregulari-
ties will not be thus inquired into, the subject of jurisdiction is legiti-
mately open to investigation, including both jurisdiction of the per-
son and subject-matter and of the particular order or sentence as-
sumed to be passed, as well as the sources of jurisdiction when
founded on statute or ordinance. The several points will be dis-
cussed in detail in the next following sections.
§ 255. Erron wad Irresnlazitieg not Reviewalile*
If the question is upon the judgement of a court of competent
jurisdiction, the petitioner in habeas corpus cannot impeach it on
the ground of any error or irregularity in the proceedings or sen-
tence of the court which does not go to the extent of impairing or.
taking away its power or jurisdiction to act in the case.*' The rea-
•• People v. District Court. 22 Colo. 422, 45 Pac. 402.
•I In re Brittain, 93 N. C. 587.
»2 Smith v. Hess, 91 Ind. 424.
•» Ex parte Kearney, 7 Wheat 38. 5 L. Ed. 391; Ex parte Watkins, 3 Pet
193, 7 L. Ed. 650; Ableman v. Booth. 21 How. 506, 16 L. Ed. 196; Ex parte
Yerger, 8 Wall. 85, 19 L. Ed. 332; Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787;
Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538; Ex parte Virginia, 100 U. S. 339,
25 L. Ed. 676; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; Ex parte Tar-
(381)
{ 255 LAW OF JUDGMENTS. (Cfa. l3
son is this. If any such erroneous or irregular action has occurred,
he has his remedy by appeal, error, or certiorari. And although,
on a review by an appellate court, the objections presented might
be amply sufficient to procure a reversal of the judgment, yet he
cannot make the proceeding by habeas corpus a short cut to the
same result, because that would be twisting the extraordinary rem-
edy away from its proper object to make it subserve an entirely dif-
ferent purpose.®* The importance of this rule justifies its illustra-
tion by a number of examples. Thus the investigation on habeas
corpus will not be allowed so wide a range as to include the nature,
brough, 110 U. S. 651, 4 Sup. Ot. 152. 28 L. Ed. 274; Bx parte Blgelow, 113 U.
S. 328, 5 Sup. Ot 542, 28 L. Ed. 1005; Wales v. Whitney, 114 U. S. 5W, 5 Sap.
Ot 1050, 29 L. Ed. 277; Ex parte Terry, 128 U. S. 289, 9 Sup. Ot. 77, 32 L. Ed
405; Ex parte Savin. 131 .U. S. 267, 9 Sup. Ct 699, 33 L. Ed. 150; Davis ▼.
Beason, 133 U. S. 333, 10 Sup. Ot 299. 33 L. Ed. 637; Stevens v. PnUer, 13G
U. S. 468, 10 Sup. Ct 911, 34 L. Ed. 461; Ex parte Frederich, 149 U. S. 70, 13
Sup. Ct 793. 37 L. Ed. 653; In re Eckart, 166 U. S. 481, 17 Sup. Ct 638, 41 L.
Ed. 1085; Ex parte Lennon, 166 U. S. W8. 17 Sup. Ot 658, 41 L. Ed. 1110: In
re Boyd, 4 U. S. App. 73, 1 O. 0. A. 156, 49 Fed. 48; In re King (Q 0.) 51 Fed.
434; Ex parte Shafifenburg, 4 Dill. 271. Fed. Oas. No. 12,696; Ex parte rark^.
1 Hughes. 6(M. Fed. Cas. No. 10,764; Ex parte Williams, 1 Wash. T. 240; In re
Phinney, 32 Me. 440; CMalia v. Wentworth. 65 Me. 129; In re Dougherty. 27
Vt 325; Walbrldge v. HaU, 3 Vt 114; Olmsted v. Hoyt, 4 Day (Conn.) 436:
Herrlci^ v. Smith, 1 Gray (Mass.) 1, 61 Am. Dee. 381; People v. liscomb, Oil
N. Y. 559, 19 Am. Rep. 211; People v. McLeod, 1 HiU (N. X.) 377, 37 Am. Dec.
328; Baker's Case, 11 How. Prac. (N. Y.) 418; Commonwealth v. Keeper of
Jail, 26 Pa. 279; WUliamson's Case. 26 Pa. 9, 67 Am. Dec. 374; Ex parte Rol-
lins, 80 Va. 314; In re Schenck, 74 N. O. 607; Dover v. State. 75 Ala. 40;
Kirby v. State, 62 Ala. 51; Ex parte Simmons, 62 Ala. 416; Ex parte Sam. 51
Ala. 34; Keene v. McDonough, 8 La. 185; State v. Fenderson, 28 La. Ann. 82:
Ex parte Schwartz. 2 Tex. App. 74; Ex parte McGlU, 6 Tex. App. 408; Ex
parte Boland, 11 Tex. App. 159; Ex parte Shaw. 7 Ohio St. 81, 70 Am. Dec. oo:
Patterson v. Pressey. 70 Ind. 94; People v. Foster, 104 111. 156; In re Truman,
44 Mo. 181; Ex parte Toney. 11 Mo. 661; Rolfs v. Shallcross. 30 Kan. 758. 1
I'ac. 523; In re Petty, 22 Kan. 477; In re Eaton. 27 Mich. 1; In re Semler, 41
Wis. 517; In re Blair, 4 V^s. 522; Ex parte Gibson. 31 Cal. 619. 91 Am. Dec.
546; Ex parte Hartman, 44 Cal. 32; Ex parte Granice, 51 Gal. 375; Ex parte
McCuUougli, 35 Cal. 98; Ex parte Lehmkuhl, 72 Cal. 53. 13 Pac. 148; Ex parte
Farnham. 3 Colo. 545; Ex parte Smith, 2 Nev. 338; Ex parte Twohig, 13 Ner.
302; Rex v. Carlile, 4 Oar. & P. 415.
»* "We reiterate what has so often been said before, that the writ of ha-
beas corpus cannot be used to perform the office of a writ of error or appeal:
but when no writ of error or appeal will lie. If a petitioner is ImprisoDfd under
a Judgment of the circuit court which had no jmisdlcUon of the peraoo or of
(382)
Oh. 13) COLLATERAL IMFBACHMBNT OF JUDGMBNT8. § 255
weight, or sufficiency of the evidence on which the judgment was
rendered, or the reasons on which it was based.* • Nor can ad-
vantage be taken in this manner of a defect in the verdict, although
it would be sufficient to cause the reversal of the judgment on ap-
peal or writ of error ;•• nor of any errors made by the court in
granting, modifying, or setting aside orders in criminal cases ; •' nor
of any errors alleged to have been committed in the determina-
tion of questions arising on a motion in arrest of judgment, these
not being jurisdictional defects, although the question determined
was whether an act charged in an indictment was or was not a crime.*'
It is the same of irregularities in the proceedings. On habeas corpus
there can be no inquiry into a defective or irregular selection of the
grand jury ; •• nor whether the indictment upon which the judgment
was given, being regular on its face, was ever in fact found by a
grand jury.**® Neither can advantage be taken of the fact that the
judgment does not specifically describe the offense of which the
petitioner was convicted ; *•* nor of the fact that only one officer
was present at the returning of the verdict, instead of two as re-
quired by law;^®* nor of the fact that the court pronounced judg-
ment upon a verdict on a charge of felony during the enforced ab-
sence of the petitioner in jail;^*' jior of the fact that the record
the Bubject-matter, or authority to render the judgment complained of, then
reUef may be accorded." In re Swan, 150 U. S. 637, 14 Sup. C?t 225, 37 L. Ed.
1207; In re Chapman. 156 U. S. 211, 15 Sup. Ct 331, 39 L. Ed. 401; Andrews
V. Swartz, 156 U. S. 272, 15 Sup, Ct 389, 39 L. Ed. 422.
•s Macke v. Ryan, 31 Kan. 54, 1 Pac. 785; In re GUson, 34 Kan. 641, 9 Pac.
763; In re Watson, 30 Kan. 753, 1 Pac. 775; Ex parte Jackson, 45 Ark. 158;
Starr v. Barton, 34 Ga. 99; State v. Bloom, 17 Wis. 521; Griffin v. State, 5
Tex. App. 457; In re Bogart, 2 Sawy. 396, Fed, Cas. No. 1,596; Ex parte Phil-
Ups, 57 Miss. 357.
»• Dover v. State, 75 Ala. 40.
•f Ex parte Hartman, 44 Cal. 34.
•• Ex parte Parks, 93 U. & 18, 23 L. Ed. 787; Ex parte Shaflfenburg, 4 DUl.
271, Fed. Ca8« No. 12,696.
•• State T. Fcnderson, 28 La. Ann. 82.
100 Ex parte Twohig, 13 Nev. 302.
101 Bx parte Gibson, 31 Gal. 619, 91 Am. Dec. 546; Ex parte Smith, 2 Nev.
338.
102 Rex T. CarUle, 4 Car. & P. 415.
!•• £x parte Famham, 3 Colo. 545.
(383)
§ 256 LAW OF JUDQMBNTS. (Cb. 13
shows affirmatively that there was no interval of time between the
plea of guilty and the sentence, although the statute requires an in-
terval of at least two days.^**
^ eG6. JvrUaictlos may be
In order that a judgment may be valid, it is necessary that the
court should have had jurisdiction both of the person and the sub-
ject-matter; the want of such jurisdiction may be shown on habeas
corpus ; and if either element is proved to be wanting, the judgment
is void and an imprisonment under it is lUegal.*^^ But it is to be
observed that in criminal cases the question of jurisdiction of the
subject-matter may frequently become a fact in issue, and in that
event its determination by the verdict will preclude a fresh investiga-
tion of the subject on proceedings by habeas corpus. This is the
case where the jurisdiction of the court over the place where the
alleged offense was committed is traversed by the defendant, and
the jury find that the locus in quo is within the limits of the court's
territorial jurisdiction. After such a finding, the petitioner cannot
impeach the judgment by showing that the place was without such
limits.^®" It must also be remarked in this connection that there is
104 Ex parte Smith, 2 Nev. 33a
106 Ex parte Nielsen, 131 U. S. 176, 9 Sup. Ct. 672, 33 L. Ed. 118; Ex parte
Virginia, 100 U. S. 330, 25 L. Ect 676; Ex parte Busklrk, 18 C. C. A. 410, 72
Fed. 14; United States v. Patterson (C. 0.) 29 Fed. 775; Ex parte FerldxiB, Id.
000; Ex parte Farley (C. C.) 40 Fed. 66; Ex parte Bridges, 2 Woods, 42&, Fed.
Cas. No. 1,862; Johnson v. United States, 3 McLean, 89, Fed. Ga& No. 7,41S:
Miller v. Snyder. 6 Ind. 1; Reynolds v. Orvis, 7 Cow. (N. T.) 260; Cropper's
Case, 2 Rob. (Ya.) 842. On habeas corpus, a court has the power to reriew
Its own former Judgment, so far as to determine whether It exceeded its
power in passing a Judgment claimed to be illegal. Ex parte Joyce, 25 Plttsb.
Leg. J. 17, Fed. Oas. No. 7,556. As regards the nature and effect of a Judg-
ment void for w^ant of Jurisdiction, and the right of every court to trat
such Judgment as a nullity, when drawn collaterally in queatioo, there Is no
substantial difference between the case of an imprisonmoit under such a
Judgment, and one of any other illegal imprisonment under pretease of au-
thority from the United States, in respect to the right of a state court to In-
quire in the first instance by habeas corpus into its legality. In re Tarble«
25 Wis 300. 3 Am. Rep. 85.
106 In re Newton, 16 C. B. 07; People v. Liscomb, 60 N. X* 571. 11> Am.
Rep. 211; Deckard v. State, 38 Md. 186.
(384)
Ch« 13) COLL.ATERAL IMPBACHMBNT OF JUDOHBNTS. § 256
a material difference in the authorities, as to the circumstances in
which a judgment may be impeached for want of jurisdiction, when
it is not void on its face. This topic will be treated in the third part
of the present chapter. In the meantime, we call the reader's notice
to the fact that the collateral investigation of a judgment on habeas
corpus is only a special application of the general rule. And if a
majority of the states refuse to allow parties or privies to attack -a
judgment, in general, for want of jurisdiction, unless the record itself
shows where the jurisdiction failed, there is nothing in the nature of
this special case to take it out of the rule. A word must be added
in regard to a particular class of courts whose sentences have some-
times been thought to be open to revision on habeas corpus, viz.,
courts-martial. It is now well settled that while the jurisdiction of
such a court may be challenged and examined in such a proceeding,
its judgment cannot be disregarded or annulled, or the prisoner dis-
charged, unless it is absolutely void. "The question of the jurisdic-
tion of a general court-martial may always be inquired into upon
the application of any party aggrieved by its proceedings, and so
may that of every other judicial tribunal ; but the range and scope
of the inquiry is controlled by the same rules and limitations in both
cases. There must be jurisdiction to hear and to determine, and
to render the particular judgment or sentence imposed. If this ex-
ists, however erroneous the proceedings may be, they cannot be re-
viewed collaterally upon habeas corpus. It would be as indecorous
and as wanton a stretch of judicial power to assume in advance that
a general court-martial will erroneously convict an accused person
of a military offense, as it would be to indulge such a presumption con-
cerning a common-law court." **^ Finally, the writ of habeas corpus
»•» Ex parte MlUigan. 4 Wall. 2, 18 L. Ed. 281; Dynes v. Hoover, 20 How.
78, 15 L. Ed. 838; Wise v. Withers, 3 Oranch, 331, 2 L. Ed. 457; Ex parte
Kearney, 7 Wlieat 38, 6 L. Ed. 391; Ex parte Reed, 100 U. S. 13. 25 L. Ed.
538; Wales v. Whitney, 114 U. S. 664. 6 Sup. Ct 1050, 29 L. Ed. 277; In re Davi-
son (C. C.) 21 Fed. 620; Barrett v. Hopkins (C. C.) 7 Fed. 312; In re White
(a C.) 17 Fed. 723, 9 Sawy. 49; In re Grimley (C. O.) 38 Fed. 8i; In re Bird,
2 Sawy. 33» Fed. Cas. No. 1.428; In re Oorbett. 9 Ben. 274. Fed. Cas. No.
3.219; In re Bogart, 2 Sawy. 396, Fed. Cas. No. 1.596; Ex parte Henderson,
Fed. Caa. No. 6,349; People y. Warden of Ck>unty Jail, 100 N. Y. 20, 2 N. E.
870.
1 LAW JUDG.-25 (;j85)
§ 257 LAW OF JUDGMENTS. (CSl. IS
cannot be used as substitute for quo warranto. "One convicted by
a jury and sentenced in court by a judge de facto, acting colore
officii, though not de jure, and detained in custody in pursuance of
his sentence, cannot properly be discharged on habeas corpus. The
validity of the appointment or election of an officer de facto, before
whom a prisoner has been convicted of crime, will not be inquired
into on habeas corpus." ^•^
I 267. GonfltitvtioBality of Btatvtes.
Applications for release on habeas corpus are not infrequently
made on the ground that the law under which the prosecution and
conviction were had was unconstitutional, and there is much conflict
of authority upon the question whether an inquiry into the validity of
such law is proper in a proceeding of this nature. In several of the
states it is apparently the accepted rule that the constitutionality of
a statute or ordinance cannot be examined on habeas corpus, and if
no other groimd is presented for the petitioner's discharge, the court
will refuse to interfere.*®* It may be urged in support of this view
that the trial court has always the right to pass upon the question
of its own jurisdiction, and that if it assumes to act in the matter and
to proceed to judgment, it necessarily affirms the validity of the stat-
ute under which its action is taken, which finding should be respected
in every other court. This argument is not without weight. But on
the other hand, it cannot be too strongly insisted that an unconstitu-
tional law is no law at all. It cannot make that a crime which was
not so before. It cannot confer jurisdiction. A proceeding taken
under it is void, not merely erroneous. A person convicted under it
is innocent, and is held in custody illegally. Hence if the validity of
the law could not be tested on habeas corpus, we should have, sup-
108 9 Am. & Eiig. Enc. Law, p. 236 (a source from which I have derlvM
much assistance in prepariu;? these sections); Griffin*s Case, 1 Chase. ^M-
Fed. Cas. No. 5,81.5; State v. Bloom, 17 Wis. 521; People v. Stevens. 5 Hill
(N. Y.) 630; Hoglan v. Carpenter. 4 Bush (Ky.) 89.
109 Ex parte Boenninghausen, 91 Mo. 301. 1 S. W. 761; Ex parte Bowler.
16 Mo. App. 14; In re Harris. 47 Mo. 164; Piatt v. Harrison, 6 Iowa. 79. 71
Am. Dec. 380; In re Under>vood, 30 Mich. 502: Ex parte Fisher. 6 Xeb. 3»S»:
Ex parte Winston, 9 Nev. 71; In re CaUicot, 8 BUtchf. 89, Fed. Cas. Na
5.323; Ex parte Booth, 3 Wis. 145.
(38(5)
Gh. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 257
m
posing it to be in fact unconstitutional, a most anomalous case, viz.,
a person unlawfully restrained of his liberty, and that too in the most
unwarrantable circumstances, whose relief is the sole object of this
writ, and yet to whom relief must be denied. We are decidedly in-
clined to agree with the numerous cases which hold that the alleged
unconstitutionality of the act or ordinance under which the petitioner
is held is always a proper subject of inquiry on habeas corpus, and
that if the court finds it to be invalid, it is justified in releasing the
prisoner.**® The federal courts uniformly hold that the imprison-
ment of a person under an invalid ordinance of a municipal corpora-
tion is such a case of unlawful restraint as will justify their releasing
him on habeas corpus, because, being without "due process of law,"
it is in violation of the fourteenth amendment to the constitution of
the United States.*** But the circuit court will not overrule the sol-
emn judgment of the supreme court of the state upon the question of
the validity of such ordinance, where there is reasonable ground for
doubt ; in such cases the ultimate decision should be referred to the
supreme court of the United States.*** And there is authority to the
point that the federal courts have no jurisdiction to discharge a pris-
oner held under a state statute, on the ground that such statute is in
violation of the constitution of the state, or in excess of the powers
110 Ex parte Slebold, 100 U. S. 371, 25 L. Ed. 717; Ex parte Clarke, 100
U. S. 399, 25 L. Ed. 715; Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152,
28 L. Ed. 274; Ex parte Koyall, 117 U. S. 241, 6 Sup. Ct. 734, 29 L. Ed. SCkH;
In re Brosoahaii (C. C.) 4 McCrary, 1. 18 Fed. 62; In re Lee Tong (D. C.) 9
Sawy. 335. 18 Fed. 253; Stockton Laundi-y Case (C. C.) 26 Fed. 611; la.Tje
Zlebold (C. C.) 23 Fed. 791; Ex parte McCready. 1 Hughes, 598, Fed. Cas.
No. 8,732; In re Wong Yung Quy (C. 0.) 6 Sawy. 237. 2 Fed. 624; Ex parte
Davis (C. C.) 21 Fed. 396; Ex parte Yung Jon (D. C.) 28 Fed. 308; In re
Barber (C. C.) 39 Fed. 641; In re Beine (C. O.) 42 Fed. 545; In re Wong Yung
Quy (C. C.) 47 Fed. 717; In re Nichols (C. C.) 48 Fed. 164; Fisher v. McGirr,
1 (tray, 1, 61 Am. Dec. 381; WhitcomVs Case, 120 Mass. 118, 21 Am. Rep.
502; Ex parte Rosenblatt, 19 Nev. 439, 14 Pac. 298, 3 Am. St. Rep. 901;
Brown r. Duffus. (K5 Iowa, 193, 23 N. W. 396; Ex parte Burnett, 30 Ala. 461;
In re Payson, 23 Kan. 757; Ex parte Delaney, 43 Cal. 478; Ex parte Rollins,
80 Va. 314; Ex parte Mato, 19 Tex. App. 112.
HI In re Lee Tong (D. C.) 9 Saw^. 335, 18 Fed. 253; Stockton Laundry Case
fC. r.) 26 Fed. 611; In re Ah Jow (C. C.) 29 Fed. 181; Laundry License Case
(C. C.) 22 Fed. 705; Ex parte Yung Jon (D. C.) 28 Fed. 308.
112 In re Wo Lee (C. 0.) 26 Fed. 471.
(387)
$ 258 LAW OF JUDGMENTS. (Ch. 13
which the people of the state have conferred on their legislature; if
it does not violate the federal constitution, the question is for the
state courts.***
I 268. Jnrifdiotion to render the Parttevlar BoBtemee*
In the case of Ex parte Shaw,*** the supreme court of Ohio ex-
pressed the following views. "The question presented in this case
is, whether, conceding that the sentence is for horse-stealing, and
that, by statute, the sentence must be for a period not less than three
years, the commitment is lawful. The courts are required by stat-
ute, upon conviction, to sentence for a period not less than three
years. The sentence in this case is for one year. Does this render
the sentence void and the commitment of the relator unlawful? The
question is one simply of jurisdiction. The court had jurisdiction
over the offense and its punishment. It had authority to pronounce
sentence; and while in the legitimate exercise of its power, com-
mitted a manifest error and mistake in the award of the number of
years of the punishment. The sentence was not void, but errone-
ous." And accordingly the court refused to release the prisoner on
habeas corpus. And a number of other cases agree with this doc-
trine.**" But the argument is far from satisfactory. It involves the
error of overlooking the fact that jurisdiction to render the particu-
lar sentence imposed is equally as essential to its validity as jurisdic-
tion of the person or the subject-matter. If either of these three
elements is wanting, the judgment is a nullity. Now in respect to
tlie sentence, the court has precisely the jurisdiction which the stat-
ute gives it, no more and no less. And if the statute prescribes that
the sentence shall be for not less than three vears, the court is uttcrlv
without power to sentence for one year. This seems too plain for
argument. And indeed the great preponderance of authority sus-
118 In re Brosnahan (C. C.) 4 McCrary, 1, 18 Fed. 62; Duncan v. McCall.
139 U. S. 449, 11 Sup. Gt. 573, 35 L. Ed. 219; Andrews y. Swartz, 156 U. &
2T2, 15 Sup. Ct. 380, 39 L. Ed. 422.
114 7 Ohio St. 81, 70 Am. Dec. 55.
iiBKx parte Van Hagan, 25 Ohio St. 432; People T. Cavanagb. 2 Abh.
ITac. (M. 1.) 89; Ex parte Bond, 9 S. a 80, 30 Am. Rep. 20; Ex parte
Crandall. 34 Wis. 177.
(388)
Ch. 13) COLLATERAL IMPEACHMSNT OF JUDQMBNT8. $ 259
tains the proposition that if the couft had not jurisdiction to render
the particular sentence, — if the sentence is different from that pre-
scribed by the law, or is below the minimum or above the maximum,
— that is good ground for releasing the prisoner on habeas corpus.^^*
S 259. Sufieiency of PriMsess or Pleadlnss*
A person tried and convicted on a criminal charge, and sentenced
to imprisonment, without any indictment or presentment by a grand
jury, is entitled to be discharged on habeas corpus.^^' But upon
proceedings by habeas corpus, the court from which the writ issues
has no power to inquire into the sufficiency of the indictment or in-
formation on which the trial was had that resulted in the judgment
under which the prisoner is detained; nor can it undertake to de-
cide whether such pleadings state an indictable offense. And al-
though the indictment be defective or irregular, or fail to disclose any
"•Ex parte 1-ange, 18 WaU. 163, 21 L. Ed. 872; Bx parte MUUgan, 4 WaU.
2, 18 I* EA 281; Ex parte WUson, 114 U. S. 417, 5 Sup. Ct ©35, 29 L. Ed.
8(>; Kx parte Snow, 120 U. S. 274, 7 Sup. Ct. 556, 30 D. Ed. 658; In re
JBonner, 151 U. S. 242, 14 Sup. Ct. 323, 38 L. Ed. 149; In re Johnson (O.
1'.) 46 Fed. 477; Ex parte Bernert, 7 Pac. Coast Law J. 460; Ex parte Page,
49 Mo. 291; People v. Walters, 15 Abb. N. C. (N. Y.) 461; People v. Liscomb,
GU N. X. 559, 19 Am, Kep. 211; Ex parte Kearny, 55 Cal. 212; In re Petty,
22 Kan. 477; Ex parte Bulger, 60 Cal. 438; Miller v. Snyder, 6 Ind. 1; Ex
parte Smith, 2 Nev. 338. The point Is illustrated In the following clear
and forcible manner, in Ex parte Lange, supra: "If a Justice of the peace,
baying jurisdiction to line for a misdemeanor, and with the party charged
properly before him, should render a judgment that he be hung, it would
simply be void. Why void? Because he had no power to render such
a judgment. So if a court of general jurisdiction should, on an indict-
ment for libel, render a judgment of death, or confiscation of property,
it would for the same reason be void. Or if, on an indictment for treason,
the court should render a judgment of attaint, whereby the heirs of the
criminal could not inherit his property, which should, by the judgment of
the court, be confiscated to the state, it would be void as to the attainder,
because In excess of the authority of the court, and by the constitution."
But a sentence for an offense punishable by imprisonment cannot be held
void on hat>eas corpus because it imposes hard labor during the imprison-
ment. United States y. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746, 38 L. Ed.
631.
»"Kx parte Wilson, 114 U. S. 417. 5 Sup. Ct 935, 29 L. Ed. 89; Ex
parte Bain. 121 U. S*. 1, 7 Sup. C^ 781, 30 L. Ed. 849; Ex parte Mc-
Ciuskey (C. C.) 40 Fed. 71.
(389)
§ 260 LAW OF JUDGMENTS. (Ch. 13
crime known to the law, yet that is no reason for discharging the
petitioner, and he must be remanded.^** The rule rests upon the
fact that such a defect is not jurisdictional. If the court has general
jurisdiction of the subject-matter, and the party is properly before
it, its judgment is conclusive and binding and cannot be attacked
collaterally, and if error or irregularity supervenes, such as in the
case supposed, it is error or irregularity in the exercise of the court's
jurisdiction, and does not make its sentence a nullity. Further, if
there is any power which a court possesses beyond question or cavil,
it is the power to judge of the sufficiency of the indictment or com-
plaint and to determine whether or not the offense charged is legally
punishable. If it should come to a mistaken conclusion in regard
to these matters, there would undoubtedly be error in the technical
sense. But it must be remembered that habeas corpus cannot be
made to discharge the functions of a writ of error or of an appeal.
A view contrary to that here expressed is held by the supreme court
of California.^^*
§ 260. To what Parties the Rule applies.
The rule prohibiting the collateral impeachment of a judgment
applies only to the parties to the action, and those in privity with
them, and who are entitled to take proceedings to have the judg-
ment opened, vacated, or reversed;^'** it does not extend to stran-
118 jflx parte Watkins, 3 I'et. 193, 7 L. Ed. 650; Ex parte Parks. 93 V.
S. 20, 23 U Ed. 787; In re Lancaster, 137 U. S. 393. 11 Sup. Ct. 117. M
U Ed. 713; Ex parte Coy, 127 U. S. 731, 8 Sup. Ct. 1263, 32 L. Ed. 274;
United States v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746, 38 L. Ed. a31; Berge-
mann v. Backer, 157 U. S. 655, 15 Sup. Ct. 727. 39 L. Ed. 845; Kohl v. Lehl-
back, 160 U. S. 2lKi, 16 Sup. a. 304, 40 U Ed. 432; Ex parte Peters (C. C.)
12 Fed. 461; In re Johnson (C. C.) 46 Fed. 477; In re Hacker (U. C.l 73
Fed. 464; In re Krug (C. C.) TJ Fed. 308; Petition of Seuiler. 41 Wis. 517;
Davis* Case, 122 Mass. 324; Matter of Eaton, 27 Mich. 1; Emnniiel v. State,
36 Miss. 627; Parker v. State, 5 Tex. App. 579; In re Trunian, 44 Mo.
181; Ex parte Whitaker, 43 Ala. 323; Ex parte Twohig, 13 Nev. 302.
110 Matter of Coryell, 22 Cal. 178; Ex parte Kearney, 55 Cal. 212.
120 Vose V. Morton, 4 Cush. (Mass.) 27, 50 Am. Dec. 750; (iHswold t.
Stewart, 4 Cow. (N. Y.) 457; Davoue v. Fanning, 4 Johns. Ch. (N. S.) 199;
Cotttn V. Freeman, 84 Me. 535, 24 Atl. 986; Ashton v. City of Rochester,
133 X. Y, 187, ;iO N. E. 965, 28 Am. St. Kep. 619; Harvey v. Foster, 64 Cal
296, 30 I'ac. 849.
(390)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 260
gers.^^^ For instance, a stockholder in a corporation against which
a judgment has been recovered, who may be made liable for its pay?
ment, is so far a privy in law that he may bring error to reverse the
judgment; but for that very reason he cannot attack the judgment
collaterally.^** So, persons claiming land under an assignee for
creditors cannot collaterally assail a judgment rendered against the
assignee subjecting the land to the payment of a creditor's claim.^*'
A judgment against an executor is prima facie evidence of the debt,
as against the heirs of the decedent, and cannot be attacked by them
collateral!}' save on the ground of fraud.*** Even in the case of
strangers to the litigation, it is not every one who may impeach the
judgment in a collateral proceeding. The law does not permit wan-
ton or unnecessary attacks upon its judgments, and they will stand
as valid against any third person who fails to show that he has a real
and substantial interest in avoiding the judgment, and one which the
law is bound to protect. As the cases express it, the rule against
collateral attacks upon judgments does not apply to such third per-
sons or strangers to the record as would be prejudiced in regard to
some pre-existing right if the judgment were given full effect.***^ In
regard to garnishees, the rule approved by the best authorities is that
a garnishee may impeach the validity of the judgment against the
principal debtor on the ground of a want of jurisdiction over such
121 Atkinson v. Allen, 12 Vt 619, 36 Am. Dec. 361; Eureka Iron Works
V. Bresnahan, 66 Mich. 489, 33 N. W. 834; Caswell v. Caswell, 28 Me. 232,
8ncee88iDn of Qnlnn, 30" 1-a. Ann. \H7; Thompson v. McCorkle, 136 Ind. 484,
34 X. E. 813, 43 Am. St. Rep. 334; Shamlin v. HaU, 123 Ala. 541, 26 South. 285.
122 Came v. Brlgham, 39 Me. 35.
i2« Gonzales v. Hatts, 20 Tex. Civ. App. 421. 50 S. W. 403.
124 In re Schmidt's Estate, 4 Pa. Dist. R. 161.
12ft Eureka Iron Works v. Bresnahan, 66 Mich. 489, 33 N. W. 834; Staun-
ton Perpetual Building & L. Co, v. Haden, 92 Va. 201, 23 S. E. 285; Russell
V. Grant, 122 Mo. 161, 26 S. W. 958, 43 Am. St. Rep. 563; Wolf v. You-
tjert. 45 Lsi. Ann. 1100, 13 South. 806, 21 L. R. A. 772. The validity of a
judgment foreclosing a mortgage cannot be questioned by one not connected
with the mortgagor's title, as grantee, mortgagee, judgment creditor, etc.
(rlass V. Gllbei't, 58 Pa. 266. But a judgment under which land has been
sold, if void for want of due service of process, may be collaterally attacked
by one who has purchased under a junior judgment. Bernhardt v. Brown,
118 S. C. 700. 24 S. E. 527, 36 L. R. A. 402; Coffin v. Bell, 22 Nev. 169, 37
Pac. 240, 58 Am. St Rep. 738.
(391)
§261 LAW OF JUDGMENTS. (Ch. 13
debtor, but will not be permitted to assail it on the ground of any
mere errors or irregularities.^** Again, admitting that the particu-
lar individual has the right to allege cause against the judgment in
a collateral proceeding, it must not be supposed that every possible
objection is open to him for this purpose. It is stated, in Maine,
that a stranger whose rights are affected may impeach a judgment
collaterally on three grounds only, viz., that the court rendering it
had no jurisdiction of the case ; that the judgment was obtained by
fraud or collusion; or that the judgment was irregularly or unlaw-
fully rendered, to his prejudice.^*^ But this rule, — in respect to the
third ground stated, — is probably too liberal to be everywhere ac-
cepted as sound. The Pennsylvania courts hold that a stranger has
no right to interfere with a judgment, however irregular, except
where it is founded in collusion.*** And it is said that only a de-
fendant can avoid a judgment for irregularity (that is, by writ of
error or motion to vacate), and as long as he is content to waive the
irregularity, strangers cannot avail themselves of it collaterally.***
Part II. For Errors and Irregularities.
S 261. Erroneous and Irregular Jndcatentfl.
No principle of law is more firmly settled than that the judgment
of a court of competent jurisdiction, so long as it stands in full force
and unreversed, cannot be impeached in any collateral proceeding
on account of mere errors or irregularities, not going to the juris-
diction,^'® Thus defective findings, or the absence of any findings
120 IMerce v. Carleton, 12 111. 858, 54 Am. St. Rep. 405; Wbitehesd t.
Henderson, 4 Smedes &, M. (Miss.) 704; Matheney v. Galloway, 12 SmedM
& M. (Miss.) 475; St Louis Perpetual Ins. Co. v. Coben, 9 Mo. 421; Schop-
penliast v. Bollman, 21 ind. 285; Xevatt v. Springfield Xormal School, 79
Mo. App. 198; Debbs v. Dalton (Ind. Sup.) 32 N. E. 570.
127 sidensparker v. Sldensparker, 52 Me. 481, 83 Am. Dec. 527. See I^'ks
y. Holies, 8 S. C. 258; Bolsse v. Dickson, 31 La. Ann. 741.
i28Drexel's Appeal, 6 I'a. 272. And see Lowber and Wilmer's Appeal.
8 Watts & S. 387, 42 Am. Dec. 302; In re Uanika's Estate, 138 I'a. 330. 22
Atl. 00. 21 Am. St. Rep. 907.
i2»KolllnB V. Henry, 78 N. C. 342.
130 Huff V. llutcblnson, 14 How. 580, 14 L. Ed. 553; Parker t. Kane.
22 How. 1, 10 L. Ed. 28G; Thompson v. Tolmie, 2 TeL 157, 7 L. Ed. 3SU
Ch. 13) COLLATERAL. IMPEACHMENT OF JUDGMENTS. § 261
of fact in a trial by consent by the court, do not render the judg-
ment a nullity, and it cannot be attacked collaterally therefor.^*^ So
obvious clerical errors in the judgment-roll which could not deceive
a person accustomed to such documents are no ground for im-
peaching the judgment collaterally.^'* And generally, a judgment
cannot be attacked collaterally for any defect which, in a direct pro-
ceeding, might be cured by amendment.^" Nor will a judgment
be open to this kind of impeachment merely because it was pre-
maturely rendered, — as, before the expiration of the defendant's time
Mangon v. Duncanson, 166 U. S. 533, 17 Sup. Ct. 647, 41 L. Ed. 1105; Com'rs
of Lake County v. Piatt, 25 C. C. A. 87, 79 Fed. 567; Pullman's Palace Car
Co. V. Washburn (U. C.) 66 Fed. 790; Morey v. Koyt, 62 Conn. 542, 26 Atl.
127, 19 U K. A. 611; Dauberman v. Haln, 196 Pa. 435, 46 AU. 442; Trow-
bridge T. Hays. 21 Misc. Rep. 234, 45 N. Y. Supp. 635; Brooks v. City of
xNew York, 57 Hun, 104, 10 N. Y. Supp. 773; Bludworth v. Poole, 21 Tex.
Civ. App. 551. 53 8. W. 717; Thorp v. Gordon (Tex. Civ. App.) 43 S. W.
323; Bradford v. Larkln, 57 Kan. 90, 45 Pac. 69; Selders v. Boyle, 5 Kan.
App. 461, 49 Pac. 320; Hawkins v. McDougal, 126 Ind. 539, 25 N. E. 820;
State V. Tow, 5 Ind. App. 261, 31 N. E. 1120; Chrlsman v. Dlvinla, 141
Mo. 122, 41 S. W. 920; State v. Wear, 145 Mo. 162, 46 S. W. 1099; Vaule
T. MlUer, 64 Minn. 485, 67 N. W. 540; Bannister v. Higginson, 15 Me. 73,
32 Am. Dec. 134; Davidson v. Thornton, 7 Pa. 128; Miltlmore v. MUtl-
more, 40 Pa. 151; Clark v. Bryan, 16 Md. 171; Howison v. Weeden, 77
Va. 704; Fox v. Cottage Building Ass'n, 81 Va. 677; State v. Conoly, 28
N. C. 243; Den dem. White v. Albertson, 14 N. C. 241, 22 Am. Dec. 719;
Upson V. Horn, 3 Strobh. 108, 49 Am. Dec. 633; James v. Smith, 2 S. C.
183; Mobley v. Mobley, 9 Ga. 247; Cox v. Davis, 17 Ala. 714, 52 Am. Dec.
199; Doe ex dem. Saltonstall v. RUey, 28 Ala. 164, 65 Am. Dec. 334; Wall v.
Wall, 28 Miss. 409; Sulherland v. De Leon, 1 Tex. 250, 46 Am. Dec. 100; Lynch
T. Baxter, 4 Tex. 431, 51 Am. Dec. 735; Thouvenin v. Rodrlgues, 24 Tex. 468;
Driggcrs V. Ca£sady, 71 Ala. 529; Moore v. Tanner, 5 T. B. Mon. (Ky.) 42, 27
Am. Dec. 35; Dorsey v. Kendall, 8 Bush (Ky.) 294; Derr v. Wilson, 84
Ky. 14; Sheldon v. Newton, 3 Ohio St. 494; Horner v. State Bank, 1 Ind.
130, 48 Am. Dec. 355; Evans v. Ashby, 22 Ind. 15; Wiley v. Pavey, 61
Ind. 457, 28 Am. Rep. 677; Lane v. Bommelmann, 17 111. 95; Swiggart v.
Harber, 4 Scam. (lU.) 364, 39 Am. Dec. 418; Wales v. Bogue, 31 lU. 464;
McBane v. People, 50 lU. 503; Cameron v. Boyle, 2 G. Greene (Iowa) 154;
Burton v. District of Warren Tp., 11 Iowa, 166; Perryman v. State, 8 Mo.
208; State v. St. Gemme, 31 Mo. 230; Lucas v. Todd, 28 Cal. 182.
"1 Breeze v. Doyle, 19 Cal. 101; Maryott v. Gardner, 50 Neb. 320, 69
X. W. 837; Fruits v. Elmore, 8 Ind. App. 278, 34 N. E. 829; Root V. Davis,
51 Ohio St 29. 36 N. E. 669, 23 L. R. A. 445.
132 Morrison v. Austin, 14 Wis. 601.
i*i Holland y. Laconia Building & Loan Ass'n, 68 N. H. 480, 41 Atl. 178.
(393)
§ 261 * LAW OP JUDOMBNT8. C^h. 13
to plead, or pending a stay of proceedings, or before •the hearing on
a demurrer, — such an irregularity not making the judgment 5j>solutely
void.^'* It may also be stated that the judgment of a court having
jurisdiction is not rendered void, or open to a collateral attack, be-
cause it is wrong in law, being based upon an erroneous application
of legal principles or upon insufHcient evidence,^*' nor because the
form of action or remedy selected was one not properly admitting
of the specific relief which the judgment grants,^'* nor because of
the failure to file a bond in an injunction suit,^*' or an affidavit in a
proceeding by attachment,**® nor because the relief granted by the
judgment was not wholly within the authority of the court, if the
judgment may stand as valid for so much as was within the com-
petence of the court,*** nor because it gives costs in a replevin suit
where costs are not granted by the statute.**® A sale under order
of the orphans' court is not subject to collateral attack because made
on application of the administrator on behalf of creditors, instead
of being made on the application of the creditors themselves,*** nor
because not made at the time required by law, if it is afterwards
, confirmed by the court.*** Again, it is no ground for collateral im-
peachment of a judgment that the claim in suit was directly passed
134 Alderson v. BeH, 9 Oal. 315; Belles v MlUer, 10 Wash. 239, 38 P««--
1050; Reed v. JNlcholson. 158 Mo. 624, 59 S. W. 977; Davis v. Wade. .%*<
Mo. App. 641; WeUs v. Atkins, 68 Vt. 191, 34 Ati. 694, 54 Am. St Rep.
880; Anheuser-Busch Brewing Ass'n v. McGowan, 49 La. Ann. 630, 21 South.
766; Altman v. School District, 35 Or. 85, 56 Pac. 291. 76 Am. St. Rep. 4t;s.
lao Stevenson v. Bonesteel, 30 Iowa, 286; Bordages v. Higglns, 1 Tex, Civ.
App. 43, 19 S. W. 446; State v. Rogers, 131 Ind. 458, 31 N. E. 199: Vail v.
Arkell, 146 111. 363, 34 N. E. 937; Rogers v. Johnson, 125 Mo. 202. 28 S. W.
(«5; Brandhoefer v. Bain, 45 Xeb. 781, 64 N. W. 213.
i8« Insley v. United States, 150 U. S. 512, 14 Sup. Ct. 158, 37 L. Ed. 116:;:
Brundred v. Egbert, 164 Pa. 615, 30 Atl. 503; Johnson v. MiUer, 55 IIL Ai i».
168.
187 Lewis V. Rowland, 131 Ind. 103, 29 X. E. 922.
lasBarelU v. Wagner, 5 Tex. Civ. App. 445, 27 S. W. 17; Slade v. Ia-
l»age, 8 Tex. Civ. App. 403; 27 S. W. 952. Compare Tacoma Grocery »'".
v. Draham, 8 Wash. 263, 36 Pac. 31, 40 Am. St. Rep. 907.
130 Johnson v. Iron Belt Mln. Co., 78 Wis. 159, 47 N. W. 363.
140 Lutes V. Alpaugh, 23 N. J. Law, 165.
1*1 Simpson v. Bailey, 80 Md. 421, 30 Atl. 622.
1*2 Brown v. Christie, 27 Tex. 73, 84 Am. Dec. GOT,
(394)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 262
on by the court, instead of being referred to a master in chancery,
or that a receiver appointed by a court in another state was allowed
to intervene.^*' Nor can a person affected by a judgment dispute its
validity collaterally on the ground of a want of authority in the
attorney on the other side to prosecute the action,^** or of his own
attorney to consent to the entry of a judgment.**' Again, in a case
admitting of doubt as to whether there should be a verdict, or wheth-
er judgment should be entered without a verdict, a judgment ren-
dered upon a verdict is not, after the expiration of the term, open
to collateral attack.*** So, an order requiring a garnishee to pay
money into court cannot be attacked by the judgment-debtor in a
collateral proceeding, although the property in controversy may be
exempt.**^ And where a decree in chancery erroneously authorizes
execution to issue on the foot of the decree, the error may be cor-
rected by an appeal or other direct proceeding, but the decree can-
not be impeached collaterally.* *•
f 262. Mistakes in the Jndgmsnt*
Closely allied to the principle just discussed is the rule that a
mistake in the rendition or entry of a judgment can be taken ad-
vantage of only in a direct proceeding. A final judgment cannot be
collaterally impeached because the opinion of the court shows that
a diflFerent judgment should have been entered.*** So a judgment
ordering the delivery of all' the property of an intestate to his widow,
instead of to her in trust for his minor children, as provided by the
statute, though palpably erroneous, is proof against collateral at-
tack.* •• So. again, in an action to recover from a purchaser part
of certain lands sold under a decree of court, the plaintiff, if a party
»*» Youngstown Bridge Co. v. North Galveston, H. & K. C. R. Co. (Tex.
Civ. App.) 31 S. W. 420.
1** Gullano v. Whitenaclc, 30 X. Y. Supp. 415, 24 Civ. Proc. R. 55.
"6 Young V. Watson, 155 Mass. 77, 28 N. E. 1135.
i*«C;ritfln V. Sniyl3% 105 Ga. 475, 30 S. E. 41«.
1*7 Day V. First Nat. Bank, G Kan. App. 821, 49 Pac. 05)1.
i*HXorth western Bank v. Hays, 37 W. Va. 475, 16 S. E. 561.
i4»CooIey V. Smith, 17 Iowa, UU; Huyck v. (Jrahain, 82 Mich. 353, 4^
.\. W. 781; Anderson v. Carr, 65 Hun, 179, 19 N. Y. Supp. 992.
ISO Spencer t. McGonagle, 107 Ind. 410, 8 N. E. 266.
(395)
§ 263 LAW OF JUDGMENTS. (Ch. 13
to the suit in which the decree of sale was made, cannot, in answer
to the defense of res judicata, attack the decree of sale collaterally
by showing that that part of the lands was included in the decree by
inadvertence and mistake.*"^ Nor is a judgment subject to col-
lateral attack because, though it purports to be by default, the de-
fendant had in fact duly answered and tendered material issues."*
Nor can a vendee collaterally assail a decree foreclosing the vendor *s
lien as containing an irregular description.^'*
S 263. Irregiular or Dcfeotive Serriee.
We have already seen that defects or irregularities in the process,
or in the manner of its service, are not sufficient to render the judg-
ment void, unless the flaw or omission is so serious as to make the
process equivalent to no process at all, or the service entirely nuga-
tory, in which case the judgment fails for want of jurisdiction.*** It
follows that the judgment of a court of general jurisdiction cannot
be attacked collaterally when there has been some service of notice,
although such service of notice may be materially defective.*** The
rule as stated by the court in Nebraska is that where there is an at-
tempt at service reaching the defendant, a defect in the manner of
the service or form of the return is a mere irregularity, and is not
ground for collateral attack on the judgment; but where the at-
tempted service does not reach the defendant at all, a judgment
181 Jones V. Coffey, »7 N. C. 347, 2 S. E, 1(J5. And see First Nat Bank
V. Hyer, 46 W. Va. 13, 32 S. E. lOOO. The fact tliat a decree for the sale
of several pieces of property, to satisfy lleDS against them, permits a lien
which only attached to one piece to share pro rata in the proceeds of all,
does not render the decree void, but only reversible for error. Ryan t.
Staples, 23 C. C. A. 541, 76 Fed. 721.
152 Drej'fuss v. Charles Seale & Co., 41 N. Y. Supp. 875, 18 Misa Rep. 55L
188 Sanger v. Roberts, 92 Tex. 312, 48 S. W. 1.
1B4 Supra, §§ 223, 224.
iBBMcCormick v. Webster, 89 Ind. 105; Murray v. Welgle, 118 Pa. 158^
11 Atl. 781; Allison v. Rankin, 7 Serg. & R. (Pa.) 2Gl>; Hollingsnrortli t.
State, 111 Ind. 289, 12 N. E. 490; Treacy v. Ellis. 45 App. Dlv. 492, 61 N.
y. Supp. 600; Kelly v. Harrison, 69 Miss. 856, 12 South. 261; Moore t.
Perry, 13 Tex. Civ. App. 204, 35 S. W. 838; Howard v. I^ek (Ky.» 22 8.
W. 332; Gandy v. Jolly, 35 Neb. 711, 53 N. VV. 658. 37 Am. St. Rep. M:
iMmn V. McGavin, 117 Mich. 372, 75 N. W. 1061, 72 Am. St Rep. 561
(396)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 26S
founded thereon is absolutely void.^'* Thus, a judgment cannot be
impeached in a collateral proceeding on the ground that the return
of service of process was not made in a formal manner,**'^ nor be-
cause the service of the writ did not conform to the requirements of
the statute,^*** nor because service of the summons was made upon
the return da}-,"* nor because service was made by reading the sum-
mons to the defendant, instead of serving him with a copy,*'® nor
because the writ was not served the requisite number of days before
the hearing or judgment,* •* nor because service was made on the
defendant as an adult while he was an infant, if the records do not
show the latter fact,*"^ nor because the summons was issued to and
served by the coroner, when the statutes authorize him to act in
certain cases in the place of the sheriff/ •' nor because the citation
lacked a seal.**** So a judgment against a corppration, where pro-
cess was served on individuals who are not called officers, is errone-
ous, and would probably be reversed on error ; nevertheless it can'
not be impeached by a stranger, in a suit in equity to which the cor-
poration, the stockholders, and the persons so served are parties,
when they make no objection, and no fraud or collusion is char-
ged.*** It is held that a recital in a judgment that the defendant
was legally served with process cuts off all inquiry in a collateral
proceeding as to the legality of the service.*** But on the other
hand, where the affidavits of service in an action were wholly insuffi-
cient to authorize the court to enter judgment, and such defect ap-
peared upon the face of the judgment-roll, it was held that the judg-
es* Campbell Printing Press & Manufacturing Go. v. Marder, Luse & Co.,
50 Xeb. 283, «9 N. W. 774, 61 Am. St. Rep, 573.
"TCampbeU v. Hays, 41 Miss. 561.
»• Cole V. Butter, 43 Me. 401.
"•Dutton v. Hobson, 7 Kan. 196.
ito Gandy v. Jolly, 35 Neb. 711, 53 N. W. 658, 37 Am. St. Rep. 460.
"1 Leonard v. Sparks, 117 Mo. 103, 22 S. W. 899, 38 Am. St Rep. 646;
Rlghter t. Thornton, 30 Wkly. Law Bui. (Ohio) 32.
1" Kennedy v. Baker, 159 Pa. 146, 28 Atl. 252.
"« Russell V. Durham (Ky.) 29 S. W. 16.
!•* Moore v. Perry, 13 Tex. Civ. App. 204, 35 B. W. 838.
ie»Fahs v. Taylor, 10 Ohio, 104.
lee Dunham v. Wllfong, 69 Mo. 355.
(397)
§ 264 LAW OP JUDGMENTS. (Ch. 13
ment might be impeached collaterally.^'^ Where the court has juris-
diction of the subject-matter and the parties, and no fraud is shown,
if judgment is confessed before the time for answering expires, this
will not overthrow the judgment on a collateral attack, but all neces-
sary presumptions will be entertained to support it.^**
§ 264. Objections as to Parttes.
As a general rule, any irregularity in regard to the number, charac-
ter, or joinder oi the parties to an action must be objected to at a
proper time and manner in the progress of the suit, and will not
justify a collateral impeachment of the judgment. For instance,
where jurisdiction is not disputed, a misjoinder of parties is a mere
error of practice, and cannot be taken advantage of, in an action of
ejectment, to defeat the title of a purchaser at a sheriff's sale under
the judgment.**® So, "multifariousness as to subjects or parties,
within the jurisdiction of a court of equity, cannot be taken adx'antage
of by a defendant except by demurrer, plea, or answer to the bill,
although the court in its discretion may take the objection at the
hearing, or on appeal, and order the bill to be amended or dismissed.
A fortiori it does not render a decree void, so that it can be treated
as a nullity in a collateral action.'' *^® A judgment entered in favor
of a plaintiff, against himself and others, and revived to the use of one
to whom it has been assigned, is valid as against a creditor of the
plaintiff whose judgment is rendered after the revival.*^* On similar
principles, a judgment in an action for delinquent taxes, being ap-
parently regular, cannot be attacked collaterally on the ground that
the suit should have been brought in the name of a different official
plaintiff.*'^ Nor is it any ground for the collateral impeachment o\
a judgment that the plaintiff was not the real party in interest,'"'
167 Hyde V.' Kedding, 74 Cal. 4<ja, 10 l»ac. :«<).
i«8 White v. Crow, 110 U. S. 1«3, 4 Sup. Ct. 71, 28 L, Ed. 113,
looj^evan v. MiUliolland, 114 I'a. 49, 7 Atl. VM: (;ates v. Newman. 1^
Iiul. App. aU2, 40 N. K. VkA.
170 Hefner v. Northwestern Mut IJfe Ins. Co., 12a U. S. 747, 8 Sup. Ci.
;ja7, 31 b. Kd. 309.
171 Sponsler's Appeal, 127 Pa. 410, 17 Atl, 1097.
172 Somers v. Losey, 48 Mich. 294, 12 N. W. 188.
173 cates V. Kiley (Tex. Cir. App.) 55 S. W. 979.
(398)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 265
or was a foreign administrator who had not filed copies of his letters
in the clerk's office before bringing suit/^* or that the plaintiff, being
a corporation, had failed to aHege the fact of its incorporation.*^*
So again, it is no ground for collateral attack upon a judgment ren-
dered in an action against a partnership that the judgment was en-
tered against one partner only,*'* or was rendered on the confession •
of only one of the partners.*' '
§ 265. Lecml DlMbiUty of PArtlefl.
In an earlier chapter, we discussed at some length the validity of
judgments against married women, infants, lunatics, and deceased
persons. In regard to the former class of persons, it appeared to
be the settled doctrine in many of the states that, in the absence of
enabling statutes, a judgment against a feme covert is absolutely
void.*" If this position is taken, it inevitably follows that such a
judgment may be, on that ground, impeached and avoided in any
collateral proceeding. But it was shown in the same connection
that numerous courts prefer to consider such judgments as voidable
only, especially where the defense of coverture is not set up, but the
defendant suffers a default.*'^ It is unnecessary to repeat the dis-
cussion in this place. But the reader, in considering the sections
cited, should keep in mind the rule that it is only when a judgment
is absolutely void that it can be impeached collaterally, not when it
174 Marshall v. Charlaud, 109 Ga. 306, 84 8. E. 671.
»7»McFall V. Buckeye Grangers' Warehouse Ass'n, 122 Cal. 468, 55 Pac.
253, 68 Am. St. Kep. 47.
"e Uongh t. Stover, 46 Neb. 588, 65 X. W. 18JJ.
17 T Belcher v. Curtis, 119 Mich. 1, 77 N. W. 310, 75 Am. St. Rep. 376.
ITS Supra, §9 188-192.
»7» In rennsylvanla, while it is true that the mortgage of a maiTied woman
18 Invalid miless separately acknowledged by her, and the absence of such
acknowledgment may be set up as a defense to a recovery on the mortgage,
yet if Judgment be recovered on a scire facias issued on such mortgage,
the Judgment is conclusive tliat the mortgage was properly executed, and
the validity thereof cannot be questioned in a collateral action of ejectment.
Mlcbaelis v. Brawley, 109 Fa. 7. And see Benson v. Cahill (Tex. Civ. App.)
37 8. W. 1088; Carson v. Taylor, 19 Tex. Civ. App. 177, 47 S. W. 395; Trues-
dalJ V. Mccormick, 126 Mo. 39, 28 S. W. 886; Equitable Securities Co. v.
Block, 51 La. Ann. 478, 25 South. 271.
(399)
§ 266 LAW OF JUDGMENTS. (Ch. 13
is merely voidable.*®^ And a further suggestion may be added, —
that the real question is one of jurisdiction ; for if the court may take
jurisdiction of a married woman, a judgment rendered against her
may be erroneous on account of her abnormal status, but will not be
null. What is here said of married women will apply, with some
• modifications, to the case of infants.*"^ But, by the general con-
sensus of authority, a judg^nent against a lunatic is not to be consid-
ered as entirely void, and therefore it will be protected from col-
lateral attacks.^** It is a different question in regard to the validity
of judgments against joint defendants, a part of whom were persons
under legal disabilities or were not served with process. Whatever
may be thought of the effect of such judgment upon the defendant
who was incapacitated or not within the jurisdiction, it seems but
reasonable to hold it binding upon the other, supposing no similar
objection to exist in his case. It might, as to him, be erroneous or
voidable, but it should not be open to him, or to any other person
in respect to him, to impeach it collaterally. This view was shown,
in a preceding section, to be consonant to sound legal reason and
supported by many weighty decisions.^'*
S 266. Disqnalifieation of Jvdce*'
Notwithstanding- some difference of opinion, it seems to be the
more generally accepted doctrine that a decision rendered by a judge
who was disqualified by reason of his interest in the subject-matter
of the controversy is null and void, and that this may be shown
against it in a collateral proceeding; *■* but that if the objection goes
180 For the difference between voidable and void Judgments, Bee § 170.
181 Supra, H 1U3-198. As to coUateral attacks upon judgments because one
of tbe parties was an Infant, see Colt v. Ck>lt 111 U. S. 566, 4 Sup. Ct 563.
28 U Ed. 520; Id. (U. C.) 48 Fed, 385; Cohee v. Baer. 134 Ind. 375, 32 N.
K. 920, 39 Am. St. Rep. 270; Smltb v. Gray, 116 N. C. 311, 21 S. EL 200.
Compare Hatch v. Ferguson, 15 C. C. A. 201, 68 Fed. 43, 33 L. R. A. 759.
i«2 Supra, S 205. And see Weaver v. Brenner, 145 Pa. 299, 21 Aa 1010:
Thomas v. Hunsucker, 108 N. C. 720, 13 S. E. 221. Loss of Jurisdictton to
render a particular Judgment because of the death of a party does not make
It subject to collateral attack as being wholly void, unless the fact appears oC
record. Cochrane v. Parker, 12 Colo. App. ltJ9, 54 Pac. 1027.
1 83 Supra, S 211. See Bailey y. McGimiiss, 57 Mo. ^2.
184 Supra, i 174.
(400)
I
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 268
to the competence of the judge, on account of his relationship to one
of the parties litigant, it will have no greater effect than to make the
judgment erroneous or voidable, not laying it open to indirect im-
peachment.*"" Especially is this the case where the statutes author-
ize the parties to waive an objection of this character. The judg-
ments and orders of a de facto judge, as we have already seen, are
everywhere recognized as valid and binding, and of course they can-
not be attacked collaterally on any allegation against the title of the
person acting as judge.*"*
§ 267. Judgment for Ezoesiive Amount.
If judgment is rendered for a sum exceeding the amount laid in
the ad damnum clause of the writ, or claimed in the declaration or
complaint, or notified to the defendant by the indorsement on the
summons, it is irregular and Erroneous and is liable to reversal, but
it is not void, and it cannot be impeached collaterally.*"^
•
§ 268. InsnAelenoy of Erldenoo.
When a judgment is rendered in a cause by a court whose juris-
diction over the subject-matter and the person of the defendant is
not questioned, it cannot be attacked in any collateral proceeding
by a showing that the evidence on which it was based was illegal,
improperly received, or insufficient to sustain the judgment.*"" This
"•Supra, § 174. And sec WllBon t. Smith (Ky.) 38 S. W. 870; State
▼. Ross, 118 Mo. 23, 23 S. W. 196; Jeffersonlan Pub. Oo. v. Hilliard, 105 Ala.
57e, 17 Soutli. 112; Broder v. Conklln, 98 Cal. 3(50, 33 Pae. 211. Compare
Pierce y. Bowers, 8 Baxt. (Temi.) 353.
is« Supra, a 175. When a judgment has been rendered by a court of gen-
eral jurisdiction against a person over whom It had acquired jurisdiction.
It cannot be attacked. In a proceeding to enjoin its collection, by a party
to the judgment, on the ground that tlie special Judge appointed by agi'ee-
ment was not regularly appointed and qualified. Littleton v. Smith, 119
Ind. 230, 21 N. K. 880.
i«T Smith v. Keen, 20 Me. 411; Chaffee v. Hooper, 54 Vt. 513; Bond v.
I'aclieco, 30 Cal. 530; SaTage v. Uussey, 48 N. C. 149; Kansas City v. Win-
ner, 58 Mo. App. 299; Mott y. State, 145 ind. 353, 44 N. £. 548; Dornan
T. Benham l^'urnltupe Cd., 102 Tenn. 303, 52 S. W. 38; Botkin v. Klelnschmldt,
21 Mont. 1, 52 Pae." 503, 09 Am. St. Rep. 041; supra, § 138.
i8«Udle T. Krost, 59 Tex. 684; Martin v. Porter, 4 Helsk. (Tenn.) 407;
1 LAW JUDG.— 20 (401)
§ 269 LAW OP JUDGMENTS. (Ch. 13
very clear and sensible rule rests on several principles. In the first
place, an objection of that sort does not go to the jurisdiction, and
consequently the judgment cannot be void, although it may be er-
roneous. Again, the legality and sufficiency of the evidence is a
question for the court to determine, and its decision should be ac-
cepted as final and conclusive, unless in an appellate court. Finally,
if such re-opening of the cause were allowed, the doctrine of res
judicata would be despoiled of its very salutary effect.
f 269. niesal or InsuiBeient Cause of Actioa.
A judgment cannot be impeached collaterally on account of any
illegality or insufficiency in the cause of action on which the suit is
brought ; these are matters \^hich must be set up in defense to the
action, and which are concluded by the judgment.*"* Thus, where a
judgment-creditor seeks to enforce his judgment against equities,
the judgment-debtor cannot show that the contract upon which the
judgment was rendered was infected with usury or other illegality. '**
Nor will a judgment be considered open to collateral impeachment
because the petition or complaint, in the action in which it was ren-
dered, did not state a cause of action,^** nor because the remedy H'a>
at law, while the suit was in equity, or vice versa,*** nor because the
action, when commenced, appears to have been barred by some stat-
ute of limitations,*** nor because the claim in suit had been satisfies!
i'ollock V, Biiie, 43 Miss. 140; Bartlett v. Russell, 41 Ga. 19(J: Parker ▼. Albee,
86 Iowa. 4(5. n2 X. W. r)33; SteinUauer v. Colmar, 11 Colo. App. 41>l. V*
I'ac. 2U1; MacLaehlan v. I'ease, 6e 111. App. (534; Benjamin v. Early. rs\
Mich. 93, 81 N. W. 973; Austin v. Austin, 43 111, App. 4i<8; State y. Tbonij
son, 28 Or. 2U0. 42 I'ac. 1002.
18© state V. Supervisors of Town of Beloit, 20 Wis. 79; Lewis t. Anii
strong, 45 Ga. 131; Busliee v. Surles, 77 X. C. 02; Figge v. Rowlei, 84 in
App. 2:^8.
100 Knnk of Wooster v. Stevens, 1 Olilo St. 2:«, 59 Am. Dec. 019.
i»i Winnlngham v. Trueblood, 149 Mo. 572, 51 S. W. 390: Altnwn v
Scliool District, 35 Or. 85, 50 Pac. 291, 70 Am. St Rep. 408; Xortli Vacif.*
Cycle Co. v. Thomas. 20 Or. ;^1, 38 Pac. 307, 40 Am. St Rep. (36.
102 Lemmon v. Herbert IftJ Va. 053, 24 8. IS. 249; Weaver v. Toney tKy «
54 8. W. 732, 50 L. K. A. 105.
193 Head v. Daniels, 38 Kan. 1, 16 Pac. 911; Chrlstofferson t. Pfenn.c
JLO Wash. 491, 48 I'ac. 204.
(402)
(3l. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 270
prior to the rendition of the judgment/*** nor because the note on
which Ihe judgment was recovered was without consideration,* *° nor
because the claim on which the judgment was rendered was based
on a wager or a gambling transaction.^** A judgment rendered in
a suit founded on an obHgation before its maturity, is not subject
to collateral attack,**^ And a judgment in an attachment suit can-
not be impeached indirectly by showing that the creditor had no
such demand against the defendant in attachment as would sustain
that species of process.**** Again, where a judgment is entered on
a mortgage, the judgment will conclusively establish the due ex-
ecution of the mortgage, although the latter may have been in fact
void; the mortgage is merged in the judgment, which cannot be
collaterally impeached except for fraud.****
Part III. For Want of Jurisdiction.
§ 270. Jnriidiction of Superior Conrti presumed*
Before proceeding to consider in detail the permissibility of col-
laterally attacking judgments and decrees on an allegation of want
of jurisdiction, it is necessary to advert to the presumption of law by
which the acts and proceedings of courts of record are supported.
It is a maxim, "omnia praesumimtur rite et solemniter esse acta." ****
i»4 Hyder v. Smith (Tenn. Cli.) 52 S. W. 8H4.
"ssuber v. Chandler, 3« S. i\ 344, 15 S. E. 426. ,
!»• Chicago Driving I»ark v. West. 35 HI. App. 41K5; McCanless t. Smith.
51 X. J. Kq. 505, 25 Atl. 211. But In Mississippi, under a statute which
renders void a judgment on a wager, It is a good plea to an action on a
judgment that it was rendered on a note made In settlement of a wager.
Campheli v. New Orleans Nat. Bank, 74 Miss. 526, 21 South. 400. And In
Kentucky, under a statute providing that neither party to a champertous
contract shall have anj' right of action thereon, it is held that a judgment
may be attacked, l>ecause of champerty, in a collateral proceeding. Roberts
V. Yancey. ?)4 Ky. 243, 21 S. W. 1047, 42 Am. St. Kep. 357.
»»7 Mikct>ka v. Blum, (« Tex. 44; Robertson v. Huffman, 92 Ind. 247.
1D9 Harrison v. i'cnder, 44 N. C. 79, 57 Am. Dec. 573; Brantingham v.
Brantfngham, 12 X. J. Eq. IW).
i9»Butterfleld'8 Appeal, 77 l»a. 197; Michaells v. Brawley, 109 Pa. 7;
Hartmau v. Ugbom, .>4 I'a. 120, 93 Am. Dec. 679; Woolery v. Grayson, 110
Ind. 149. 10 N. E. 935.
««o Co. Litt. 232; Broom, Leg. Max. 942.
(403)
I 270 LAW OF JUDOMENTa (Ch. 13
And this maxim, while often applied to transactions between private
persons, has a special and peculiar applicability to the proceedings
of public officers, and, more than in any other case, to the acts of the
courts. ^^^ It is presumed that the doings of a court of record are
regular and proper, that its jurisdiction was properly acquired, that
its proceedings are legal and valid, and that its decisions are well-
founded and free from error. "There is no principle of law better
settled than that every act of. a court of competent jurisdiction shall
be presumed to have been rightly done, until the contrary appears;
this rule applies as well to every judgment or decree rendered in the
various stages of their proceedings, from the initiation to their com-
pletion, as to their adjudication that the plaintiff has a right of action.
Every matter adjudicated becomes a part of their record, which
thenceforth proves itself, without referring to the evidence on which
it has been adjudged." *** Hence, jurisdiction having been once ac-
quired over the parties and the subject-matter, every presumption is
in favor of the legality of the judgment.*®*
Coming now to the matter in more immediate contemplation, it is
a part of this principle that the jurisdiction of the court cannot be
collaterally denied. And the rule in this connection rests partly upon
the maxim already quoted, and partly upon the peculiar doctrine
which attaches the utmost conclusiveness to judicial records, and
partly upon considerations of public policy which will be adverted to
hereafter. But the rule must be taken with certain very important
modifications. For first, it applies in its fullness only to the acts
and judgments of courts of general jurisdiction or courts of record.
201 Reed v. Jackson, 1 East. 355; Lryttleton v. Cross, 3 Barn. & C. 327.
202 Voorhees v. Jackson, 10 Pet. 44U, 472, 9 L. Kd. 490, Baldwin. J.:
Hughes V. Cummings, 7 Colo. 138, 2 Pac. 289. All presumptions are In favor
of tne regularity of the proceedings of courts of record when coUateraUj
assailed, and where a decree contains the finding of a fact specially whicb i<
pleaded In the petition, it must be presumed that sufficient evidence wa^
suhmittod to the court to Justify such tindiug. Hilton ▼. Bachman, 24 NeK
490, 39 X. W. 419.
208 Blake v. Lyon & Fellows Manurg Co., 77 X. Y. 626; Jordan t. John
Ryan Co., 35 Fla. 259, 17 South. 73. The test of Jurisdiction is whether
the court had power to enter upon the inquiry; not whether its conchxslon
was right or wrong. Board of Com'ra of Lake County v. Piatt, 25 C. f
A. 87, 79 Fed. 5t57.
(404)
Ch. 13) COLLATERAL IMPEACHMENT 07 JUDGMENTS. § 270
We are told that nothing is intended to be out of the jurisdiction of
a superior court but what specially appears to be so, and nothing is
intended to be within the jurisdiction of an inferior court but what
is specially alleged.^®* This point will be discussed in a later section.
Again, in the case of foreign judgments, the presumption, though
recognized, is not of great weight, and is always liable to be rebutted
by evidence to the contrary. Finally, the presumption is not abso-
lutely conclusive. For it may be contradicted by the face of the rec-
ord. Whether it may be rebutted by extraneous evidence is a moot
question, which we reserve for discussion in a subsequent connection.
But there is no question that want of jurisdiction, if shown by the
record itself, may be urged against the judgment at any time and
in any proceeding. Thus guarded against undue breadth of state-
ment, we are prepared to formulate the rule which is recognized and
accepted by all the authorities, viz., the judgment of a domestic court,
having general and superior jurisdiction, is always to be presumed
regular and valid and founded upon jurisdiction properly and duly
acquired, until the contrary is definitely made to appear in some
.permis5ible manner.*®* Hence, when a court of general jurisdiction
204Kenney v. Greer, 13 lU. 482, 54 Am. Dec. 439.
206 vocrhees v. Jackson, 10 Fet. 449, 9 L. Ed. 490; Kennedy v. Georgia
Stete Bank, » How. 680, 12 L. Ed. 1209; McCormick v. SuUivant, 10 Wheat.
192. 6 Lu Ed. 300; Bump v. Butler County (C. C.) 93 Fed. 290; BlaisdeU
V. Fray, 08 Me. 209; Penobscot R. Co. v. Weeks, 52 Me. 456; Morse v.
I'resby, 25 N. H. 299; Carleton v. Washington Ins. Co., 35 N. H. 162; Wln-
^te V. Haywood, 40 N. H. 437; Mercier v. Chace, 9 AUen (Mass.) 242;
Hendrick v. Whittemore, 105 Mass. 23; Coit v. Haven, 30 Conn. 190, 79
Am. Dec. 244; Kay v. Kowley, 4 Thomp. & C. 43; O'CJonnor v. Felix, 87
Hun, 179, 33 N. Y. Supp. 1074; Hering v. Chambers, 103 Pa. 175; National
Docks ik S. J. Junction Comiectlng Ky. Co. v. Pennsylvania R. Co., 52 N.
J- Eq. 58, 28 Atl. 71; Clark v. Bryan, 16 Md. 171; Woodhouse v. Flllbates,
77 Va. 317; Hill v. Woodward, 78 Va. 765; Bernhardt v. Brown, 118 N. C.
700, 24 S. E. 527, 36 D. K. A. 402; Martin v. Bowie, 37 S. C. 102, 15 S.
E. 736; Wilson's Heirs v. Wilson's Adro'r, 18 Ala. 176; Pender v. Felts,
2 Smedes & M. (Miss.) 535; Hardy v. Gholson, 26 Miss. 70; Briggs v. Qark,
7 How. (Miss.) 457; Horan v. Wahrenberger, 9 Tex. 313, 58 Am. Dec. 145;
Hambel v. Davis, 89 Tex. 256, 34 S. W. 439, 59 Am. St. Rep. 46; WooUey
V. Sullivan, 92 Tex. 28, 46 S. W. 629; McCleskey v. State, 4 Tex. Civ. App.
322, .a S. W. 518; HIggins v. Bordages (Tex. Civ. App.) 28 S. W. 350;
Venable v. McDonald, 4 Dana (Ky.) 336; Sorrell v. Samuels (Ky.) 49 S. W.
762; ^ewcomb'8 Ex'r v. Newcomb, 13 Bush (Ky.) 544, 26 Am. Rep. 222;
(405)
§271 LAW OP JUDGMENTS. (Ch. 13
pronounces judgment, the presumption is in favor of its jurisdiction,
and it is not incumbent upon one who bases a right upon such judg-
ment to aver facts essential to the existence of jurisdiction.*'* And
whatever is upon the records of such a court is presumed to be right-
fully there.*"^ It is therefore important to consider the various con-
ditions which the record may present in a given case, — as, whether it
be complete or deficient, and whether it contain recitals as to juris-
diction or not, — and ascertain how the presumption will apply in the
various circumstances. And this will now engage our attention.
§ 271. Silence or Inoompletenest of tlie Reoord.
The presumption in favor of the jurisdiction of superior courts is
most frequently invoked in aid of their judgments in cases where the
record is silent on the subject of jurisdiction. It may be defective
or incomplete in consequence of the loss or absence of parts of the
record or from the omission of proper recitals. Or the record,
though apparently complete and regular, may say nothing on the
subject of jurisdiction. Or its deliverances may be obscure and am-
biguous. For any of these reasons the record may fail to show
Adams' Lessee v. Jeffries. 12 Ohio, 253. 40 Am. Dec. 477; OaUen v. Ellison.
13 Ohio St. 446, 82 Am. Dec. 448; Wiley v. Pratt, 23 Ind. 028; First Nat.
Bank v. Hanna, 12 Ind. App. 240, 39 N. E. 1054; Pardon v. Dwlre. 23 IIL
572; Kenney v. Greer, 13 111. 432. 54 Am. Dec. 43U; Law v. Grommes. 55
lU. App. 312; Calhoun v. Ross, GO 111. App. 309; Cooper v. Sunderland. 3
Iowa, 114, m Am. Dec. 52; iSpurgln v. Bowers, 82 Iowa. 187. 47 X. W.
1021); Coleman v. McKnight, 4 Mo. 83; McGirk v. Chauvin. 3 Mo. 237:
(iemmell v. Kice, 13 Minn. 400 (Gil. 371); Reinig v. Hecht, 58 Wis. 212. !♦»
N. VV. 548; Hahn v. KeUy, 34 Cal. 31>1, iH Am. Dec. 742; IlUnois Trust &
Savings Bank v. Pacific Ry. Co.. 115 Cal. 285, 47 Pac. (30; Stoddard Manufg
Co. V. Mattice, 10 S. D. 253, 72 N. W. 8D1; GUIilau t. Murphy. 41) Xeb. 7?J.
tR> X. W. 98.
206 Jackson v. Dyer, 104 Ind. 510, 3 X. E. 803. For example, a state court
of general jurisdiction, in the absence of a showing in the record to the con-
trary, will be presumed to have had Jurisdiction of an action involving con-
tiicting claims to letters i>atent, when its judgment Is collaterally attacke^l:
since, where a cause of action In relation to letters patent depends primarily
on some contract of the parties, jurisdiction exists in tlie state couns, thousb
the validity of the patent may incidentally arise. Shoemaker v. South Bend
Spark-Arrcster Co., 135 Ind. 471, 35 X. E. 280, 22 U R. A. 332,
2 07 Drake v. Duvenick, 45 Oal. 455.
(406)
Ch. 13) COLLATERAL IMPEACHMENT OP JUDGMENTS. § 271
affirmatively that the court had jurisdiction of the subject and per-
sons, while yet it does not distinctly show a want of jurisdiction. In
any of these cases the weight of authority sustains the rule that the
judgment, if rendered by a superior domestic court, will sustain itself
against any collateral attack by parties or privies on account of any
alleged want of jurisdiction.**^* The rule is equally applicable in
cases where there are numerous parties ; the fact that the record is
silent upon some matter touching the jurisdiction oyer some of the
defendants does not aflfect the presumption in its favor.^®* So where
two defendants are sued ex contractu and one confesses judgment for
both, the authority to do so need not appear in the record, nor can
the judgment of the court be collaterally impeached for this supposed
defect.*^* Where the record does not show that a default was not
properly entered, the presumption arises that the required notice was
given.*^* And in general, a judgment is not open to collateral im-
peachment merely because the record fails to shcAv the service of the
process by which the court acquired jurisdiction of the defendant;
if the record is silent on this point, it will be presumed that lawful
and sufficient process was duly served.*^* Similarly, when the judg
ment is against a non-resident, and jurisdiction was acquired by pub-
lication of notice, the judgment is not impeachable collaterally be-
»•« Travelers* ITotectlve Ass'n v. Gilbert, 41 C. C. A. 180, 101 Fed. 46;
Onlickson v. Bodkin, 78 Minn. 33, 80 N. W. 783, 7^ Am. St. Rep. 352; Parr
V. Undler, 40 S. C. 193, 18 8. B. 636; liams v. Root, 22 Tex. Civ. App. 413,
W S. W. 411; Seaman v. Galligan, 8 8. D. 277, 66 N. W. 458; Axman v.
Dneker, 45 Kan. 179, 25 Pac. 582; Horner v. State Bank, 1 Ind. 130, 48
Am. Dec. 355; Coit v. Haven, 30 Conn. 190, 79 Am. Dec 244; Lawler's
Heirs V. White, 27 Tex. 250; Mitchell v. Meuley, 32 Tex. 460; Messinger
V. Kintner, 4 Blnn. 97; Swearengen v. Guilck, 67 111. 208; Goar v. Maraiida,
57 Ind. 339; Fogg v. Gibbs, 8 Baxt. (Tenn.) 464; Hahn v. Kelly, 34 Cal.
.JUl, W Am. Dec. 742; Sharp v. Brunnings, 35 Cal. 528.
2o« Kramer v. Breedlove (Tex.) 3 S. W. 561; Stearns v. Wright, 13 S. D.
.'44, 83 N. W. 587.
210 Jackson v. Tift, 15 Ga. 557.
211 Evans v. Young, 10 Colo. 316, 15 Pac. 424, 3 Am. St. Rep. 583. .
212 Sommermeyer v. Sommermeyer, 89 Wis. 66, 61 X. W. 311; Elder v.
Richmond Gold & Silver Min. Co., 7 C. C. A. 354, 58 Fed. 536; Galloway
V. State Nat. Bank (Tex. Civ. App.) 56 S. W. 236; Hamer v. CJook, 118 Mo.
476. 24 S. W. 180; Eichhoff v. Eichhoff, 101 Cal. 6(K), 36 Pac. 11; Bank
of Colfax V. Richardson, 34 Or. 518, 54 Pac. 359, 75 Am. St. Rep. 664.
(407)
§ 27 1 LAW OP JUDGMENTS. s (Ch, 13
cause the record does not show compliance with all the requirements
of the statute authorizing that manner of citation, or directing the
mode of its execution ; a full compliance will be presumed.*"
Therefore when a party. seeks, in any collateral action, to impeach
the judgment or decree of a court of superior jurisdiction, on the
ground that he had no legal notice of the pendency of the action, it
is necessary that his pleading should set forth what, if anything, is
shown by the record in relation to the issue and service of process,
because, unless the record itself shows that the court never acquired
jurisdiction of him, it will be conclusively presumed that the juris-
diction did attach.*^* Nor is it enough to overcome this presump-
tion that the judgment-roll is defective, or that some of the papers
which should properly constitute a part of it are wanting.'** Thus,
where the papers in a case are all lost, and the record states that the
judgment was taken by default without a jury, the court will pre-
sume that it was a case where such would have been the proper pro-
ceeding.*^® So where only part of the record is given in evidence,
that part. of it which relates to process and appearance being by
agreement of parties withheld, it will be presumed that all parties who
are named as such in the pleadings and judgment were properly be-
fore the court.*^^ Again, where the docket showed a summons "re-
turned on oath," but not that it had been served, it was held that
the judgment was merely irregular and could not be impeached col-
laterally.^^® Where the record fails to state that the judgment was
rendered at a regular term of the court, but states that it was en-
tered on May 6, 1885, it will be presumed, in the absence of contran*
2i3Figge V. Kowlen, 185 111. 234, 57 N. E. 1U5; Martin v. Buma. 80 Tex.
67t), lt$ S. W. 1072; Meade v. BarUett, 1 Tex. Qv. App. 342. 23 S. W, ISC:
Hoaglaiid v. Hoagland, 19 Utah, 103, 57 Pac. 20; Amy v. Amy. 12 Utah,
278, 42 l»ac. 1121.
21* Exchange Bank v. Ault, 102 Ind. 322, 1 N. E. 5C2.
«i8Herrick v. Butler, 30 Minn. 156, 14 N, W. 75)4; Gullekson t. Bodkin.
78 Minn. 33, 80 N. W. 783. 79 Am. St. Kep. 352; Berry v. Foster, 22 Kjr.
Law Kfp. 745, 58 S. W. 700.
2i« Fogg V. Gibbs, 8 Baxt. (Tenn.) 404.
S17 Welsh V. Childs, 17 Ohio St 319. And see Cosby v. Powers. 137 IikK
«H, 37 N. E. 321; Holt County Bank v. Holt County, 53 Neb. 827, 74 >.
W. 259; Crank v. Flowers, 4 Heisk. (Tenn.) 029.
«i8 Sloan V. McKiustry, 18 I'a. 120.
(408)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 271
evidence in the record, that the judgment was rendered at a regular
term duly fixed by law.*** ''Where nothing whatever is shown, if
evidence were necessary to have authorized the particular decision
complained of, it will be presumed that the evidence was before the
court and that it fully justified the conclusion reached. If a party
rely upon the fact that th^e was no evidence in a case, where evi-
dence was necessary, he must establish it by a proper bill of excep-
tions, or he will fail.'* *** So also, if the record in a case does not
show the situation of land aflfected by the decree, it will be presumed,
in a collateral attack upon the judgment, that the land was within
the territorial jurisdiction of the court.***
The same rule governs the case of an ambiguity or obscurity in
the record. Thus, where two demurrers to a declaration were on
file, and the judgment of the court refers to the "said demurrer,"
>\ithout specifying which of them, it will be presumed that the court
passed upon both.*** So where, by reason of the loss of the record
or any part of it, there is difficulty in discovering the ground upon
which jurisdiction was taken in the particular case, if there be any
ground upon which the court could rightfully have taken cognizance
of the case, it will be presumed that it assumed jurisdiction on that
ground, unless it be made to appear affirmatively by the record tha-
xt was taken on some other ground.**' It is also a rule that the fact
that the record of a cause in a federal court fails to show affirma-
tively a ground of federal jurisdiction will not make its judgment a
nullity, or render it subject to collateral attack ; and this is true when
the court assumes jurisdiction because it holds that the suit involves
a federal question, such as the construction of an act of congress,
even if it is mistaken in so holding.***
«!• Baldrldge v. Fenland, 68 Tex. 441, 4 S. W. SOT).
«2o Credit Fonder of America v. Kogers. 10 Neb. 1»4, 4 X. W. 1012.
«2i Foster V. Glvens, 14 U. C. A. (5:^5, 07 Fed. 684.
222 Watson T. Hahn, 1 Colo. 385.
22a v^oodhouse v. FUlbates, 77 Va. 317.
224 DoweU V. Applegate, 152 U. S. 327. 14 Sup. Ct. 611, 38 L. Ed. 463.
(409)
§272 LAW OF JVDQMBNTa. (Cb. 13
f 272. Appeamaee by AttonMy*
It has been made a question whether the presumption in favor of
jurisdiction should be extended to the case where the record shows
an appearance by attorney, which is apparently regular but was in
fact unauthorized. Many of the cases lay down the rule, in the most
uncompromising terms, that a judgment recovered against a defend-
ant who was not served with process and had no knowledge of the
suit, but for whom an attorney appeared, although without authority,
can by no means be attacked for want of jurisdiction in any collateral
proceeding, and is binding upon the defendant.^^* But on the other
hand, there is not wanting authority for the view that the authority
of the attorney may always be controverted.*** The best and safest
rule, in our judgment, is that formulated in a recent case in Kansas,
where it is said that while a judgment resting upon the unauthorized
appearance of an attorney is void, yet an attorney's appearance, for a
defendant whom he professes to represent, is presumed to be au-
thorized until the contrary is shown; and it devolves upon the de-
fendant impeaching this authority to show by positive proof that
such appearance is invalid ; and all the presumptions are in favor of
225 Brown v. Mchols, 42 N. Y. 2«; Hamilton v. Wrlj^ht, 37 N. Y. 9K:
Keed v. I'ratt 2 HUl (N. Y,) HA; Hoffmlre r. Hoffmlre, 3 Edw. Ch. <N. Y*
174; American Ins. Co. v. Oakley, 9 Paige <X. Y.) 41WJ. 38 Am. Dec 561:
Flnneran v. Leonard, 7 Alien (Mass.) 54, 83 Am. Deo. (i65: I^we t. String-
ham, 14 Wis. 222; Baker v. Stonebraker. 34 Mo. 175; Cochran v. Tbomaft.
131 Mo. 258, 33 S. W. 6; Carpentier v. City of Oakland, 30 Cal. 439; Field
V. Gibbs, 1 Pet. C. C. 155, * Fed. Cas. Xo. 4,766; Brigofs Heirs t. Brigot.
47 La. Ann. 13U4, 17 t^oiith. 825; Deegan v. Deegan. 22 Xev. 202, 37 Pac.
;^(iO; Williams t. Johnson. 112 X. C. 424. 17 S. E. 496, 21 L. R. A. 848, 34
Am. 8t. Uep. 513. Certain other cases hold that, while a Judgment is voidable
if obtained by an attorney acting without authority, yet it cannot be attacked
collaterally. Its validity may be assailed in a direct proceeding; bat It re-
mains valid until set aside or vacated in a proper proceeding for tliat purpose.
Sanders v. l*rice. 56 8. C. 1, ;« 8. E. 731; Corbitt v. Timmerman, 95 Mli-h.
581. 55 X. W. 437, 35 Am. St Rep. 586.
226 Wiley V. Pratt, 23 Ind. (528; Hess v. Cole. 23 X. J. Law, 125; Shmn-
way V. Stillman, 6 Wend. (X. Y.) 453; Shelton v. Tittin, 6 How. 163, 12 L. Ed.
:{ST; Wright v. Andrews. IIM) Mas.s. 149; Chicago. B. & Q. R. Co. r. Hft«-b-
cock County, tH> Xob. 722, 84 X. W. «7; Dormltzer v. German Suvin^ &
Loan Soc. 23 \\ ash. 132, 62 Pac. 862.
^410)
Ch. 13) COLLATERAL IMPEACHMENT OP JUDGMENTS. ' § 273
a finding of the trial court that the appearance of the attorney is
binding upon the defendant.'*^ If the case is that of a judgment ren-
dered in another state, a recital in the record that the defendant ap-
peared by attorney is conclusive of the fact that the attorney did ap-
pear, but not that he had authority to appear.^**
i 273. Jnrifldiotional Reoltals.
It commonly happens that the record itself will furnish evidence
on the question of the jurisdiction of the court. And notwithstand-
ing some vigorous dissent, the great majority of the decisions hold
(in the case of a domestic as distinguished from a foreign judgment)
that if the record shows the facts necessary to confer jurisdiction, or
recites that jurisdiction did in fact attach, its averments are final and
conclusive in every collateral proceeding, and cannot be contradicted
by any extraneous evidence. ^^" This is in consequence of the great
sanctity attached to judicial records by the common law and their
"uncontrollable verity." It is said : "If upon inspection of the rec-
ord it appears that no notice has been given, the judgment or decree
is void. On the other hand, if it be a judgment or decree of a domes-
tic court of general jurisdiction, and the record declares that notice
has been given, such declaration cannot be contradicted by extrinsic
proof. In such cases the judgment or decree is sustained, not be-
"7 Reynolds v. Fleming, 30 Kan. 106, 1 Pac. 01, 46 Am. Rep. 86.
«« Infra, vol. 2, $ 903.
22» McCormIck v. SulliTant. 10 Wheat. 192, 6 L. Ed. 300; Walker v. Cron-
kite (C. C.) 40 Fed. 133; Granger v. Clark, 22 Me.* 128; Morse v. Presby, 25^
N. H. 299; Cook v. Darling, 18 Pick. (Mass.) 393; Coit v. Haven, 30 Conn.
190, 79 Am. Dec. 244; Hartraan v. Ogborn, 54 Pa. 120, 93 Am. Dec. G79: Ma-
ples V. Mackey, 89 X. Y. 146; Clark v. Bryan, 16 Md. 171; Miller v. Ewing,
8 Smedes & M. (Miss.) 421; Dufour v. Camfranc, 11 Mart. O. S. (La.) 607, 13
Am. Dec. 360; Smitli v. Wood, 37 Tex. 616; Simmons v. McKay, 5 Bush (Ky.)
2.1; Callen v. Ellison, 13 Ohio St. 446, 82 Am. Dec. 448; Rogers v. Beauchamp,
102 Ind. 33, 1 X. E. 185; Moffitt v. Moffltt, 69 IH. 641; Hahn v. Ivelly, 34 Cal.
'«91. W Am. Dec. 742; McCauley v. Fulton, 44 Cal. 355; Bigolow v. Chatter-
ton, 10 U. S. App. 207. 2 C. C. A. 402, 51 Fed. 614; United States v. Gayle
(D, C.) 45 Fell. 107; Letney v. Marshall, 79 Tex. 513. 15 S. W. 5S6: Perry
V. King. 117 Ala. 533, 23 South. 783: Wanl v. White, 66 111. App. 155: Hoag-
land V. Hoagland. 19 Utah, 103, 57 Pac. 20; Phillips v. Phillips, 13 S. D. 231,
83 X. W. 94.
(411)
§ 273 LAW OF JUDOMBNTS. (Ch. 13
cause a judgment rendered without notice is good, but because the
law does not permit the introduction of evidence to overthrow that
which for reasons of public policy it treats as absolute verity. The
record is conclusively presumed to speak the truth, and can be tried
only by inspection. This results from the power of the court to
pass upon every question which arises in the cause, including the
facts necessary to the exercise of its jurisdiction, and as to which,
therefore, its judgment, unless obtained by fraud or collusion, is
binding, until reversed, on every other court." *'® Hence a recital
in a judgment that the original process was served on the defend-
ant, or that publication (when allowed in lieu of service of process)
was made, or that the party appeared by attorney or by answer, is
conclusive when the record is collaterally put in issue, unless the
recftal is positively contradicted by the record itself.*'^ We proceed
to illustrate the rule here stated by an account of certain typical cases.
In Reily v. Lancaster,^'^ the validity of a tax judgment was col-
laterally involved. It contained a recital that "all the owners and
claimants of the property above described have been duly summoned
to answer the complaint herein and have made default in that behalf."
It appeared, however, that the name of one of the owners was omitted
from the printed summons, which was served by publication. Yet
the judgment was sustained, the court indulging the presumption
that there was adequate proof of service on that defendant although
it did not appear in the record. In an important Ohio decision the
record of a judgment declared that "the defendants, by C, their attor-
280 wilcher v. Robertson; 78 Va. 602.
231 Foster v. Givens, 14 C. C. A. 625, 67 Fed. 684; Stelnhardt ▼. Baker. 20
Misc. Rep. 470, 46 N. Y. Supp. 707; Isley v. Boon, 113 N. O. 249. 18 S. E. 174;
Sledge V, EHiott, 116 N. O. 712, 21 S. E. 797; Sloan v, Thompson, 4 Tex. Or.
App. 419. 23 S. W. 613; GUlon v. Wear, 9 Tej. Civ. App. 44, 28 S. W. 1014;
Lyle V. Horstman (Tex. Civ. App.) 25 S. W. 802; Moore v. Perry, 13 Tex.
Civ. App. 204, 35 S. W. 838; Mills v. Terry. 22 Tex. Civ. App. 277, 54 & W.
780; Cooper v. May field. W Tex. 107, 58 S. W. 827; Harris v. McClanahaB.
11 Lea (Tenn.) 181; Law v. Groromes. 55 111. App. 312; Casey v. People. l&
111. 49, 46 N. E. 7; Allured v. Toiler, 112 Mich. 357, 70 N. W. 1037; Klaer f.
Caufleld, 17 Wash. 417, 49 Pae. 1064.
232 30 Cal. 354. And see Sharp v. Brunnings. 35 Cal. 528; Hahn v. KeUy.
34 Cal 391, 94 Am. Dec. 742; Branson v. Carutbers, 49 Cal. 373; Batenutn
V. Miller, 118 Ind. 345. 21 N. E. 292.
(412)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 27 S
ney, came into court, and by virtue of his power of attorney filed in
this case, confessed judgment," etc. It was sought in a collateral
proceeding to show that the only power of attorney among the
papers in the case, and which was marked with the proper number of
the case, did not appear to be signed by some of the defendants, and
that such defendants were at the time married women, and thereby
to show that the judgment was rendered without jurisdiction and
was void. But it was held that evidence of such facts could not be
received to impeach the validity and effect of the judgment.^''
But while it is inadmissible to contradict the record by extrinsic
evidence, it is always open to the party to show that one part of the
record contradicts another part. Thus the recital of service in a
judgment may be contradicted by producing the original summons
and return.*** But the contradiction must be explicit and irreconcil-
able. It is not enough that the recital seems to be contradicted by
inferences drawn from other parts of the record. For example^
where the service of a summons to the September term of court was
defective, and the cause was continued without any steps being taken,
and at the ensuing term a decree was rendered which recited that
the defendants "were duly served ten days before the first day of the
October term," and the record contained only the summons to the
September term, it was held that there was nothing appearing in the
record to rebut the presumption in favor of the jurisdiction of the
court as indicated by its finding in the decree."'*^ So in an action
against two defendants jointly, on a promissory note, personal service
was had on one of them and the other was served by publication ;
the record did not show that the latter had filed any pleadings in the
case, but the judgment of the court recited that "both parties waived
a jury, and submitted the cause to the court upon the law and facts ;"
23* Callen v. EIl!son, 13 Ohio St. 446, 82 Am. Dec. 448.
«»4 Pardon v. Dwire, 23 lU. 572; Harris v. Sargeant, 37 Or. 41, 60 Pac.
606.
*»» Turner v. Jenkins, 79 111. 228. So, where the return set out in a docket
shows that the citation was served before its issuance, and the original cita-
tion and return have been destroyed, the date shown in the record being an
impossible one, it will be presumed, on collateral attack, that service was had
on a date which would render the Judgment valid. Stephens v. Turner, 9
Tex. Civ. App. 623, 29 S. W. 937.
(413)
§274 LAW OP JUDGMENTS. (Ch. 13
and it was held that the record disclosed a personal appearance of
both defendants, and the recitals of the judgment were conclusive.*^'
A very strong application of this rule of ascribing absolute verity to
the record was made in a recent case in Texas. It was a collateral
attack upon the judgment of a domestic court of general jurisdiction,
and the nullity of the judgment for want of jurisdiction over the per-
son of the defendant was insisted on, because the return upon the
writ of citation showed that the alleged publication, as therein re-
cited, could not have been made. The judgment, however, recited
that the defendant failed to appear and answer "but wholly made
default, although duly cited with process." It was held that, to de-
termine whether the record shows affirmatively that there was proper
service, the whole of it must be considered together, and that the
recital in the judgment, which was the last act of the court in the
case, that the defendant was "duly cited,*' imported absolute verity
231
I 274. Decision of the Conrt upon its own Juritdietion.
The fact of its own jurisdiction may become a matter in issue be-
fore the court, or a question which it must determine beiore pro-
ceeding with the case, and then its decision that it has jurisdiction is
generally considered final and conclusive in all collateral inquiries.
When the jurisdiction of a court depends upon a fact which it is
required to ascertain in its decision, such decision is binding until
reversed in a direct proceeding.**^ Where a statute confers general
jurisdiction over a class of cases upon a particular tribunal, its de-
cision upon the facts essential to the existence of jurisdiction in a
particular case belonging to the class will be conclusive as against
collateral attack.*^'* So when a notice which is defective, or the
236 Smith V. Wood, 87 Tox. 61G.
237 Treiulway v. Eastburn, 57 Tex. 209.
238 Otis V. The Kio Graude. 1 AVoods, 279. Fed. Cas. No. 10,613; Reinach
V. Atlantic & G. W. K. (^o. (C. C.) TkS Fed. 33; Menitt's Lessee v. Home, 5
Otiio St. 307, 07 Am. Dec. 2t)8: Faircliild v. Falrcbild, 53 N. J. Kq, 078, M
Atl. 10, 51 Am. St. Kep. Gop; Bruce v. Osgood, 154 Ind. 375, 50 X. E. 25:
Swift V. Yanaway, 153 111. 197, 38 N. E. 589; Lancaster v. Snow. 184 111.
534, 50 X. E. 813; International & G. N. R. Co. v. Moore (Tex. Civ. App ) 32
S. W. 379.
230 City of Delphi v. Startzman, 104 Ind. 313, 3 X. E. 037; Dequludi'e v.
(414)
'
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 274
service of which is informal, has been adjudged sufficient, the judg-
ment rendered thereunder will not.be held void in a collateral pro-
ceeding.**® And in case of an insufficient service of notice, if the
court decides the question of jurisdiction erroneously, the judgment
will be voidable but binding until reversed on appeal.*** The deter-
mination of the question of the' sufficiency of the affidavits presented
to the court as proof of the service of a summons and the failure of
the defendant to answer, is a judicial determination of the question
of jurisdiction, and therefore binding until set aside or reversed.**'
But in California, the decision of the probate court upon jurisdictional
facts in a particular case is not conclusive upon parties not actually
before the court, and can be questioned in a direct suit in the same
court.**' And it is said that when the record discloses the evidence
of jurisdiction on which the court acted, its finding that it had juris-
diction is not conclusive unless the facts shown support it.***
WiUiamg, 31 Ind. 444; Plannery v. Baldwin Fertilizer Co., 94 Ga. 606, 21
S. E. 587. 1*1108, the decision of a federal judge that the interests of the
only defendant who Is a citizen of the same state with the plaintiff are Iden-
tical with those of the plaintiff, and that, therefore, the suit Is removable
as one between citizens of different states. Is not reviewable collaterally.
Evers v. Watson. 156 U. S. 527, 15 Sup. Ct. 430, 39 L. Ed. 520.
«*« Farmers' Ins. Co. v. Hlghsmlth, 44 Iowa, 330; Shawhan v. Loffer, 24
Iowa, 217; Cooper v. Sunderland, 3 Iowa, 114, 66 Am. Dec. 52; Morrow v.
Weed, 4 Iowa, 77, 66 Am. Dec. 122; Lyon v. Vanatta, 35 Iowa, 525; AVood-
bury V. Magulre. 42 Iowa. 339; Cincinnati, S. & C. R. Co. v. Village of Belle
Centre, 48 Ohio St. 273, 27 N. E. 464; Goodell v. Starr, 127 Ind. 198, 26 N. E.
793; Rogers v. Miller, 13 Wash. 82, 42 Pac. 525, 52 Am. St. Rep. 20; Rotch
V. Humboldt College, 89 Iowa, 480, 56 N. W. 658.
«*i BonsaU v. Isett, 14 Iowa, 309. Thus, a Judgment by a state court, sus-
taining the validity of personal service made while the defendant (a non-
resident) was within the jurisdiction of the court solely for the purpose of
trying another suit in such court, to which he was a party, cannot be collat-
erally attacked in a federal court on the ground that such service was void.
SJpe V. Copwell, 8 C. C. A. 419, 59 Fed. 970.
242 Hotchkiss V. Cutting, 14 Minn. 537 (Gil. 406).
243 Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237.
24 4 Senichka v. Lowe, 74 111. 274. Goudy v. Hall, 30 111. 109, holds that,
on the question of jurisdiction, the findings of the court are not conclusive.
If the necessary notice has not been given, or if process has not been served,
the court has no authority to act, and all its proceedings are absolutely void.
The finding of the court as to proper notice having been given, or process
stfved. Is prima facie sufficient to establish the fact, and would not be dlsre-
(415)
§ 275 LAW OF JUDOMBNTa (Ch. 13
S 275. CAses denyliis- ConolustTenets of Record*
The preceding sections show the immense preponderance of au-
thority to be in favor of the rule that a judgment of a superior court
can never be impeached collaterally for want of jurisdiction not ap-
pearing on its face. This rule, as we stated, is limited to domestic
judgments. For in the case of a judgment coming from a sister state
or a foreign country, it is agreed on all hands that want of jurisdic-
tion may always be shown against it. But this is a special and pecul-
iar question, and must be carefully separated from the point now
under consideration. That being done, we still find a certain num-
ber of cases squarely denying the generally accepted rule. It is held
in Texas that the doctrine of the absolute verity of a record does not
apply when the want of jurisdiction is made a question. "This may
always be set up when a judgment is sought to be enforced or any
benefit is claimed under it; and this is not inconsistent with the
principle which ordinarily forbids the impeachment or contradiction
of a record." *** So in New York. "The want of jurisdiction in a
court rendering a judgment may be shown collaterally whenever any
benefit or protection is sought under the judgment." '*• And the
same rule is approved in several other states.'*^ In a recent Massa-
chusetts decision it was held that a domestic judgment may be im-
peached, in an action thereon, by evidence that, at the time the suit
garded without very clear and satisfactory proof to the contrary. But see
the later cases of Swift v. Yanaway, 153 111. 197, 38 N. E. 589. and Lancaster
V. Snow, 1&4 111. 534, 56 N. E. 813.
2<5 i^itzhugh V. Custer, 4 Tex. 391, 51 Am. Dec. 728; Thouvenin r. Rod-
rigues, 24 Tex. 408; Smith v. Tupper, 4 Smedes & M. (Miss.) 261, 43 Am.
Dec. 483; Brown v. Balde, 3 Lans. (N. Y.) 283.
24e Putnam v. Man, 3 Wend. 202. 20 Am. Dec. 686; Ferguson t. CrawfonJ,
70 X. Y. 253, 26 Am. Rep. 589; Bonnet v. Lachman, 66 Hun. 554, 20 X. Y.
Supp. 514; Dutton t. Smith, 10 App. Div. 566. 42 N. Y. Supp. 80. Bat a
Judgment cannot be collaterally attacked by showing that there to a doubt
about the jurisdiction; the want of Jurisdiction must be made to appear
clearly by a fair preponderance of the evidence. Hayes v. Kerr, 19 App. DIt,
91, 45 N. Y. Supp. 1050.
247 Tenney v. Taylor, 1 App. D. C. 223; Thelen t. Thelen, 75 Minn. 433. 7S
X. W. 108; Balk v. Harris, 122 N. C. 64, 30 S. E. 318, 45 L. R. A. 257; Kings-
borough V. Tousley, 56 Ohio St 450, 47 N. £. 541; Davis ▼. Hamilton, 55 DL
App. 94.
(416)
Ch. 13) COLLATERAL IMPEACHMENT OP JUDGMENTS. § 275
was brought, the defendant therein was a non-resident of the state
and had no notice of its commencement or pendency.^*® So in Kan-
sas it is held permissible to attack a judgment collaterally by proof
that the sheriff's return of personal service is false and that defend-
ant in reality never had notice of the action.*** In another state, a
recital in an order that a party appeared does not prevent him from
showing at all times that he neither was served nor appeared.**®
But the most important decision on this side of the question is
that of Ferguson v. Crawford.*'^ In this case the well-considered/
and well-reasoned opinion, by Judge Rapallo, contains such a dis-
criminating review of the authorities, and such pertinent observa-
tions on the merits of the issue, that we find it necessary to quote
from it at some length. "After considerable research," says the
learned judge, "I have been unable to find a single authoritative ad-
judication, in this or any other state, deciding that in the case of a
domestic judgment of a court of general jurisdiction, want of juris-
dictiofi over the person may be shown by extrinsic evidence, while
there are a great number of adjudications in neighboring states hold-
if^ that, in the case of such judgments, parties and privies are es-
topped in collateral actions to deny the jurisdiction of the court over
the person as well as the subject-matter, unless it appear on the face
of the record that the court had not acquired jurisdiction ; and that
in such cases there is a conclusive presumption of law that jurisdic-
tion was acquired by service of process or the appearance of the
party. The cases are very numerous, but the citation of a few of
them will suffice." He then proceeds to review and comment upon
the principal cases holding this rule, and continues : "It is quite re-
markable, however, that notwithstanding the formidable array of
authority in its favor, the courts of this state have never sustained
this doctrine by any adjudication, but on the contrary the great
weight of judicial opinion, and the views of some of our most dis-
tinguished jurists, are directly opposed to it. As has been already
>«« Needliam v. Thayer, 147 Mass. 536, 18 N. E. 429. And see Stanley v.
Stanley, 35 S. O. 94, 5S4, 14 S. E. 675.
240 Mastin t. Gray, 19 Kan. 458, 27 Am. Rep. 149.
2M DoEier v. Richardson, 25 6a. 90.
2»i 70 N. Y. 253, 26 Am. Rep. 589.
1 LAW JUDG.— 27 (417)
§ 275 LAW OP JUDGMENTS. (Ch. 13
Stated, our courts have settled by adjudication in regard to judgments
of sister states, that the question of jurisdiction may be inquired into,
and a want of jurisdiction over the person shown by evidence, and
have further decided (in opposition to the holding of courts of some
of the other states) that this may be done even if it involves the
contradiction of a recital in the judgment-record. In stating the
reasons for this conclusion, our courts have founded it on genera!
principles, quite as applicable to domestic judgments as to others,
and save in one case,*** have in their opinions made no discrimina-
tion between them.*** When we come to consider the effect of these
authorities, it is difficult to find any solid ground upon which to rest
a distinction between domestic judgments and judgments of sister
states in regard to this question, for under the provisions of the con-
stitution of the United States, which requires that full faith and
credit shall be given in each state to the public acts, records, and
judicial proceedings of every other state, it is now well settled that
when a judgment of a court of a sister state is duly proved in a court
of this state, it is entitled here to all the effect to which it is entitled
in the courts of the state where rendered. If conclusive there, it is
equally conclusive in all the states of the Union ; and whatever pleas
would be good to a suit thereon in the state where rendered, and
none others, can be pleaded in any court in the United States,***
In holding, therefore, that a defense that the party was not sensed
and did not appear, although the record stated that he did, was good,
our courts must have held that such was the law of this state and
the common law, and consequently that in the absence of proof of
any special law to the contrary in the state where the judgment was
rendered, it must be presumed to be also the law of that state. The
judgments of our courts can stand on no other logical basis. The
distinction which is made in almost all the other states of the Union
between the effect of domestic judgments and judgments of sister
2 52 Kerr v. Kerr. 41 N. Y. 272.
283 Citing Borden v. Fltcli, 15 Johns. 121. 8 Am. Dec. 225; Starbnck v.
Murray. 5 Wend. (N. Y.) 148, 21 Am. Dec. 172; Koyee v. Butler. 6 Barb. (N.
Y.) G13, and eases cited.
264 Citinp Hampton v. McConnel, 3 Wheat. 234, 4 L. £}d. 378; Story, Comm.
Const. § 183; Mills v. Duryee, 7 Cranch, 481, 3 L. Ed. 411.
(^18)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 275
states, in regard to the conclusiveness of the presumption of juris-
diction over the person, is sought to be explained by saying that in
regard to domestic judgments the party aggrieved can obtain relief
by application to the court in which the judgment was rendered, or
by writ of error, whereas in the case of a judgment rendered against
him in another state he would be obliged to go into a foreign juris-
diction for redress, which would be a manifestly inadequate protec-
tion; and therefore the constitution may be construed so as to apply
only where the persons affected by the judgment were within the
operation of the proceeding. This explanation, however, does not
remove the difficulty in making the distinction ; for if there is a con-
clusive presumption that there was jurisdiction, that presumption
must exist as well in one case as in the other. The question whether
or not the party is estopped cannot be made to depend upon the
greater inconvenience of getting rid of the estoppel in one case than
in another. But aside from this observation as to the effect of the
authorities, an examination of them shows that our courts did in fact
proceed upon a ground common to both classes of judgments." The
learned judge here proceeds to examine the New York authorities
at some length, citing and quoting from those mentioned in the
margin.^"* The pith of the argument extracted from them (and
which is truly as applicable to one class of judgments as to the other)
is that, to say that the paper relied on is a record because it recites
the defendant's appearance, and that he cannot deny the jurisdiction
over him because the paper is a record, is reasoning in a vicious cir-
cle; and that unless a court has jurisdiction, it can never make a
record, such as to import absolute verity, and the party ought not to
be estopped, by any allegation in a supposed record, from proving
any fact which goes to establish the truth of a plea alleging want of
jurisdiction. The conclusion of the learned judge's investigation is
2"5Starbuck v. Murray. 5 Wend. 148, 21 Am. Dec. 172; Bigelow v. Stearns,
19 Johns. 41, 10 Am. Dee. 181); Latham v. Edgcrton, 9 Cow. 227; David v.
Packard, 6 Wend. 327; Bloom v. Burdick, 1 Hill, 130, 37 Am. Dec. 299; Peo-
ple V. Cassels, 5 Hill, 164; Harrington v. People, 6 Barb. 607; Noyes v. But-
ler, 6 Barb. 613; Hard v. Slilpman, 6 Barb. 621; Wright v. Douglass, 10
Barb. 97; Obeniung Canal Bank v. Judson, 8 N. Y. 254; Adams v. Saratoga
& W. R. Co., 10 N. Y. 328; Pendleton v. Weed. 17 N. Y. 75; Porter v. Bron-
json, 29 How. Prac. 292.
(419)
S 275 hXW OF JUDOMBNT3. (Cfa. 13
as follows : "In Bolton v. Jacks, 6 Rob. (N. Y.) 198, Jones, J., says
that it is now conceded, at least in this state, that want of jurisdic-
tion will render void the judgment of any court, whether it be of
superior or inferior, of general, limited, or local jurisdiction, or of
record or not, and that the bare recital of jurisdictional facts in the
record of a judgment of any court, whether superior or inferior, of
general or limited jurisdiction, is not conclusive, but only prima facie
evidence of the truth of the fact recited, and a party against whom
a judgment is offered is not by the bare fact of such recitals estopped
from showing by af&rmative proof that they were untrue and thus
rendering the judgment void for want of jurisdiction. It thus ap-
pears that the current of judicial opinion in this state is very strong
and uniform in favor of the proposition stated by Jones, J., in 6 Rob.
(N. Y.) 198, and if adopted here is decisive of the present case. It
has not as yet, however, been directly adjudicated, and if sustained
it must rest upon the local law of this state, as it finds no support in
adjudications elsewhere. There are reasons, however, founded upon
our system of practice, which would warrant us in so holding. The
powers of a court of equity being vested in our courts of law, and
equitable defenses being allowable, there is no reason why, to an ac-
tion upon a judgment, the defendant should not be permitted to set
up, by way of defense, any matter which would be ground of relief in
equity against the judgment ; and it is conceded in those states where
the record is held conclusive, that when the judgment has been ob-
tained by fraud, or without bringing the defendant into court, and
the want of jurisdiction does not appear upon the face of the record,
relief may be obtained in equity. The technical difficulty arising:
from the conclusiveness of the record is thus obviated." A recent
case in California, without going so far as to admit that it is regular
or proper practice to permit the collateral impeachment of a judg-
ment for want of jurisdiction, yet holds that if the party docs in fact
so assail the judgment, and the result of the investigation is the dis-
covery that it was not actually founded upon proper jurisdiction,
then the nullity of the judgment must be declared, and its conclusive
effects done away with, just as if it were void upon its face.'**
"« HHl V. City Cab & Transfer Co., 79. Cal. 188, 21 Pac. 728,
(420)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDOMBNTB*. } 270
§ 276. Argwaaentm on the OonolnsiTeiftess of Reeordf.
From an examination of the authorities cited in the preceding
sections, it will be discovered that many of them have been chiefly
influenced, in refusing to hear extraneous evidence on a plea of want
of jurisdiction, by the traditional regard which has always been
shown to judicial records. From the earliest times, the written me-
morials of courts have been held to import the most absolute and
"uncontrollable verity.'' That records "always speak the truth," and
cannot be contradicted, that they can be tried only by inspection, and
are evidence of the highest nature, are legal commonplaces of almost
legendary antiquity. Yet if we consider the present methods of per-
petuating the accounts of legal proceedings, — the loose, careless, and
irregular manner in which records are but too often made up, — it is
difficult to find satisfactory reasons, in the thing itself, for attributing
such sanctity to a judgment-roll. In so far then as this rule rests
only upon the inviolable character of the record, it seems to evince
a too superstitious reverence for the notions of the early English
law. But there is a broad and very serious consideration of public
policy underlying the rule, upon which the best considered cases ul-
timately base their position. The stability of judicial records is
requisite for the peace and comfort of society, and for the protection
of all persons who may deal with rights or property in reliance upon
their conclusiveness. As it has been said by a certain high court, if
judgments were always open to collateral attacks, they would "no
longer be a final adjudication of the rights of litigants, but the start-
ing point from which a new litigation would spring up ; acts of lim-
itation would become useless and nugatory; purchasers on the faith
of judicial process would find no protection ; every right established
by a judgment would be insecure and uncertain ; and a cloud would
rest upon every title." *°^ Now while it may be conceded that the
considerations here adduced are amply sufficient to sustain the rule
against impeaching judgments collaterally for errors or irregularities,
it is still a question whether they apply with equal force where the
objection goes to the very jurisdiction of the court. But it must
2*T Lancraster v. Wilson, 27 Grat (Va.) 629,
(421)
§ 276 LAW OF JUDGMENTS. (Ch. 13
be admitted that the necessity of protecting innocent third persons,
who may acquire rights or alter their legal relations on the faith
of judicial records, is of grave importance.
On the other hand, the arguments for permitting want of juris-
diction to be shown collaterally, may be divided into two heads.
First, there is the question of natural justice to the individual. To
puffer a man to be condemned unheard, to permit him to be deprived
of his property or his rights by proceedings of which he had no no-
tice or in which he had no opportunity to be heard, is repugnant
to every sentiment of fairness and right dealing, as well as wholly
alien to the spirit of our jurisprudence. To sacrifice the individual
to the welfare of the community is no doubt a very high principle of
political ethics, but it is scarcely at home in the body of our law,
except in matters of police. On the contrary, it is the guarantee
which the law gives of the inviolability of every man's rights and
estate that constitutes its best title to the respect and confidence
of the people. True, it is said that a defendant who is injured by
the rendition of a judgment against him without jurisdiction of his
person, may procure its reversal in an appellate court, or move to
vacate it in the court which rendered it, or go to equity with an appli-
cation for an injunction. But this is no adequate safeguard. These
remedies are often illusory. For it is very possible that he may remain
entirely ignorant of the adjudication against him until long after
his rights are irrevocably lost. In the second place, if the court had
no jurisdiction, its proceedings are void ; and if the action of the court
was void, its memorial of that action is no record. This argument
is put in a very clear light in an early New York case, where the
learned judge, speaking of an alleged record, used the following lan-
guage: "It imports perfect verity, it is said, and the parties to it
cannot be heard to impeach it. It appears to me that this proposi-
tion assumes the very fact to be established, which is the only ques-
tion in issue. For what purpose does the defendant question the
jurisdiction of the court ? Solely to show that its proceedings an<l
judgments are void, and therefore the supposed record is not in truth
a record. If the defendant had not proper notice of, and did not
appear to, the original action, all the state courts, with one excep-
tion, agree in opinion that the paper introduced as to him is no record ;
(422)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 277
but if he cannot show, even against the pretended record, that fact,
on the alleged ground of the uncontrollable verity of the record, he is
deprived of his defense by a process of reasoning that is to my mind
little less than sophistry. The plaintiffs in effect dejclare to the de-
fendant: The paper declared on is a record, because it says you
appeared, and you appeared because the paper is a record. This
is reasoning in a circle. The appearance makes the record uncon-
trollable verity, and the record makes the appearance an unimpeach-
able fact. The fact which the defendant puts in issue is the validity
of the record, and yet it is contended that he is estopped by the unim-
peachable credit of that very record from disproving any one allega-
tion contained in it. Unless a court has jurisdiction, it can never
make a record which imports uncontrollable verity to the party over
whom it has usurped jurisdiction, and he ought not therefore to be
estopped, by any allegation in that record, from proving any fact that
goes to establish the truth of a plea alleging want of jurisdiction." ^^^
On the whole, therefore, we must conclude that, as a matter of
strict law and logic, the authorities which permit the collateral im-
peachment of judgments for want of jurisdiction have the better of
the argument; but that the considerations of public policy which
demand the conclusiveness of the record are of such importance
and gravity that they will be likely always to overbalance the claims
of strict legal consistency,
§ 277. No Presumptioift asainat tlie Record.
The general rule, as stated, is that every presumption will be in-
dulged in favor of the records of superior courts. An important
corollary to this rule is that there can be no presumption against
the record. For if the record imports absolute verity, its recitals must
be equally as conclusive when they make against the jurisdiction as
when for it. If the record is silent as to jurisdictional facts, it will
be aided by presumptions. But if it recites such facts, and the facts
recited are not sufficient to confer jurisdiction, there can be no pre-
sumption that the recital is incorrect or incomplete.^'* "Where the
«»« Starbuck v. Murray, 5 Wend. 148, 21 Am. Dec. 172.
S5» Galpin v. Page, 18 Wall. 350, 366, 21 L. Ed. 950; Messinger v. Kintner.
(423)
§ 277 LAW OF JUDOMBNTS. (Cb. 13
existence of any jurisdictional fact is not affirmed upon the record
in a court of superior jurisdiction, it will be presumed upon a col-
lateral attack that the court acted correctly and with due authority,
and its judgment will be as valid as though every fact necessary to
jurisdiction affirmatively appeared. But no presumptions in sup-
port of a judgment are allowed in opposition to any statement made
in the record. • If it appear that process was served in a particular
mode, no other and different service can be presumed, for such pre-
sumption would contradict the record, which imports verity." *•• But
the record must be taken as a whole. And if separate recitals of
jurisdictional facts are found in different parts of it, which may rea-
sonably stand together, they must all be considered together. And
if the aggregate of information thus obtained shows jurisdiction right-
ly attaching, the judgment will not be void, though any one of the
recitals, taken alone, would not be sufficient.*** One other possible
case remains; viz., where recitals in different parts of the record
flatly contradict each other, and one would show jurisdiction and
the other not. Here, since one recital must be false, it seems rea-
sonable to assume the truth of that one which would support the
jurisdiction. Thus in a case in Iowa, the record stated in one place
that the answer was filed April 8th, and in another place that it was
filed April i6th ; and it was presumed, in favor of the validity of the
judgment, that the former statement was the true one.***
4 Bin. (Pa.) 97; Blanton ▼. Carroll. 86 Va. 530, 10 S. E. 329: Penobscot R.
Co. V. Weeks. 52 Me. 456; Dillard v. Central Virginia Iron Co., S2 Va. 734.
1 S. E. 124: Pollard v. Wegener, 13 Wis. 500; Hahn v. Kelly. 34 Cat. 391. W
Am. Dec. 742.
26 0 Heriug v. Chambers, 103 Pa. 175; Ely v. Tallraan. 14 Wis. 28. And
see Newman v. Growls. 8 C. C. A. 577. 60 Fed. 220; Ultchle v. Sayen {C C.)
100 Fed. 520; Bowler v. Ennis, 46 App. Dlv. 309, 61 N. Y. Supp. 686; Stuyre-
sant V. Well, 41 App. Dlv. 551. 58 N. Y. Supp. 697; Fowler v. Simpson, 79
Tex. 611, 15 S. W. 682, 23 Am. St. Rep. 370; Laney v. Garbee, 105 Ho. 353,
16 S. W. 831, 24 Am. St. Rep. 391.
201 Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742.
«»2 Conrad v. Baldwin. 3 Iowa, 207.
(424)
Ch. 13) COLLATERAL IHPBACHMCNt OF JUDGMENTS. § 278
} 278. Judgmeiit Toid on its Face iiiay be Attacked ooUaterally.
When the record itself discloses the fact that the court had no
jurisdiction of the controversy, or that jurisdiction of the person of
the defendant did not attach in the particular case, the judgment is
a mere nullity, and may be collaterally impeached, by any person
interested, whenever and Wherever it is brought in question.*'*
Thus when the defendant against whom a judgment was entered had
no notice, and that appears from the proceedings, the judgment is
void on its face.*** It is equally true of want of jurisdiction of the
subject-matter. Orders and judgments which the court has not the
power under any circumstances to make or render are null and void,
and their nullity can be asserted in any collateral proceeding where
*•» Briscoe v. Stephens, 2 Bing. 213; Rogers v. Wood, 2 Bam. & Adol. 245;
WTiyte V. Rose, 3 Q. B. 493; Thompson v. Whitman, 18 Wall. 457,-21 L. Ed.
897; Lincoln v. Tower, 2 McLean, 473, Fed. Oas. No. 8,355; Moore v. Town
ConncU of Edgefield (C. O.) 32 Fed. 498; Penobscot R. Co. v. Weeks, 52 Me.
4o6; Gay v. Smith, 38 N. H. 171; Mercler v. Chace, 9 Allen (Mass.) 242; Bor-
den V. Fitch. 15 Johns. (N. Y.) 121, 8 Am. Dec. 225; Latham v. Edgerton, 9
Cow. (X. Y.) 227; Gage v. Hill, 43 Barb. (N. Y.) 44; Fisher v. Longnecker, 8
Pa. 410; James ▼. Smith, 2 S. C. 183; Towns v. Springer, 9 Ga. 130; Central
Bank v. Gibson, 11 Ga. 453; Parish v. Parish, 32 Ga. 653; Campbell v. Brown,
6 How. (Miss.) IOC; Enos v. Smith, 7 Smedes & M. (Miss.) 85; McComb v.
Ellett. 8 Smedes & M. (Miss.) 505; Richardson v. Hunter, 23 La. Ann. 255;
Edwards v. Whited, 29 La. Ann. 647; Dorsey v. Kendall, 8 Bush (Ky.) 294;
Summar v. Jarrett, 62 Tenn. 23; North v. Moore, 8 Kan. 143; Evans v. Perci-
fall, 5 Ark. 424; Oavanaugh v. Smith, 84 Ind. 380; Bannon v. People, 1 111.
App. 496; Dicks v. Hatch, 10 Iowa, 380; Bonsall v. Isett, 14 Iowa, 309; Mayo
V. Ah Loy, 32 Cal. 477, 91 Am. Dec. 595; McMinn v. Whelan, 27 Cal. 300;
Mnrphy v. Lyons, 19 Neb. 689, 28 N. W. 328; Furgeson v. Jones, 17 Or. 204,
20 Pac. 842, 3 L. R. A. 620, 11 Am. St. Rep. 808; Homer v. Doe, Smith (Ind.)
10; Frankel v. Satterfield, 9 Houst. (Del.) 201, 19 Atl. 898; Elmendorf v. El-
mendorf. 58 N. J. Eq. 113, 44 Atl. 164; Hinton v. Penn Mut. Life Ins. Co.,
126 N. C. 18, 35 S. E. 182, 78 Am. St Rep. toO; Woods v. Bryan, 41 S. C.
74, 19 S. E. 218. 44 Am. St Rep. 688; McGehee v. Wilkins, 31 Fla. 83, 12
South. 228; Jewett v. Iowa Land Co., 64 Minn. 531. 07 N. W. 639, 58 Am.
St Rep. 555; Duxbury v. Dahle, 78 Minn. 427, 81 N. W. 198, 79 Am. St. Rep.
408; 0*Malley v. Frlcke, 104 Wis. 280, 80 N. W. 436; Junkans v. Bergin, 64
Cal. 208, 30 Pae. 627; Smith v. Los Angeles & P. R. Ck). (Oal.) 34 Pac. 242;
Pioneer I-and Co. v. Maddux, 109 Cal. 633, 42 Pac. 295, 50 Am. St Rep. 67.
2«* Farmers' Loan & T. Co. v. McKInney, 6 Mcl.win, 1, Fed. Cas. No. 4,667;
Bruce v. CI out man, 45 N. H. 37, 84 Am. Dec. 111.
(425)
§ 278 ULW OP JUDGMENTS. (Ch. 13
they are relied on in support of a claim of right.*'* But it must be
remarked that a want of jurisdiction seldom, if ever, appears on the
face of a judgment except in the insufficiency of the jurisdictional
recitals. "What do the cases mean," asks the supreme court of Cal-
ifornia, "when they speak of a want of jurisdiction appearing upon
the face of the record? Do they mean a positive and direct state-
ment to the effect that something which must have been done, in order
to give the court jurisdiction, was not done? Or do they mean that
a want of jurisdiction appears whenever what was done is stated, and
which, having been done, was not sufficient in law to give the court
jurisdiction? If the former, they are a delusion. For we venture
to say that no case can be found, or will arise hereafter, where the
conditions contemplated by such a rule will be found to exist. No
court has ever yet so far stultified itself as to render a judgment
against a defendant, and at the same time deliberately state that it
had not acquired jurisdiction over his person." *•* In the generality
of cases, therefore, a judgment will be void on its face only where the
record recites the jurisdictional facts (for if it is silent jurisdiction
will be presumed), and the facts as so recited are plainly insufficient
to have conferred jurisdiction.
It is also to be remarked that there is a clear distinction between
those facts which involve the jurisdiction of the court over the par-
ties and the subject-matter, and those quasi jurisdictional facts, with-
out allegation of which the court cannot be set in motion, and with-
out proof of which a decree should not be pronounced. In the ab-
sence of the former, the judgment of the court is void and may be
attacked in collateral proceedings, while, in respect to the latter, it is
conclusive, and cannot be questioned except on a direct proceed-
ing.^"
205 Withers v. Patterson, 27 Tex. 401. 86 Am. Dec. 043; J. B. Watkio*
I^^nd Mortg. Co. v. MuHen, 8 Kan. App. 705, 54 Pac. 921; Beaudrot v. Mur-
phy. 53 S. 0. 118, 30 S. E. 825.
266 Hahn v. Kelly, 34 Cal. :i91. VH Am. Dec. 742.
267 Relnach v. Atiantlc & G. W. R. CJo. (C. C.) 58 Fed. Sa.
(42G)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 279
§ 279. Superior Courts ejEeroislns Special Statutory Poirere*
m
So far we have confined our attention to the presumptions of juris-
diction in the case of a superior court exercising its ordinary com-
mon law powers. It remains to speak of the exercise of peculiar
statutory powers, and then of the judgments of inferior tribunals.
And first, it is an established rule that when a court of general juris-
diction has special and statutory powers conferred upon it, which are
wholly derived from statute, and not exercised according to the
course of the common law, or are not part of its general jurisdiction,
it is to be regarded as quoad hoc an inferior or limited court, and
its judgments to be treated accordingly, that is, its jurisdiction must
appear on the record and cannot be presumed.*** It is said, in a
New Hampshire decision, that whenever a tribunal possesses quali-
fied and limited powers, authorizing them to act in certain specified
cases only, and by special modes of proceeding, and the law has pro-
vided no mode by which these proceedings can be revised, then the
proceedings may be impeached collaterally by showing that the court
or magistrates have acted in a case where they have no jurisdiction,
or by modes of procedyre which they are not authorized to adopt.***
The same principle, under a slightly different aspect, is stated in a
Connecticut case as follows: Where a statute confers upon a tri-
2««Tbatcher v. Powell, 6 Wheat. 119, 5 L. Ed. 221; Secombe v. MUwaukee
& St. P. R- Co., 23 Wall. 108, 23 L. Ed. 67; Murray v. American Surety Co.,
17 C. C. A. 138, 70 Fed. 341; Warren v. Union Bank, 157 N. Y. 259, 51 N. E.
1(136, 43 L. R. A. 256, 68 Am. St. Rep. 777; Morse v. Presby, 25 N. H. 299;
Carleton r. Wasliln^ton Ins. Co., 35 N. H. 162; Town of Huntington v. Town
of Charlotte, 15 Vt. 46; Striker v. Kelly, 7 Hill (N. Y.) 24; Denning v. Corwin,
11 Wend. (N. Y.) 647; Smith v. Fowle. 12 Wend. (N. Y.) 9; Embury v. Con-
ner, 3 N. Y. 511, 53 Am. Dec. 325; Shivers v. Wilson, 5 Har. & J. (Md.) 130,
9 Am. Dec. 497; Gunn v. Howell, 27 Ala. 663, 62 Am. Dec. 785; Foster v.
Glazener, 27 Ala. 391; Mitchell v. Runkle, 25 Tex. Supp. 132; Earthman's
Admr*8 v. Jones, 2 Yercj. (Tenn.) 493; Barry v. Patterson, 3 Humph. (Tenn.)
313; Edmiston v. Edmlston, 2 Ohio. 251; Ludlow's Heirs v. Johnston, 3 Ohio,
553. 17 Am. Dec. 609; Adams* Lessee v. Jeflfries, 12 Ohio, 253, 40 Am. Dec.
477; Cone v. Cotton, 2 Blackf. (Ind.) 82; Cooper v. Sunderland, 3 Iowa, 114,
C6 Am. Dec. 52; Wight v. Warner, 1 Doug. (Mich.) 384; Xorthcut v. Leni-
ery, 8 Or. 317; Furgeson v. Jones, 17 Or. 204, 110 Pac. 842, 3 L. R. A. 620,
11 Am. St. Rep. 808.
s«<» Sanborn v. Fellows, 22 N. H. 473, 489.
(427)
§279 LAW OP JUDGMENTS. (Ch. 13
bunal of limited and statutory jurisdiction a special power, to be ex-
ercised under particular circumstances and in a particular manner,
it is indispensable to the valid exercise of the power that such cir-
cumstances exist at the time and that the court proceed in the exact
manner prescribed; and where the record of such court finds the
existence of those circumstances, and that su^h manner of proceed-
ing was adopted, the finding is only prima facie proof of those facts
and they may be disproved by parol evidence.^^^ But the most
satisfactory and reasonable statement of the rule that we have en-
countered in the books is expressed by the court of appeals of Vir-
ginia, in the following language : "When a court of general jurisdic-
tion has conferred upon it special powers by special statute, and such
special powers are exercised judicially, that is, according to the
course of the common law and proceedings in chancery, such judg-
ment cannot be impeached collaterally. But where a court of gen-
eral jurisdiction has conferred upon it special and summary powers,
wholly derived from statutes, and which do not belong to it as a court
of general jurisdiction, and when such powers are not exercised ac-
cording to the course of the common law, its action being ministerial
only and not judicial, in such case its decision must be regarded and
treated like those of courts of limited and special jurisdiction, and
no such presumption of jurisdiction will attend the judgment of the
court. But in such cases the facts essential to the exercise of the
special jurisdiction must appear upon the face of the record." *^*
But we must guard against the supposition that everything beside an
ordinary adversary proceeding is of this special and statutory char-
acter. For example, a warrant of attorney to confess judgment is a
familiar common-law security, and the fact that the mode of pro-
cedure, in entering judgment thereon, is regulated by a statute does
not convert the proceeding into one of such a special character that
the same presumptions do not obtain as in the case of any ordinary
judgment.^'* So the proceeding by writ of ad quod damnum to as-
aio Sears v. Terry, 26 Ck)nu. 273.
2T1 Pulaski Co. V. Stuart, 28 Grat 872. And see Harrey v. Tyler, 2 Wall.
^^42. 17 L. Ed. 871; Galpin v. Page, 18 WaU. 350, 21 L. Ed. 959.
27 2 Bush V. Hanson, 70 111. 480. The same Is true of proceedings com-
meneod by attaehment Van Wageuen v. Oarpenter, 27 Colo. 444, 61 Pac.
(428)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 281
sess damages for land taken under its charter by a turnpike company
is not in derogation of the common law.^^* Where the action is
one for the collection of delinquent taxes, there is much difference
of opinion as to whether or not the court exercises its jurisdiction
in a special or summary manner, the majority of the cases inclining
to the opinion that judgments in tax cases are not entitled to the
same presumptions which attend ordinary judgments at law, but that
all the facts essential to the jurisdiction must appear on the face of
the record.*'*
§ 280. Smnmary Proeeedins**
It is well settled that a judgment in a summary proceeding must
show upon its face everything that is necessary to sustain the juris-
diction of the court rendering it.*'* Thus, in a judgment on motion
against a tax-collector and his sureties, rendered by nil dicit, the
judgment entry must show the liability of the defendants for the debt
or penalty sought to be recovered, and that the facts were proved
necessary to give the court jurisdiction.*''
§ 281. Conatr votive 8«rrlo« of Process*
Whether a proceeding in which service of process is made upon a
non-resident defendant by publication of the summons, or attacn-
ment of his property, without an appearance by him, is entitled to
be supported by the ordinary presumptions of the rightful acquisi-
tion of jurisdiction by superior courts, is a question of much impor-
tance, but upon which the authorities are by no means agreed. A
U98. Compare Mentzer v. Ellison, 7 Colo. App. 315, 43 Pac. 464; Star Brew-
erj V. Otto, G3 III. App. 40. And of an action in partition. Nickrans v.
Wilk. 161 III. 76. 43 N. E. 741. Probate courts, though their authority to
appoint guardians for insane persons, to confirm the adoption of a child,
and the like, is derived from statute, yet exercise a general jurisdiction in
such matters, and their orders and judgments therein are upheld by the
usual presamptions of validity. McKenzie v. Donnell, 151 Mo. 431, 52 S.
W. 214; Crocker v. Balch, 104 Tenn. 6, 55 S. W. 307.
2TS NolensTille Turnpike Co. v. Quimby, 8 Humph. (Tenn.) 476.
2T* See Black, Tax Titles (2d Ed.) § 178, and the cases there cited.
275 Crockett v. Parklson, 3 Cold. (Tenn.) 219; Haynes v. Gates, 2 Head,
(Tenn.) 598.
27 « Graham v. Reynolds, 45 Ala. 578^
(429)
§ 281 LAW OF JUDGMENTS. (Ch. 13
majority of the earlier cases hold that such proceedings are contrar>-
to the course of the common law, are wholly dependent for their
validity upon an exact compliance with the statutes authorizing them,
are to be strictly scrutinized, and therefore, within the rule just stated,
are not favored with any presumption unless the record does af-
firmatively show that everything necessary to the jurisdiction was
actually and rightly done.*'' A very eminent judge has said that
whenever "it appears from an inspection of the record of a court of
general jurisdiction that the defendant, against whom a personal de-
cree or judgment is rendered, was, at the time of the alleged seizure,
without the territorial Umits of the court, and thus beyond the reach
of its process, and that he never appeared in the action, the presump-
tion of jurisdiction over his person ceases, and the burden of estab-
lishing the jurisdiction is cast upon the party who invokes the bene-
fit or protection of the judgment or decree." *'• But on the other
hand, most of the later decisions contend, — and with much show of
reason, — ^that such a rule is arbitrary and illogical. For, say they,
the court is none the less a court of general jurisdiction because in
this instance the legislature prescribes a special mode for the exercise
of its powers. The process is special and statutory, but the jurisdic-
tion of the court depends upon the constitution or general laws.
And the presumption in favor of the validity of judgments rests upon
considerations of public policy, and upon the high character of tl«
courts of record, and the fact that the judges are men learned and
skilled in the law, — reasons which are not affected by the circum-
stance that in the cases supposed a peculiar method of executing^
their process is adopted. According to this view, in cases of con-
structive service, the record, if silent or incomplete, should be aidcil
by the same presumptions which obtain in the case of ordinary judg-
ments founded upon personal service.^'* Thus, it is not nccessar}.
2TT Galpin V. Page, 18 Wall. 350, 21 L. Ed. 9wj0; Xeflf t. Pennoyer, 3 Sawy.
•J08, Fed. Cas. Xo. 10,0S3; Gray v. Larrimoi-e. 2 Abb. U. S. W2, Fed. Cas. Nu.
5,7-Jl; Brownfield v. Dyer, 7 Bush (Ky.) 505; Hallett v. Rlghters, 13 Hu».
Prac. (X. Y.) 43; Boyland v. Boyland, 18 IlL 552. And see Schlssel v. Dick-
son, 129 Ind. 139, 28 X. fi. 540; Wlnnlngham v. Tnieblood, 149 Mo. 572. 51
S. W. 399; Fowler v. Lewis* Adm'r, 36 W. Va. 112, 14 S. E. 447.
»78 GalpiQ T. Page, 18 Wall. 3(H. 21 L. Ed. 959. per Field, J.
2T9 Kqwler'B Heirs v. White. 27 Tex. 250; Stewart v. Anderson, 70 Tex.
(130)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDQMBNTS. § 282
in order to support a judgment on service by publication, to show
that an affidavit for publication was made, since the law will presume
that much in aid of the judgment.-*® Nor will the judgment be
open to collateral impeachment although the affidavit was defective,
insufficient, or false.^**
I 282. Judsnteats of Inferior Courts not aided hj Prefnmptionf«
In respect to the subject now under discussion, there is a funda-
mental distinction between superior and inferior courts. In the case
of judgments rendered by the latter, the rules already stated as ap-
plying to the former are directly reversed.**^ Courts of inferior or
limited powers must not only act within the scope of their jurisdic-
tion, but it must appear on the face of their proceedings that they so
acted ; the record or minutes or papers in the case must affirmatively
show the existence of every fact necessary to give jurisdiction in the
particular cause ; otherwise the judgment may be impeached collat-
erally, no presumptions are indulged in its support, and want of
jurisdiction may be shown by evidence aliunde.^** "Where one seeks
588, 8 S. W. 295; Buse v. Bartlett. 1 Tex. Civ. App. 335, 21 S. W. 52; Hams
V. Root, 22 Tex. Civ. App. 413. 55 S. W. 411; Gemmell v. Rice, 13 Minn. 400
(GIL 371); Hahn v. Kelly, 34 Cal. 391. 94 Am. Dec. 742; Nash v. Church. 10
Wis. 312, 78 Am. Dec. 678; Thorns v. King, 95 Tenn. 60, 31 S. W. 983; Hun-
ter v. Ruff, 47 8. C. 525, 25 S. E. 05, 58 Am. St Rep. 907; Bank of Colfax
V. Richardson, 34 Or. 518, 54 Pac. 359, 75 Am. St. Rep. 664; Co-operative
Savhigs & Loan Ass'n v. Mcintosh, 105 Iowa, 697, 75 N. W. 520; Hoagland
T. Hoagland, 19 Utah, 103, 57 Pac. 20.
««oiiams V. Root, 22 Tex. Civ. App. 413^ 55 S. W. 411; Hardy v. Beaty,
W Tex. 562, 19 S. W. 778, 31 Am. St Rep. 80.
2«x Stevens v. Reynolds. 143 Ind. 467, 41 N. E. 931, 52 Am. St. Rep. 422;
Langhlin v. Vogelsong, 5 Ohio Oir. Ot 407; Chrlstofferson v. Pfennig, 10
Wash. 491. 48 Pac. 2(M.
««2 See, supra, §§ 270-273.
«»» Harris v. Willis, 15 C. B. 710; Turner v. Bank of North America. 4
Dall. 11, 1 L. Ed. 718; Kempe v. Kennedy, 5 Cranch, 173, 3 L. Ed. 70; Craw-
ford V. Howard, 30 Me. 422; Walbridge v. Hall, 3 Vt 114; Nye v. Kellara,
18 Vt 591; Smith v. Rice. 11 Mass. 513; Sayles v. Briggs, 4 Mete. (Mass.)
421; Wells t. Stevens, 2 Gray (Mass.) 115; Hendrick v. Whittemore, 105
Mass. 23; Henry v. Estes, 127 Mass. 474; Hall v. Howd, 10 Conn. 514, 27
Am. Dec. 696; Powers v. People, 4 Johns. (N. Y.) 292; Simons v. De Bare,
4 Bosw. (N. Y.) 547; Wlckes' Lessee v. Caulk, 5 Har. & J. (Md.) 36; Clark
V. Bryan, 16 Md. 171; Harvey v. Huggins, 2 Bailey (S. C.) 267; Gray v. Mc-
(431)
§ 282 LAW OP JUDGMSNTS. (C3l« 13
to enforce the judgment of a court of limited and special jurisdiction,
its organization is open to inquiry, and its jurisdiction must be estab-
lished." ^** There are general expressions iij the books which seem
to indicate that, unless the jurisdiction of an inferior court appears
fully and affirmatively on the record of its proceedings, the judgment
will be absolutely void. And in that case there could be no question
of introducing extraneous evidence either to support or contradict it.
It has been held, in fact, that evidence extrinsic to the record cannot
supply facts requisite to the jurisdiction.'*^ But while it is undoubt-
edly the rule that, the record of such a court being silent on the sub-
ject or defective in its showings, there is no presumption to aid it, —
while we may even concede that under such circumstances it would
be presumptively invalid, — ^there seems to be no good reason for re-
fusing to hear proper evidence tending to show actual jurisdiction.
And in some of the states the decisions are positive to the effect that
jurisdictional requisites may be shown by outside evidence, except in
the case of those facts which the law expressly directs the court to
spread upon its records.'** It is further to be remarked that al-
though a court may be an inferior or limited tribunal, yet if it has
general jurisdiction of any one subject, its proceedings and judgments
in respect to that subject will be sustained by the same liberal pre-
sumptions as to jurisdiction which obtain in the case of the superior
courts.**^
Neal, 12 Ga. 424; Rutherford v. Crawford, 53 Ga. 138; State ▼. Bay. 43 Ala.
C<>8; Steen v. Steen, 25 Miss. 513; Horau v. Wabrenberper, 9 Tex. 313, 58 Am.
Dec. 145; Adams v. Tiernan, 5 Dana (Ky.) 3^; Hamilton t. Burum, 3 Ter^.
(Tenn.) 355; State v. Gacbenbelmer, 30 Ind. 63; Xewman ▼. Mannins* 89
lud. 422; State y. Berry, 12 Iowa, 58; Cooper v. Sunderland, 3 Iowa, 114, 66
Am. Dec. 52; Bersch v. Schneider, 27 Mo. 101; State v. Metzger, 26 Mo. 65;
Ctiandler v. Nash. 5 Mich. 400; Beaudrias v. Hogan. 16 App. DIt. 38, 44 N.
y. Siipp. 785; Cockley v. Rehr, 12 Pa. Co. Ot. R. 343; McGehee t. WUklns.
31 Fla. 83, 12 South. 228; Williams v. AMiltaker, 110 N. C. 393, 14 S. E. ^24:
Wilkerson v. Schoonmaker. 77 Tex. 615. 14 S. W. 223, 19 Am. St Rep. 808;
In re Central Irr. Dlst.. 117 Cal. 382, 49 Pac. 354; Ohaddock v. Barry, 93 Mich.
542, 53 N. W. 785.
2 84 Crawford v. Howard, 30 Me. 422.
288 Anderson v. Binford, 61 Tenn. 310.
286 Jolley V. Foltz, 34 Cal. 321; Van Deusen ▼. Sweet, 51 N. Y. 881; Beau-
drias V. Hogan, 23 App. Dlv. 83, 48 N. Y. Supp. 468.
2 87 Moffltt V. Moffitt. GO lU. 041.
(432)
Cb. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 283
I 283. Superior and Inferior Courts distinsuished*
To draw a clear line of demarcation between superior and inferior
courts is rendered almost impossible by the great differences in the
judicial systems of the several states, as also by the fact that courts
possessing similar powers are very differently regarded in different
states. Practically, the question, in regard to any specific court, must
be determined by the laws and decisions of the jurisdiction where it
exists. But it has several times been attempted to formulate a dis-
tinction in general terms, and such expressions, though necessarily
vague, may be of some assistance in prosecuting the inquiry. The
United States supreme court, at an early day, observed that "the true
line of distinction between courts whose decisions are conclusive if
not removed to an appellate court, and those whose proceedings are
nullities if their jurisdiction does not appear on their face, is this, — z
court which is competent by its constitution to decide on its own
jurisdiction, and to exercise it to a final judgment, without setting
forth in their proceedings the facts and evidence on which it is ren-
dered, whose record is absolute verity, not to be impugned by aver-
ment or proof to the contrary, is of the first description ; there can be
no judicial inspection behind the judgment save by appellate power. A
court which is so constituted that its judgment can be looked through
for the facts and evidence which are necessary to sustain it, whose
decision is not evidence of itself to show jurisdiction and its lawful
exercise, is of the latter description ; every requisite for either must
appear on the face of their proceedings, or they are nullities." **® But
this, it will be perceived, does not so much answer the question as
288 Grlgnon v. Astor, 2 How. 319, 341, 11 L. Ed. 283, per Baldwin, J. See,
also, Kempe v. Kenuedy, 5 Cranch, 185, 3 L. Ed. 70; Hahn v. KeUy, 34 Cal.
391, 94 Am. Dec. 742. ''What tests are to be applied in determining tlie ques-
tion of inferiority? It may be solved by showing that the court is either
placed under the supervisorj- or appellate control of those named, or that
the jurisdiction conferred upon it is limited and confined. Conceding that
the act in question does not place the court which it creates under the super-
visory control of the circuit court, and only allows appeals and writs of error
to be prosecuted directly to the supreme court, yet it will still be an inferior
tribunal if its Jurisdiction is limited and inferior. (leneral jurlsdietiou is
that which extends to a great variety of matters. Limited Jurisdiction, also
1 LAW JUDG.-28 (433)
§ 283 LAW OP JUDGMENTS. (Cll. 13
State it in new terms. We must conclude that the difference between
superior and inferior courts is one of relative rank and authority and
not of intrinsic quality. Nor will the common distinction between
"courts of record" and "courts not of record" aid us in framing a gen-
eral rule, because a particular tribunal may be regarded in one state
as a record court while an exactly similar court in another state will
not possess that character. In all the states there are courts hav-
ing original jurisdiction of every (or nearly every) species of action
or proceeding known to the common law, unlimited in respect to
the amount or the character of the controversy. And these are un-
questionably "superior" courts within the meaning of the rule. And
the same is true of courts possessing general equity powers. In most
of the states there are certain tribunals whose authority is wholly
derived from statute, who are authorized to take cognizance only of
a particular class of actions or proceedings, or to act only in certain
specified circumstances, whose course of procedure is precisely mark-
ed out, and whose minutes or memorials are not dignified with the
character of a record. And these are undoubtedly "inferior" courts
within the meaning of the rule. But between these two classes lie
a considerable number of courts, whose jurisdiction has a maximum
money-limit, or which have general jurisdiction of a special class of
cases, or are otherwise differentiated from both the foregoing types.
And as to these it is useless to attempt a universal classification. We
called specific aud inferior, is that which extends only to certain specified
causes." State v. Daniels, 66 Mo. 200.
A court of record which has, by statute, all the power that any court could
hare over a certain subject of Jurisdiction, especially if It be a subject of
Jurisdiction under the general rules of law or equity, is to be regarded (as
to cases within that class) as a court of superior Jurisdiction, within the role
which presumes the Jiu'isdiction of such courts to render a particular Jud|c-
nient. Stahl v. Mitchell, 41 Minn. 325, 43 N. W. 385. And see Gridley v. Col-
lege of St. Francis Xavier, 137 N. Y. 327. 33 N. E. 321.
"A tiibunal which is not a common law court, which does not prix-eed
according to the course of the common law, a newly created, limited, and
special Jurisdiction from which no appeal is allowed by statute, nor writ of
error b^' the comuiou law, yet determining In a summary way the most ini«
poitaut rights aud franchises, both as respects the people and private per-
sons, is and cannot be otherwise than an inferior tribunal in the strk'^test
sense of the word." Cunningham v. Squires, 2 W. Va. 422, dS Am. Dec 77U.
(434)
Ch. 13) COLLATERAL IMPEACHMENT OP JUnGVVTS. § 284
shall proceed to ascertain how these courts are regarded in the sev-
eral states.
§ 284. Prolmte Courts.
In Pennsylvania, the orphans' court is a court of record of equal
dignity with the common law tribunals, and its decrees, as to matters
within its jurisdiction, are conclusive on parties and privies against
all collateral attack and impeachment except for fraud. "*• In Ohio,
the probate courts are in the fullest sense courts of record ; they be-
long to the class whose records import absolute verity, that are com-
petent to decide on their own jurisdiction, and to fexercise it to final
judgment, without setting forth the facts and evidence on which it is
rendered.'®^ In Missouri also, the judgments and orders of probate
courts, in matters within their jurisdiction, have the same import of
verity as those of courts of general jurisdiction, and, like them, are
not to be impeached in collateral proceedings.'*^ And the same rule
obtains in Illinois,'*^ in Louisiana,'**' in South Dakota,'** in Ver-
mont,'*^ in Alabama,'*® in Arkansas,'*^ in Minnesota,'*® and in Cal-
ifornia.'** In Texas, it seems to have been held at one time that
the proceedings of a probate court must show every fact necessary
to give jurisdiction, and could not be sustained by any presumption
2«o McPherson v. Cunliff, 11 Serg. & R. 422, 14 Am. Dec. 642; Mussleman's
Appeal, 65 Pa. 485; Lex's Appeal, 97 Pa. 289; Ferguson v. Yard, 164 Pa.
586, 30 Atl. 517.
2»o Shroyer v. Richmond, 16 Ohio St 455; Woodward v. Curtis. 19 Ohio Clr.
Ct R. 15; State Nat. Bank v. Ellison (C. C.) 75 Fed. 354.
*»i Camden v. Plain, 91 Mo. 117, 4 S. W. 86; Johnson v. Beazley, 65 Mo.
250, 27 Am. Rep. 276.
»»2 People v. Medai-t, 106.111. 348, 46 N. E. 1095; Paulllssen v. Loock, 38
111. App. 510.
«»3 Grevemberg v. Bradford. 44 La. Ann. 400. 10 South. 786.
2»4 Matson v. Swenson, 5 S. D. 191, 58 N. W. 570.
*»5 Doolittle V. llolton, 28 Vt. 819, 67 Am. Dec. 745.
*»• Key V. Vaughn, 15 Ala. 497; Arnett's Ex*r v. Arnett, 33 Ala. 273; Duck-
worth V. Duckworth's Adm'r, 35 Ala. 70.
2»" Osborne v. Graham, 30 Ark. 67.
»»» Dayton v. Mintzer, 22 Minn. 39;^; Kurtz v. St. Paul & D. R. Co., 61
Minn. 18, 63 N. W. 1.
*»» Luco V. Commercial Bank, 70 Cal. 339, 11 Pac. 650; McCauley v. Har-
vey, 40 Cal. 497; Kiugsley v. Miller, 45 Cal. 95; Reynolds v. Brumagim. 54
Cal. 254.
(435)
§ 285 LAW OP JUDGMENTS. (Ch. 13
of validity.*®* But the latest decisions are to the effect that if the
record of such a court shows that the steps necessary to clothe it
with power to act in the given case were taken, or if the record be
silent upon this subject, its judgment must be held conclusive in
any other court of the same sovereignty when called in question col-
laterally.*®^ On the other hand, in Mississippi, it is held that a de-
cree of a probate court for the sale of real estate by an executor or
administrator is invalid unless the record shows affirmatively a com-
pliance with all the requirements of the statute under which the land
was decreed to be sold.'®* And in Massachusetts, if a probate court
exceeds its jurisdiction and makes a decree in a matter over which it
has no power, the want of jurisdiction may be shown against such
decree in any collateral proceeding, and it will then be treated as
utterly void.'®* In New York, if a surrogate's decree shows juris-
diction on its face, its recitals are presumptive evidence of its validity
when the question arises in a collateral proceeding.*®*
§ 285. Federal Courts.
The circuit, district, and territorial courts of the United States,
though of limited jurisdiction, are not inferior courts in the technical
sense of the term; their judgments and decrees stand on the same
footing as those rendered by state courts of general jurisdiction, anJ
their authority and jurisdiction are always to be presumed.*®* It is
»oo Easley v. McCllnton, 33 Tex. 288.
»oi Martin v. Robinson, 67 Tex. 368, 3 S. W. 550; Lyne v. Sanford, 82 Tex.
58. 19 S. W. 847, 27 Am. St Rep. 852; Bouldin v. Miller, 87 Tex. 359. 2S s^.
W. 940; McSpadden v. Farmer (Tex. Civ. App.) 23 S. W. 814; Oorley v. An-
derson, 5 Tex. Civ. App. 213. 23 S. W. 839; CJrant v. Hill (Tex. Civ. Apn.)
30 S. W. 952; Stone v. Ellis (Tex. Civ. App.) 40 S. W. 1077; HUl v. Grant
(Tex. Civ. App.) 44 S. W. 1016.
•02 Martin v. Williams, 42 Miss. 210. 97 Am. Dec. 456.
808 Mercier v. Chace, 9 Allen, 242; Peters v. Peters. 8 Cush. 529.
80* Rowe V. Parsons, 6 Hun, 338. And see Seymour v. Seymour, 4 Johns.
Ch. 400; aiipman v. Montgomery, 63 N. Y. 230; In re StlUweH's Estate, i;5>
N. Y. 337, 34 N. E. 777; Bensen v. Manhattan Ry. Co., 14 App. Div. 442. 43 X.
Y. Supp. 914; Taylor v. Syme, 17 App. Div. .■)17, 45 X. Y. Supp. 707.
805 McCormick v. SulUvant, 10 Wheat. 192, 6 L. Ed. 300; Ex parte AVat-
klns, 3 Pet. 193, 7 L. Ed. 650; Kennedy v. (leorgia State Bank. 8 Hoir. tUl.
12 L. Ed. 1209; Page v. United States, 11 Wall. 268, 20 L. Ed. 135; Evers v.
Ch. 13) COLLATKRAL IMPEACHMENT OF JUDGMENTS. § 286
said: "The courts of the United States, though possessing a limited
jurisdiction, yet, in the intendment of law, stand upon the same foot-
ing as courts of record of general jurisdiction. All the presump-
tions which are indulged in favor of superior tribunals of general
jurisdiction are equally extended to the courts of the United States.
In pleading a judgment or decree of one of those courts, there is no
more necessity for showing the facts which confer jurisdiction than
in a plea of a judgment of tlie highest tribunal known to the law.
Their judgments cannot be impeached for irregularity or error in a
collateral proceeding; they can only be vacated on motion, in the
courts in which they are rendered, or reversed for error in an appel-
late jurisdiction." ^^^ Thus, a judgment obtained in a federal circuit
court cannot be treated as a nullity or as being open to collateral
impeachment, although the record fails to show a ground of federal
jurisdiction, such as diverse citizenship of the parties.'®^ So, a judg-
ment rendered in a federal court, in an action removed thereto from
a state court, cannot be collaterally attacked for want of proper juris-
dictional allegations in the petition for removal.*®*
§ 286. Jnstiees of the Peaee.
It IS not universally true that the courts of justices of the peace
are inferior tribunals, within the rule in regard to presuming juris-
diction. In Texas, for example, such courts are created by the con-
stitution, and exercise, within the limits therein defined, general ex-
clusive jurisdiction; and accordingly their judgments, though not
showing all the facts necessary to give jurisdiction, cannot be at-
Wataon, 156 U. S. 527, 15 Sup. Ct. 430, 39 L. Ed. 520; Skirving v. National
Life Ins. Co., 8 C. C. A. 241, 59 Fed. 742; Livingston v. Van Ingen, 1 Paine.
48. Fed. Cas. No. 8,420: McOonnell v. Day. 61 Ark. 464, 33 S. W. 731; Ruck-
man V. Cowell, 1 N. Y. 505; Matson v. Burt, 9 Hun, 470; Byera v. Fowler, 12
Ark. 218. 44 Am. Dec. 271; Reed v. Vaughan, 15 Mo. 137, 55 Am. Dec. 133;
Turrell v. Warren, 25 Minn. 9; Plerro v. St. Paul & N. P. R. Co.. 37 Minn.
314. 34 N. W. 38.
ao« Reed v. Vaughan, 15 Mo. 137, 55 Am. Dec. 133.
«•- Cutler V. Huston, 158 U. S. 423, 15 Sup. Ct. 868, 39 L. Ed. 1040; Rice
T. Adler-Ooldman CommLssion Co., 38 C. C. A. 15, 71 Fed. 151.
«o* Washburn v. Pullman Palace-Car Co., 21 C. C. A. 598, 76 Fed. 1005;
Haug V. Great Northern Ry. Co., 42 0. C. A. 107, 102 Fed. 74.
(437)
§ 286 LAW OF JUDGMENTS. (Ch. 13
tacked collaterally as void therefor.*^' And in several other states,
the judgments of such magistrates are considered as entitled to all
the presumptions of vahdity. This is the case in Connecticut,*"
Vermont,'" Pennsylvania,^** Mississippi,'** Tennessee,*** and Ala-
bama.**" And in Massachusetts it is said that "the rule which makes
the judgment of a court of record binding upon the parties, until
reversed by proper proceedings therefor, aithoiygh jurisdiction of the
person was not properly obtained, is applicable as wcfl t» m fiwt^icr
of the peace as to one of a court of general jurisdiction." **• But on
the other hand, in Maryland and some other states, judgments ren-
dered by justices will hot be allowed to stand where the record fails
to show affirmatively that a summons had been issued and served
upon the defendant; such defect in the proceedings is fatal to the
validity of the judgment and may be called in question in a collateral
action.**^ And in Michigan a judgment entered by a justice by vir-
tue of a statutory authority must show that the requirements of the
statute have been complied with, and if it fails in this it is void.**'
809 WilllamB V. Ball, 52 Tex. 603, 36 Am. Rep. 730; WatkJns v. Davis, 61
Tex. 414; Holmes v. Buckner, 67 Tex. 107, 2 S. W. 432; Hambel v. Darts
(Tex. Cly. App.) 33 S. W. 251.
«io Fox V. Hoyt, 12 Conn. 491, 31 Am. Dec. 7C0.
811 Wright V. Hazen, 24 Vt. 143; Farr v. Ladd, 37 Vt. 158.
812 Billings v. Russell, 23 Pa. 189, 62 Am. Dec. 330; Clark v. McCommau.
7 Watts & S. (Pa.) 469; Tarbox v. Hays, 6 Watts (Pa.) 3©S, 31 Am. Dec. 47&
813 Stevens v. Mangum, 27 Miss. 481.
814 Turner v. Ireland, 11 Humph. (Tenn.) 447.
81B Lightsey v. Harris. 20 Ala. 411.
816 Hendrick v. Whittemore. 105 Mass. 28.
817 Fahey v. Mottu, 67 Md. 250, 10 Atl. 68. In Missouri, while there Is
no presumption that a justice of the peace had Jurisdiction of an action, yet
if it has been appealed to a court of superior Jurisdiction, there is a presump-
tion that the latter court had Jurisdiction, though such court would have
none If the Justice had none. Kellogg v. Linger, 1 Mo. App. Rep'r, 235. «X»
Mo. App. 571. It Is sufficient to the validity of a Judgment of a Justice If
the Jurisdictional facts appear anywhere on the face of the .proceedinps;
they need not appear in his docket entries. Collins v. Kammann, 55 Mo.
App. 464. In Kentucky, a Judgment of a Justice of the peace, relied on as
a defense, must be shown to have been within his Jurisdiction. Stewart v.
Thomson, 97 Ky. 575, 31 S. W. 133. In Arkansas, a Judgment rendered by
a Justice of the peace cannot be attacked collaterally for mere irregularities
in process. Webster v. Daniel, 47 Ark. 131, 14 S. W. 550.
818 Beach v. Botsford, 1 Doug. (Mich.) 199, 40 Am. Dec. 145,
(438)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 287
9 287. Record of Inferior Court, el&owing Jnrisdiotion, is GonelnsiTe.
It is important to be observed, in considering the effect of judg-
ments rendered by inferior courts, that if the record does affirma-
tively show the facts necessary to confer jurisdiction, then the same
presumptions are indulged in favor of the regularity and validity of
its proceedings as are extended to the superior courts, and they can-
not be collaterally impeached for errors or irregularities.**' "Once
it appears that it had jurisdiction to proceed, and did proceed, the
same presumptions prevail in favor of the action and record of the
inferior as of the superior court, and the verity of its record, and the
presumptions which support it, are alike indisputable in any col-
lateral way." '^^ Whether evidence would be heard in contradiction
of the record of an inferior court on the subject of jurisdiction, where
that record shows fully and affirmatively all that is necessary on the
point, is a different question. Some of the authorities indicate that
the jurisdiction could not be inquired into, in direct opposition to the
face of the record, at least in the courts of the same state where the
judgment was rendered.*** But in New York such recitals are con-
sidered to be only prima facie evidence and subject to be contra-
dicted, though sufficient to uphold the proceeding if not disprov-
ed.*** In that state, however, it will be remembered, want of juris-
diction may be shown collaterally against the judgment of any
court.*** But it appears to be undisputed that if the jurisdiction of
an inferior court, in any case, depends upon the existence of a certain
fact or state of facts, and it is shown by the record that there was
evidence tending to prove such facts, and that such evidence was ad-
•i» Comstock V. Crawford, 3 Wall. 396, 18 L. Ed. 34; Oooper v. Sunderland.
3 Iowa. 114, 66 Am. Dec. 52; Reeves v. Townsend. 22 N. J. Law. 396; Wil-
son's Heirs v. Wilson's Adm'r, 18 Ala. 176; Paul v. Hussey, 35 Me. 97; Fox
V. Hoyt, 12 Conn. 491, 31 Am. Dee. 760; Gray v. McXeal, 12 Ga. 424; Vincent
V. Davidson, 1 Kan. App. 606. 42 Pac. 390; Alexander v. Gill. 130 Ind. 485,
30 N. E. 525; Jewett v. Sundback. 5 S. D. Ill, 58 N. W. 20.
320 Featherston v. Small, 77 Ind. 143.
•21 Gregory v. Bovier, 77 Cal. 121, 19 Pac. 232; Secombe v. Milwaukee &
St. P. R. Co., 23 Wall. 108, 23 L. Ed. 67.
S2 2 Belden v. Meeker, 2 Lans. 470.
• 23 Ferguson y. Crawford, 70 N. Y. 253, 26 Am. Rep. 589. See supra, |
(439)
§288 LAW OF JUDGMENTS. (Ch. 13
judged sufficient, and the court judicially determined that such facts
existed, then the judgment camiot be collaterally impeached or con-
tradicted.'**
S 288. No PresvmptlciB of Validity cm Direct Atta«lu
"The rule that a record is conclusive evidence of its own verity
is not applicable in a direct proceeding instituted for the purpose of
showing its falsity as to a matter which, if false, shows that the court
pronouncing it as a judgment had no jurisdiction of the person of
the defendant, and consequently, that what purports to be a record
is in fact no record at all." •** Thus, although a judgment recites
that the defendant was "duly and legally served with notice," yet,
in a direct proceeding in the same court to set the judgment aside,
the contrary may be shown.*** So an officer's return of service of
process may be impeached in a direct proceeding after judgment,
where the return states facts which do not come within the personal
knowledge of the officer.**^ But while jurisdiction is not presumed
on a direct attack, and there is likewise no conclusive presumption
that the record is free from irregularities or errors, yet, on appeal,
error, or bill of review, it is incumbent on the party to overcome the
prima facie correctness of the judgment. The judgment of a court
824 Sheldon v. Wright, 5 N. Y. 497; Dyckman v. City of New York, 5 N.
Y. 434; Porter v. Piirdy, 29 N. Y. 106. 8G Am. Dec. 283; Bolton v. Brewster,
32 Barb. (X. Y.) 389; Agry v. Bettfl, 12 Me. 415; Waterhouse v. Cousiofi, 40
Me. 333; Betts v. Bagley, 12 Pick. (Mass.) 572; Angell v. Bobbins, 4 R. I.
493; Bridgeport Savings Bank v. Eldredge, 28 Conn. 556, 73 Am. Dec. 6SS:
Eyansville, S. & 0. Straight Line R. Co. v. City of EvansvlUe, 15 Ind. 421 :
Shawhan v. Loffer, 24 Iowa, 217; Bonsall y. Isett, 14 Iowa, 300; Hungerford
V. Cashing, 8 Wis. 324; Kipp v. FuUerton, 4 Minn. 473 (Gil. 366); People t.
Hagar. 52 Cal. 182.
82 5 Duncan v. Gerdine, 59 Miss. 550. **The distinction between cases where
the validity of the record of a court of general jurisdiction Is drawn in ques-
tion collaterally, and tliose in which such record is directly impeached by
wilt of error or bill of review, is broad and well defined. In the one case
Jurisdiction is presumed prima facie unless the record disproves It while in
the other, if it is denied, its existence must be proved by the reconl Itsf If."
Trimble v. Longwortli, 13 Ohio St. 431, 439.
3 20 Newcomb v. Dewey, 27 Iowa, 381.
827 McNeill V. Edie, 24 Kan. 108; Bond v. Wilson, 8 Kan. 229. 12 Am. Rep.
40G; Chambers v. King Wrought-Iron Bridge Manufactory, 16 Kan. 270; Hau-
Bou v. Woloott. 19 Kan. 207.
(440)
Gh. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 289
of competent jurisdiction, it is said, is always presumed to be right,
and a party in the appellate court alleging error in the court below
must show it in the regular way in the record, or the presumption
in favor of the correctness of the judgment will prevail.'*® Thus the
findings and judgment of a court of record will always be presumed
to rest upon sufficient evidence unless the contrary be clearly shown
from the record.^'^ In regard to the rule that the record imports
absolute verity, an important observation is made by the New Hamp-
shire court, to the following effect : *'lt is to be borne in mind that
the record may be true, while the matters recorded are false, and
may even be shown to be so by the record itself. Thus the record
may recite that a particular plea was filed; it is conclusive evidence
of that fact, but the record furnishes no evidence that the facts stated
in the plea are true, for they may even in the same record be found
to be false by the verdict of a jury. The allegations of parties de-
rive no credit from their forming part of the record of a court. So
far as this point is concerned, the record imports the truth of what
occurred in the court and was there recorded." '*•
§ 289. Foreign Jndsments.
In respect to the collateral impeachment of judgments for want
of jurisdiction, there is, as we have already intimated, a radical dif-
ference between foreign judgments and such as are rendered by
the courts of the state where the collateral inquiry is prosecuted.
The discussion of the effect of foreign judgments belongs to another
part of this work. But it may be here briefly stated that if a judg-
ment or decree, coming from a foreign country, is regular on its
face, its jurisdiction will be taken for granted unless denied, but it
may always be shown by evidence that in fact the foreign court had
no jurisdiction.'^^ A similar rule obtains in the case of judgments
«» Harman v. City of Lynchburg, 33 Grat. (Va.) 37; Wright v. Smith, 81
Va. 777; Wynn v. Heninger, 82 Va. 172; Jencks v. Smith. 1 N. Y. 90; Mc-
Girk V. Chauvin, 3 Mo. 237.
»2» Singleton v. Boyle, 4 Neb. 414.
«o Tebbetts v. Tilton, 31 N. H. 273, 286.
»3iSchib8by v. Westenholz, L. R. G Q. B. 155; Carleton v. Bicliford, 13
Gray (^tass.) 591, 74 Am. Dec. 652. And see infra vol. 2, §§ 818, 835-838.
(441)
§ 290 LAW OF JUDGMENTS. (Ch. 13
of one of the American states when called in question in the courts
of another. If the judgment proceeds from a court of general pow-
ers, the jurisdiction will be presumed (so far as that the party rely-
ing on the adjudication need not plead the jurisdiction or set out
the facts), but the party against whom it is offered may always deny
and disprove the jurisdiction of the court rendering the judgment.***
Part IV. For Fraud.
§ 290. Whetl&er Parties oaii laipttack Judsmeat for Frs«A»
It is an unsettled question whether a judgment may be collaterally
impeached for fraud by parties or privies. There are numerous ex-
pressions in the books which have more or less relation to this point,
but we shall not, in this discussion, attempt to cite all the dicta bear-
ing upon the subject or attach particular weight to any but direct
adjudications of the question. In a majority of the states the rule
is well settled that it is not permissible for a party or privy to attack
a judgment in a collateral proceeding on account of fraud.*'* The
S82 Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897; Galpin v. Page, 18
Wall. 350, 21 L. Ed. 950. And see infra vol. 2. §§ 897-901.
838 Christmas v. Russell, 5 Wall. 290, 18 L. Ed. 475; Kent v. Lake Superior
Slilp Canal, Ry. & Iron Co., 144 U. S. 75, 12 Sup. Ct 650. 36 L. Ed. 332;
Rhino V. Emery (C. C.) 65 Fed. 826; Granger v. Clark, 22 Me. 128; Hammond
V, Wilder, 25 Vt. 342; McRae v. Mattoon, 13 Pick. 53; Boston & W. R. Corp.
V. Sparhawk, 1 Allen, 448, 79 Am. Dec. 750; Greene v. Greene, 2 Gray, 361.
61 Am. Dec. 454; Taylor y. State, 73 Md. 208. 20 Atl. 914, 11 L. R. A, 852;
James Clark Co. v. Colton, 91 Md. 195, 46 Atl. 386. 49 L. R. A. 698; Sanders
V. Price. 56 S. O. 1, 33 S. E. 731; Williams v. Martin. 7 Ga. 378; Porter t.
Rountree. Ill Ga. 369. 36 S. E. 761; Smith v. Henderson. 23 La. Ann. 640:
Bouldin v. Miller. 87 Tex. 359, 28 S. W. 940; Gains v. Johnston (Ky.) 15 S.
W. 246; Kelley v. Mize, 3 Sneed. 59; Anderson v. Anderson. 8 Ohio, 100;
Shultz V. Shultz. 136 Ind. 323. 36 N. E. 126, 43 Am. St. Rep. 320; Welwtir v.
Reld. 1 Morris (Iowa) 467. Mason v. Messenger. 17 Iowa. 261: Smith t.
Smith. 22 Iowa, 516; Edmundsou v. Independent School DIst.. 98 Iowa, 639.
07 X. W. 671, 60 Am. St. Rep. 224; Field v. Sanderson, 34 Mo. 542, 86 Am.
Dec. 124; Cooper v. Duncan, 58 Mo. App. 5; Dunlap v. Byers. 110 Mich. lOflL
67 N. W^ 10G7; Cody v. Cody. 98 Wis. 445. 74 N. W. 217; In re Ellis* Estate,
55 Minn. 401. '56 N. W. 1050, 23 U R. A. 287, 43 Am. St. Rep. 514. Thus.
stockholders cannot set up as a defense to an action by a judgment cretlitor
of the corporation for unpaid subscriptions that the Judgment was obtained
in a federal court by one to whom the claim was coUusively assigned for the
(442)
CI). 13) COLLATERAL IMPEACHMENT OF JUDOMENTS. § 291
decisions are based upon the ground of the general conclusiveness
of records, and the policy of the law which forbids their indirect con-
tradiction or impeachment, and on the consideration that it is the
business of a litigant to be on his g^ard against fraud and trickery,
and that if his rights are nevertheless infringed, he has his proper
remedy by action or motion to procure the annulment of the judg-
ment or by application to equity for relief. In Pennsylvania and
South Carolina, however, it is allowed to a party to show fraud against
a j/ofigmtnt coUatecally;^'^ aiid the .same dwtr^M^ is a^forefftly hxM.
in New Hampshire.**" This is also true in New York, although the
rule in the latter state is founded rather upon the peculiarities of the
code system of pleading and practice than upon general principles of
law.*** There are also decisions to the effect that where one party
is allowed to offer a judgment in evidence without having pleaded it,
the other ought to be allowed to impeach it by evidence of fraud,
without being put to a direct suit to annul it, and notwithstanding
it is regular upon its face.**^
S 291. Fraud in Proevrinc tl&e JudpneAt*
In the preceding section we considered fraud in general as a ground
for impeaching judgments. It is convenient, for the purposes of our
further inquiry, to distinguish between fraud practised in the procur-
ing of the judgment and fraud as affecting the original cause of ac-
tion. The former topic is illustrated by several important cases, to
be now considered, as well as by many of those already cited. "The
parties to an action," it is said, "cannot impeach the judgment ren-
dered therein, in any collateral proceeding, on the ground that it was
purpose of giving Jurisdiction to that court. Tutbill Spring Co. v. Smith. 90
Iowa, 331. 57 N. W. 853.
"<Hali V. Hamlin. 2 Watts, 354; Verner v. Carson, 66 Pa. 440; Phelps
T. Benson, 161 Pa. 418. 29 Atl. 80; Sullivan v. Ball, 55 S. C. 343, 33 S. E.
486. Compare Otterson v. Middieton, 102 Pa. 78; City of Philadelphia v.
Dobson, 10 Pa. Co. Ct. R. S4. See, also. Kirby v. Kirby, 142 Ind. 419, 41 N. B.
S>i9.
"6 State V. LltUe. 1 N. H. 257.
»»« Mandeville v. Reynolds, 68 N. Y. 528.
>*7 Murray y. Murray, 6 Or. 17. And see Glover v. Flowers, 101 N. C. 134,
7 8. E. 5T9.
(443)
§ 291 LAW OP JUDGMENTS. (Ch. 13
obtained through their fraud or collusion. It is their business to see
that it is not so obtained. Even if, without any fault or neglect of
one party, his adversary succeeded by fraud in obtaining an unjust
or unauthorized judgment, he must through some prescribed mode
reverse or annul the judgment before he can claim to treat it as
invalid." •*• But it is necessary to distinguish between judgments
entered by the collusion or fraud of both parties and such as arc
obtained by the fraud of the plaintiff. The former are void as to
creditors only, not against the defendant, and may be attacked in
any collateral proceeding by them, whilst the latter can be attacked
by the defendant alone, directly, and in the proper court.*'* Thus,
where a party by some act or declaration out of the record lulls his
opponent into a false security, or by any other means deceives him,
and thereby obtains a judgment or decree to his prejudice, it is fraud-
ulent and may be impeached upon that ground.**® A person against
whom judgments have been obtained cannot maintain an action for
damages against the parties who obtained them, the attorney who
prosecuted and the officer who served the writ, for fraudulently con-
spiring together to injure and defraud him in those proceedings,
while the judgments remain unreversed, for such action would con-
stitute a collateral attack upon them.**^ But on the other hand an
action to recover damages for the breach of a special contract, to dis-
continue an action by the defendant against the plaintiff, in conse-
88 8 Davis V. Davis, 61 Me. 398. See Boston & W. R. Corp. v. Sparhawk,
I AUen (Mass.) 448, 79 Am. Dec. 750; Kansas City. Ft S. & M. R. Co. r.
Morgan, 21 C. C. A. 468, 76 Fed. 429; Board of Com'rs of Lake County t.
Piatt, 25 0. C. A. 87, 79 Fed. 567; Morrill v. MorrlU, 20 Or. 96, 25 Pac. 362.
II L. R. A. 155. 23 Am. St. Rep. 95; Bdgerton v. Edgerton, 12 Mont. 122. ja
Pac. 966, 16 L. R. A. 94, 33 Am. St. Rep. 557. Compare Oarr v. Miner. 42 IIL
179.
889 Meckley's Appeal, 102 Pa. 536; In re Dougherty's Estate, 9 Watts & S.
<Pa.) 189, 42 Am. Dec. 326; Thompson's Appeal, 57 Pa. 178; Clark v. Dong-
lass, 62 Pa. 415; McCambridge v. Walraven, 88 Md. 378, 41 Atl. 928; Cot-
terell v. Koon, 151 Ind. 182, 51 N. E. 235; Storer v. Lane, 1 Tex. Or. App.
250, 20 S. W. 852.
34 0 Ellis V. Kelly, 8 Bush (Ky.) 621; First Xat. Bank v. Cunningham (C
O.) 48 Fed. 510; Daniels v. Benedict (C. C.) 50 Fed. 347; Wheelo* ▼. Sweet
16 N. Y. Supp. 836. See Thomas v. Ireland (Ky.) 11 S. W. 653.
841 Smith V. Abbott, 40 Me. 442; White v. Merritt, 7 N- Y. 352, 57 Am.
Dec. 527.
(444)
Ch. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 292
quence of which the defendant had judgment in his favor and the
plaintiff was compelled to satisfy an execution issued thereon, is not
liable to the objection that it seeks to impeach the judgment collat-
erally.'*^ A composition in bankruptcy, under the federal statutes
on the subject, cannot be impeached collaterally in an action at law
in a state court, by a creditor who was a party to the proceedings, by
showing that the composition was obtained by the fraudulent acts of
the bankrupt.'^*' On principles analogous to the foregoing, it is held
that, after judgment in an election contest, rendered by agreement
between the claimants and giving possession to the relator, the de-
fendant, in his answer to the relator's alternative writ of mandate
demanding possession, cannot assail the judgment on the ground that^
being rendered by agreement and in consideration of a sum paid to
defendant, it was corrupt and fraudulent and therefore void.'**
§ 292. Fraud In the Cause of Action.
As a general rule, fraud in the contract recovered on should be
set up as a defense in the action, and therefore is no ground for
subsequently impeaching the judgment.*** And a judgment is not
generally open to collateral attack because based on a fraudulent
instrument or on perjured testimony.'** But in a Pennsylvania deci-
sion it was held that where actual fraud has been practised by a party
in obtaining a deed, and the deed is used as a means of obtaining a
judgment, the judgment will be void to the extent of the fraud, as
to the party defrauded, although it may be valid as to other inter-
ests not involved in the fraud; and hence a collateral attack upon
it, as to such fraud, is perfectly permissible; because the question
«*2 Smith V. Palmer, 6 Gush. (Mass.) 513.
»*» Farwell v. Raddin, 129 Mass. 7; Home Nat. Bank v. Carpenter, Id. 1.
»" Mannix v. State, 115 Ind. 245, 17 N. E. 505.
«" Hatch V. Garza's Ex'r, 22 Tex. 170; Nevitt v. First Nat. Bank, 91 Hun,
43, 36 X. Y. Supp. 294; Turney v. Van Gelder, 63 Hun, 634, 18 N. Y. Supp.
547; Langdon v. Blackburn, 100 Cal. 19, 41 Pac. 814; Bowman v. Wilson, 64
111. App. 73.
3« rulted States v. Chung Shee (D. C.) 71 Fed. 277; Finley v. Houser, 22
Or. 562, 30 Pac. 494.
(445)
§ 293 LAW 09 JUDOMBNTCL (Ch. 13
of the fraudulent character of the deed had never been legally before
the court and never adjudicated.^*^
«
I 1M3. Cseditor nay sliow Fraud in a JndcateAt.
However the rule may be in regard to parties and privies, it is
very well settled that any third person, a stranger to the judgment,
whose rights would be injuriously affected if it were allowed to stand
as against him, may show, in a collateral proceeding, that it was
procured through the fraudulent contrivance of the debtor or the
collusion of both parties, with a design to hinder or defraud him,
and so have it considered and treated as void as to him.*** "A col-
lusive judgment is open to attack whenever and wherever it may
come in conflict with the rights or the interest of third persons.
Fraud is not a thing that can stand, even when robed in a judg-
ment." '*• Or, as the rule is sometimes more broadly stated, a judg-
ment which is not founded on an actual debt or other legal liability.
due or enforceable at the time of its entry, will not be upheld against
the creditors of the judgment-debtor."*® Hence a judgment con-
fessed without any consideration and with fraudulent intent, may be
84 7 Jackson v. Summery iUe, 13 Pa. 350. And see Pray v. Jenkins, 47 Kan.
C09, 28 Pac. 710.
34 8 Duchess of Kingston's Case. 20 How. St. Tr. 544; Perry v. Meddow.
croft. 10 Beay. 122; Phillpson v. Egremont. 6 Q. B. 605; Crosby v. Lani?. 12
East, 409; Bandon v. Becher. 3 Clark & F. 479; Gaines v. Relf, 12 How. 472.
13 L. Ed. 1071: Pierce v. Strickland. 26 Me. 277; Sidensparker v. Siclen-
jjparker. 52 Me. 481, 83 Am. Dec. 527; Great Falls Manufg Co. v. Worst er.
4.") N. H. 110; Atkinson v. Allen, 12 Vt 619, 36 Am. Dec. HOI; Alexander t.
Gould, 1 Mass. 165; Smith v. Saxton, 0 Pick. (Mass.) 483; I^onard v. Bry-
ant, 11 Mete. (Mass.) 370; Downs v. Fuller. 2 Mete. (Mass.) i:i5, 35 Am. Dec.
393; Vose v. Morton, 4 Cush. (Mass.) 27, 50 Am. Dec, 750; Cook v. Town of
Morris, 06 0)nn. 137, 33 Atl. 504; Baker v. Bym, 89 Ilun, 115. ai X. Y. Supp.
55; Bridgeport Fire & Marine Ins. Co. v. Wilson. 34 X. Y. 281: Hall v. Ilaui-
liu, 2 Watts (Pa.) 354; Mitchell v. Kintzer. 5 Pa. 216. 47 Am. De<-. 4i*v: f\iW
well V. Walters, 18 Pa. 79, 55 Am. Dec. 592; Thompson's Appeal, 57 Pa, 175;
Second Xat. Bank's Appeal, 85 Pa. 528; Sager v. Mrad. 1G4 Pa. 125, »> AtL
284; Xorton v. Wallace, 2 Kich. Law (S. C.) 4ri0; Hammock v. McBrMt\ «
(;a. 178; Faris v. Durham, 5 T. B. Mon. (Ky.) 397, 17 Am. Dec. 77: I>e Ar-
mond V. Adams, 25 Ind. 455; Callahan v. Griswold. 9 Mo. 775; Myers v. Mil-
ler, 55 Mo. App. 33S; Hackett v. Manlove, 14 Cal. 85.
849 Smith V. Oiiyler, 78 Ga. 654, 3 S. E. 406.
8B0 Palmer v. Martindell, 43 N. J. Eq. 90, 10 Atl. 802.
(446)
Cb. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 294
questioned by other judgment and execution-creditors of the defend-
ant, and, as to them, the judgment and execution thereon will be
vacated and set a'side.'*^ But a confession of judgment for the ex-
press purpose of enabling the creditor to redeem from a sale under
a prior judgment is not fraudulent as against the purchaser; for
the policy of the law is to encourage redemptions, in order that the
property of the debtor may discharge as many of his liabilities as
possible.'** For another example, in an action by a creditor to set
aside a deed as fraudulent, the grantee therein may show, although
his deed is fraudulent as to creditors, that the complainant's judg-
ment was obtained by fraud and artifice practised by him upon the
grantor.'** But inasmuch as the law always favors the stability and
finality of judgments, it is held that a stranger who thus seeks to
impeach a judgment as a fraud upon his rights must show the fraud
by clear and satisfactory proof."^*
I 294. Fraud must affect the Creditors.
A very important element in the rule just stated is that the fraud
alleged must be such as directly affects the party seeking to impeach
the judgment. It is no ground for the intervention of third persons
that fraud has been practised upon the debtor ; it must be fraud prac-
tised by the debtor, either alone, or, as is more commonly the case,
in collusion with the plaintiff in the judgment. For instance, upon
the distribution of the proceeds of a sheriff's sale, a subsisting judg-
ment can be attacked by other creditors collaterally only on the
ground of collusion, not because it is a fraud on the debtor.'*^* "The
«»i Shallcross v. Deats, 43 X. J. Law, 177; Bryant v. Harding, 29 Mo. 347:
Atlas Nat. Bank v. More, 40 111. App. 336; Chase v. Tuckwood, 86 111. App. 70.
»02 Karnes v. Lloyd, 32 111. 113.
»»• Paris V. Durham, 5 T. B. Mon. (Ky.) 397. 17 Am. Dec. 77.
»M Clark V. Bailey, 2 Strob. Eq. 143; Hiilverson v. Hutchinson, 39 Iowa,
316.
»55 Sheetz v. Hambesfs Ex*rs, 81 Pa. 100; Miners' Trust Co. Bank v. Rose-
berry. 81 Pa. 300; In re Dougherty's Estate, 9 Watts & S. (Pa.) 180, 42 Am.
Dec. 326; Lewis v. Rogers, 16 Pa. 18; Thompson's Appeal, 57 Pa. 175. So.
wbUe the holder of a Junior Judgment may collaterally impeach a senior
judgment for fraud against himself, to the extent of defeating the priority
of lien, he cannot do so on the ground merely that the Judgment was fraud-
(447)
§ 295 ^ LAW OF JUDQMENT& (Gfa. 13
fraud which will authorize a creditor to impeach a judgment obtained
by another against his debtor must be a fraud against the creditor,
not a mere overreaching of the debtor in his litigation. There must
be collusion." ''• Nor can creditors thus set up any matter of de-
fense original or subsequent.'*^ Fraudulent judgments, it is said,
like fraudulent deeds, are good against all but the interests intended
to be defrauded. Hence those parties whose interests arc affected can-
not require the court to vacate the judgment on the record, for that
would have the effect to annul it as against the whole world.***
S 295. Wliat Creditor! allowed to aUege Fraud*
The privilege of impeaching a judgment collaterally for fraud is
extended only to those third persons whose rights would be impaired
or prejudiced if it were allowed full force and effect as against
them.'** In New York it was formerly held that none but a judg-
ment-creditor could impeach the bona fides of a judgment confessed
by the debtor to a third person ; an attaching creditor, whose attach-
ment was levied after such confession, could not do so.*** But later
rulings in the same state have modified this doctrine so far that now,
if the attaching creditor's process has been levied upon tangible
property (i. e., property capable of manual delivery), he is permitted
to assail the good faith of a prior confessed judgment which stands
in his way.'°^ At any rate, it seems clear that the party's claim must
have been in existence at the date of the judgment, other^'ise it
could not properly be called a fraud upon his rights. Thus a judg-
ment of separation of property, duly rendered in favor of a wife
ulent as against the defendant. Fafe-Beposlt & Trust Co. ▼. Wright, 44 C
C. A. 421, 105 Fed. 155.
350 McAlplne v. Sweetser, 70 Ind. 78.
»87 Lewis V. Rogers, 16 Pa. IS; Johns V. Pattee. 53 Iowa, 683, 8 X. W. GfZi.
3 58 Thompson's Appeal, 57 Pa. 175. And see Clark v. Douglass, 62 Pa. 40*.
868 Spictr V. Waters. 05 Barb. (N. Y.) 227; De Armond v. Adams, 25 Ind.
455; Hackctt v. Manlove, 14 Cal. a>; Gnmt v. Hill (Tex. Civ. App.) 30 S- W.
952.
360 Bentley v. Goodwin, 38 Barb. 633. In Indiana, by statute, subsequent
as well as existing creditors can collaterally Impeach tor fraud a Judgment
entered on confession. Feasler v. WoodflU, 23 Ind. 493.
301 See Bates v. Plonsky, 28 Hun. 112; Bowe v. Arnold, 31 Hun, 256; Xm-
neubaum t. Rosswog, 22 Abb. N. a 346, 6 N. Y. Supp. 57&
(448)
Cb. 13) COLLATERAL IMPEACHMENT OF JUDGMENTS. § 296
against her husband, cannot be inquired into or attacked collaterally
by a creditor of the husband whose claim had not yet arisen when the
judgment was rendered.'*** Privies, as well as parties to the judg-
ment, are precluded, according to the majority of the decisions, from
the collateral impeachment of it for fraud. But it is held that a judg-
ment against a sheriff for his default is not so far conclusive on the
sureties on his official bond but that they may attack it for fraud
and collusion when it is made the basis of a suit against them.'**
§ 206. False Testimony.
It is the unquestioned doctrine of the cases that a party to a judg-
ment cannot impeach it collaterally on the ground that false testi-
mony was given at the trial, on which testimony the judgment was
rendered.*** Neither will any action lie against a witness for com-
mitting perjury, whereby the plaintiff lost a former action, because
its trial would necessarily involve a re-examination of the matters
controverted and determined in the former action, and would consti-
tute an attack upon the correctness of the former adjudication.**'
Thus, where, in a process of foreign attachment, judgment has been
rendered discharging the trustee on his disclosure, the plaintiff in
that process cannot maintain an action on the case against the trus-
tee for obtaining his discharge by falsehood and fraud in his dis-
closure and by fraudulent collusion with the principal defendant.***
In an early New York case it was held that an action would not lie
against a person in that state for suborning a witness to swear falsely
in a cause then pending in the courts of another state, in consequence
whereof a judgment was given against the defendant in such cause,
«•« Lewis V. Peterkln, 39 La. Ann. 780, 2 South. 677.
«•» Dane v. Gllmore, 61 Me. 544; City of Lowell v. Pai'ker, 10 Mete. (Mass.)
315, 43 Am. Dec. 436.
»«*Dilllng V. Murray, 6 Ind. 324. (» Am. Dec. 385; Fisk v. MiUer, 20 Tex.
5T9; The Acorn, 2 Abb. U. S. 434, Fed. Oas. No. 29; Greene v. Greene, 2
Gray (Mass.) 361. 61 Am. Dec. 454; Burton v. Perry, 146 111. 71, 34 N. E. 60;
Maddoz y. Sumnaerlln, 92 Tex. 483; 40 S. W. 1033.
«•» Cunningham v. Brown, 18 Vt. 123, 46 Am. Dec. 140; Smith v. Lewis, 3
Johns. (X. T.) 157, 3 Am. Dec. 469; Damport v. Sympson, Cro. Eliz. 520; Eyres
V. Sedgewieke, Cro. Jac. 601.
««• Lyford v. Demerritt, 32 N. H. 234.
1 LAW JUDG.-29 . (4^9)
§ 296 LAW OP JUDGMENTS. (Ch. 13
contrary to the truth and justice of the case; the decision being
rested by Chancellor Kent on the ground that the merits of the orig-
inal cause could not be thus overhauled in a collateral proceeding."*
It is also held that an award, Hke a judgment, cannot be collaterally
impeached by evidence that one party introduced false testimony."*
Where judgments are recovered in a court of competent jurisdiction,
and the defendant appeared and had an opportunity to defend, which
judgments are still in full force and unreversed, he cannot maintain
an action against a defendant for fraud and conspiracy in procuring
such judgments against him.***
«eT Smith y. Lewis, 3 Johns. 157, 3 Am. Deo. 469.
a«8 Woodrow v. O'Conner, 28 Vt 776.
809 Engstrom v. Sherburne, 137 Mass. 153.
(450)
I
Ch. 14) YACATINQ AND OPBNING JUDOMBNT8. § 297
CHAPTER XIV.
VACATING AND OPENING JUDGMENTS.
Pakt I. Thk Power to Vacate Judomemtb.
f ia>7. What Courts possess the Power.
297a. As Between Federal and State Courts.
298. Liei^slature cannot interfere.
Part II The Method of sEBKUve Relief.
299. By Audita Querela.
300. By Error Coram Nobis.
301. By Bill of Review.
302. By Direct Action.
3U». By Motion.
304. Indirect Vacation of Judgment.
304a. Other Remedies ATailable.
Part III. The Time of ArPLYiNQ.
'Mi5. During the Term.
306. After the Te^-m.
307. Void Judgments.
308. Interlocutory Judgments.
309. Pennsylvania Practice.
310. Judgment carried over the Term by Motion.
311.. Under Statutes.
312. Judgments against Non- Residents.
313. Laches of Party.
Part IV. The Parties who mat Apply.
314. Successful Party may Apply.
315. Joint Defendants.
310. Uegal Representatives of Party.
317. Strangers.
Part V. What Judgments mat be Vacated.
318. (Jeneral Rule.
319. Consent Judgments.
320. Judgments in Divorce.
320a. Adjudications In Bankruptcy.
(451)
§ 297 LAW OF JUDOMBNT8. (Ch. 14
Part VI. Grounds for Vacating Judgments.
321. Fraud and Collusion.
322. Judgment taken contrary to Agreement.
323. Perjury.
324. Want of Notice.
325. Unauthorized Appearance by Attorney.
326. Irregularities.
326a. Objections to Jury.
327. Judgments against Persons under Disabilities.
328. Unauthorized Entries.
329. Judgment not Vacated because Erroneous.
330. Not for Grounds which might have been pleaded in Defense.
331. Illegality of Cause of Action.
*332. Newly-discovered Evidence.
333. Judgment on reversed Judgment.
334. Statutory Grounds for Vacating Judgments.
355. Mistake.
336. Surprise.
337. Casualty or Misfortune.
338. Sickness of Defendant.
339. Sickness of Counsel.
340. Excusable Neglect.
340a. Mistake, Ignorance, or Erroneous Advice of Counsel.
341. Negligence of Attorney.
342. Misunderstanding of Counsel.
343. Unavoidable Absence of Counsel.
344. Fraud of Attorney.
345. Misinformation as to Time of Trial.
345a. Estoppel to Apply for Vacation of Judgment.
Part VII. Pkactice on Vacating Judgments.
346. Notice of Application.
346a. Requisites of Petition or Moving Papers.
347. Affidavit of Merits.
348. Meritorious Defense must be Shown.
349. Technical or Unconscionable Defense not Sufficient.
350. Opening Judgment to admit Defense.
351. Evidence.
352. Imposition of Terms.
353. Partial Vacation of Judgment.
354. Allowance of Application discretionary.
354a. Practice on Opening Default
355. Effect of Vacating Judgment
(452)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 297
Part I. The Power to Vacate Judgmknts.
§ 207. Wliat Courts possess the Power.
The power to vacate judgments is an entirely different matter from
the power to reverse judgments. It is a power inherent in and to
be exercised by the court which rendered the judgment, and to that
court and no other the application to set aside the judgment should
be made.* As between courts of co-ordinate jurisdiction, such as two
county courts or circuit courts of the same state, the rule is that
neither has power to vacate or set aside a judgment rendered by
the other which is not void upon its face ; relief must be sought in
the court where the judgment was entered.* The power to vacate
or open a judgment, or to set it aside, is a common law power pos-
sessed by the court as a part of its necessary machinery for the ad-
ministration of justice, and hence might be exercised without the
grant of special statutory authority. In many of the states, however,
this power is regulated by law, either in respect to the grounds upon
which it may be put in operation, the time within which it may be
invoked, the manner of calling it into play, or the practice upon an
occasion for its exercise. And such regulations may either enlarge
or abridge its common law scope, or otherwise transform it. But
1 Grattan v. Matteson, 51 Iowa, 622, 2 N. W. 432.
2 Dixon V. Baxter, 106 Ga. lSt>, 32 S. E. 24; Odom v. Burch, 52 S. C.
3()5, 29 S. E. 726; Wilsle v. Rooney, 62 Hun, 618, 16 N. Y. Supp. 471; Smith-
son V. Smithson, 37 Xeb. 535, 56 N. W. 300, 40 Am. St. Rep. 504; Black v.
Plunkett, 132 Ind. 580, 31 N. E. 567; Skinner v. Terry, 107 N. C. 103, 12
S. E. 118. In New York, it is said that a court exercising Jurisdiction con-
current with that of another, by which an order has been made, is not with-
out power to modify it or set it aside on new papers, or relieve from an oraer
which has proved oppressive, where leave has been given to renew. The
question is not one of power, but of practice and orderly procedure. UruiK-
shank v. Cruikshank, 30 App. Div. 381, 51 N. Y. Supp. 1126. A change lu
the constitution of a court does not preclude a consideration of the question
whether a Judgment entered by the court before the change should be va-
cated. State V, Superior Court, 18 Wash. 277, 51 Pac. 365. And where a
court has two or more Judges, an application to vacate a Judgment may be
heard by whichever Judge is sitting at the time the application is made.
Dolen V. Buchanan, 43 Xeb. 8M. 62 X. W. 233. But a Judge at chambers
has no Jurlsd'Ciicn to vacate or modify orders or judgments of the district
court Kime v. Fenner, 54 Xeb. 476, 74 N. W. 869.
(45^)
§ 297 LAW OP JUDGMENTS. (Oh. 14
Still the power remains essentially inherent in the nature and con-
stitution of the court, not derivative. The power to vacate judgments
is said to be incident to all courts of record, and to be usually exer-
cised under restraints imposed by their own rules.* It is not com-
monly possessed by the inferior tribunals — courts not of record —
such as the courts of magistrates or justices of the peace, though
in some of the states it may be.* But it is generally considered
that probate courts have the power, upon a proper showing, to va-
cate an order or decree irregularly or improvidently entered.' An
auditor, appointed to make distribution of a fund, has no power to
go behind the record and declare a particular judgment to be void
and no lien, on account of any irregularity; for that would be as-
suming the power of the court to .review its own judgments.*
• Kemp V. Cook, 18 Md. 130, 79 Am. Dec. 681; DonneUy v. McArdle, 14
App. Dlv. 217, 43 N. Y. Supp. 560; In re Board of Directors of Broadway
Ins. Co., 23 App. Div. 282, 48 N. Y. Supp. 299. This power belongs inherently
to the courts of the United States, as well as to those of the states. United
States V. Williams, 14 C. C. A. 440, 67 Fed. 381; Fisher v. Simon, 14 C. C.
A. 443, 67 Fed. 387; United States v. Wallace (D. C.) 46 Fed. 569.
• See Frazier v. Griffle, 8 Md. 50; Rhodes v. De Bow, 5 Iowa, 260; GaUop
v. AUen, 113 N. C. 24, 18 S. E. 55; State v. Duncan, 37 Neb. 631, 56 X. W.
214. In Pennsylvania, the court of common pleas has no power to open a
Judgment entered on a transcript of a judgment by a justice of the peace,
tiled in the court for purposes of lien, and let the defendant in to a defen.^.
For all purposes except lien, the judgment still remains before the justice,
and there only can it be attacked. Boyd v. Miller, 52 Pa. 431; Lacoc*k v.
White, 19 Pa. 495; Littster v. Llttster, 151 Pa. 474, 25 Atl. 117. As to the
power of the court to strike the judgment from the record if void uiK>n its
face, see Weldy v. Young, 21 Pa. Co. Ct. R. 15; Ward v. Fannon, 7 Kulii,
488. A similar rule obtains in North Carolina and South Dakota. See White-
hurst V. Merchants' & Farmers' Transp. Co., 109 N. C. 342. 13 S. E. 987:
Garlock v. Calkins, 14 S. D. 90, 84 N. W. 393. As to the practice in New
York, see Daniels v. Southard, 23 Misc. Rep. 235. 51 N. Y. Supp. 1136.
» Hamberlin v. Terry, 1 Smedes & M. Ch. (Miss.) 589; In re Marquis.
85 Mo. 615; In re Coogan, 27 Misc. Rep. 563, 59 N. Y. Supp. Ill; Hirshfeld
V. Brown (Tex. Civ. App.) 30 S. W. 962;
• Edward's Appeal, 66 Pa. 89.
(454)
Ch. 14) VACATING AND OPENING JUDGMENTa S 298
S 207a« As Between Federal and State Courts.
The federal courts have no jurisdiction of an action or proceeding
to vacate or set aside a judgment rendered by a state court, on the
ground that the same is void for want of jurisdiption, or is erroneous
or irregular ; for, in such case, the proper and sufficient remedy is
by motion, appeal, or bill of review in the courts of the state.^ But
a federal court (where the jurisdictional requirements as to diverse
citizenship and the amount involved are met) has power to entertain
a suit and enter a decree which, as between the parties, shall set
aside and vacate a judgment of a state court, and any proceedings
taken or rights acquired thereunder, when the ground of objection
is that the judgment was procured by fraud.® But the federal court
should not act in such cases where the party injured has, or had,
an opportunity to apply for relief to the state courts.® Similar rules
govern an application to a state court for relief against a judgment
of a federal court ; it may be attacked as fraudulent, but cannot be
reviewed as to any alleged errors or irregularities, or annulled for
an alleged want of jurisdiction.*
0 I
I
§ 208. Legislature oannot Interfere*
The power to open or vacate judgments is essentially judicial.
Therefore, on the great constitutional principle of the separation of
the powers and functions of the three departments of government, it
cannot be exercised by the legislature. While a statute may indeed
declare what judgments shall in future be subject to be vacated, or
T Little Rock Junction Ry. v. Burke, 13 C. C. A. 341, 66 Fed. 83; Elder
V, Richmond Gold & Silver Mln. Co., 7 C. C. A. 354. 58 Fed. 536; Smith v
Sihwed (C. C.) 9 Fed. 483; Klythe v. Hinckley (C, C.) 84 Fed. 246.
•Davenport v. Moore (C. C.) 74 Fed. 945; Hatch v. Ferguson (C. C.) 52
Fed. 833; Young v. Sigler (C. C.) 48 Fed. 182; De Forest v. Thompson
(C. C.) 40 Fed. 375; Bertha Zinc & Mineral Co. v. Vaughan (C. C.) 88 Fed.
r)66; Little Rock Junction Ry. v. Burke, 13 C. C. A. 341, 66 Fed. 83; Hunt
V. Fisher (C. C.) 29 Fed. 801.
•Graham v. Boston, H. & E. R. Co., 118 U. S. 161, 6 Sup. Ct. 1009, 30
L. Ed. 196; Xougue v. aapp, 101 U. S. 551, 25 L. Ed. 1026; Randall v.
Howard, 2 Black (U. S.) 585, 17 L. Ed. 269.
" See Kurtz v. Philadelphia & R. R. Co., 187 Pa. 59, 40 Atl. 988.
(455)
§ *^^3 LAW OF JUDGMENTS. (Ch. 14
when or how or for what causes, it cannot apply retrospectively to a
judgment already rendered and which had become final and unalter-
able by the court before its passage. Such an act would be unconsti-
tutional and void on two grounds; first, because it would unlaw-
fully impair the fixed and vested rights of the successful litigant;
and second, because it would be an unwarranted invasion of the prov-
ince of the judicial department. It is therefore held by a majority
of the decisions that a statute vacating, or directing the courts to
vacate, a particular judgment or class of judgments, already ren-
dered and become final before the enactment of the statute, and
granting new trials in such actions, is unconstitutional and invalid.*'
A contrary rule obtains, however, in the state of Alabama.** And in
Georgia, it is said that the power of the legislature to pass acts allow-
ing the opening of existing judgments, and new trials thereunder,
should be confined to allowing cross-actions, equitable defenses, and
rights which have accrued since the judgment, to be set up; and
that it does not extend to matters which were or by law should have
been heard before the court by which the judgment was rendered."
At an early period, the supreme court of Pennsylvania ruled that a
statute directing a particular judgment to be opened, and the de-
fendant let in to a defense upon the plea of payment, was remedial
in its character, and though the power thus exercised was partly
11 Merrill v. Sherburne. 1 N. H. 199, 8 Am. Dec. 52; Lewis ▼. Webb, 3
Me. 32(5; Bates v. Kimball, 2 D. Chip. (Vt.) 77; State v. New York. N. H.
& H. R. Co., 71 Conn. 43, 40 Atl. 925; De ChasteUux v. FalrcWld, 15 Pa.
18. 53 Am. Dec. 570; Tayior v. Place, 4 R. I. 324; MUler v. State, 8 (Jill
(Md.) 145; Ratcllffe v. Anderson, 31 Grat. (Va.) 105. 31 Am. Rep. 71(5; Grlfflna
Ex*r V. Cunningham. 20 Grat. (Va.) 31; Weaver v. Lapsley, 43 Ala. 224; Lanlpf
V. Gallatas, 13 La. Ann. 175; Beebe v. State. 6 Ind. 515. G3 Am. Dec. SiH:
Davis V. Village of Menasha. 21 Wis. 491; Arnold v. Kelley, 5 W. Va. 44i;:
Burch V. Newbury, 10 N. Y. 374; Hill v. Town of Sunderland. 3 Vt. 507. An
adjudication in bankruptcy, being a decree of the court. Is beyond legislative
control; so that congress could not invalidate or set aside an adjudication
once made, by any retroactive legislaUon establishing new or different re<nil-
Kites to its validity. In re Raffauf, 6 Biss. 150, Fed. Cas. No. 11,525: In re
Comstock, 3 Sawy. 128, Fed. Cas. No. 3,077; In re Obear, 3 DIU. 37, Fed. ('as.
No. 10,395.
"Kx parte Bibb, 44 Ala. 140.
1 a White V. Herudon, 40 Ga. 493; Bonner v. Martin, Id. 501; Kite ▼. Lump-
kin. Id. 506.
^450)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 299
judicial, it was not in violation of the constitution.** But this doc-
trine, so inconsistent with the rights and independence of the judi-
ciary, and so subversive of the fundamentals of constitutional law,
was afterwards vigorously repudiated by the same court, when it
felt itself better able to withstand the encroachments of the legis-
lative body.^* As remarked by Chief Justice Gibson: "It is not
more intolerable in principle to pronounce, an arbitrary judgment
against a suitor, than it is injurious in practice to deprive him of a
judgment, Which is essentially his property, and to subject him to
the vexation, risk, and expense of another contest." *•
Part II. The Method of seeking Relief.
*
§ 200. By Audita Querela*
"Audita querela" is the name of a writ constituting the initial pro-
cess in an action brought by a judgment-defendant to obtain relief
against the consequences of the judgment, on account of some mat-
ter of defense or discharge arising since its rendition, and which
could not be taken advantage of otherwise.*^ It is a regular suit
with its usual incidents, pleadings, issues of law and fact, trial, judg-
ment, and error.*® The writ must be directed to the court which
rendered the judgment and retains the record,*® and all the parties
to the judgment against which relief is sought must join in the writ
or be duly and regularly served.*** Upon the inquiry under the writ
of audita querela, the record of the judgment is not conclusive by
way of estoppel (the attack upon it being direct and not collateral),
and hence the truth and justice of the whole matter is open to ex-
1* Braddee v. Brownlleld, 2 Watts & S. (Pa.) 271.
IB For the history of this change of attitude, see remarks of Sharswood,
J., in Grim v. Weissenberg School District, 57 Pa. 48G, 98 Am. Dec. 237.
le De ( hastellux v. Fairchiid, 15 Pa. 18, 53 Am. Dec. 570.
17 1 Am. & Eng. Enc. Law, 1005.
18 Brooks V. Hunt, 17 Johns. (N. Y.) 484.
i» Harper v. Kean. 11 Serg. & R. (Pa.) 299; Town of Poultney v. Treasurer
of State, 25 Vt 168; Warner v. Crane. 16 Vt. 79.
20 Melton V. Howard, 7 How. (Miss.) 103; Herrick v. Orange County
Bank, 1 Williams (Vt.) 584; Gleason v. Peck, 12 Vt. 56, 36 Am. Dec. 329;
Tltlemore v. Waiuwrlght, 16 Vt 173; Starbird v. Moore, 21 Vt. 529.
(457)
§ 299 LAW OF JUDGMENTS. (Ch. 14
amination.** The judgment in this action cannot properly include
affirmative relief to the defendant.'* An appeal or writ of error
will lie from it.** In regard to the grounds on which audita querela
may be brought, it must be observed that this is a remedial process
which bears solely upon the wrongful acts of the opiK>site party,
and not upon the erroneous judgments or acts of the court ; it is a
writ in which the plaint sounds in tort.** Hence injury, actual or
apprehended, is essential* to the right to bring this writ. If the mat-
ter complained of is simply nugatory and void, the party can have
no need of this process.*' It will lie to vacate a judgment rendered
against a non-resident defendant on constructive service of process,
where the statutory prerequisites were omitted.** But not where
an attorney, although without authority, has entered an appearance
for such defendant.*^ It will also lie to procure the setting aside of
a judgment which was irregularly entered after a discontinuance,
or taken in violation of an agreement for a continuance ; ** or which
was given against an infant who was not represented by his guard-
ian ; *" or against a lunatic under similar circumstances.*^ So when
a foreign judgment against the defendant has been reversed by the
foreign appellate tribunal, but in the meantime he has been sued
here on that judgment, he may have relief by audita querela.*^ This
»i Folsom V. Connor, 49 Vt. 4; Paddleford ▼. Bancroft, 22 VL 529; HUI
V. Warren, 54 Vt. 73.
2« Fobs v. Wltham, 9 Allen (Mass.) 572.
23 Fitch V. Scovel. 1 Root (Conn.) 56; White v. Clapp, 8 Allen (Mass.^
283; Gordonier v. Billings, 77 Pa. 498.
24 Little V. Cook. 1 Aikons (Vt.) 363, 15 Am. Dec. 698; liovejoy v. Webber,
10 Mass. 103; Brackett v. Winslow, 17 Mass. 159.
2 6 Bryant v. Johnson, 24 Me. 304.
2« Folan V. Folan, 50 Me. 506; Dinpman v. Myers, 13 (;ray (Mass.) 1:
Marvin v. Wllkliis, 1 Aikens (Vt.) 107; Alexander v. Ablwtt. 21 Vt. 476;
Whitney v. Silver, 22 Vt. 034; Eastman v. Waterman, 20 Vt. 494, Harmon
V. Martin, 52 Vt. 255.
27 Spaulding v. Swift, 18 Vt. 214.
28 Crawford v. Cheney. 12 Vt. 567; Pike v. Hill. 15 Vt. 183; Paddleford
V. Bancroft, 22 Vt. 529; Hawley v. Mead. 52 Vt. 343; Kimball V. Randall,
56 Vt. 558.
2BJiidd V. Downing, Brayt. (Vt.) 27; Starbird v. Moore. 21 Vt 529. See
Barber v. Graves, 18 Vt. 290.
30 IJiicoln V. Flint, 18 Vt. 247.
«i Merchants* Ins. Co. v. De Wolf, 33 Pa. 45, 75 Am. Dec. 577.
(45S)
Ch. 14) VACATING AND OPENING JUDGMENTS. ' § 299
writ may also be brought when the debtor has been discharged in
bankruptcy subsequent to the judgment ; ** or to set aside a judg-
ment from which an appeal was wrongfully denied by the inferior
court." So where two suits are brought at the same time for the
same cause of action, and proceed pari passu to judgment and exe-
cution, a satisfr-rtion of either judgment may be shown, upon audita
querela, in discharge of the other.'* But on the other hand, the
writ of audita querela will not lie in any case where the defendant
had a legal opportunity to avail himself, before judgment, of the
same matters which he now sets up,, or where his own negligence
has brought about the injury complained of.**^ Npr can it be brought
where the matter alleged would be a proper subject for a writ of
error;'" nor in respect to matters which constitute an equitable
defense, not cognizable at law ; '^ nor for irregularities which do
not affect the substantial validity of the process in the action or the
merits of the controversy;'® nor on account of an erroneous tax-
ation of costs or allowance of excessive interest.'" In a majority
of the states, the proceeding by audita querela has fallen into com-
plete disuse, being superseded by the more summary method of
applying for relief hy motion, upon notice.*® For, as a general rule,
»» Petit V. Seaman, 2 Root (Conn.) 178; Williams v. Butcher, 1 Wkly.
Notes Cas. (Pa.) 304; Baker v. Judges of Ulster Common Pleas, 4 Johns.
(N. Y.) 191.
38 Edwards v. Osgood, 33 Vt. 224; Harriman v. Swift, 31 Vt. 385.
»* Browne v. Joy, 9 Johns. (N. Y.) 221.
»« Avery v. U. S., 12 Wall. 304, 20 L. I«>i. 405; Love joy v. Webber, 10 Mass.
101; Barker v. Walsh, 14 Allen (Mass.) 175; Jb^xon v. Baxter, 11 C:n8h.
(ilass.) 35; Barrett v. Vaughan, 6 Vt. 243; Griswold v. Rutland, 23 Vt. 324.
3« Weeks v. I^wrence, 1 Vt 433; Dodge v. Hubbell, Id. 491; Eleventh
School Dist. In Alburgh v. Rood, 1 Williams (Vt.) 214; Sutton v. Tyn-ell, 10
Vt. 87. Nor does It change the rule that the writ of error is taken away
by statute. Tuttle v. Town of Burlin*?ton, Brayt. (Vt.) 27; Dodge v. Hub-
bell. 1 Vt. 491; Spear v. Flint, 17 Vt. 497.
s^Schott T. Mcl<"arland, 1 Phila. (Pa.) 58; Garfield v. Vermont University,
10 Vt. 536.
»^ Sawyer v. Doane, 19 Vt. 598; Lampson v. Bradley, 42 Vt. 165; Ball v.
Sleeper, 23 Vt. 573.
38 Johnson v. Roberts, 58 Vt. 599, 2 Atl. 482; (Goodrich v. WlUard, 11
Cray, 380; Clough v. Brown, 38 Vt. 179. See Kiekard v. Flsk, G6 Vt. G75, 30
Atl. 93.
*»Job V. Walker, 3 Md. 129; Huston v. Ditto, 20 Md. 305; Smock v.
(459)
§ 300 LAW OP JUDOMBNT8. (Ch. 14
wherever this writ would lie at common law, the courts may now
relieve on motion.** In two states, however, — ^Vermont and Massa-
chusetts,— the writ of audita querela is still in use, and is applied
to a great variety of purposes, as will appear from the cases cited
in this section.
f 300. By Error Coram KoMs.
Another common law method of obtaining relief against a judjj-
ment in the court which rendered it was by writ of error coram
nobis. This writ was so called from the technical words, which
recited that error was alleged to exist in a certain record remain-
ing "before us," that is, before the court which had pronounced the
judgment. It lay for the correction of an error of fact (not an error
of law) ir^ respect to a matter affecting the validity and regularity
of the proceedings, such as the death of one of the parties at the
beginning of the suit, or the infancy, insanity, or coverture of the
defendant, and which was not brought into the issue.** But if the
court was fully informed of and rightly apprehended the facts in
the case, its error in applying the law to such facts is not such an
error as could be rectified in this proceeding. Nor will this writ
Dade, 5 Rand. (Va.) 639, 16 Am. Dec. 780; Dongworth v. Screven, 2 UlU
(S. C.) 208, 27 Am. Dec. 381; Dunlap v. Clements, 18 Ala. 778; Chaml)er!»
V. Neal, 13 B. Mon. (Ky.) 256; Marsh v. Haywood, 6 Humph. (Tenn.) 210;
McMillan v. Baker, 20 Kan. 50; McDonald v. Falvey, 18 Wis. 571.
41 Share v. Becker, 8 Serg. & R. (Pa.) 239; Wltherow v. Keller. 11 Serg.
& R. (Pa.) 274; Baker y. Judges of Ulster Common Pleas, 4 Johns. (N. Y.)
191.
*« Kemp V. Oook, 18 Md. 130. 79 Am. Dec. 681; Mississippi & T. R. Co.
V. Wynne, 42 Miss. 315; Milam Co. v. Robertson, 47 Tex. 222; Hurst v.
Fisher, 1 \N'atts & S. (Pa.) 438; Beall v. Powell, 4 Ga. 523; Day v. Ham-
burgh, 1 Browne (Pa.) 75; McLemore v. Durivage, 92 Tenn. 482. 22 8. W.
207; Brady v. Washington Ins. Co., 82 IH. App. 380; Holden v. Dunn. 144
111. 413, 33 N. E. 413, 19 L. R. A. 481; CasUedlne v. Mundy, 4 Barn. & AdoL
90; Beren v. CJheshlre, 3 Dowl. 70; King v. Jones, 2 Ld. Raym. 1525; Krans
V. Chester, 2 Mees. & W. 847. In West Virginia, it is said that a writ of
error coram nobis Is not a proper process to reverse a judgment because of
defendant's insanity at the time of its rendition, as the Judgment can be at-
tacked for such cause only in equity. Withrow v. Smithson, 37 W. Va-
757, 17 S. E. 316, 19 L. R. A. 762. Entering an order of default without
first passing upon a pending demurrer is an error of law. which cannot be
rerisea on a writ of error coram nobis. Utley ▼. Cameron, 87 111. App. 71.
(460)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 301
fie to contradict or put in issue any fact that has been already ad-
judicated in the action.** Thus, if the record states that the defend-
ant appeared and confessed judgment, he cannot controvert that fact
after the expiration of the term for the purpose of setting aside the
judgment.** The writ of error coram nobis, like the proceeding by
audita querela, has now fallen into practical desuetude, being almost
entirely superseded by the more speedy and efficacious remedy by*
motion in the same court.* •* In any case, the writ will not lie after
affirmance of the judgment in the appellate court.**
S 301. By Bill of Review.
In those jurisdictions where the ancient forms of chancery plead-
ing and practice remain in force, unmodified by statutes, the only
proper method of obtaining the vacation or annulment of a decree
in equity, after the term, is by bill of review. And this species of
bill lies in cases of error apparent on the face of the record, for frauds
and on account of matters subsequent to the decree and which could
not have been urged in defense.*^ But the rule that a decree once
enrolled cannot be opened except by a bill of review, or by an original
bill for fraud, "is subject to well founded exceptions, arising in cases
not heard upon the merits, and in which it is alleged that the decree
was entered by mistake or surprise, or under such circumstances as
"Gould's Estate v. Watson, 80 lU. App. 242.
44 Richardson's Ex*x v. Jones, 12 Grat. (Va.) 53. But in Missouri, If a
court commits an error of fact Tital to its Jurisdiction, such as llndlng de-
fendant a nonresident, and making an order of publication against him, when
In fact he is a resident. It will, on error coram nobis, set aside the Judg-
ment rendered on such publication. State v. White, 75 Mo. App. 257.
*» Pickett's Heirs v. Legerwood, 7 Pet. 144, 8 L. Ed. 638; Sloo v. State
Bank, 1 Scam. (111.) 428; McKindley v. Buck, 43 111. -488; Ufe Association
V. Fassett, 102 lU. 315; Beaubien v. Hamilton, 3 Scam. (111.) 213; Billups
y. Freeman (Ariz.) 52 Pac. 367. In Illinois, this writ has been abolished, and
a remedy by motion substituted; but the latter can reach only such mistakes
of fact as might have been corrected by error coram nobis before it was
abrogated. McPherson v. Wood, 52 111. App. 170.
*« LambeU v. Pretty John, 1 Strange, 690.
*7 See Fries v. Fries. 1 MacArthur (D. 0.) 291; Durant v. Duchesse
D'Auxy. 107 Ga. 456, 33 S. E. 478; Kizer I/umber Co. v. Mosely, 56 Ark.
544, 20 S. W. 409; Carolina Xat. Bank v. Homestead Building & Loan
Ass'n, 56 S. C. 12, 33 S. E. 781.
(4G1)
§ 302 LAW OP JUDGMENTS. (Ch. 14
shall satisfy the court, in the exercise of a sound discretion, that the
decree ought to be set aside." *• To a bill to vacate a decree the
plaintiff in such decree is a necessary party defendant. The omission
of him as a party is a fatal defect.^*
S 302. By Direct Aetioiu
In some of the states, instead of the somewhat summary method
of vacating judgments on notice and motion, a practice prevails by
which it is necessar>' to bring a direct action for this purpose, in the
form of a regular suit, with plenary proceedings, in which the relief
denmnded is the annulment of the judgment complained of." And
in some, after the expiration of the statutory time for moving to
vacate a judgment, the defendant may still proceed by an inde-
pendent action, the ground of objection to the judgment being want
of jurisdiction or fraud in obtaining it.*^ In other respects, the law
and practice in these states, on the topic under consideration, does
not differ materially from the rest. It must be remarked that all the
«8Cawley y. Leonard, 28 N. J. Eq. 467; Smith t. Alton, 22 N. J. Eq. 5?J:
Beekman v. Peck, 3 Johns. Ch. (N. Y.) 415; Bennett v. Winter, 2 Johns.
Ch. (N. Y.) 205; Miljspaugh v. McBride, 7 Paige (N. Y.) 509, 34 Am. Dec.
300; Herbert v. Bowles, 30 Md. 271; Erwln v. Vint, 6 Munf. (Va.) 267:
Carter v. Torrance, 11 Ga. 664.
*» Harwood v. Cincinnati & C. Airline B. B. Co., 17 Wall. 78, 21 I* EcL
558.
50 See Hiirs Code Wash. §fi 1393-1397; Whidby Land & Development Co.
V. Nye, 5 Wash. St. 301, 31 Pac. 752; State v. Superior Court, 19 Wa.^
128, 62 Pac. 1013, 67 Am. St. Bep. 724; Boberts v. Shelton 8. W. B. Co., 21
Wash. 427, 58 Pac. 576. In North Carolina, a Judgment sought to be vii
cated on the ground of fraud cannot be attacked by motion in the cause, but
only by an independent action. Uzzle v. Vinson, 111 N. C. 138, 16 8, E. <t
And in Indiana, where a flnal judgment is assailed for want of Jurisdictioa
it is proper to attack the proceedings by a complaint. Scudder v. Jones. 1»M
Ind. 547, 32 N. E. 221. An application for the vacation of a Judgment tboogfa
in the form of a motion, may properly be treated as by petition, where it
contains averments, statements, and demands proper In a petitloiv Council
Bluffs L. & T. Co. v. Jennings, 81 Iowa, 470, 46 N. W. 1006; Callanan t.
Aetna Nat. Bank, 84 Iowa, 8. 50 N. W. 69.
Bi People V. Temple, 103 Cnl. 447, 37 Pac. 414; Zinc Carl>onate Co. v.
First Nat, Bank, 103 Wis. 125, 79 N. W. 229, 74 Am. St Bep. 845.
(4G2)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 304
parties to the former suit must be made parties to an action to annul
the judgment.'*
S 303. By Motioiu
The method of procuring the vacation of judgments which is by
far the most commonly used, at the present day, is the proceeding by
appHcation to the court which rendered the judgment, in the form of
a motion, with notice to the adverse party.** This practice, being
simple, speedy, and effective, is well calculated to promote the inter-
ests of justice with the least cost and trouble to suitors. The time
within which such applications must be made, the parties who may
apply, the grounds upon which an application may be based, and the
practice in proceedings of this character, are the subjects which will
engage our attention in the remaining part of this chapter.
f 304. Indirect Vacatien of JndKment.
It has been held that the entry of a second judgment, in the same
action, is riot a vacation of the first judgment, if there is nothing
further to show that such former judgment was regularly cancelled
or set aside. "When a judgment is once entered of record, it must
stand as the judgment, until it is vacated, modified, or disposed of
by some means provided by law; entering additional judgment
entries is not one of them." ** But on the other hand, it is said that
»2See Haggerty v. Phillips, 21 La. Ann. 729; Green v. Grant, 108 Ga.
751, 32 S. E. 846.
"As to the circumstances under which an application for the vacation
of a Judgment should be made by motion, rather than by an independent
action, or any other form of proceeding, see Frazier v. Williams, 18 Ind.
41(5; Grant v. Harrell, 109 N. C. 78, 13 S. E. 718; Everett v. Reynolds, 114
X. C. 36t>, 19 8. E. 233; Drake v. Steadman, 40 S. C. 474, 24 S. E. 458; SUber-
man v. Shnklansky, 172 Pa. 77, 33 Atl. 272; PoUock v. Boyd, 36 Neb. 369.
54 N. W. 560; Iba v. Central Ass'n of Wyoming, 5 Wyo. 355, 40 Pac. 527.
An application by a wife to set aside, as rendered in fraud of her rights, a
judgment by confession entered against her husband, pending her suit for
diTorce and alimony, Is a suit for equitable relief, which cannot be granted
on motion. Dullard v. Phelan, 83 Iowa, 471, 50 N. W. 204. Statutes au-
thorizing the yacation of Judgments on motion Intend that the motion shall
be in writing, and not made orally. Indianapolis, D. & W. Ry. Go. y. Crock-
ett, 2 Ind. App. 136, 28 X. B. 222.
•* Nuckolls V. Irwin, 2 Neb. 60. A decree declaring the rights of certain
(463)
§ 304a LAW OP JUDGMENTS. (ph. 14
although after a judgment has been entered up on a verdict, such
judgment, strictly, should be set aside before a new trial is had, yet
if, on motion, the verdict is set aside and a new trial granted and
had, the judgment will be deemed to have been set aside/*
§ 304a. Other Remedies ATAllable.
A motion to vacate or set aside a judgment will not be entertained
by the cou^ when the proper remedy of the party aggrieved is by
an appeal,** or by a motion for a new trial in the court rendering
the judgment,*^ or by mandamus requiring the court to take some
action which would give the party what he seeks,** or by an inde-
pendent action for damages.*" Sometimes also, the case is such that
chancery is the only forum competent to afford adequate relief ; and
then the party must seek his redress there, and not by motion to set
aside the judgment.*® And pending a suit in equity to restrain pro-
ceedings on a judgment, and have it declared void, the court in which
it was rendered has no jurisdiction of a rule to set it aside.** Again,
a defendant cannot move to set aside a judgment at the same time
an action by him for the same purpose is pending in another court.**
persons in an action is not vacated by a subsequent decree declaring tbe
rights of such persons to be as stated in the form^ decree, except as to a
person who has since intervened; and hence, the sabseqaent decree beinir
itself afterwards vacated, the former is revived. Mason v. McLean, 6 Wash.
31, 32 Pac. 1006.
68 Lane v. Klngsberry, 11 Mo. 402.
»« Landry v. Bertrand, 48 La. Ann. 48, 19 South. 126; Philadelphia & R.
R. Co. v. Snowdon, 161 Pa. 201, 28 Atl. 1067.
ftTFolsom v. BaUard, 16 C. C. A. ri03, 70 Fed. 12; Clark's Cove Guano
Co. V. Steed, 02 Ga. 440, 17 S. E. 967.
»8 ChappeU v. Real-Estate Pooling Co., 91 Md. 754. 46 Ati. 982.
»» ChappeU v. Real-Estate Pooling Co.. 91 Md. 754, 46 Ati. 982.
•0 Woodward v. Arlington Mills Manuf'g Co., 2 PennewlU (Dd.) m
44 Atl. 620.
•1 First Nat Bank v. Lieberman, 1 Marv. (Del.) 367, 41 AtL 9a
•2 Hay V. Cole, 90 Hun, 258, 35 N. Y. Supp. 950.
(464)
Ch* 14) VACATING AND OPENING JinDOMENT& § 305
Part III. The Time op Applying.
§ 305. Dvrinc tl&e Term.
It IS universally held that judgments are tinder the plenary con-
trol of the court which pronounces them during the entire term at
which they are rendered or entered of record, and they may, during
such term, ^be set aside, vacated, modified, or annulled by that court
for cause shown.*' It is commonly said that judgments and decrees
remain in the breast of the court during the term of their rendition ;
and, for the purpose of modifying or vacating them, the whole term
may be considered as one day.** This power may be exercised dur-
ing the term on the court's own proper motion, as well as on appli-
cation by a party, when there is a manifest error or inadvertence to
be corrected, and even, in proper cases, without notice to the par-
ties.** Its exercise is not prevented by the fact that a bill of excep-
tions has been taken or an appeal bond filed.** It is a power inherent
in all courts of general jurisdiction, and is not dependent upon, or
•s Aetna Life Ins. Co. v.Com'rs of Hamilton Comity, 25 C. C. A. 94, 79
Fed. 575; Wyler v. t'nion Pac. Ry. Co. (C. C.) 89 Fed. 4; Interstate Com-
merce Commission r. Louisville & N. R. Co., 101 Fed. 146; Fraley v. Feather,
46 X. J. Law, 429; Robinson v. Harford County Com'rs, 12 Md. 132; Ruther-
ford v. Pope, 15 Md. 579; Townshend v. Chew, 31 Md. 247; Green v. Pitts-
burgh, W. & K. R. Co.. 11 W. Va. 686; Ketty v. High, 29 W. Va. 381, 1 S.
E. 561; Gwlnn y. Parker, 119 N. C. 19, 25 S. E. 705; Cooley v. Tybee Beach
Co., 99 Ga. 290. 25 S. E. 691; Blackburn v. Knight, 81 Tex. 326. 16 S. W.
1075; Manguno & Tomfocaro Co. v. Clymonts. 19 Ohio Cir. Ct. R. 237;
Sagory v. Bayless, 13 Smedes & M. (Miss.) 153; Barker v. Justice, 41 Miss.
240; Pattfson v. Josselyn, 43 Miss. 373; Ashley v. Hyde, 5 Ark. 100; Mc-
Knfght V. Strong, 25 Ark. 212; Underwood v. Sledge, 27 Ark. 295; Ralston
V. Lotbain, 18 Ind: 303; Gingrich v. Gingrich, 146 Ind. 227, 45 N. E. 101;
Taylor v. Ltisk, 9 Iowa, 444; State v. Callaway County Treasurer, 43 Mo.
228; Rankin v. Lawton, 17 Mo. App, 574; Smith v. Perkins, 124 Mo. 50,
27 8. W. 574; VoUand v. Wilcox, 17 Neb. 46, 22 N. W. 71; Tiiylor v. Trum-
baU, 32 Xeb. 506, 49 N. W. 375; Bradley v. Slater, 58 Neb. 554, 78 N. W.
1069; Ballard v. Purcell, 1 Nev. 342; Martin v. Skehan, 2 Colo. 614; State
T. Sowders, 42 Kan. 312, 22 Pac. 425.
a< Jordan v. Tarver, 92 Ga. 879, 17 S. B, 351; Woodward y. Woodward,
84 Mo. App. 328.
es Raj Y. Moore, 19 Ind. App. 090, 49 N. B. 1083.
••Blackburn v. Knight, 81 Tex. 326, 16 S. W. 1075; Huber Manufg Co.
T. Sweny, 57 Ohio St. 169, 48 N. E. 879.
1 LAW JUDG.-30 (465)
§ 306 LAW OF JUDGMENTa (Ch 14
derived from, statutes.*^ Thus, a statute requiring applications for
a new trial to be made within three days after the verdict or decision
has no application to a motion to set aside a default, made at the
same term.'*
§ 306. Aft^r the Term.
It was the rule of the common law, — and it is still adhered to with
more or less consistency in most of the states, — that after the expira-
tion of the term the court loses control of its judgments rendered
during that term ; they become final, and the court has no longer the
power to vacate or modify them or to set them aside.'" The supreme
«7 Bradley v. Slater, 58 Neb. 554, 78 N. W. 10G9; Manguno & Tomfocaro
Co. V. Clymonts, 19 Ohio Clr. Ct. R. 237.
68 Hall V. Houghton & Upp Mercantile Co., 8 C. C. A. G61. 60 Fed. 3o0:
Bradley v. Slater, 58 Neb. 554, 78 N. W. lObD; KIglesberger v. Bailey mjj
44 S. W. 118. The sustaining of an application to open a default Judgment
though in the form of an ordinary motion for a new trial, where made after
the time for granting a new trial, will be presumed to have been done in
pursuance of the inherent jurisdiction of the court, and not as a demandable
statutory right. Bradley y. Slater, supra.
68Bronson v. Shulten, 104 U. S. 410, 26 L. Ed. U97; Bmsti T. Bobbins.
3 McLean, 486, Fed. Gas. No. 2,059; Bank v. I^bltut, 1 Woo<!s, 11, Fed. Caa.
No. 842; Grames v. Hawley (O. C.) 50 Fed. 319; Loney v. Bailey. 43 Md. 10:
Green v. Pittsburgh, W. & K. R. Co., 11 W. Va. 685: Barbour County Court
V. O'Neal, 42 W. Va. 295, 26 S. E. 182; Ramsour v. Baper, 29 N. C. a46;
Moore y. Hinnant, 90 N. 0. 163; Trustees of Internal Imp. Fund ▼. Bailey.
10 Fla. 238; Ex parte Sims, 44 Ala. 248; Buchanan v. Thomason, 70 Ala. 401:
Orothers v. Ross' Distributees, 15 Ala. 800; Gotten v. Mc€}ehee, 54 Miss. 621;
Alabama & V. Ry. Co. y. Bolding, 69 Miss. 255, 13 South. 844, 30 Am. St Rep.
541; Brewster y. Norfleet, 3 Tex. Qy. App. 103, 22 S. W. 226; Merle t. An-
drews, 4 Tex. 200; Rogers y. Watrous, 8 Tex. 62, 58 Am. Dec. 100; Ragsdale
Y. Green, 36 Tex. 193; Anderson y. Anderson, 18 B. Mon. (Ky.) 95; McManama
Y. Garnett, 3 Mete. (Ky.) 517; LoYelace y. LoYell (Ky.) 55 S. W. 549; Johnson
Y. Jones, 58 Kan. 745, 51 Pac. 224; Rawdon y. Rapley, 14 Ark. 208, 58 Am.
Dec. 370; Ashley y. Hyde, 6 Ark. 92, 42 Am. Dec. 685; Exposition Building
& Loan Co. Y. Spiegel, 12 Ohio Gir. Ct R. 761; Blair y. Russell, 1 Smith (Ind.)
287; Bland y. State, 2 Ind. 608; Rich y. City of Chicago, 187 RL 396, 58 N. E.
306; Cook y. Wood, 24 111. 295; Cox y. Brackett, 41 111. 222; Smith y. Wilson.
26 111. 186; Schmidt y. Thomas, 33 111. App, 109; DaYles ▼. Coryell, 37 IlL
App. 505; Baldwin y. McClelland, 152 111. 42, 38 N. E. 143; McChesney y. City
of Chicago, 161 111. 110, 43 N. E. 702; Stettauer y. Chicago TiUe & Trust Co^
62 111. App. 31; Kelley y. Heath & MilUgan Manufg Cb., 66 111. App. 52$:
Bristol Y. Ross, 79 111. App. 261; Fish Furniture Co. y. Jenkins, 82 IlL App.
^1; Utley y. Cameron, 87 111. App. 71; Ashby y. Glasgow, 7 Mo. £90; Orris
(466)
Ch. 14) VACATING AND OPENING JX7DGMBNT& § 306
court of the United States has stated the rule concisely in the fol-
lowing language: "It is a general rule of the law that all the judg-
ments, decrees, or other orders" of the courts, however conclusive in
their character, are under the control of the court which pronounces
them during the term at which they are rendered or entered of rec-
ord, and ihey may then be set aside, vacated, modified, or annulled
by that court. But it is a rule equally well established, that after
the term has ended all final judgments and decrees of the court pass
beyond its control, unless steps be taken during that term, by motion
or otherwise, to set aside, modify, or correct them; and if errors
exist, they can only be corrected by such proceeding by a writ of
error or appeal as may be allowed in a court which by law can review
the decision." '® And the federal circuit courts agree that they have
no power to vacate or reverse their judgments or decrees, after the
term, except in the cases specified in the decision of the supreme court
just quoted.^* In California, after the adjournment of the term, the
court loses all control over its decisions, unless its jurisdiction is
saved by some motion or proceeding at the time, except when the
summons has not been served, in which case a party may, within six
months, move to set aside the judgment.^^ In Massachusetts, a
court which by statute holds weekly terms, has no authority, on mo-
tion at one of such terms, to vacate a final judgment duly entered
T. ElUott, 65 Mo. App. 96; McBrlen v. RUey, 38 Neb. 561, 57 N. W. 385; Flsk
T. Thorp, 51 Neb. 1, 70 N. W. 496; Spafford v. City of Janes vllle, 15 W^ls. 474;
Gray v. Gates, 37 Wis. 614; Salter v. Hllgen, 40 Wis. 363; Suydam v. Pitcher,
4 Cal. 280; Bell v. Thompson. 19 Cal. 706; Lattimer v. Ryan, 20 Cal. 628;
WlUiam Deering & Co. v. Orelghton, 26 Or. 556, 38 Pac. 710; Exchange Bank
T. Ford. 7 Colo. 449, 3 Pac. 449; Jones v. New York Life Ins. Co., 14 Utah,
215, 47 Pac. 74; Benson v. Anderson, 14 Utah, 334, 47 Pac. 142.
TO Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 997.
TiKlever v. Seawall, 12 C. C. A. 053. 65 Fed. 373; Austin v. Riley (C. C.)
55 Fed. 833; Allen v. Wilson (0. C.) 21 Fed. 881. The practice of a state
court in opening Judgments or decrees by default after the term at which
they became absolute will not be observed in a suit in equity in a federal
court in that state, under Rer. St U. S. § 914, which requires the practice of
the federal courts to conform to that of the state courts only in *'civil cases
other than equit>' and admiralty causes." Austin v. Riley (C. C.) 55 Fed. 833.
72 Shaw V. McGregor, 8 Cal. 521; Robb v. Robb, 6 Cal. 21; Bell v. Thomp-
son, 19 Cal. 706.
(467)
i 306 LAW OP JUDOMBNTft (Ch. \i
at a pre'^^ous term.** In Alabama and some other states, while the
general rule is followed, it is considered that if, by agreement of the
parties, the court sets aside a judgment after the term and again tries
the cause, the judgment afterwards entered is not void for want of
jurisdiction, though the court is not bound to retry ^ cause even
if the parties consent.^* But in some other states it is held that,
notwithstanding the agreement of parties, all the proceedings sub-
sequent to the first judgment are coram non judice and void." And
this indeed seems the more logical position. In Wisconsin, where a
judgment entered is not void but simply irregular, the court has no
power to vacate it after the term at which it was entered, or if entered
by the clerk in vacation, after the term next succeeding its entr}\'*
The rule stated applies to decrees in equity as well as judgments at
law. In general, chancery cannot open a final decree after the end
of the term at which it was made, unless upon a bill of review, or bill
in that nature, or bill or petition impeaching the decree for fraud."
But here, as we have already said,^' an exception must be made in
the case of equity causes not heard upon the merits and in which the
decree was entered by fraud, mistake, surprise, or other exceptional
circumstances. If the rule applies to any courts it applies to all
The court of last resort in a state cannot set aside a judgment or
decree rendered by it, after the expiration of the term at which it was
rendered, unless the same is void on its face.''*
Thus it will be seen that in many of the states there is a strong
disposition not to depart widely from the common law rule on this
point. The reasons of the rule are obvious and weighty. The inter-
ests of the individual as well as of the community demand that there
should be a definitive end of every litigation; and nothing could be
T8 Wood V. Payea, 138 Mass. 61.
74 Kidd V, McMillan, 21 Ala. 325; Hair v. Moody, 9 Ala. 399; Gage t. City
of Chicago, 141 111. 642, 31 N. E. 163; Royal Trust Oo. t. Exchange Bank. .Vi
Neb. 663, 76 N . W. 425.
» 5 City of Dlttle Rock v. Bullock, 6 Ark. 282; Anderson v. Thompson. 7
LesL (Tenn.) 250.
»• Egan v. Sengplel, 46 WJ.s. 703, 1 N. W. 467.
ft Brooks' Adm'r v. Love, 3 Dana (Ky.) 7; Bobb v. Bobb. 2 A« K. Marsh.
(Ky.) 240; McMIcken v. Peyin. 18 How. 507, 15 L. Ed. 504.
T« Supra, § 301.
T» Donnell v. Hamilton, 77 Ala. 610.
(468)
Cb. 14.) VACATING AND OPBNINO JUDGMENTS. § 307
more impolitic than to leave it in the discretion of every court to
revise and review and reconsider its judgments without limit. Yet
it is very necessary to observe that this rule does not by any means
obtain in all its rigor in every state and jurisdiction. The practice
varies so much from state* to state that it is most difficult to formulate
general principles. But we shall find, in the first place, that the rule
is almost everywhere subject to certain well-recognized exceptions;
as where the judgment in question is entirely void, or was entered
without the authority of the court, or is vitiated by some substantial
irregularity. These instances will be discussed in succeeding sec-
tions under their appropriate titles. In the second place, it will be
discovered that in some few states the rule is not observed at all,
the courts exertising the power to vacate or open judgments in
proper cases, without any limitation as to time.®^ Finally, in a con-
siderable number of states, the statutes both prescribe the grounds
on which judgments may be vacated and fix an arbitrary limit, usually
six months or a year, within which the application may be made.
§'307. Void Judgment!*
It was intimated in the last section that a judgement which is en-
tirely void may always be set aside at a subsequent term. And this
is the general doctrine of the cases. Every court possesses inherent
power to vacate entries in its record of judgments, decrees, or orders
rendered or made without jurisdiction, either during the term at
which the entries are made or after its expiration.** This rule ap-
80 See Breden v. Giiniand, 67 Pa. 36; Capen v. Inhabitants of Stoughton, 16
Gray (Mass.) 365.
>»i Thomas v. American Freehold Land & Mortg. Co. (O. C.) 47 Fed. 550, 12
L. R. A. 681; Couch v. Heffron, 15 Pa. Co. Ct. R. 636; In re CoUege Street,
11 R. I. 472; Ladd v. Mason, 10 Or. 308: Bruce's Ex'x v. Strickland's Adm*r,
47 Ala. 192; Baker v. Barclift, 76 Ala. 414; Dazey v. Pennington, 10 Tex. Civ.
App. 326, 31 S. W. 312; First Nat. Bank v. Wm. B. Grimes Dry-Goods Co., 45
Kan. 510, 2(» Pac. 56; People v. Temple, 103 Gal. 447, 37 Pac. 414; Kaufmann
V. Drexel, 5(5 Xeb. 221), 76 X. W. 550. But a judgment which is merely void-
able, for errors or irregularities, must be attacked in due time, by motion to
vacate or by appeal. Kinsteln v. Davidson, 35 Fla. 342, 17 South. 563. And
where Jurisdiction is duly acquired by service of process, a judgment errone-
ously entered by default is not void, and the court cannot set it aside at a
subsequent term. Maple v. Havenhill, 37 111. App. 311.
(409)
§ 308 ULW OF JUDGMENTS. (Gh. 14
plies not only where there is a want of jurisdiction over the parties,
but also where jurisdiction of the subject-matter is lacking. A judg-
ment which is outside of the issues, and on a matter not submitted
for determination, is a nullity, and may be set aside at any time.*'
It is also said that the trial court has inherent power to vacate, after
the term, a judgment obtained by fraud, or which is not in accord
with that intended to be entered,®' or one entered by the clerk with-
out authority and in violation of law,®* or one which has been ren-
dered contrary to the course of law and practice." But in some
states it is held that, to authorize the setting aside of a void judgment
after the expiration of the term, the invalidity of the judgment must
appear on the face of the record, and not from matter outside of it,
except in cases of fraud, and where the judgment was rendered after
the death of a party.**
§ 308. Interloeutory JndKatents.
An interlocutory judgment or decree, made in the progress of a
cause, is always under the control of the court until the final decision
of the suit, and it may be modified or rescinded, upon sufficient
grounds shown, at any time before final judgment, though it be after
the term in which the interlocutory sentence was given.*^ And in
82 GiHe v. Emmons, 58 Kan. 118, 48 Pac. 569, 62 Am. St Rep. 009. Bat in
Wisconsin, a final judgment in the court of last resort cannot be vacated after
a year from its rendition on the ground that the court had no jurisdiction of
the subject-matter. State v. Waupaca County Bank, 20 Wis. 640.
•8 Harper v. Barnett (Miss.) 16 South. 533; Ruenbuhl v. Heffron (Tex- CIt.
App.) 38 S. W. 1028.
84 Mlckler v. Reddick. 38 Fla. 341, 21 South. 286.
8B Or vis V. Elliott. 65 Mo. App. 96.
89 Pcttus y. McGlannahan, 52 Ala. 55; Kohn v. Haas, 95 Ala. 478, 12 Sooth.
577; People v. Dodge, 104 Oal. 487, 38 Pac. 203.
87 Blythe v. Hinckley (C. C.) 84 Fed. 228; Miller v. Justice, 86 X. C. 2«^:
Davis V. Roberts. Smedes & M. Ch. (Miss.) 543; State v. King, 46 La. Ann.
163, 15 South. 283; Patterson v. Hare, 74 Hun. 2C9, 26 N. Y. Supp. 626; Brat
v. Miranda, 8 N. M. 78, 42 Pac. 91. This is the case, for example, with an
order merely sustaining a demurrer, or striking out a count Clarke r. Ohio
River R. Co., 39 W. Va. 732, 20 S. E. 696. Or an order appointing a receiver to
take charge of mortgaged property pending foreclosure, Balfour-Guthrie In v.
Co. V. Gelger, 20 Wash. 579, 56 Pac. 370. Compare Morgan v. Ohio River R.
Co., 39 W. Va. 17, 19 S. E. 588: WoflPonden v. Woflfenden, 1 Ariz. 328. 25 Pac
666: Wliides v. Kai-p, 150 Mo. 600, 51 S, W. 1044.
(470)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 309
some states it is held that mere office judgments (such as are entered
of course) are under the control of the court in succeeding terms
and can be modified or set aside on cause shown, even after judg-
ment has been perfected; but it is within the discretion of the courts
and their decision cannot be appealed from.*® And it seems that a
mere naked default, on which no judgment or decree has ever been
entered, may be set aside at any time on proper grounds; in this
case the discretion of the court is not limited as to time.®* In Cali-
fornia, a motion to vacate a default entered by the clerk may be made
at any time before final judgment is entered, although the court may
have adjourned for the term at which the default was entered before
the motion is made.'®
§ 309. PejuisylTania Praetioe.
In the state of Pennsylvania the practice in regard to opening
judgments has been developed by a long line of cases, and has set-
tled in a form different from that found in most other jurisdictions.
In the language of Judge Sharswood : "Every court has power to
open a judgment in order to give the parties a hearing or trial. In
the case of judgments by confession or default, there is no limit of
lime to the exercise of this power, but in the case of judgments en-
tered adversely after a hearing or trial, it is settled that it must be
done before the end of the term at which they are entered." "^ And
«« PoweU V. JopIiDg. 47 N. C. 400; WUson v. Torbert. 3 Stew. (Ala.) 206, 21
Am. Dec. 632.
«»Urdway v. guchard, 31 Iowa, 487; Simmons v. Church. Id. 284; Harper
V. Drake. 14 Iowa, 533.
•0 Willson V. deaveland. 30 Cal. 192.
•1 King V. Brooks. 72 Pa. 364. And see Bradley v. Towanda Tp.. 133 Pa.
Ml, 20 Atl. 1060; HHl v. Egan, 2 Pa. Super. Ct. 596. A judgment may be set
aside for fraud, after the term at which it was rendered, but the petition must
net forth the essential facts of the fraud alleged, so that the jurisdiction of
the court may appear. Fisher v. HestonvUle. M. & F. Pass. Ry. Co.. 185 Pa.
♦JfC, 40 Atl. 97. The power to open or set aside judgments Is an equitable
power, and should be based upon the exercise of a sound legal discretion by
the court, not a mere arbitrary exercise of power. Fisher v. HestonvUle, M.
& F. Pass. Ry. Co., supra; Sullivan v. Sweeney, 189 Pa. 474, 42 Atl. 45. The
IK'titioner must show adequate grounds for such action on the part of the
court, and mere denial of the indebtedness charged against him will not gen-"
erally be sufHcient Ware v. Baldwin, 7 Kulp, 278. It has been remarked
(471)
§ 810 LAW OF JUDGMENTS. {Ch. 14
a judgment may be opened, for proper cause, notwithstanding it may
have been several times revived by scire facias. "If the original
judgment was obtained by fraud and misrepresentation, and the sub-
sequent revivals were but a continuation gf such fraud and misrepre-
sentation, it is difficult to see how such revivals could add anything
to the validity of the orijrinal judgment." •*
§ 310. Jndcrment carried OTer il&e Term by Motiiim*
Whatever abridges or suspends the final character of a judgment
will save it from the operation of the rule under consideration. A
motion to vacate a judgment, made at the same term at which the
judgment was rendered and continued to a subsequent term, may be
allowed at such subsequent term.'* But it is held that leave granted
at the term in which the judgment is entered, to move in the next
term to set it aside, is irregular and void.'* Where a motion for a
new trial is continued over the term, the proceedings are still in the
breast of the judge, and he has jurisdiction to set aside the judgment
for informality, and let the verdict stand.'* So where a judgment is
entered by default against two joint defendants, and at the same time
that the practice of opening a judfi^ment to let the defendant in to a defensp
is not peculiar to Pennsylvania, although it is unknown to the common law.
It is an appeal to the equitable powers of the court to allow a hearing on the
merits from which the defendant, by adherence to the strict forms of law.
would otherwise be precluded. McAnulty v. National Life ABS*n« 6 Lack.
Leg. N. 128. A somewhat similar practice obtains in Illinois, in regard to
Judgments entered by confession. See Hall v. Jones. 32 III. 38. A judgment
by default, regular and valid in fact, cannot be stricken from the record; tli<*
remedy is by motion to open the Judgment and let the defefldtuit in to a de>
fense. North v. Yorke, 174 Pa. 349. 34 Atl. 620.
8 2 Monroe v. Monroe, 93 Pa. 520. See GStizens' Trust & Surety Co. t. Good-
child. VJo Pa. 80. 45 Ati. 6G2.
03 Windett V. Hamilton, 52 111. 180; Green v. Pittsburgh, W. A K. R, Ca,
11 W. Va. 685; Niles v. Parks, 49 Ohio St. 370, 34 N. E. 735; Childa r. Kansas
City, St. J. & C. B. R. Co., 117 Mo. 414, 23 S. W. 373; Babcock Hardware Co.
V. Farmers* & Drovers* Bank, 50 Kan. G4S, 32 Pac. 377. Compare Ashley v.
Hyde, 6 Ark. 92, 42 Am. Dec. 685. In Kentucky, a court of continuous session
cannot, by continuing from time to time a motion to set aside a Judgment re-
tain control over such Judgment beyond 00 days after its rendition. WUliams
V. Williams (Ky.) 54 S. W. 716.
• »4 Hill V. aty of St. Louis, 20 Mo. 584.
•6 Suddnrth v. Empire Lime Co., 79 Mo. App. 585.
(472)
Gh. 14) VACATINQ AND OPENING iiJDOMENTS. § 811
the cause is removed to the federal court on motion of a third de-
fendant, after it is determined that the removal was erroneous and the
cause is sent back to the state court, the latter court has the power
at the first term thereafter, on plaintiff's motion, to strike off the
judgment, although a term had intervened after it was entered; the
rule (in Illinois) that a judgment may be set aside or amended only at
the same or the next term after its entry not applying while the
cause is pending in the federal court.'*
I 811. Under Btatniefi.
In many of the states, statutes have been enacted which provide
that the court may, in its discretion, relieve a party from a judg-
ment taken against him, on certain enumerated grounds, within a
prescribed time from the rendition of the judgment, usually six
months or a year, or in some jurisdictions two years, or within a
similar period from notice of the judgment.'^ Our chief interest in
these statutes is in connection with the causes which they specify
as sufficient to warrant the vacation of the judgment, and in this
regard they will be fully considered hereafter. But there are cer-
tain observations to be made on the time limit which they establish.
In the first place, it is generally considered that the control of the
court over the judgment absolutely ceases upon the expiration of
the time limited. Thereafter it is no longer within the discretion,
or even the jurisdiction, of the court to vacate or modify the judg-
ment; the right to apply for such relief is lost, and any order of
the court setting the judgment aside or rendering a new judgment
will be null and void.'* In the next place, the common-law power
•• Jansen v. Grlmshaw, 125 111. 468, 17 N. E. 850.
»T For citatloDS to these statutes, see, intra, section 334. And see Carlisle
T. Wilkinson, 12 Ind. 91; Hunt v. Stevens, 26 Iowa, 399; Kenedy v. Jar\'i8
(Tex.) 1 S. W. 191; People v. ^farge, 3 Cal. 130.
»8 Elder v. Richmond Gold &, Silver Mln. Co., 7 C. C. A. 354, 58 Fed.
536; Beardsley v. Hilson, 94 Ga. 50, 20 S. E. 272; Schwarz v. Oppenheimer,
90 Ala. 462, 8 South. 36; Thomas v. Neel (Tex. App.) 18 S. W. 138; Winglield
V. Cotton (Ky.) 56 S. W. 813; Gresham v. Ellis, 92 Tenn. 471, 22 S. W. 1;
Priestman v. Priestman, 103 Iowa, 320, 72 N. W. 535; Manning v. Nelson,
107 Iowa, 34, 77 N. W. 503; Petley v. Carpenter, 124 Mich. 14, 82 N. W. 666;
(473)
§ 311 LAW OP JUDGMENTS. (Ch. 14
of a ccmrt of record to set aside its judgments at the same term at
which they were rendered is not abrogated by these statutes. Dur-
ing the term, the court may vacate a judgment for any cause which
would be sufficient at common law, without regard to the grounds
specified in the statute ; •" but after the close of the term, the rem-
edy of a party aggrieved by the judgment must be sought under
the statute, and is confined to the grounds therein enumerated.***
In some states, however, the courts exercise authority to set aside
judgments for causes (such as fraud) not specified in the statutes,
and without regard to the lapse of the term in which the judgment
was rendered. Where this practice obtains, it may be remarked
that the two elements of the statute, the specified causes and the
time limit, are mutually dependent; that is, if the application is
based upon a ground not enumerated in the statute, but otherwise
recognized as sufficient, it is not necessary that it be made within
the statutory time.*®* Again, while unexcused delay will generally
tell against an application of this sort, it is considered that laches
cannot be imputed to a party who takes all the time which the stat-
ute allows him to bring his motion or application.**' Where the
statutory time begins to run from "notice" of the judgment, this is
Whitbeck v. Montana Cent. Ry. Co., 21 Mont. 102, 52 Pac. 1008; Moore t.
Superior Court, 86 Cal. 495, 25 Pac. 22; Brackett t. Banegas, »9 Cat 622.
34 Pac. 344; BunneU & Eno In v. Co. v. Curtis (Idaho) 51 Pac. 767. Bnt tii
C^eorgia, it is held that Code, § 2014a, declaring that all proceedings to set
aside judgments must be had within three years from the rendition of the
Judgment, is merely a statute of limitations, which must be raised at tiie
Uial to be available. Stewart v. Golden. 08 (Ja. 470. 25 S. E. 528.
»» Arlington Manuf g Co. v. Mears, 65 Vt 414, 26 Atl. 587.
100 Milwaukee Mutual Loan & Bidg. Soc. ▼. Jagodzinski, 84 Wis. 35. ^
X. W. 102; Hampton Lumber Co. v. Van Ness, 64 Neb. 185, 74 N. W.
r^7; State v. Tate, 109 Mo. 265, 18 S. W. 1088, 32 Am. St. Rep. 664: Turner
V. Ottawa Circuit Judge, 123 Mich. 617, 82 N. W. 247; Yerkes v. McIIenry.
6 Dak. 5, no N. W. 485.
101 Cowles V. Hayes, 69 N. C. 406; McCloudv. Meehan, 30 Misc. Rep. 67.
62 N. Y. Supp. 852.
102 Independent School Dist v. Schrelner. 46 Iowa, 172; Bozdo v. Vaglio,
10 Wash. 270. 38 Pac. 1042; Wm. Wolff & Co. v. Canadian Pac. Ry. Co., 8»
Cal. 332, 26 Pac. 825. Where the time is limited to a certain number of days,
and the last day is Sunday, the party must present his application or mutiou
on the day previous. Ex parte James, 125 Ala. 119. 28 South. 69.
(474)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 312
construed to liiean knowledge of the rendition of such judgment^
and the notice thereof need not be in writing.*"' And where the
time is limited to one year, it is held that it is not enough that a
motion for relief against the judgment be made within the year,
but it must be brought to a hearing within that time.*"*
§ 312. Judgments against Non-Retldeiitfl*
The statutes in some of the states provide that a non-resident de-
fendant who has been constructively served by publication of sum-
mons, and against whom a judgment is given, may appear and have
the judgment vacated and be admitted to defend the action, at any
time within a limited period after the rendition of the judgment,
which period varies, in the different states, from six months to five
years.*"' And the right thus given entitles the defendant, if he
comes in within the prescribed time, to assert his rights as fully in
every respect as he could have done if personally served before judg-
ment, saving the intervening rights of third persons.*"" And the
right of a defendant, under these statutes, to be let in to a defense
!•» Butler v. Mitchell, 17 Wis. 52; Turner v. Leathern, 84 Wis. 633, 54
X. W. 1001. Notice to the defendanfs attorney of the entry of Judgment
against such defendant is notice to the defendant, within the meaning of
such a statute. Sargent v. Kindred, 5 N. D. 472, 67 N. W. 826. A plain-
tiff will be charged with notice of judgment in his action, entered at a
regular term of the court, as of the time of the entry. Sluder v. Graham, 118
X. C. 835, 23 S. E. 924.
104 Knox V. Clifford, 41 Wis. 458; Nicljlin v. Robertson, 28 Or. 278, 42
Pac. 903, 52 Am. St. Rep. 790; Sargent v. Kindred, 5 N. D. 472, 67 N. W. 826.
io» See Kinney v. O'Bannon's Ex*x, 6 Bush a\y.) 6D2; Blanchard v. Hatch,
32 Mo. 261; Hirsh t. Weisberger, 44 Mo. App. 506; Albright v. Warljentin,
31 Kan. 442, 2 Pac. 614; Davis v. Davis, 24 Tex. 187; Snow v. Hawpe, 22
Tex. 168; Guy v. Ide, 6 Cnl. 99, 65 Am. Dec. 490; Waldo v. Thweatt, 64
Ark. 126, 40 S. W. 782; Scarborough v. Myrick, 47 Neb. 794, 66 N. W. 867;
Norton V. Atchison, T. & S. F. R. Co., 97 Cal. 388, 32 Pac. 452, 33 Am. St.
Rep. 198; Blyth & Fargo Co. v. Swenson, 15 Utah, 345, 49 Pac. 1027. But
in some states, It must be shown, by a preponderance of evidence, that
the defendant had no actual notice of the pendency of the action In time
to appear therein^ and make his defense. Stover v. Hough, 47 Neb. 789,
66 N. W. 825; Roller v. Ried (Tex. Civ. App.) 24 S. W. 655.
lofl Rhodes V. Rhodes, 125 N. C. 191, 34 S. E. 271.
(475) '
§ 813 LAW OF JUDOMBNT8. (Ch. 14
IS an absolute right if he brings himself within the statute; the
court has no discretion in the matter, but must grant his applica-
tion.^"
§ 313. ZiadliM of Party.
Aside from cases in which the time of applying for relief from
the judgment is regulated by statute, and aside from cases in which
the motion can only be made at the same term, we are now to in-
quire how the party's application will be affected by his delay or
want of diligence. And first, delay in moving to have a judgment
vacated, so long as the party has no notice of the judgment or of
the action, will not bar his right, even though innocent strangers
may have taken titles in reliance on the judgment.***' Again, lapse
of time will not aflfect the right to vacate a judgment on the ground
that the court never had jurisdiction to enter it.*** But if the party
actually knows that a judgment has been rendered against him, and
the judgment is not simply and merely void, it is the undoubted
rule that he must exercise reasonable diligence in procuring its va-
cation, and that his unexcused laches or delay, unduly protracted,
will preclude him from obtaining the relief sought.*** "In deciding
107 Albright y. Warkentln, 81 Kan. 442, 2 Pac. 614; FrancoTlz t. Irdand*
35 Minn. 278, 28 N. W. 608; Boeing v. McKinley, 44 Minn. 3^2, 46 X. W.
766. But later cases in Minnesota hold that, while it is presumed that
the defendant has been diligent after recelTlng actual notice of tlie peodencj'
of the action, still this presumption may be rebutted; and that an on-
explained delay of several months in making the appUcation for leare to
defend the action after judgment will justify the court in refusing the
same, though the application is made within the year. Mueller v. McC^uUocb.
59 Minn. 4<.J9, 61 N. W. 455; Cutler v. Button. 51 Minn. 550, 63 N. W. 872. On
the other hand, the court has a discretion to set aside the Judgment and allow
a defense to be made, good cause being shown, although more than a year
may have elapsed since the rendition of the judgment Waite v. Ooaracy, 45
Minn. 159, 47 N. W. 537.
108 Stocking v. Hanson, 35 Minn. 207, 28 N. W. 507; Maury*s Trustee v.
Fitzwater (C. a) 88 Fed. 768; Stoutenborough y. Board of Education, IM
Cal. 664, 38 Pac. 441); Du Bois v. Clark, 12 Colo. App. 220. 55 Pac. 750.
io» Felkert v. Wilson, 38 Minn. 341. 37 N. W. 585.
iioCagger v. Gardner. 1 How. Prac. (X. Y.) 142; Nichols v. Nichols, 10
Wend. (N. Y.) 560; Bliss v. Treadway, 1 How. Prac. (N. Y.) 245; I>e Wan-
delaer v. Ilager, Id. 63; McQuillan y. Hunter, 1 Phila. 49; L« Due t. iUo-
•(476)
Ch. 14) VACATING AND OPENING JUDGMENTS. "§ 313
upon an application to strike out a judgment after the term is past,
for fraud, irregularity, deceit, or surprise, the court acts in the exer-
cise of its quasi-equitable powers, and in every such case requires
the party making the application to act in good faith and with ordi-
nary diligence. Relief will not be granted if he has knowingly ac-
quiesced in the judgment complained of, or has been guilty of laches
or unreasonable delay in seeking his remedy." *^* So far the law
is clear. But the moment we endeavor to ascertain what laches or
delay will bar this right, we are involved in a sea of difficulties which
invariably overflows the attempt to define "diligence" or "reasonable
time." It is impossible to lay down general rules. Every case
must be governed by its own facts and the decisions in the particular
state. It may be profitable, however, to mention some of the prin-
cipal cases in which the question has actually been decided. And to
begin with the clearest, — "after the lapse of twenty years no judicial
proceeding whatever ought to be set aside for irregularity." *** In
another case in the same state, where fourteen years had elapsed
since the entry of judgment, and no satisfactory excuse or reason
for the delay was shown, the motion was held properly denied on
the ground of laches.^*' It is also held that an unexplained delay
comb, 124 N. C. 347, 32 S. E. 726; Camp v. Phinips, 88 Ga. 415, 14 S. K.
580; Knauber v. WatsoD, 50 Kan. 702, 32 Pae. 349; Ammerman y. State,
98 Ind. 165; Ryder v. Twlss, 3 Scam. (lU.) 4; l^lscher v. Stlefel, 179 111.
59. 53 N. E. 407; Barrett v. Queen City Cycle Co., 179 lU. 68, 53 N. E. 550;
Altmann v. Gabriel, 28 Minn. 132, 9 N. V^. 633; Seibert v. Minneapolis & St.
L. Ry. Co., 58 Minn. 72, 59 N. W. 828; Sanderson v. Dox, C Wis. 164; Welch
V. May, 14 Wis. 200; JEtna Ins. Co. v. McCormick, 20 Wis. 2S5; Landon v.
Bnrke, 33 Wis. 452; Reese v. Mahoney, 21 Cal. 305; Wm. Wolff & Co. v.
Canadian Pac. Ry. Co., 123 C^l. 535, 56 Pac. 453; Clark v. l*erry, 17 Colp.
56, 28 Pac. 329. Mere delay in moving to have a judgment vacated will not
preclnde relief as against a party who knew of defendant's equities, and who,
being obliged to pay the Judgment, took an assignment of it. Vilas v. Platts-
burgh & M. R. Co., 123 N. Y. 440, 25 N. E. 941, 9 L. R. A. 844, 20 Am. St
Bep. 771. The rule of diligence In making application to set aside a default
does not control the subsequent proceedings. If the motion is filed in due
time. It may be heard at such time as the court may direct Wm. Wolff &
Co. v. Canadian Pac. Ry. Co., 123 Cal. 535, 56 Pac. 453.
111 McCormick v. Hogan, 48 Md. 404.
112 Thompson v. Skinner, 7 Johns. (N. Y.) 556.
118 Wade Y. De Leyer, 40 N. Y. Super. Ct 641.
(477)
§313 LAW OF JUDGMENTS. (Ch. 14
of seven years,^** or five years,^*' or two years/** or seventeen
months,**^ or one year/" or eleven months,"* will be sufficient
to justify the court in refusing the relief asked. Where an applica-
tion to have a decree of divorce set aside was not made until the
lapse of more than four years after the plaintiflf had been fully in-
formed of the alleged fraudulent decree, and no excuse was shown
for the delay other than that proceedings to review the decree had
been instituted, and an action brought to set it aside in another
court, it was held that the plaintiflf's right was barred.*** On the
other hand, it is held in Pennsylvania that a nonsuit may properly
be taken off even three years after its entry, where cause for its re-
moval appears; such action lies within the sound discretion of the
court, and is not reviewable by writ of error.*** The case is slightly
different where a judgment has been irregularly entered against an
infant. The question here is, what time should reasonably be al-
ii ^Reeee y. Mahoney, 21 Gal. 305. Or six years. De Camp v. Bates
<Tex. Civ. App.) 37 S. W. 644; Tooker v. Booth, 7 Mtec. Kep, 421, ZI N. Y.
Supp. 974.
iiBBostwlck v. Perkins, 4 Ga. 47; In re Markle's Estate, 187 Pa. 639, 41
Atl. 304; Van Arsdale v. King, 87 Hun, 617, 33 N. Y. Supp 858; Dnun-
mond v. Matthews (N. Y.) 17 N. Y. Supp. 726. Or four years. Case y.
Case, 137 Ind. 526, 37 N. E. 337; Bowling y. Blum CTex. dr. App.) 52 S.
W. 97.
lie People y. Judges, 1 Doug. (Mich.) 417; Wygant v. Brown, 7 N. Y. Supp.
490; In re Gilman's Estate (N. Y.) 17 X. Y. Supp. 494.
117 Ammerman y. State, 98 Ind. 165. And see, for cases in which a delay
of 14 or 15 months was held too long. City of Duluth y. Dibblee, 62 Minn.
18, 63 N. W. 1117; Denton y. Merchants* Nat. Bank, 18 Wash. 387, 51 Pac.
473; Jones y. Jones, 71 Hun, 519, 24 N. Y. Supp. 1031.
116 Sanderson y. Dox, 6 Wis. 164; In re Mutual Benefit Oo., 190 Pa. 355.
42 Atl. 706.
119 Altmann y. Gabriel, 28 Minn. 132, 9 N. W. 633.
120 Nicholson y. Nicholson, 113 Ind. 131, 15 N. E. 223.
121 Zebley y. Storey, 8 Wkly. Notes Cas. 212. And see Lyons ▼. Ureeo.
68 Ark. 205, 56 S. W. 1075. An application to open a default made In
good faith, and showing a meritorious defense, should not be denied for laches
where made within two months of the entry of Judgment. Lorzln^ y. Eis-
enberg, 5 Misc. Rep. 358, 25 N. Y. Supp. 750. But, on the other hand, a
motion to open a default, made 19 days after the denial of two former
motions, was held properly denied where no excuse or reason was giTen
why the ground therefor was not sooner presented to the court. Ellis y.
Bonner, 7 Tex. Civ. App. 539, 27 S. W. (W7.
(478)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 314
lowed to him, after he comes of age, in which to take proceedings
against the judgment. It has been held that six years is an undue
delay.^*' And in a New York case it was said that there must be a
limitation to the time when such a motion could be made, and the
old limitation of two years, after attaining his majority, was suffi-
ciently liberal and would prevail.^^* In California, it is considered
that ten days after a judgment is entered in the superior court, which
has no terms, is a reasonable time within which to move to set aside
such judgment.^**'
Part IV. The Parties who may Apply.
i 314. SnooeMfvl Party mmj Apply.
The courts have power, in a proper case, to set aside a judgment
at the instance of the party in whose favor it is rendered.^** The
propriety and necessity of this rule are obvious. For the plaintiff's
rights may be compromised, or not adequately recognized or pro-
tected, by the judgment as it stands, and without his own fault. If
there are such irregularities in the judgment that he would be pre-
vented from reaping its fruits, or if an excusable mistake has put
him upon a wrong course of proceedings, or if the fraud or trickery
of the defendant has prevented him from getting the full measure of
relief to which he is entitled, it is but right to vacate the judgment
Its Kemp T. Cook, 18 Md. 130, 79 Am. Dec. G81.
i«» Barnes v. GIU, 13 Abb, Prac. (N. S.) 1G9.
it4 In re Langan's Estate, 74 Cal. 353, 16 Pac. 188.
i*5Herdlc v. Woodward, 75 Pa. 479; Downing v. Still, 43 Mo. 309; Graef
T. Bernard, 7 Misc. Rep. 246, 27 N. Y. Supp. 263; McCredy v. Woodcock. 41
App. Div. 626, 58 N. Y. Supp. 656. See Porter v. Orient Ins. CJo.. 72 Conn. 519,
46 AtL 7. Where a plaintiff has suffered a default. In consequence of acci-
dent, mistake, or excusable neglect, or by reason of the negligence or misun-
derstanding of his counsel, and thereupon a Judgment for affirmative relief
has been rendered in favor of the defendant, it may be set aside on plaintiff's
motion and a new trial granted, for the plaintiff's situation should be gov-
emed by the same rules which are applicable to defaults of defendants.
Trueheart v. Simpson (Tex. Oiv. App.) 24 S. W. 842. But where defendant is
satisfied with an Interlocutory Judgment rendered against him in an action,
the Judgment will not be vacated on plaintiff's motion, based merely on the
ground that defendant's time to answer had not expired. Havemeyer y.
Brooklyn Sugar Refining Co., 26 Abb. N. C. 157, 13 N. Y. Supp. 873.
(479)
§ 316 LAW OP JUDOMBNTS. (Ch. 14
on his motion, and afford him the opportunity to proceed anew with
a more just and satisfactory result.
I 315. Joint BefeAdantg.
Where a judgment is rendered against several defendants jointly,
but is irregular or void as to one of them, — as for want of authority
or want of jurisdiction over him, — it will be vacated on the applica-
tion of that defendant.^*' So where an attorney confesses judg-
ment against several partners, under an authority derived from only
one, it is the duty of the others to make prompt application to the
court to open the judgment.^*^ Whether, in such a case, it would
be deemed necessary to vacate the judgment as to all the defend-
ants, or only as to the moving defendant, would depend somewhat
upon the nature of the cause of action, but principally upon whether
or not, in the particular jurisdiction, a joint judgment is considered
as an entirety, — a question which will be found fully treated in an-
other connection.* *•
I 316. liesal ReprefeiitatiT«f of Party.
Some of the statutes on this subject provide that when a judg-
ment by default is taken on constructive service by publication, the
defendant "or any person legally representing him" (or "his legal
representatives"), may apply, within a limited time, to have it opened
and the case retried ; and others give the courts power to relieve a
party, or his "legal representatives" from a judgment taken ag^ainst
126 St. John V. Holmee, 20 Wend. (N. Y.) 600, 32 Am. Dec. 603; Frtoks v.
Lockey, 45 Vt 395; Fall v. Evans. 20 Ind. 210; Drobam Y. Norton, 1 Mtec.
Rep. 486. 21 N. Y. Supp. 579; First Nat. Bank v. WiUiams, 126 Ind. 423. 26
N. E. 75; Slkes v. Weatherly, 110 N. C. 131, 14 S. E. 511; Reinhart ▼. Lugo*
86 Cal. 395, 24 Pac. 1089, 21 Am. St. Rep. 52; Stewart y. Parsons, 5 N. D. 273*
65 N. W. 672; Morse v. Callantine. 19 Mont 87. 47 Pac. 685.
127 Cyphert v. McClune, 22 Pa. 195.
12S Supra, § 211. And see Furman y. Furman, 153 N. Y. 309, 47 N. B. 877,
60 Am. St. Re)). 629; Calvert Y. Ash, 47 W. Va. 480, 35 S. R 887; Reynolds ▼.
Barnard, 36 111. App. 218; Gould y. Sternburg, 69 III. 531; C3ay y. Hildebfand,
44 Kan. 481, 24 Pac. 962; Steele y. Duncan, 47 Kan. 511, 28 Pac. 206; Xardn
Y. Baugh. 1 Ind. App. 20, 27 N. E. 110; Neenan y. City of St. Joseph, 126 Mcl
89, 28 S. W. 963; Boyd Y. Hanson, 56 Neb. 269, 76 N. W. 658L
(480)
Cb. 14) VACATING AND OPENING JUDGMENTS. § 3l7
him through his mistake, inadvertence, surprise, or excusable neg-
lect. Under this clause it is held that one who was not a party to
the proceeding in which the judgment was rendered, and who ap-
pears in his own right, is not entitled to have the judgment set
aside.*** But parties who have acquired the entire interest of a
defendant in the subject-matter of an action are his "legal repre-
sentatives" within the meaning of such clause, and the court may,
upon such terms as may be just, relieve them from a default taken
against him through their mistake, inadvertence, surprise, or ex-
cusable neglect.*'*^ And if a motion is made by persons other than
the plaintiff, claiming to be his legal representatives, to set aside a
judgment and to be substituted as plaintiffs, the parties making such
motion must show a state of facts which would have supported such
an application by the plaintiff in the judgment.*'* Without doubt
the phrase above used is broad enough to include the executor or
administrator of a deceased party if a proper case for his interven-
tion should arise.*'*
S 317. Stransera.
As a general rule, a judgment will not be vacated or set aside at
the motion of a third person, not a party to the action.*" It will
"» Parsons v. Johnson, 66 Iowa, 455, 23 N. W. 921.
i»o piummer y. Brown, 64 Cal. 420, 1 Pac. 703; Malone v. Big Flat Gravel
Min. Co., 96 Cal. 384, 28 Pac. 1063; Thomas v. Morris, 8 Utah, 284, 31 Pac.
446. Compare Mueller v. Beimer, 46 Minn. 314, 48 N. W. 1120. The grantee
in a deed purporting to convey land then in possession of defendant, under a
judgment in favor of defendant against the grantor, rendered in an action to
which such grantee was not a party, cannot sue to set aside the judgment.
Whitney v. Kelley, 94 Cal. 146. 29 Pac. 624, 15 L. B. A. 813, 28 Am. St Bep.
106. And one purchasing land subject to the lien of a judgment cannot, in
Pennsylv^pia, have the judgment vacated for mere irregularities. Milleisen
y. Senseman, 4 Pa. Super. Ct. 455.
i«i Corwln V. Bensley, 43 Oal. 253.
1S3 The administrator of one against whom judgment on an unsealed judg-
ment note has been entered may have the judgment opened and interpose the
defense of the statute of limitations. DiclE v. Mahoney, 21 Pa. Co. Ct B. 241.
As to the right of heirs to move for the vacation of a judgment talcen by de-
fault against their ancestor after his death, see Nlcholes v. City of Chicago,
184 ni. 43, 56 N. E. 351.
i»» Oosgrove v. United States. 33 Ct CI. 167; Drexel's Appeal, 6 Pa. 272;
In re Rowland's Estate, 4 Clarke CTa.) 190; Gaehring v. Haedrich, 8 Pa.
1 LAW JUDG.-^l USI)
§ 317 LAW OF JUDGMENTS. (Ch. i4
be remembered that such persons have the right to impeach a judg-
ment collaterally, whenever and wherever it comes in conflict with
their rights, if it was founded in fraud and collusion.*** And this
will generally be an adequate protection to them. But there may
be cases in which right and equity require that other persons should
have the privilege of proceeding directly for the annulment of a
judgment which fraudulently abridges their own rights or remedies.
Accordingly the rule is stated that persons who were strangers to
the record will have a standing to apply for the vacation of the judg-
ment when the same was obtained by fraud or collusion, and they
bear such a relation thereto, or to the subject-matter of the case,
that their rights may be affected.*" An invalid judgment by con-
fession may be set aside at the instance of a junior judgment-creditor
after notice to the plaintiff.**' And if the purpose of a creditor in ob-
taining a judgment is not to collect his debt, but to help the debtor
cover up his property, his judgment will be set aside, though it be
Super. Gt. 507; Robinson v. Stevens* Adm*r, 63 Vt. 555, 22 AU. 80; Smith t.
City of Neiftbem, 73 N. C. 303; Hinsdale v. Hawley, 89 N. C. 87; Walton
V. Walton, 80 N. C. 26; Jacobs v. Bur^rwyn, 63 N. C. 196; Uzzle v. Vinaon, 111
X. C. 138, 16 S. E. 0; McGhee v. Romatka, 18 Tex. Olv. App. 436, 44 & W.
700; 8. c, 47 S. W. 282; Indianapolis, D. & W. Ry. Oo. v. Crockett, 2 Ind.
App. 13G, 28 N. E. 222; Ex parte McKenzle, 162 HI. 48, 44 N. E. 413; Packard
V. Smith, 9 Wis. 184.
i«* See supra, H 293-295.
186 Covey V. Wheeler. 23 Pa. Co. Ct R. 467; BretteU ▼. Deffebach, 6 S. D.
21, 60 N. W. 167. Thus, where Judgment in an action against a municipal
corporation is entered by collusion between plaintiff and one of defendant's
officers, the court may, on the proper application of another officer, set the
Judgment aside and allow an answer on the merits to be interposed. Stunu
V. School District 45 Minn. 88, 47 N. W. 462; Lowber v. Mayor of New York.
26 Barb. (N. Y.) 262. Or the judgment in such a case may be set aside at the
suit of tax-payers of the municipality. Kane & Co. v. Independent School
District, 82 Iowa, 5, 47 N. W. 1076. Again, bondholders secured b/a raUroad
mortgage, who were not parties to an action by other bondholders to forecliKse
the mortgage, may sue to set aside the proceedings in such action on the
ground that it was not a representative action, but was fmadulently brought
Stevens v. Central Nat. Bank, 144 N. Y. 50, 39 N. E. 68. Where a sheriff, in-
demnified as to property levied on, makes wilful default in replevin, so that
Judgment is taken against him, the default may be set aside on motion of the
Indemnitor. Jakobi v. Gorman, 2 Misc. Rep. 190, 21 N. Y. Supp. 762.
i«« Bernard v, Douglas, 10 Iowa, 37a
(482)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 318
shown that this debt was genuine.^ *^ So where a husband gives a
mortgage, and suffers judgment on it, purposely, to defeat the wife of
her dower, and the mortgagee has constructive notice of her rights,
she may intervene and have a rule to open the judgment and let her
in to defend to the extent of her dower.*'* It is also proper to vacate
a judgment against an administrator, at the instance of the heirs, when
the former's conduct has been so negHgent as to leave the latter no
other remedy and there is a good defense not presented by the defend-
ant*'* And the proper financial officer of a municipal corporation may
move to vacate a judgment against it procured by the fraud or collu-
sion of the other officers.*** In New York, when a judgment-creditor
seeks by motion to set aside a prior judgment on the ground of
fraud, it is within the discretion of the trial-court whether to de-
termine the matter on motion, or to require the creditor to bring
an action, and its determination is not appealable.***
Part V. What Judgments may be Vacated,
S 318. General Rule.
In general, the equitable power of the courts now under consider-
ation is unlimited in respect to the judgments, rules, orders, and
decrees upon which it may be exercised. At first sight, it might
« appear inconsistent to speak of setting aside a judgment which is a
mere nullity. Yet the courts hold that even though the judgment
be entirely void, the party against whom it exists has 'the right to
have it vacated, and thus clear away any cloud that it may cast upon
his right to alienate his property so long as it remains of record
against him.*** The power is most commonly exercised in cases
■
i»T Smith V. Schwed (C. C.) 9 Fed. 483. See Moore v. Dunn, 147 Pa. 8o9, 23
Ati. 50G.
i3« McChirg V. Schwartz, 87 Pa. 521.
i3» McWiUie V. Martin, 25 Ark. 55G. See Pierce v. Pi-obate Court. 19 R. I.
472, 34 Ati. 902.
i4« Lowber v. Mayor of New York, 26 Barb. (N. Y.) 262,
141 Boards v. Wheeler, 76 N. Y. 213.
i« Crane v. Barry, 47 Ga. 476; Mills v. Dickson, 6 Rich. Law (S. C.) 487;
n.reman v. Carter, 9 Kan. 674; Ilervey v. EdniuDds, 68 N. C. ^3; City of
< Miuy V. Harvey. ."lO ill. 4^,3, 99 Am. Dec. 530; Phoenix Bridge Co. v. Street, 9
Ukl. 422, 60 Pac. 221.
(483)
I 819 LAW OF JUDGMENTS. (Ch. 14
of judgments entered by default/*' but it is equally applicable, proper
grounds being shown, to such as are rendered upon trial and ver-
dict.*** Relief may be granted in this manner against judgments by
confession,*** and against probate orders and decrees/** and final
settlements of administrators and trustees.**^ Under the code prac-
tice, on a motion to vacate a judgment in an equitable action, the
same rules should be applied as in case of other judgments.*** A
rule absolute against a sheriff is not final and conclusive like a judge-
ment between parties litigant ; it may be vacated on motion at the
same or a subsequent term.***
i 319* CoBflent Judgm^ntm,
A court has power to vacate and set aside a consent judgment on
the ground of fraud, mutual mistake, or surprise, but it cannot alter
or correct it, except with the consent of all the parties affected by
it.*"® And where, in compromise of a claim, judgment has been
148 It is said that the laws relating to the opening of Judgments by default
should be liberally constraed, in order that cases may be disposed of on tbeir
merits. Turner v. Coughran, 8 a D. 419, 66 N. W. 810. In PennsylTanUi,
there is no authority for a rule to open a Judgment of nonsuit, such a Judg-
ment not being within the meaning of the statutes; but the proper and only
practice is to apply to the court to take off the nonsuit. Harvey t. FoUock*
148 Pa. 534, 23 Atl. 1127.
i4« But in North Oarolina, it is said that the statute authorizing the courts'
to relieve a party from a Judgment taken against him through his mistake,
surprise, inadvertence, or excusable neglect, has no appUcatlon where the
Judgment is entered on a verdict, as the verdict would stand even If the
Judgment were set aside, and the relief would therefore be worthless if grant-
ed. Flowers v. Alford, 111 N. C. 248, 16 S. E. 319; Brown v. Bhinehart, 112
N. C. 772, 16 S. E. 840.
i«c Hutchinson v. Ledlie, 36 Pa. 112; Goerg^ v. Schmidt, 69 m. App. 53S.
i«« Whltaker v. Smith, 33 Ga. 237; Hirshfeld v. Brown (Tex. Civ. App.) 00
S. W. 962; Kalteyer v. Wipff, 92 Tex. 673, 52 S. W. 63.
14T Sheetz V. Klrtley, 62 Mo. 417.
148 Mtna, Life Ins. Go. v. McCormick, 20 Wis. 266.
i4» Wakefield v. Moore, 65 Ga. 268.
150 Kerchner v. McEachem, 98 N. C. 447; Stump v. Long, 84 N. C 616;
Deaver v. Jones. 114 N. C. 649. 19 S. E. 637; Morris' Adm'r v. Peyton's Adm'r.
29 W. Va. 201, 11 S. E. 954; Oolwell v. Wehrly, 150 Pa. 523. 24 AU. 737;
Splehler v. Aslel, 83 Hun, 223, 31 N. Y. Supp. 584; Atchison, T. & S. P. R.
Co. V. Elder, 149 Ul. 173, 36 N. B. 565; Stites v. McGee. 37 Or. 574, 61 Pao.
1129.
(484)
Ch. 14) VACATING AND OPENING JUDGMENTS. § S20
rendered against the defendant with his consent, he cannot, in the
absence of proof of fraud, have it vacated on the ground that he
acted on the erroneous advice of counsel.*"* So, a judgment regu-
larly entered pursuant to an agreement of the attorneys, filed in the
case, cannot be opened, after final adjournment of the term, on the
ground that the agreement was not authorized.* °*
S 380. Jvdsnentf in DiToroe.
It was the dotrine and rule of the ecclesiastical courts in England
that "sententia contra matrimonium nunquam transit in rem judi-
catam." ^^^ That is to say that a sentence or judgment against the
validity of a marriage, — either annulling a merely voidable marriage,
or declaring that a pretended marriage was absolutely void, — was
never final, but was forever open to revision and reversal.**^* Never-
theless this maxim was not universally assented to, for we find oc-
casional expressions of a contrary opinion on the part of eminent
ecclesiastical judges.***^ Now in this country, there are several cases
holding that the statutes which authorize courts to ppen judgments
or decrees within a certain time after their rendition, on proper ap-
plication, where there was no other service than that by publication,
or on other specified grounds, do not include decrees of divorce;
proceeding generally on the theory that policy requires judgments
of this character to be regarded as more stable and unassailable than
any other species.* *• There are undoubtedly excellent reasons for
i»i Anderson t. Carr, 54 Hun, 634, 7 N. Y. Supp. 281. A voluntary settle-
ment of a usurious loan by a debtor, and a confession of Judgment by him
for the amount, will not bar him from subsequently having the Judgment
opened so as to enable him to set up the defense of usury. Marr v. Marr,
110 Pa. 60, 20 Ati. 592.
152 Craven v. Canadian Pacific R. Co. (C. C.) 62 Fed. 170; Jacobs v. Kast-
holm. 33 lU. App. 164. See Smith v. Wilson, 87 Wis. 14, 57 N. W. 1115.
i5« Kenn*s Case, 7 Coke, 43b.
i5*Bowzer v. Ricketts, 1 Hagg. Consist. 213; Morris v. Webber, 2 Leon.
109; Meadows v. Duchess of Kingston, Amb. 756; Poynt. Mar. & Dlv. 157;
Shelf. Mar. & Div. 474; 2 Bish. Mar. & Dlv. §§ 748 et seq., where all the
learning on this point Is collected.
i»8 Norton v. Seaton, 3 Phlllim. Ecc. .Tudgm. 162; Meadowcroft v. Huguenin,
8 Curt. 403; Prudam v. Pliillips, 2 Amb. 703.
!»• Parish V. Parish, 9 Ohio St 534, 75 Am. Dec. 482; Cox v. Cox, 19 Ohio
(485)
§ 320 LAW OF JUDGMENTS. (Ch. 14
this distinction.*^^ And it has at times seemed so important to leg-
islative bodies as to cause the enactment of clauses explicitly except-
ing adjudications in divorce from the operation of such statutes, as
will appear from the cases just cited. But unless such decrees are
thus specifically withdrawn from the general class, it is difficult to
see how they can be considered as an exception to the terms of a
statute plainly extending to all judgments, on any right principles
of interpretation.*"* And aside from legislation, the courts will gen-
erally hear motions to vacate divorce judgments on the same grounds
and conditions as any other judgments, except, perhaps, that they
proceed with greater caution and with more anxious care for the
intervening rights of strangers. Thus, where a decree of divorce
has been obtained by fraud or deceit, — as where the complainant
has practised fraud or trickery to prevent the defendant from having
notice of the suit, or from appearing in the action, or from answer-
ing and defending the same, — ^the innocent party, thus deceived, may
undoubtedly obtain the opening or vacating of the decree, by mak-
St. 502, 2 Am. Rep. 415; Owens v. Sims, 3 Cold. (Tenn.) 544; McJunkln t.
McJunkin, 3 Ind. 30; WooUey v. Woolley, 12 Ind. 663; Lewis v. Lewiii. 15
Kan. 181; O'Connell v. O'Connell, 10 Neb. 390, 6 N. W. 467*; GUruth v. GUruth.
20 Iowa, 225; Whltcomb v. Whitcomb, 46 Iowa, 437; Moster y. Moster, 53
Mo. 326; Tappan v. Tappan, 6'01ilo St 64.
167 "There are excellent reasons why Judgments in matrimonial causes,
whether of nullity or divorce, should be even more stable, certainly not less.
than in others. The matrimonial status of the parties draws with and after
it so many collateral rights and interests of third persons, that uncertainty
and fluctuation in it must be greatly detrimental to the public interests. And
especially to an innocent person who has contracted a marriage on faith of
the decree of the court, the calamity of having the decree reversed and the
marriage made void is past estimation." 2 Bish. Mar. & Div. S 750. **The
statutory provision is nothing more than a legislative recognition of the prin-
ciple of public policy, which had been repeatedly aflirmed by the courts, that
a Judgment or decree which affects directly the status of married persons
by sundering the matrimonial tie, and thereby enabling them to contract new
matrimonial relations with other and innocent persons, should never be re-
opened. Such a course would endanger the peace and good order of society,
and the happiness and well-being of those who. innocently relying upon the
stability of a decree of a court of competent Jurisdiction, have formed a con-
nection with the person who, wrongfully perhaps, procured its promulgation.'*
Parish v. Parish, 9 Ohio St. 537.
iB« LawTence v. Lawrence, 73 111. 577; Smith v. Smith. 20 Mo. 166; Medina
V. Medina, 22 Colo. 146, 43 Pac. 1001; Walrad v. Wairad, 55 lit App. Ulfflw
(486)
Ch. 14) VACATING AND OPENING JUDGMENTS. J 320a
ing a timely and proper application and showing good cause.*"* And
this is especially the case where both parties to be affected by the
vacation of the judgment have been parties to the fraud.*'* So also
it is well settled that a decree of divorce may be vacated which is
void for want of jurisdiction in the court which rendered it.*®* But a
decree will not be vacated because, since the decree, the petitioner
has been made, by a change in the law, an admissible witness to
testify to his own innocence.***
I 320a« Adjndioatioiif in Bankruptcy.
An adjudication in bankruptcy, like other judgments, may be va-
cated or set aside by the court which rendered it, upon a motion
made in due season by a competent party and based upon adequate
cause. As to the parties who may move in this behalf, it is of course
the right of an involuntary bankrupt to ask for the vacation of an
adjudication against him. But where the adjudication passed by
default, it will not be opened to allow the bankrupt to file an answer
and contest the petition, where the answer proposed does not deny
the act of bankruptcy charged, but merely denies that the petitioners
are creditors, or denies that they are sufficient in number or
amount.**' Again, any creditor, whether he has proved his debt in
bankruptcy or not, may move to set aside an adjudication of his
debtor'as a bankrupt, whenever such adjudication injuriously aflfects
1B9 Holmes v. Holmes, 63 Me. 420; Adams v. Adams, 51 N. H. 388, 12
Am. Rep. 134; Carley v. Carley, 7 Gray (Mass.) 545; Edson v. Edson, 108
Mass. 590, 11 Am. Rep. 393; Allen v. Maclellan, 12 Pa. 328, 51 Am. Dec.
008; Gechter v. Gechter, 51 Md. 187; Rawlins v. Rawlins, 18 Fla. 345; Whlt-
comb v. Whitcomb, 46 Iowa, 437; Rush v. Rush, 46 Iowa, 049, 26 Am. Rep.
179; Mansfield v. Mansfield, 26 Mo. 163; Johnson v. Coleman, 23 Wis. 452,
99 Am. Dec. 193; Crouch v. Crouch, 30 Wis. 667; True v. True, 6 Minn. 458
t(5U. 315); Young v. Young, 17 Minn. 181 (Gil. 153); Singer v. Singer, 41 Barb.
(X. Y.) 139; Klaes v. Klaes, 103 Iowa, 689, 72 N. W. 777; Magowan y. Mag-
owan, 57 N. J. £q. 195, 39 Atl. 364.
leo Denton v. Denton, 41 How. Prac. (N. Y.) 221.
!•! Holmes ▼. Holmes, 63 Me. 420; Edson v. Edson, 108 Mass. 590, 11
Am. Rep. 398; True v. True, 6 Minn. 458 (Gil. 315); Wortman v. Wortman,
17 Abb. Prac. (N. Y.) 06; AUen v. Maclellan, 12 l*a. 328, 51 -4jn. Dec. 608:
Crouch V. Crouch, 30 Wis. 667; Weatherbee y, Weatherbee, 20 Wis. 499.
!•> Holbrook v. Holbrook, 114 Mass. 568.
i«f In re Le Favour, 8 Ben. 43, Fed. Cas. No. 8,208.
(487)
§ 320a LAW OF JUDOMENT3. (Ch. 14
his interests.^'* Such a motion, for example, may be made by an
attaching creditor whose lien will be dissolved by the adjudication,** •
or by the receiver of a bankrupt corporation, appointed under the
laws of the state.^**
Any person seeking to have an adjudication in bankruptcy vacated
or set aside must make his application therefor with due diligence
and promptness upon being informed of the facts; if he delays for
so long a time as to be chargeable with laches, his motion will not
prevail, more especially where the rights of others have meanwhile
become fixed.^*^ Notice must be given to the bankrupt of an appli-
cation to annul the adjudication in an involuntary proceeding, as the
bankrupt has an interest in the continuance of the proceeding which
may result in his discharge.^®* As to the grounds which will justify
the court in revoking the order of adjudication, it may be stated that
such a course is warranted by proof of fraud and collusion between
the bankrupt and the petitioning creditors,^** or where the adjudica-
tion was made upon a waiver by the attorney of the alleged bankrupt
of important rights of his client,*'^ or even upon proof of the assent
of all known creditors that the adjudication may be vacated and pub-
lication of the notice of the application for the annulment*^* It is
also held that the court of bankruptcy may open its order of adjudi-
16^ In re Derby, 6 Ben. 232, Fed. Cas. No. 3,815. But, to be entitled to
move for the vacation of the adjudication, the creditor must own a isrovable
debt or claim against the banl^rupt. In re Columbia Real Estate Co. (D.
C.) 101 Fed. 965. But It Is said that when such a motion Is based on a
want of jurisdiction, It may be made by a stranger to the proceedings,
appearing as amicus curise. Id.
i«6In re Donnelly (D. C.) 5 Fed. 783; In re Bergeron, 12 N. B. U. 38Sw
Fed. Cas. No. 1,342.
166 In re Atlantic Mutual Life Ins. Co., 9 Ben. 270, Fed. Cas. No. ($28.
i«T In re Meade, 19 N. B. R. 335, Fed. Cas. No. 9,370; in re Republic Ins.
Co., 8 N. B. R. 317, Fed. Cas. No. 11,706; In re Neilson, 7 N. B. R. 505,
Fed. Cas. No. 10,090; In re Court, 17 N. B. R. 555, Fed. Cas. No, 3,281;
In re Thomas, 11 N. B. R. 330, Fed. Cas. No. 13.891; In re Lalor, 19 N.
B. R. 253, Fed. Cas. No. 8,001; In re Groome (D. C.) 1 Fed. 4(H; In re
Peun, 4 Ben. 99, Fed. Cas. No. 10,926; In re Baltimore County Dairy Ass'n,
2 Hughes, 250, Fed. Cas. No. 828.
i«8 In re Bush, 6 N. B. R. 179, Fed. Cas. No. 2,222.
io» In re Lalor, 19 N. B. R. 253, Fed. Cas. No. 8.001.
1 TO In re Republic Ins. Co., 8 N. B. R. 317, Fed. Cas. No. 11,700.
iTi In re Magee, Fed. Cas. No. 8,941.
(48.S)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 321
cation and grant a re-hearing in case of newly discovered evidence.*^*
But, generally speaking, an adjudication in bankruptcy made upon
due service of process, is final and will not be set aside on motion
of the bankrupt, or of creditors, or of both, disputing the allegations
of the petition, when no fraud or collusion is shown and they merely
desire to retry the case.*^' The earlier cases held that the question
of jurisdiction could not be raised on a motion to vacate the adjudi-
cation, creditors having an opportunity to dispute the jurisdiction
when an application for discharge should be made.^^* But the later
authorities favor the rule that an alleged want of jurisdiction is a
question which the court should consider whenever and however it
is raised.^^'
A discharge in bankruptcy may be revoked or vacated when it is
made to appear that it was procured by the fraud of the bankrupt.^ ^*
This action can be taken only by the court which granted the dis-
charge ; the authority conferred by the bankruptcy law upon the fed-
eral courts, in that behalf, is incompatible with the exercise of a like
power by any state court.*^^
Part VI. Grounds for Vacating Judgments.
S 321. Trmud and Collnfion.
The power to set aside judgments for fraud or collusion, though
expressly granted by statute in many of the states, is not dependent
upon legislative recognition. It is a common law power, inherent in
all courts of record, and may be exercised after the expiration of the
term at which the judgment was rendered, on the application of the
party injured.*'® It is specifically regulated in some of the states,
172 In re Great Western Tel. Co., 5 Biss. 359, Fed. Cas. No. 5,73».
172 In re McKinley, 7 Ben. 562, Fed. Cas. Xo. 8,8t>i.
174 In re Penn, 4 Ben. 99, Fed. Cas. No. 10,926; In re Harris, 6 Ben. 375,
Fed. Cas. No. 6,111.
17 8 In re Columbia Real Estate Co. (D. C.) 101 Fed. 965. See In re Kindt
<D. C.) 98 Fed. 867.
176 Bankruptcy Act 1808, § 15; In re Dletz (D. C.) 97 Fed. 5G3; In re Augen-.
«teln, 2 MacArthur (D. C.) 322; Coates v. Blush, 1 Cush. (Mass.) 564.
177 Corey v. Ripley, 57 Me. 69, 2 Am. Rep. 19.
"8 Taylor r. Slndall, 34 Md. 38; Humphreys v. Kawn, 8 Watts (Pa.) 78;
(489)
§ 321 LAW OP JUDGMENTS. (Cb. 14
by laws which give the courts power to vacate judgments on the
ground of "fraud practised by the successful party." *^* In some
jurisdictions, it is thought that, when a judgment is attacked and
sought to be set aside on the ground of fraud, it must appear that
the fraud was practised in the very act of obtaining the judgment;
for any fraud anterior to that is a defense available at law and there-
fore concluded by the judgment.**® But this rule should not be
taken without qualifications. For there may well be cases of fraud
in the cause of action, or in the manner of procuring the instrument
in suit, where the courts would not withhold relief on motion; as,
where the complainant was kept in ignorance of the fraud until it
was too late for him to plead it in defense and could not have discov-
ered it by due diligence, or where he was fraudulently prevented
from setting it up at the proper time.*** One of the strongest
grounds on which to base an application for the vacation of a judge-
ment is fraud practised upon the court in its procurement ; as, where
the court is deceived or misled as to material circumstances, or its
process is abused, resulting in the rendition of a judgment which
Mayberry v. McClurg, 51 Mo. 256; Melick v. First Nat. Bank, 52 Iowa, ^ 2 N.
W. 1021; Oonn's lessee v. Whiteside, 6 Humph. (Teim.) 47; In re Fisber. 15
Wis. 511; Farrow v. Dial, 1 McMul. (S. 0.) 2tt2, 3tt Am. Dec. 2«7.
170 Code Iowa, S 3154; Manning v. Nelson, 107 Iowa, 34, 77 N. W. 503;
2 Ballinger's Ann. Codes & St. Wash. § 5153, subd. 4; McDougaU ▼. Wallinic,
21 Wash. 478, 58 Pae. 669, 75 Am. St. Rep. 84U; Mansf. Dig. Ark. S 3SIW.
subd. 4. In some states, a Judgment may be vacated for fraud, accident, or
mistake, unmixed with the negligence or fault of the complaining party, by-
decree in chancery, or In a court of law by an independent action, wltti
appropriate pleadings, but cannot be set aside on either of these grounds on
motion. Dugan v. McGlann, 60 Ga. 353; Syme v. Trice, »6 N. C. 243, 1
S. B. 480.
180 zellerbach v. AUenberg, 67 Gal. 296, 7 Pac. 908; Fears v. KUey, 14H
Mo. 49, 49 S. W. 836.
181 See Furman v. Furman, 153 N. Y. 309, 47 N. E. 577, 60 Am. 8t. Rep,
029; Bates v. Hamilton, 144 Mo. 1, 45 S. W. 641, 66 Am. St. Kep. 4U7:
Schweinfurter v. Schmahl, 69 Minn. 418, 72 N. W. 702. In Tennessee, it
is said that when a Judgment is to be set aside because of fraud, complainant
must aver facts showing an intentional contrivance by one or more of the
parties to the suit to keep complainant and the court in ignorance of tlie
real facts touching the matter in litigation, whereby a wrong conclusion
was reached, and positive injury done to complainant's rights. Smith v.
MUler (Tenn. Ch. App.) 42 S. W. 18X
(490)
Ch. 14) VACATINO AND OPENING JUDGMBNTS. { S21
would not have been given if the whole conduct of the case had been
fair.^®^ But fraud, sufficient to taint the judgment, may also be
practised by one of the parties upon the other. Thus, a judgment
should be annulled or vacated if it is shown that the instrument or
the claim on which it is founded had been pa}d or satisfied before the
institution of the suit and the fact of payment concealed.**' So
also, where the defendant was tricked into signing a judgment note,
supposing it to be a simple promissory note, or was secretly made to
assume obligations towards third persons which he had no intention
of incurring, and thereupon judgment was entered up against him.*®*
Again, where judgment is recovered upon an instrument to which the
defendant's name was forged, it will be vacated on his motion, pro-
vided he is not chargeable with lack of diligence in failing to allege
the forgery in defense to the action.*** Again, fraud practised by
one of the parties upon the other, and sufficient to warrant the vaca-
tion of the judgment, may coiisist in deceit as to the cause of action
sued on, or as to the nature of the relief sought, or as to defendant's
rights in the subject-matter of the litigation, whereby he is lulled in-
to a fancied security and wronged by the judgment which is obtained
against him.*** And the same principle applies where the successful
182 Rivers v. West, 103 Ga. 582, 30 S. E. 555. A false allegation by tlie
plaintiff as to his residence is not ground for setting aside the Judgment.
Fears v. Riley, 148 Mo. 49, 49 S. \V. 83«. The joining of a defendant
merely for Jurisdictional purposes may or may not be a fraud on the court.
Id. Taking a Judgment while a motion for security for costs was pending
is not a fraud on the court so as to authorize the setting aside of the Judg-
ment, since the court takes Judicial notice of the status of a case as shown
by Its own records. Id. Bringing a defendant to a county under a crim-
inal warrant, in order to have him there served with civil process, is not a
fraud on the court, in this sense. Id.
i8» Noyes v. Loeb, 24 La. Ann. 48; Halladay v. Underwood, 75 111. App.
96. See Mitchell v. Kinnaird (Ky.) 52 S. W. 830.
i«* Anderson v. Field, 6 111. App. 307; United Security Life Ins. & Trust
Cto. V. Ott (N. J. Eq.) 26 Atl. 923.
i«» State V. Richardson, 1 Marv. (Del.) 372, 41 Atl. 75; Reeser v. Brenne-
man, 4 Pa. Dist. R. 143; Lindsley v. Sparlis, 20 Tex. Ci*'. App. 56, 48 S.
W. 204; Fox v. lAma Nat. Bank, 25 Wkly. Law Bui. (Ohio) 28.
"•In re 0*Kelirs Estate, 90 Wis. 480, 63 N. W. 1042; Guild v. Phillips
(C. C.) 44 Fed. 461; Small wood v. Trenwith, 110 N. C. 91, 14 S. E. 505.
Where a decree of foreclosure, obtained by default, fraudulently included
the mortgagor's homestead, the decree will be vacated as to the homesteads
(491)
§321 LiLW OF JUDOMBNT8. (Ch. li
party has taken means to prevent proper service being made upon
the other, or has procured the service of false or misleading papers,
or a false return of service, or has made false representations as to
the status of the case or the time of its trial.^'^
Collusion between some of the parties, working injury to the just
rights of the others, will also be ground for setting aside the judg-
ment. Thus, where suit is brought against a corporation, and the
director or officer upon whom process is served covinously agrees
with the plaintiff for the rendition of a judgment, it is a fraud upon
the corporation which will warrant the vacation of the judgment, if it
is shown that there was a good defense, or otherwise that injustice
has been done.^®* • So, where attorneys for one of the parties are
induced to withdraw their appearance and suffer a judgment, with-
out authorization from their client,* •• or where there was collusion
between the counsel on the two sides of the case, and a wrongful judg-
ment is consequently entered.*^** But there is no fraud in a judi^^-
ment authorizing its annulment merely because the defendant fa-
where the mortgagor was not culpably negligent. Williams v. Lumpkin (Tex.
€lT. App.) 26 S. W. 103. So, where a decree declaring that certain heirs
have no interest in the property, and enjoining them from setting up title
thereto, was procured by the fraudulent practices and misrepresentations of
the widow, it will be set aside tn equity, and the rights of the heirs estab-
lished, even against purchasers, if they had notice. Hayden v. Uaydeo,
46 Gal. 332. But mere failure by defendant voluntarily to disclose evidence
which would tend to defeat his defense does not constitute such fraud as
would authorize the vacation of a Judgment. McDougaU t. Walling, 21
Wash. 478, 58 Pac. 669, 75 Am. St. Rep. «4».
187 StiUweU V. StiUwell, 47 N. J. Eq. 275, 20 AU. 060, 24 Am. St. Kep.
4<IS; Miller v. Neidzielslca, 176 Pa. 400, 35 Atl. 225; Pattlson v. liugbes, ^ft»
Md. 559, 31 Atl. 320; Rodriguez v. Espinosa (Tex. Civ. App.) 25 S. W. 660:
Wolf V. Butler, 81 Tex. 86, 16 S. W. 704. Where A. brought ejectment against
B., the tenant of C, and B. reported to C, whose counsel put In a demurrer
and began to prepare a defense; but pending this preparation, and before
argument on the demurrer, R fraudulently, and collusively with A., wi tit-
drew the demurrer. It was held proper to set aside a Judgment taken by
default by A., and to admit C. to a defense. Barrett v. Graham. 10 Cal. 6X2.
188 Farrar v. Consolidated Apex Min. Co.. 12 S. D. 237, 80 N. W. 1070:
Willsle v. Rapid Valley Horse-Ranch Co., 7 S. 1). 114, 63 N. W. 546; Nelson
V. Blaisdell, 23 Or. 507, 32 Pac. 391.
180 Crescent Brewing Co. v. Cuilins, 125 Ind. 110. 25 N. E. 150.
100 Smith V. Miller (Tenn. Ch. App.) 42 S. W. 182.
(492)
.^
Ch. 14) VACATING AKD OPENING JUDGMENTS. § 321
vored other creditors, whereby it proved worthless.*** A judgment
by default, Entered by fraud and collusion, may be opened after the
death of the judgment-debtor, so as to allow his administrator to
defend.*"
But a judgment or decree will not be declared void for fraud
because there may be suspicious circumstances connected with its
rendition. Fraud will not be presumed; it must be satisfactorily
shown.**' It has been said that it would require a strong case to
authorize the setting aside of a judgment taken by default on the
ground that the same was procured through false representations.***
And the fact that there was usury in the original mortgage debt, on
which a judgment is founded, is not alone sufficient to establish fraud
which will give another creditor the right to have the judgment set
aside.**^
In this connection it must be remarked that, in an action to set
aside a judgment on the ground of fraud, neither the judgment thus
sought to be vacated, nor an order refusing to set aside a default and
permit an answer in that case, can be set up as a bar to the action.* ••
The right to have a judgment set aside on the ground of fraud is one
that admits of being waived, and the defendant, by his subsequent
conduct, may be estopped to avail himself of it.**^ In a case where
one of several defendants had a good defense, and by the fraudulent
device of the plaintiff was prevented from making it, and was also
prevented from making his motion within the time limited by law to
set aside the judgment, it was held that, as against such defendant,
the plaintiff was estopped to enforce the judgment.**'
i»i Gray v. Richmond Bicycle Co., 26 Misc. Rep. 1«5, 55 N. Y. Supp. 787.
i»t Hartlgan v. Nagle, 11 Misc. Rep. 449. 32 N. Y. Supp. 220.
i»<Tacoma Lumber & Manufg Co. v. Wolff, 7 Wash. 478, 35 Pac. 115;
Jones V. Brittan, 1 Woods, 667, Fed. Cas. No. 7,455; Caldwell v. Flfield, 24 N.
J. Law, 150.
!•* Obermeyer v. Einstein, 62 Mo. 341.
i»» Mahan v. Oa vender, 77 Ga. 118.
!•• States V. Cromwell (N. Y.) 14 N. E. 448.
»»T Scfaenck's Appeal, 04 Pa. 37.
198 Johnson's Adm'rs t. Unversaw, 30 Ind. 485.
(493)
§ 322 LAW OF JUDGMENTS. (Oh. 14
§ 322. Jndsment t«k«n ooatrwry to Afpte^ntewit,
Where a plaintiff or his counsel prevents an appearance and defense
in an action by representations and promises, he is guilty of a spe-
cies of fraud if, in violation of such promises or representations, he
takes a default in a case where he knows there is a defense.*** Con-
sequently, where it is shown that there was an honest agreement be-
tween the parties that the case should be continued, or that defend-
ant's time to answer should be extended, or that the action should
be dismissed, as the result of a compromise, and yet the plaintiff,
without notice to the defendant and in violation of the agreement,
enters up a default, or proceeds to trial and procures a judgment
against the defendant in his absence, this is good ground for setting
aside the judgment.^®® So where the plaintiff has previously filed a
bill in equity concerning the same matter in litigation at law, and has
obtained the defendant's consent for the case at law to stand con-
tinued until the bill has been heard, but afterwards takes judgment
by default while the bill is still pending.^^* But the court will not on
this ground set aside a judgment unless the alleged agreement was
definite and specific, or unless the promises or representations of
the plaintiff were such that the defendant could rely upon them and
remain inactive, without being chargeable with any lack of diligence
or vigilance in guarding his own interests.'®* And in some of the
i»» Douthlt V. Douthlt, 133 Ind. 26. 32 N. E. 715.
2ooBinsse v. Barker, 13 N. J. Law, 263. 23 Am. Dec. 720; Mcintosh t.
Crawford County Com'rs. 13 Kan. 171; Perry v. Fisher (Ky.) 44 S. W. 37S;
Mitchell V. Knight, 7 Ohio Cir. Ct R. 2(M; Cadwallader v. McQay, 37 Neb.
359, 55 N. W. 1054, 40 Am. St. Rep. 496; Milwaukee Harvester Oo. v. Schroe-
der, 72 Minn. 393, 75 N. W. 606; Heinemann v. Le Clair, 82 Wis. 135, 51 N.
W. 1101; Stafford v. McMillan, 25 Wis. 566; Boutin v. CatUn. 101 Wis. 545, 77
N. W. 910; Oris wold Linseed Oil Co. v. Lee, 1 S. D. 531, 47 N. W. 955, 36 Am.
St. Rep. 761; McGowan v. Kreling, 117 Cal. 31. 48 Pac. 980; Merchants' Ad-
Slgn Co. V. Los Angeles Bill-Posting Co., 128 Cal. 619, 61 Pac. 277. Such a
case is within the statutes authorizing the vacation of a judgment taken
against the defendant through his "surprise or excusable neglect" Thomp-
son v. Connell, 31 Or. 231, 48 Pac. 467, 65 Am. St. Rep. 81&
201 Browning v. Roane. 9 Ark. 354, 50 Am. Dec. 218.
202 Jenkins v. Gamowell Fire Alarm Tel. Oo. (Cal.) 31 Pac. 570; Huntington
V. Emerj'. 74 Md. 67, 21 AtL 495; Funk v. Kansas Manurg Co., 53 Neb. 450,
(494)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 323
States it is the rule that a mere oral agreement between the parties
to postpone the trial of a cause beyond the day set for trial, or to
dismiss the action, which is not reduced to writing and filed, or not
communicated to the court whose action it is to govern, will not be
suiHcient to justify the vacation of the judgment.'^®*
f 323. PevJury.
Another species of fraud which the plaintiff may practise in pro-
curing a judgment, and which will be sufficient to cause its vacation,
is his own wilful perjury. "A defendant failing to defend cannot
have the judgment vacated on account of any innocent mistake or
want of recollection on the part of the plaintiff or other witness, nor
even on account of the perjury of the other witnesses, provided the
plaintiff himself is wholly guiltless.^^* Nor can he have the judgment
vacated on account of any mistake or error on the part of the court
or jury, unless the record affirmatively shows such mistake or error.
All such mistakes or errors each party is bound to anticipate, and to
prepare for by extraordinary diligence. But no party is bound to
anticipate or to suppose that the other party will commit wilful and
corrupt perjury, and no party is bound to exercise extraordinary dili-
gence in preparing to meet such perjury." '®* In Minnesota, a stat-
73 N. W. 931; Holland Bank v. Ueuollen (Idaho) 58 Pac. 3d8. A judgment
entered upon a cognovit will not be opened because of a verbal promise, al-
leged to have been made at the time of giving the cognovit that the Judgment
would never be enforced. Heckscher v. Middleton, 54 N. J. Law, 312, 23 Atl.
913.
ao» Dixon v. Brophey, 29 Iowa, 460; Le Due v. Slocomb, 124 N. C. 347, 32
S. B. 726; Mathews v. Bishop, 106 Ga. 564, 32 S. E. 631. See Johnson v.
Sweeney, 95 Gal. 301, 30 Pac. 540.
204 A decree will not be vacated merely because the prevailing party ob-
tained it by bribing a witness to swear falsely. Pico v. Gohn, 91 Gal. 129, 27
Pac. 537, 13 K R. A. 336, 25 Am. St Rep. 159; Maryland Steel Co. v. Mamey,
91 Md. 360, 46 Atl. 1077. But in New York, a Judgment may be vacated if
shown to be based on perjured testimony inspired and manufactured by an
attorney for the successful party, who conspired with the witnesses to ob-
tain the judgment Nugent v. Metropolitan St. Ry. Go., 46 App. Div. 105, 61
N. Y. Supp. 476.
SOB Laithe v. McDonald, 12 Kan. 340; Humphreys v. Rawn, 8 Watts (Pa.)
78; Rowe v. Chicago Lumber & Goal Co., 50 La. Ann. 125S, 24 South. 235.
Compare Baker v. Wadsworth, 67 Law J. Q. B. 301. The courts of the United
(495)
/
§ 824 LAW OP JUDOMBNTS. (Ch. H
ute provides an action to set aside a judgment obtained by means of
the "perjury, subornation of perjury, or any fraudulent act, practice,
or representation of the prevailing party." *•• But it is held that
an action cannot be maintained, under this section, upon the bare
allegation that, upon an issue of fact squarely made, so that each
party knows what the other will attempt to prove, and where neither
has a right, or is under any necessity, to depend on the other to
prove the fact to be as he himself claims it, there was false or perjured
testimony by the successful party or his witnesses.'^^
r 1^ § 324. Want of Ilotio««
It is in general good ground for setting aside a judgment that
there was no service of process on the defendant, or that the service
was materially irregular or defective, provided there has been no
waiver of such defects by appearance or otherwise.*** Thus where
•
States wiU not entertain a suit to vacate or annul a Judgment of a court har-
ing Jurisdiction to render It, solely on the ground that it was procured by
means of the perjured testimony of the party whom it benefits. United
States V. Throckmorton, 98 U. S. 60, 25 L. Bd. 93; United States r. Gleeson.
33 C. C. A. 272. 90 Fed. 778.
soo Gen. St. Minn. 1878, c. 66, f 285.
SOT Haas v. Billings, 42 Minn. 63, 43 X. W. 797; Wilkins v. Sherwood, 56
Minn. 154, 56 N. W. 591. In Washington, perjury does not constitute such
fraud as will authorize the vacation of a Judgment, except under circumstan-
ces which deeeive the opposite party as to the nature of the testimony, and
relieve him of the implication of want of diligence in dlscoTering Its falsity.
McDougall V. Walling, 21 Wash. 478, 58 Pac. 609, 75 Am. St Rep. ^10.
S08 Harris v. Hardeman, 14 How. 334, 14 L. Ed. 444; Shuford r. Cain, 1
Abb. U. S. 302, Fed. Cas. No. 12,823; Duhalme y. Monast 20 B. I. 5M. 40
Atl. 377; Kunes v. McCloskey, 10 Pa. Co. Ot. R. 542; Szerlip y. Baler, 21 Mlse.
Rep. 331, 47 N. Y. Supp. 133; People y. Dunn, 54 N. Y. Supp. 194; Fhvrahebn
Bros. Dry-Goods Co. y. Williams, 45 La. Ann. 1196, 14 South. 120; Slmco^c y.
First Nat. Banlc, 14 Kan. 529; Hanson y. Wolcott, 19 Kan. 207; Honlon y.
Euper, 63 Ark. 323, 38 S. W. 517; Brady y. Washington Ins. Co., 67 DL App.
159; Davis v. Burt, 7 Iowa, 56; Allen v. Rogers, 27 Iowa, 106; Jamison v.
Weaver, 84 Iowa, 611, 51 N. W. G5; In re Behrens' Estate, 104 Iowa, 29, 73 N.
W. 351; Hurlburt v. Reed, 5 Mich. 30; Carr v. Commercial Bank. 16 Wis. 50;
Heffner v. Gunz, 29 Minn. 106, 12 N. W. 342; Smith's Adm'r v. RolUna, 25
Mo. 408; Dunlap v. Steere, 92 Cal. 344, 28 Pac. 563, 16 L. R. A. 361. 27 Am.
St. Rep. 143; Norton v. Atchison, T. & S. F. R. Co., 97 Oil. 888, 32 Pac. 432,
33 Am. St. Rep. 108; People v. Temple, 103 Cal. 447, 37 Pac. 414; Lomax t.
Besley. 1 Colo. App. 21, 27 Pac. 167.
(496)
Ch. 14) YACATINQ AND OPENINQ JUDQMENTa. § 324
the return of the sheriff showed a service of the summons on Mon-
day, but the proofs on a motion to set aside a default showed that
the service was in fact made on Sunday, it was held that, although
the return CQuld not be impeached for the purpose of showing that
the default was irregular, yet the fact might be proved for the pur-
pose of excusing the default as a condition to obtaining relief.^*^"*
So a judgment may be set aside at the instance of a defendant who
shows that, although the summons was left at his residence, he was,
at the time, absent or sick, and had no actual knowledge of the
suit, or that it was forwarded to him by mail but never reached his
hands-*^® A joint verdict and judgment against several defendants,
some of whom were never served and have not waived service by ap-
pearance, may be set aside on motion.^ ^* So, in the case of a corpo-
ration, it will be good ground for vacating a judgment agfainst it that
the person upon whom service was made was not an officer of the
corporation, or not authorized to accept service, or that he failed,
through negligence or forgetfulness, or with a sinister motive, to give
notice of the action to those charged with the duty of defending the
action in behalf of the corporation.*** It should be observed that
the rule as to the presumptions in favor of the validity and regularity
of proceedings had before judgment is applicable only in cases of
collateral attack, and cannot be invoked to cure defects in the service
of process, upon an application to set aside a default and permit a
defense on the merits.**' But it has been held that the appearance
of a party against whom a judgment has been rendered, to move that
it be opened and for leave to answer, is a general appearance to the
merits and waives all defects in the service of process and other pro-
>
so» Smith v. Noe, 30 Ind. 117.
«io Kolb V. Ralsor, 17 Ind. App. 551. 47 N. E. 177; Burkhard v. Smith, 19
Misc. Bep. 31, 42 N. Y. Supp. 638; Osman v Wlsted, 78 Minn. 295, 80 N. W.
1127; Malone t. Big Flat Gravel Mln. Co., 93 Cal. 384, 28 Pac. 1003.
211 Harralson v. McArthur, 87 Ga. 478, 13 S. E. 594, 13 L. R. A. 689; Carter
▼. Kaiser (Tenn. Ch.) 48 S. W. 265.
«i2 Wheeler v. Moore, 10 Wash. 309, 38 Pac. 1053; Board of Education v.
National Bank of Commerce, 4 Kan. App. 438, 46 Pac. 36; Glaeser v. Citj' of
St Paul, 67 Minn. 368, 60 N. W. 1101. Compare Davis v. Steuben School Tp.,
19 Ind. App. 694, 50 N. E. 1.
2i« Blythe v. Hinckley (C. C.) 84 Fed. 228.
1 LAW JUDG.-32 (497)
% 824 UKW 1^ JVD«MENTa (Ch- 14
ceedings preliminary to the judgment."** A judgment based on a
false return of service may be attacked by motion in the same pro-
ceeding."** And where the return of process is defective in not
showing a due and legal service, this will also be ground for setting
aside the judgment, though the court may, in a proper case, allow
the return to be amended and dismiss the motion to vacate."**
But want of notice, as a ground for vacating a judgment, means
want of notice of the institution of the action, — ^want of that notice
which is essential to give the court jurisdiction over the person of
the defendant. When a defendant has been legally served with
proper process, he is in court for every purpose connected with the
action. It is then his duty to follow up his case, and take notice of
the filing of subsequent papers in the action, such as demurrers, cross-
petitions, and motions of various sorts; and he must ascertain for
himself when the case is put on the calendar or docket for trial, or
set down for hearing, and when it is likely to be reached. If he fails,
through his own carelessness or lack of vigilant attention, to obtain
notice of the various steps in the action, or of the time of trial, and
consequently suffers a judgment, it will not be vacated merely on that
ground."*^
»»4 Gray v. Gates, 37 Wis. 614.
215 Du Bols V. Clark. 12 Colo. App. 220, 55 Pac. 750.
216 Stotz V. Collins, 83 Va. 423, 2 S. E. 737. But a Judgment will not he
vacated years after Its rendition because the record shows that the affidavit
of service of summons therein was not sworn to, where it Is not shown ttut
the summons was not in fact served, as such a defect will not affect the Ju-
risdiction of the court to render a Judgment. State v. Superior Court of
Pierce County, 19 Wash. 128, 52 Pac. 1013, 67 Am. St Rep. 724.
»i7 Curry v. .Tanicke, 48 Kan. 168, 29 Pac. 319; Kamman v. Otto (Ky.) ^
S. W. 1070; Culver v. Brinkerhoff, 180 111. 548, 54 N. E. 585; Blaine v. Brine e.
16 Mont. 582, 41 Pac. 1002. In California, it Is held that, even If the defendant
is a non-resident, he is bound to know the day fixed for setting cases for trial,
and if there is no such day fixed he must ascertain the day of trial from tlH'
proceedings of the court or otherwise; and he cannot have a Judgment va-
cated merely on the ground that neither he nor his attorney had notice thai
the case was set for trial. Dusy v. Prudom, 95 Cal. 646, 30 Pac 798. Oom-
pare Buell y. Emerlch, 85 Cal. 116, 24 Pac. 644; Clark y. Oyharzabal, 129 CaL
.328, 61 Pac. 1119.
(498)
CSu 14) YACATINO AND OPENINQ JUDGMENTS. § S25
I 826. Unauthox&ud ApipearaiiAe by Arttoriiity.
By the English rule, where a defendant has been served with pro-
cess, and an attorney without authority appears for him, the court
will not interfere to set aside the proceedings, if the attorney be sol-
vent, but will leave the defendant to his remedy by summary applica-
tion against the attorney. If the attorney be insolvent, the court
will relieve the defendant on equitable terms if he has a defense on
the merits. But where a plaintiff, without serving a defendant, ac-
cepts the appearance of an unauthorized attorney for the defendant,
the court will set aside the judgment as irregular, with costs, and
leave the plaintiff to recover those costs and the expense to which
he has been put from the delinquent attorney by summary proceed-
ings.*^* It is the prevailing doctrine of the American cases that a
judgment obtained against a party uppn whom no process was
served, and for whom an attorney has entered an appearance with-
out authority, may be set aside, even at a subsequent term.'^^* In
a 18 Bajley v. Buekland, 1 Exch. 1.
21S American Aquol & Pyrodene Paint Co. v. Smith, 90 Hun, 009. 35 N. Y.
Supp. 723; Post v. Charlesworth, 66 Hun, 256, 21 N. Y. Supp. 108; Woods v.
Dickinson, 7 Mackey, 301; Longman v. Bradford, 108 6a. 572, 33 S. B. 916;
Marvel t. Manouvrier, 14 La. Ann. 3, 74 Am. Dec. 424; Gritchfield v. Porter, 3
Ohio, 518; Lyon v. Boilvin, 2 Oilman (111.) 629; Russell v. Pottawattamie Co.,
*» Iowa, 256; Stanton-Thompson Oo. v. Crane. 24 Nev. .171, 51 Pac. 116; Mc-
Eachem v. Brackett, 8 Wash. 652, 36 Pac. 690, 40 Am. St. Rep. 922. In Penn-
sylvania, where Judgment is entered against a defendant in an action of
which he had no notice, service of the writ having been accepted for him by
an attorney who had no authority to act for him, it is proper for the court,
on defendant's motion, to strike off the Judgment Bryu Mawr Nat. Bank v.
James, 152 Pa. 304, 25 Atl. 823. But if it is not admitted that the attorney's
appearance for defendant was unauthorized, then the Judgment cannot be
Ktricken off, but can only be opened, and tlic disputed facts sent to a Jury.
Swartz V. D. S. Morgan & Co., 163 Pa. 195, 29 Atl. 975, 43 Am. St. Rep. 786.
Defendant must act promptly; If he was aware that an attorney, though un-
anthorized, had appeared for him, a default Judgment will not be vacated
after the lapse of 10 years. Lytle v. Forest, 16 Pa. Co. Ct. R. 239.
In New York, it appears to be settled that relief against a Judgment ren-
dered against one not served with process, on the unauthorized appearance
of an attorney in his name, may be sought and obtained by motion in the
case in which such appearance was entered; that if, at the time of such mo-
tion, the attorney who entered such appearance is insolvent. It Is no reason
(499)
§ 325 LAW OP JUDGMENTS. (Ch. 14
some of the states, however, there is still a disposition to base a dis-
tinction on the question of the attorney's solvency, and to hold that
the judgment should not be vacated, if he is able to respond in dam-
ages, though he was entirely without authority to appear.*** At
any rate, the claim of a party for whom an appearance has been en-
tered, to deny the authority of the attorney and ask relief, is viewed
with great disfavor by the courts wherever innocent third persons
have acquired rights under the judgment or decree sought to be an-
nulled.*** And relief will be denied where the fact of the attorney's
authority is not fully negatived, but left in doubt under the testimony,
and there is no allegation of a meritorious defense to the action.***
Applications for relief against a judgment on this ground are more
commonly made by bill in equity for an injunction against the en-
forcement of the judgment than by motion to vacate it, and the point
will receive further consideration in connection with the former
species of remedies.***
for denying the motion that, at the time the judgment was given, the attomej
was able to respond in damages; that it rests in the discretion of the court,
according to the circumstances of the particular case, either to racate the
judgment entirely or to allow it to stand as security, with leave to the defend-
ant to come in and defend; but that if the defendant was a non-resident, and
was not served, he is entitled to have the judgment set aside absolutely.
Vilas V. Plattshurgh & M. R. Co., 123 N. Y. 440, 25 N. R Wl, 9 L. R. A. 8*4,
20 Am. St Rep. 771; City of New York v. Smith, 61 X. Y. Super. Ct. 374, -Jii
X. Y. Supp. eee.
220 University of North Carolina v. Lassiter, 83 N. C. 38; Chadbourn r,
Johnston, 119 N. C. 282, 25 S. E. 705. And see Denton v. Noyes, 6 Johns. 4X.
Y.) 296, 5 Am. Dec. 237; Seale v. McLaughlin. 28 Oal. 668; Schhrling v. Seller.
41 Miss. 644; Smith v. Bowditch, 7 Pick. (Mass.) 137; Powers v. Trenor. 3
Hun, 3.
221 Kenyon v. Shreck. 52 111. 382.
222 Russell V. Pottawottamie Co., 29 Iowa. 256. When the record sbowK
that a defendant appeared by his attorney, it is conclusive of the appearance.
but only prima facie evidence of the authority of the attorney to act, which
may be denied and rebutted by proof. Blyth & Fargo Co. v Swenaon, 15
Utah, 345. 49 Pac. 1027. The burden of proof is on the party denying the at-
torney's authority to appear. Connell v. Galligher, 36 Neb. 749. 55 N. W. 229.
And a party to an action cannot retry the question of the authority of an at-
torney to represent him therein, by a petition to vacate the judgment, whf n
such question was adjudicated in the original action on a motion to di«mi<s.
Roberts v. Shelton, S. W. R. Co., 21 Wash. 427, 58 Pac. 576.
223 See, infra. ( 374.
(500)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 326
S 326. IrreKiilarlti««.
It is a general rule that the court in which a judgment was ren-
dered may vacate it, on motion, at the same or a subsequent term,
on proof that it was entered irregularly and not according to the
course of the court.^** Thus a judgment entered in favor of the
plaintiff, before the time for answering has expired, may properly be
set aside ; **' and so may a judgment entered while there was an
answer or demurrer on file and not yet disposed of.**® So a judg-
ment in a suit in equity, entered through inadvertence by the clerk
on a special advisory verdict, while other issues of fact remain to
be determined by the court, may be set aside, and a new judg-
ment entered, after the adoption of the special verdict by the court
and its findings on other issues.**^ On similar principles a judg-
ment will be vacated which was rendered on issue joined without
224 O'Hara v. Baum, 82 Pa. 416; Murdock v. Stelner, 45 Pa. 349; Craig v.
Wroth, 47 Md. 281; Keaton v. Banks. 32 N. C. 381, 51 Am. Dec. 393; Dick v.
Mcl^urin, 63 N. C. 185; Cowles v. Hayes. 69 N. O. 410; Winslow v. Anderson,
20 N. C. 9, 32 Am. Dec. 661; Hervey v. Edmunds, 68 N. C. 243; Wolfe v. Da-
vis, 74 N. C. 597; Foreman v. Carter, 9 Kan. 674; Reynolds v. Stansbury, 20
Ohio, 344. 55 Am. Dec. 459; Hunt v. Yeatman, 3 Ohio, 16; Huntington v.
Finch, 3 Ohio St. 445; Branstetter v. Rives. 34 Mo. 318; Downing v. Still, 43
Mo. 309; Doan v. Holly, 27 Mo. 256; Kaufman v. Shaln, 111 Cal. 16, 43 Pae.
3d3, 52 Am. St. Rep. 139; Butler v. Soule, 124 Cal. 69, 56 Pac. 601. But some
of the cases hold that if the alleged irregularity is not apparent on the face
of the record, it cannot be vacated on motion, unless during the term at
which the Judgment was rendered. Phillips v. Evans, 64 Mo. 17; Hall v.
West Chester Pub. Co., 180 Pa. 501, 37 Atl. 106; Tuffree v. Steams Ranchos
Co. (Cal.) 54 Pac. 826; Busching v. Sunman, 19 Ind. App. 683, 49 N. E. 1091.
As to raising questions of jurisdiction in this manner, see Parker v. Belcher,
87 Ga. 110, 13 S. E. 314; Richardson v. Stowe, 102 Mo. 33, 14 S. W. 810.
2 25 Remnant v. Hoffman (Cal.) 11 Pac. 319; Browning v. Roane, 9 Ark. 354,
.*i0 Am. Dec. 218; Mailhouse v. Inloes, 18 Md. 329; Hole v. Page, 20 Wash.
208. 54 Pac. 1123. See supra, § 85. But compare Williamson v. Nicklin, 34
Ohio St. 123. The fact that certain creditors in insolvency proceedings were
adjudged in default, when they were not so in fact, and thereby denied a re-
covery to which they were entitled, is sufficient reason to set aside the Judg-
ment O)oper V. Disbrow, 106 Iowa, 550, 76 N. W. 1013.
22« Norman v. Hooker, 35 Mo. 366; Ollpbant v. Whitney, 34 Cal. 25; Fol-
lett V. Alexander, 58 Ohio St. 202, 50 N. E. 720.
127 Cummlngs v. Ross. 90 Cal. 68, 27 Pac. 62.
(501)
§ 326 LAW OF JUDGMENTS. (Ch. 14
any notice of trial or appearance at the trial,**® or where a default
was taken and final judgfment entered on the first day of the term,-**
or where an amendment was allowed which introduced an entirely
new cause of action, and the defendant was defaulted without having
had a proper opportunity to defend,**® or where the judgment was
taken before the case regularly came up for hearing.*** So also, a
judgment obtained on a complaint or petition which does not con-
tain any averments showing liability on the part of the defendant
will be set aside.*** And the same course may be taken if the ver-
dict and judgment are for an amount in excess of the damages laid
in the writ or claimed in the declaration or complaint, unless the
plaintiff remits the excess, or unless the judgment can be corrected,
in this particular, from matter of record.*** It will also be proper
to set aside a judgment which was entered after the death of a
party,*** or which was rendered on a joint contract against a part
only of the defendants, when it should have been against all,*** or
when a default was wrongly taken in consequence of a misnomer
of the defendant.*** A judgment entered on a declaration reciting a
288 People V. Bacon, 18 Mich. 247; Aslicraft v. Powers, 22 Wash. 440, 61
Pac. 161.
220 Clegg V. Flthian, 32 Ind. 90.
2»o Weatherford v. Van Alstyne, 22 Tex. 22.
2»i Beach v. MeOann, 1 Hilt. (N. Y.) 256; Findley t. Johnson, 1 Overt.
(Tenn.) 344. A Judgment for plaintiff in assompsit. after trial, should be set
aside, and a new trial granted, if there was no plea by defendant. Johnson
V. Fry. 88 Va. 695, 14 S. E. 183.
2»2 Mason v. Kansas City C. Ry. Co., 58 Kan. 817, 51 Pac. 284. But where
an amended complaint, on which judgment is rendered, is unobjectionable, tbe
Judgment will not be set aside because the original complaint did not state a
cause of action. Hunter v. Bryant, 98 Cal. 247, 33 Pac. 51.
233 Barnes v. Branch, 3 McCord (S. C.) 19; Andrews v. Monilaws, 8 Han,
65. See F. A. Poth Brewing Co. v. Bemd (X. J.) 36 Atl. 664; Dickson t.
Matheson, 12 Wash. 196, 40 Pac. 725; supra, § 138. When the proper remedy
is by appeal, see Palmer v. Bank of Zumbrota, 65 Minn. 90, 67 X. W. SKI
Adjudging interest on notes from the date they were due, instead of the last
day of grace, is not such error as warrants setting aside tlie Judgment, the
amount being small. Ramsburg v. Kline, 96 Va. 465, 31 S. K 608.
284 Bowen v. Troy Portable Mill Co., 31 Iowa, 460; Holmes t. Honie, 8
How. Prac. 384; supra, f 199.
235 Muliendore v. Silvers, 34 Ind. 08.
286 Will V. Lytle Creek Water Co., 100 Cal. 344, 34 Pac. 83a
(502)
Ch. 14) YACATINQ AND OPENING JUDGMENTS. § 326
bond and warrant of attorney to confess judgment, but without any
appearance for the defendant or formal confession of judgment, will
be set aside as irregular;**^ and so will a judgment taken by de-
fault when it appears that the real party in interest was not made a
party to the action.^'* But a defendant cannot have a judgment
against him opened because the suit was brought in the name of a
iiwong person, if that person is authorized to receive satisfaction of
the judgment and to give a valid discharge.*'* It is also proper to
vacate a judgment entered where no findings of fact or law were
made or filed by the court, as required by law, and findings were
not waived,*^* and inconsistency between the findings of fact and
conclusions of law in the judgment of a referee, confirmed by the
court, is sufficient ground for setting the judgment aside.**^
But on the other hand, it is not every trivial or inconsiderable
irregularity that will support an application to vacate the judgment.
The principles which should govern the exercise of this remedial
power of the courts have been well stated by the supreme court of
North Carolina in the following language : "A motion in the action
to set aside the judgment for irregularity will be entertained by the
court, if it should be made within a reasonable period after it was
granted [rendered]. This, however, does not imply that every judg-
ment affected in any degree, directly or indirectly, by some or any
irregularity in the course of the action leading to it, will be set aside.
Some irregularities are unimportant and do not affect the substance
of the action or the proceedings in it; there are others of more or
less importance that may be waived or cured by what may take place
or be done in the action after they happen ; and there are yet others
so serious in their nature as to destroy the efficacy of the action and
render the judgment in it inoperative and void. Whether the court
«»' Lytle V. Colts, 27 Pa. 193. See, also, Knox Co. Bank v. Doty, 9 Ohio
St. 505, 75 Am. Dec. 479.
»»» Ebell V. Bursinger, 70 Tex. 120, 8 S. W. 77. Where, In ejectment, Judg-
ment by default was rendered against a tenant without the knowledge of his
landk)rd, a motion to vacate is proper. Mo wry v. Nunez (Cal.) 33 Pac. 1122.
Compare Chappell ▼. Real-Estate Pooling Co., 91 Md. 754, 46 Atl. 982.
2»« Grinnell v. Schmidt, 2 Sandf . Ch. 706.
«40 Prondzlnskl v. Garbutt, 9 N. D. 239, 83 N. W. 23.
s«i Moore v. Richardson, 5 S. 0. 142.
(503)
§ 32Ca LAW OP JUDGMENTS. (Cll- 14
will or will not grant such a motion in any case must depend upon a
variety of circumstances, and largely upon their peculiar application
to the case in which the motion shall be made. Generally a judg-
ment will be set aside only when the irregularity has not been waived
or cured, and has been or may be such as has worked, or may yet
work, serious injury or prejudice to the party complaining interested
in it, or when the judgment is void. The court will always, upon
motion, strike from its record a judgment void for irregularity/* ***
Although the irregularity might have defeated the proceeding, if ob-
jection had been timely and properly made, yet if it is such as must
be deemed waived by the failure to object, it will not be ground for
vacating the judgment.^** A failure to give security for costs, un-
der the general rule of the court, is no cause for setting aside the
judgment.*** It is also held that if any portion of a judgment is
regular and valid, it will not be set aside as irregular and invalid
upon motion.*** An affidavit is not required to support a rule to
strike off a judgment which, on the face of the record, appears to
have been unlawfully and-improvidently entered.***
§ 326a. Objections to Jury.
A motion to vacate or set aside a judgment will not generally be
granted on the ground that one or more of the jury, upon whose
verdict the judgment was rendered, was incompetent or disqualified,
or on account of his alleged bias or hostility against the unsuccess-
ful party, or by reason of any alleged misconduct on the part of
the jury, the proper remedy, in such a case, being by challenge duly
interposed at the trial, or by motion in arrest of judgment, or by a
142 w'lniamson v. Hartman, 92 N. C. 236. And see Alexander v. Llnp, 31
Or. 222, 50 Pac. 915; Crook v. Hamlin. 140 N. Y. 297, 35 N. R 499. A Jud^
nieut is not void, and subject to a motion to vacate, because the Judgment
roll, as made up, did not contain all the proper papers, the remedy being liy
motion to have such papers inserted. Breckenridge Co. t. Perkins, 14 AppL
Dlv. G29, 43 N. Y. Supp. 800.
24 3 Cosgrove v. Butler, 1 S. C. 241; Crow v. American Mortgage Co^ 92 Ga.
815, 19 S. E. 31; Slater v. Skirvlng, 45 Neb. 594, 63 N. W. Wa
a*4 Lytle v. Fenn, 3 McLean, 411, Fed. Cas. No. 8,651.
»*ft Challiss V. Headley, 9 Kan. 684.
«4« Allen V. Krips, 119 Pa. 1, 12 Atl. 759.
(504)
Ch. 14) VACATING AND OPBNINO JUDGMENTS. § 327
motion for a new trial, according to the circumstances.^*^ But it
has been ruled that a verdict not rendered by the persons designated
and selected according to law, but participated in by others, who, by
fraudulent practices, obtained seats in the jury box, heard the evi-
dence, and returned a verdict, having no right or authority to do
so, and a judgment entered in pursuance of such verdict, should be
set aside upon the motion of the injured party, if he was innocent
of the fraud, without inquiry as to whether or not it was just as
between the parties.***
S 327. Judgments asainit Persons imder IMsabllities.
We have already seen that a judgment against a married woman,
rendered in an action to which her coverture, if pleaded, would have
been a good defense, is certainly voidable, if not absolutely void; **•
and that the same is true of a judgment against an infant for whom
no guardian was appointed or appeared.* *^^ It follows, of course,
that such judgments may be set aside, upon a proper and timely
application by motion, by the court which rendered them. Where. a
statute provides that judgments shall not be set aside on motion,
for irregularities, after the lapse of a certain time, this does not
apply to cases where the motion is based on errors of fact; and it
is held that the entry of a judgment against an infant or a person
under other disabilities, or a dead man, is not an irregularity but
an error of fact; and the statute does not affect the power of the
court to vacate it on motion.**^^
24T Blckel V. Kraus, 100 Ky. 728, 39 S. W. 414; Mize v. Americus Manufg
& Imp. Co., 109 6a. 359, 34 S. E. 583; supra, § 103.
248 Ulinois Steel Co. v. Szutenbach, 67 lU. App. 280.
24» Supra, § 190. Compare Littster v. Llttster. 151 Pa, 474, 25 Atl. 117;
Adams y. Grey, 154 Pa. 258, 26 Atl. 428.
250 Supra, §§ 193-196.
251 Powell V. Gott, 13 Mo. 458, 53 Am. Dec. 153; Levy v. Williams, 4 S. C.
515; Keaton y. Banks, 32 N. C. 381, 51 Am. Dec. 393; Bond y. Neusch wander,
86 Wis. 391. 57 N. W. 54; Consolidated Coal Co. v. Oeltjen, 189 111. 85, 59 N.
E. 600; Bogers v. McMillen, G Colo. App. 14, 39 Pac. 891; State v. Tate. 109
Mo. 2^. 18 S. W. 1088, 32 Am. St Bep. 664. In Pennsylvania, it is said that
the case of a judgment entered against a dead man is an exception to the rule
that a motion to strike off a Judgment must be on the ground of irregularity
(505)
§ 329 XJLW OP JXTDOMBNTS. (Ch. 14
I 328. BBMitkMPlced SmtHM.
A judgment which was inadvertently or irregularly entered by the
judge or the clerk of the court without any authority, may be va-
cated at any time.^'* In a case in Iowa, after an appeal had been
perfected and a supersedeas bond filed, it was agreed between the
parties to the action, without the consent of the sureties, that a
judgment should be entered in the supreme court against the ap-
pellants and sureties, and a judgment of affirmance was accordingly
entered. It was held that upon a motion made at the following
term, at the instance of the sureties, the court had jurisdictioa to set
aside the judgmenL*"*
S 329. Judcmemt not Vaeated beoauio Erromeovfl.
The power to vacate judgments, on motion, is confined to cases
in which the ground alleged is something extraneous to the action
of the court or goes only to the question of the regfularity of its pro-
ceedings. It is not intended to be used as a means for the court to
review or revise its own final judgments, or to correct any errors
of law into which it may have fallen. That a judgment is erroneous
as a matter of law is ground for an appeal, writ of error, or certiorari,
according to the case, but it is no ground for setting aside the judg-
ment on motion.*** Thus, the reception of secondary or illegal cvi-
appearing on the face of the record, and it may be stricken off. Stevenson t.
Virtue, 21 Pa. Co. Ct R. 229.
2 82 Merrick v. City of Baltimore. 43 Md. 219; Wharton v. Harlan, 68 Cal
422, 9 Pac. 727; United States v. McKnlght, 1 Cranch, C. 0. 84, Fed. Ca«. Xo,
15,005; Murray v. Derrick, 101 Ga. 113, 28 S. E. 616; AVolf v. Shenandoah Xat.
Bank, 84 Iowa, 138, 50 N. W. 561; Ooleman ▼. Floyd, 131 Ind. 330, 31 N. E.
75; Yanderpool v. Vanderpool, 162 Pa. 394, 29 Atl. 910. But in niinois. It i»
said that a Judgment entered for a bona fide debt, pant due. will not be set
aside at a subsequent term, although entered without authority. Reynertson
V. Central Lumber Co., 69 111. App. 131.
26S Drake v. Smythe, 44 Iowa, 410.
284 State V. Horton, 89 N. C. 581; May v. Stimson Lumber Co., 119 N. C.
90, 25 S. E. 721; Hauschold v. Hauscheld. 33 App. Div. 296. 53 N. Y. Snpp.
831; Taliaferro v. Steele, 14 La. Ann. 656; Harriman v. Swift 31 Vt. 38%;
Peake v. Redd, 14 Mo. 79; Bank of United States v. Moss, 6 How. 31. 12 L
liki. 331; AViggins v. Steiuer, 103 Ala. G55, 1(J South. 8; Coffey v. Proctor Coal
(506)
Ql 14} TACATOW MfD OPSNINO JUDGEMENTS. § 830
dence in proof of a fact is no groiftid to annul the judgment rendered
in the case.*** The statutes enacted in many of the states, granting
power to vacate judgments rendered against a party through his
''mistake, inadvertence, surprise, or excusable neglect," do not au-
thorize the court at a subsequent term to set aside a judgment duly
rendered for mere errors of law committed by the court.*** So the
decree of a court of equity cannot be set aside, on motion, for de-
fective allegations in the bill or for defective pleadings; the proper
remedy is by bill of review.**^
% 330. Hot f «r Oromida wUob aiislit hxw bciem pteltded la DefewM.
A motion or proceeding to vacate or set aside a judgment cannot
be sustained on any grounds which might have been pleaded in de-
fense to the actior>, and could have been so pleaded with proper
care and diligence.*** So where, in an action regularly commenced
and prosecuted, without any fraud or fraudulent representations,
judgment is rendered by consent against the defendants, they cannot
thereafter have the judgment set aside and a new trial granted, on
the ground of the existence of a complete legal defense to the action,
the nature and extent of which they were aware of at the time of the
entry of judgment.*** A judgment will not be stricken off because
the warrant of attorney on which it was entered appears to be dated
Co. (Ky.) 20 S. W. 286; Sexton v. Rock Island Lumber & Manuf g Oo., 49
Kan. 153, 30 Pac. 104; Piereon v. Benedict, 5 Kan. App. 790, 48 Pac. 996;
Davis v. Fields, 9 Wash. 78, 37 Pac. 281. But a trial court, being satisfied
tliat itfl order for the distribution of a fund is not In accordance with the
direction of the supreme court relative thereto, may vacate the order, to the
end that the direction may be carried out. Fifth Nat. Bank v. Clinton Circuit
Judge, 100 Mich. 67, 58 N. W. 648.
255 Elder v. City of New Orlean.s, 31 La. Ann. 500.
256 Loomis V. Klce, 37 Wis. 262.
t57 Brown v. Bennett, 55 Ga. 189.
tis Robichaud v. Nelson, 28 La. Ann. 578; Barksdale y. Greene, 29 Ga. 418;
Easley v. Camp, 40 Ga. 698; Field v. Sisson, 40 Ga. 67; Purity Ice Works v.
Rountree. 104 Ga. 676, 30 S. E. 885; Smith v. Wachob, 179 Pa. 260, 36 Atl.
221; Peering Harvester Co. v. Donovan, 82 Minn. 162, 84 N. W. 745, a*i Am.
St. Rep. 417.
2ft» Elder v. National Bank, 12 Kan. 242: Carlson v. Phinney, 56 Minn. 476,
58 N. W. 38; Gillespie v. Rogers, 184 Pa. 488, 39 Atl. 290.
(507)
§ 331 LAW OF JUDGMENTS. (CIl. 14
oh Sunday; courts will not, on iuch grounds, interfere with an
executed contract.*"® Where a judgment was obtained in a court
of law, and an injunction was afterwards issued to restrain the col-
lection of it, which injunction was dissolved and judgment entered
on the injunction bond, it was held that a motion to vacate the lat-
ter judgment, upon an allegation that the original judgment had been
satisfied by payment to the sheriff, could not be entertained; the
proper course would have been to plead such payment or have satis-
faction entered on the record.*"^ But in Pennsylvania, a judgment
by confession on a warrant of attorney may be opened and the
defendant let in to a defense, where it appears that the defendant
was entitled to certain credits which should have been deducted
from the amount of the judgment, or set off against it.'**
S 331. Illegality of Cause of Aotios.
An apparent exception to the rule stated in the preceding section
is that in some jurisdictions the courts exercise the power to open
or vacate judgments in cases where the consideration on which they
are founded is tainted with illegality. Usury has been considered a
good ground for calling this power into operation.**' But the gen-
eral rule is wise and salutary, and exceptions of this kind should
2«o Baker v. Lukens, 35 Pa. 146.
201 Coiinc!! V. Willis, 66 N. 0. 359.
2e« Bright v. Diamond, 180 Pa. 476. 42 Atl. 45; Heimgartner v. Stewftrt
180 Pa. 500, 37 Atl. d3. So, where a bond with warrant of attorney is given
with a mortgage for the purchase money of land. Judgment entered thereon
may he opened to permit the defendant to show a contemporaneous ond
agreement that the bond should be collectible only out of the property con-
veyed. Schweyer v. Walbert, 190 Pa. 334. 42 Atl. 694. A judgment entered
by the assignee of a judgment note will be opened where it appears that the
defendant had paid the note to the payee without notice of the assignment.
Walker v. Sallada, 17 Pa. Co. Ct. R. 371.
2«8 Anderson's Appeal (Pa.) 1 Atl. 32U; Fleming v. Jencks. 22 III. 475. Bnt
if usurious interest has been paid on a judgment note after judgment has
been entered on it, that does not make it necessary to open the judgment
in order to give the debtor proper relief. The payment will be considered
as an equitable payment on the judgment itself to the amount of the excess
of interest, and the court may stay execution, as in any other case of alleged
payment, until the facts can be ascertained and the just amount applied to
the judgment Shafer's Apijcal, 89 Pa. 24G.
(508)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 332
not be received with any degree of favor where the party objecting
(as will usually happen) was not prevented from setting up the
illegality as a defense to the action. In Georgia^ it was held that a
constitutional provision that the courts should not render or enforce
any judgment for a demand founded on slave property as the con-
sideration^ did not authorize them to vacate a judgment already ren-
dered on such a demand.^** And in general, in accordance with
the rule that, where both parties have eiqually participated in an
immoral or illegal transaction the courts will refuse to aid either
of them, but will leave them where they stand, it is held that a judg-
ment taken by confession or default will not be opened or vacated
to allow the defendant to escape from liability on an unlawful or
immoral transaction in which he knowingly participated.*®'
I 332. Newly-disooTered XSTidenoe.
Where facts occur after judgment (or before judgment but after
the time when the party can avail himself of them in the action)
showing that the judgment ought not to be enforced, in whole or in
part, relief may be given on account thereof, on motion to vacate
the judgment, to order it satisfied, or to stay proceedings on it, ac-
cording to the circumstances of the particular case.*** But the
party must be prompt and diligent. A judgment will not be vacated
on the ground of newly-discovered evidence, when it appears that
the defendant, knowing that the claim sued for was paid, and that
there were receipts for its payment, yet neglected to appear and
make efforts to procure evidence of the same.**^ And where a mo-
tion for a new trial has been overruled, on the ground that the
264 Ilansone y. Grist, 40 Ga. 241; Inman y. Jones, 44 Ga. 44; Bell y. Hanks,
55 Ga. 274.
265 Fields y. Brown. 80 111. App. 287; Shiimaker y. Reed, 13 Pa. Go. Ct
R. 547; Woelfel y. Hammer, lu9 Pa. 446, 28 Atl. 14C.
28* Cooley y. Gregory, 16 Wis. 303; WeUs, Fargo & Co. y. Wall, 1 Or. 295;
Mumo y. Callahan, 55 Neb. 75, 75 N. W. 151, 70 Am. St. Rep. 366; Krall v.
Campbell Printlng-Press & Manuf'g Co., 79 Tex. 556, 15 S. W. 565. Compare
Zlegler y. Evans, 8 Kulp (Pa.) ISO.
s«7 Heathcote y. Haskins, 74 Iowa, 566, 38 N. W. 417. And see Merrlfleid
v. Bell. 60 Hon, 576, 14 N. Y. Supp. 322; Robinson y. Davis, 66 Ark. 429, 51
S. W. 60.
(509)
§ 339 hAW OF JUDOMBNT8. (CC3l. 1 4
newly-discovered evidence on which the agpliciition is based is not
of sufficient importance for that purpose, the same evidence cannot
be made the basis of a direct action to set aside the judgement.***
I 333. JndsneBt on Rereraed JvdsmMit.
Where suit is brought in one state, say Colorado, on a judgment
rendered by a trial court in another state, say Illinois, and judg-
ment recovered thereon, and subsequently the Illinois judgment, the
case being removed by writ of error to the appellate court of that
state, is reversed, these facts, being properly brought before the
court, constitute good ground for vacating the judgment in Colo-
rado.*** Similarly, where a judgment is entered on a warrant of
attorney, and a transcript of it taken to another county, and after-
wards the original judgment is stricken off for cause, the judgment
in the other county falls with it.'^*^ On analogous principles, when
the defendant in a criminal case is tried, and a fine imposed on him,
and judgment entered thereon for the amount of the fine and costs,
and afterwards the governor remits the fine, the court should, on
motion, vacate the judgment as to the fine, leaving it subsisting as
to the costs. *^*
«•« Mayor, etc.. of City of New York v. Brady. 115 N. Y. 599, 22 N. E. 237.
In England, where It is sought to reschid a valid and final judgment on the
ground of the discovery of new evidence, it must be shown that such evidence
is both new and material; although evidence may have been withheld from
the court at the original trial by one of the parties to the suit, with an
improper intention, such conduct Is not sufficient to set aside the Judgment
unless the evidence withheld would have had a material effect upon the deci-
sion of the court. Boswell v. Goaks. G Rep. 167. A change in the interpre-
tation of a law applicable to a cause prosecuted to judgment does not entit]«>
the unsuccessful party in the suit to reopen the controversy. Travis County
v. King Iron Bridge & Manuf'g Oo.. 34 C. C. A. 620. 92 Fed. 090.
2e» Heckling v. Allen (C. C.) 15 Fed. 196; Aetna Ins. Co. v. Aldrlch, 38 Wte.
107.
«T0 Banning v. Taylor, 24 Pa. 297.
«Ti Chisholm v. State. 42 Ala, 527.
(510)
Ch. 14) VACATING AND OFBNINO JUDQMENTa f 834
I 334. Statutory C^romids for Taoativs Judgments*
Hitherto we have been considering what may be called the com-
mon law grounds for vacating judgments, — ^those causes which, in-
dependent of statute, are recognized as sufficient to call into play
the inherent power of courts of record to grant relief of this nature.
In many of the states, however, the matter is regulated by statutes,
which empower the courts to set aside judgments for certain enumer-
ated causes within a limited time. Thus in several states, the laws
authorize the court, in its discretion and upon such terms as may
be just, to relieve a party from a judgment or order taken against
him through fraud or through his "mistake, inadvertence, surprise,
or excusable neglect," provided the application be made within a
certam time after the rendition or entry of judgment (or "after no-
tice thereof") usually six months or a year.*''* In several others
the purport of the statute is substantially the same, though expressed
in somewhat different language, the causes specified being "unavoid-
able casualty or misfortune preventing the party from prosecuting
or defending," "fraud practised by the successful party in obtaining
the judgment," mistake of the clerk, death of a party, etc.*^' In
Connecticut, the statute authorizes the vacation of a judgment for
mistake, accident, or other reasonable cause.*^* In Georgia, a judg-
ment by default may be opened where the defendant was prevented
by "providential cause" or "excusable neglect" from filing his de-
fense at the proper time.*^* In Vermont, similar action may be
taken when the defendant was unjustly deprived of a hearing by
«Ti CJode dv. Proc. N. Y. § 724; CJode Oiv. Proc. N. O. § 274; Code Proc.
S. C. § 195; Rev. St. Ind. 1894, § 399 (Rev. St 1881. § 396); Rev. St. Wis.
i 2832; Code Civ. Proc. Dalt. § 143; Comp. Laws N. D. § 4939; Oomp. Laws
S. D. § 4939; Code Civ. Proc. Cal. § 473; Code Civ. Proc. Colo. § 75; 1 Hill's
Ann. Laws Or. § 102; Code Civ. Proc. Mont § 774; 2 Ballinger's Ann. Codes
& St Wash. § 5153; 2 HiU's Code Wash. § 221; Gen. St Nev. 1885, § 3217;
Rev. St Idaho 1887, § 4229; Comp. Laws Utah, § 3256.
2T3Rev. St Ohio, § 5354; Miller's Code Iowa, § 3154; Civ. Code.Ky. § 518;
Gen. St Kan. 1889, par. 4669; Code Civ. Proc. Keb. § 602; Sand. & H. Dig.
Ark. § 4197; Code Civ. Proc. Okl. § 588.
274 Gen. St Conn. 1888, § 1126.
«T5 Civil Code Ga. § 5072.
(511)
§ 335 LAW OF JUDGMENTS. {fJh. 14
fraud, accident, or mistake.^^* In Minnesota, a judgment may be
set aside which was obtained by means of perjury, subornation of
perjury, or any fraudulent act, practice, or representation of the
prevailing party.^^^ In Ohio, a judgment may be vacated for "ir-
regularity in obtaining it." "* The construction of these terms will
mainly occupy our attention through the succeeding sections. But
before passing on, it is necessary to observe that these statutes are
exclusive with respect to the causes which they enumerate but not
as to other possible causes. That is, if a party seeks relief on the
ground of one of the causes specified in the statute, he must bring
himself well within its terms and his application must be made within
the time limited. But the fact that such and such causes are pro-
vided by statute does not prevent the courts from acting on other
causes, just and reasonable in themselves and good at common law,
and where an application is based on such a ground, outside the
statute, it is not governed by the statute, in respect to the time of
moving or otherwise.*'*
I 336. Mistake.
When statutes authorize the vacation of a judgment entered against
a party through his "mistake," it is to be understood that they
mean a mistake of fact. Mistake of law — ^that is, the party's igno-
rance of the law, or mistake as to his legal rights or duties in the
premises — will not warrant the setting aside of the judgment."*
And even when the mistake is one of fact, there must be some rea-
sonable and valid excuse for its having occurred, so that it cannot
«T« R. L. Vt. § 1422.
«" Gen. St. Minn. 1878. c. 66. § 285; Gen. St Minn. 1804, | 5434.
*78 Kev. St. Ohio, § 5357.
«7» Ladd V. Stevenson, 112 N. Y. 323. 19 N. B. W2, 8 Am. St Rep. 748:
Cowlea v. Hayes, 69 N. C. 406; Bond v. Epiey. 48 Iowa, 600. See People
V. O'Connell, 23 Cal. 281.
"0 Skinner v. Terry, 107 N. C. 103, 12 S. E. 118; Chaffln v. Fnlkenon, 96
Ky. 277, 24 S. W. 1066; Jartman v. Pacific Fire Ins. 06., 69 Conn. 355. S7
AU. 070; Thompson v. Harlow. 150 Ind. 450. 50 N. E. 474; In re Can't Will,
64 Hun, CSO. 19 N. Y. Siipp. 647; Thacker v. Thacker, 125 Ind. 489. 25 N. £.
595. Compare Arnold v. Norfolk & New Brunswick Hoeiery Ca, 65 Hon,
621, 19 X. Y. Supp. 957.
(512)
CI). 14) VACATING AND OPENING JUDGMENTS. § 335
be said to be due merely to the party's heedlessness or indifference^
and he must show a defense to the action and due diligence in seek-
ing to vacate the judgment after discovering his mistake. These
conditions being met, the judgment may be set aside on the ground
of a mistake as to the identity of the suit, as where the party hon-
estly became confused between different suits brought against him,
or between a civil and a criminal action touching the same subject-
matter and pending at the same time;^®^ or a mistake as to the
capacity in which he is sued, as, if he supposes the action to be
against him in an official capacity when it was really the intention
to sue him as an individual ; -®* or a mistake as to the time when
he is required to plead or answer, or as to the time of the trial.^®*
But on the other hand, it is said that an affidavit that the party de-
faulted mistook the court in which his case was pending docs not
show sufficient ground for setting aside the judgment.*®* And courts
are not much disposed to vacate judgments on the ground of mis-
understandings between parties and their counsel. Thus, it is held
that a party's mistaken belief that he had retained an attorney to
take charge of the case does not entitle him to have a default judg-
ment vacated, where the facts did not justify that belief.*®*^ But
a«i Bertllne v. Bauer, 25 Wis. 486; MartJn v. Curlej% 70 Minn. 489. 73 X.
W. 4a'>. See Devlin v. Boyd, 69 Hun, 328, 23 N. Y. Supp. 523. One wlio
Buffers Judgment by default in a suit to foreclose a mortgage, to which his
name was forged, cannot afterwards have the judgment set aside on the
ground that his failure to appear and defend was due to the fact that he
thought the suit was to foreclose another mortgage given by him to a third
person. Gleland v. Hamilton Loan & Trust Co., 55 Neb. 13, 75 N. W. 239.
282 Ciipital Savings Bank & Trust Co. v. Swan, 100 Iowa, 718, 69 N. W.
1065. But one who Is sued as administrator and individually, and who, when
the summons is shown to him, says he knows all about It, walks away from
the officer before it is read to him, and, supposing he is sued only as admin-
istrator, makes no defense, cannot have a judgment by default set aside.
WilllamBon v. Oocke, 124 N. C. 585, 32 S. E. 963.
2«3 Johnson v. Eldred, 13 Wis. 482; Manwaring v. Lipplncott, 52 App. Div.
526. 65 N. Y. Supp. 428; Hanthorn v. Oliver, 32 Or. 57, 51 Pac. 440, 67 Am.
St Rep. 518; Titus v. Larsen, 18 Wash. 145, 51 Pac. 351; Miller v. Carr, 116
Cal- 378» 48 Pac. 32i, 58 Am. St. Rep. 180; Coos Bay, R. & E. R. & Nav. Co.
V. Endlcott, W Or. 573, 57 Pac. 61. Compare Grosvenor v. Doyle, 50 111.
App. 47.
s«4 Robertson v. B?rgen, 10 Ind. 402.
MB Ames Iron Works v. Chinn, 20 Tex. Civ. App. 382, 49 S. W. 665; North-
1 LAW J UDG.-n33 ^513^
§ 336 ULW OF JUDGMENTS. (Cb. 14
a mistake or misunderstanding as to the terms or effect of an agree-
ment between the two parties to the suit may justify the opening
of a default, or the modification of the judgment.'** In an action
to set aside a judgment on the ground of mistake, if the complaint
fails to make explanation of the mistake or the causes which pro-
duced it, it fails to set forth facts sufficient to constitute a cause of
action.^*^
The "mistake" which will justify the vacation of a judgment may
also be the mistake of the court or the judge. For instance, a
mistake in the transmission of a telegram by the judge of the court,
for which the party is in no way responsible, whereby he is de-
prived of a hearing on the trial, is ground for vacating the judg-
ment.-** But "wherever it may be found that inadvertence or mis-
take is held to be a ground for setting aside* a judgment, it will be
noticed that it is not a mistake of the law, or an inadvertent con-
clusion by the court as to what the law is, but a mistake or inad-
vertence in doing something not intended to be done." **• And where
the judgment entered on the journal is different from what was
intended by the court, but is shown to be such as ought to have
been rendered, it will not be vacated or modified as entered by mis-
take."*
§ 336. Snrprifle.
Under a statute which empowers the court, within a year after
notice of a judgment, to relieve a party therefrom on the ground of
"surprise," the fact that the party was surprised by a ruling of the
court, refusing to continue the cause on his motion, is not suffi-
cient.'*^ Nor is it enough that he was surprised by a decision hold-
ern Pac. & P. S. S. R. Oo. v. Blnck, 3 Wash. St. 327, 28 Pac. 53S. See Moore
V. Kelly & Jones Co., 109 Ga. 798, 35 S. E. 168.
28« BeDge V. Potter Qvy.) 55 S. W. 431.
28T Douglass V. Bro6ks. 38 Cal. C70.
a88 Thum v. Pike (Idaho) 55 Pac. 864.
28» Cooper V. Dimcan, 20 Mo. App. 355; Sargent v. Kindred, 5 X. D. 8. ^
N. W. 151.
280 Murphy v. Swadner, 34 Ohio St 672.
2»i Breed y. Ketchum, 51 Wis. 161, 7 N. W. 550. See Winter v. State, 18
Qa. 275.
(514)
Ch. 14) VACATING AND OPENING JUDGMENTS. | 836
ing a complaint bad on other grounds than those urged,*** nor
that he was surprised by evidence produced at the trial, unless he
asked for a continuance to procure testimony to meet it,'** nor be-
cause he was absent from the trial in consequence of his belief that
the case could not possibly be reached for trial that day, although
it was reached only through the unexpected continuance of some of
the preceding cases.*** Nor can a party claim that he was legally
"surprised" by the transfer of his case to a different court, though
he was actually ignorant of it, if he might have discovered the fact
by due diligence.*** On the other hand, in a case in West Virginia,
it appeared that an action was brought in a county court, and two
years later was transferred to the circuit court, no order except
continuances being made in it after such transfer. The judge of
the circuit court could not preside at the trial, and twelve years
later the plaintiff, in the absence of the defendant and his counsel,
caused a special judge to be elected, and, without the knowledge
of the defendant, the case was tried, and a verdict and judgment
rendered for the plaintiff. The defendant, being notified of such
judgment, moved the court to set the same aside because of the
facts above stated, and upon his affidavit alleging surprise and the
full payment of the debt sued on the circuit court set aside the judg-
ment and awarded the defendant a new trial. In this, it was held,
there was no error.*** So, again, where the respondent to a peti-
tion for a writ of prohibition files a demurrer and answer, and the
demurrer is overruled, and judgment absolute given against him on
the insufficiency of his answer, where, in the absence of a motion
for judgment on the pleadings, he expected that only the demurrer
would be passed on, a motion to vacate the judgment for surprise
will be granted.**^ But it is probable that the species of "surprise"
primarily contemplated by the statutes is that which results from
the taking of a judgment contrary to an agreement or understand-
«»2 Kan ▼. Chicago, M. & St. P. Ry. Co., 101 Wis. 166. 76 N. W. 329.
»»3 Robinson v. Davis, (JG Ark. 429, 51 S. W. G6.
f* Andres v. Krldler, 49 Xeb. 535, 68 N. W. 938.
«»* Philip V. Davis (Iowa) 78 N. W. 810.
a»« Bennett v. Jackson. M W. Va. 62, 11 S. K. 734.
«»THellbron v. Campbell (Cal.) 23 Pac. 1032.
(515)
I 837 LAW OF JUDGMENTS. (Ch. 14
ing that the case should be continued or not pressed, or not brought
to trial,^*' though that is also a kind of fraud. It seems that there
may also be legal "surprise" in the unexpected withdrawal from the
case of a party's attorney,*** though not where the judgment was
given by consent of the party's attorney, and the contention merely
is that he exceeded his authority.'®*
I 337. Gasiaalty or Misfortime.
In several of the states, as we have already stated, the statutes
specify "unavoidable casualty or misfortune preventing the party
from defending or prosecuting" as a ground for vacating judgments.
Decisions under this clause are of general importance; for it can-
not be doubted that failure to appear in consequence of an unavoid-
able casualty or misfortune would be a case of "excusable neglect"
within the statutes in other states. That the defendant was pre-
vented from reaching the place of trial by a railroad accident, or by
the impassable condition of the roads, or by storms or other insuper-
able obstacles, is a sufficient ground for vacating a default judg-
ment against him, if he shows a good defense.'*^ So also, the
judgment should be vacated where it appears that the summons was
served at his residence while he, with all the members of his family,
was absent on a vacation, and that he had no knowledge of the
action until he was requested to pay the judgment,'** or where the
civil docket was disarranged by the trial of the criminal docket, and
defendant's case was disposed of while his attorney was temporarily
absent from the court room,'** or where, shortly before the trial,
defendant's attorney absconded, without the knowledge of his cli-
ent.*** But the mere fact that the party wrote to an attorney to
«•• See, supra, | 322. And see Dunlop v. Schubert, ©7 Wis. 135, 72 N. W.
350.
2«» Ex parte Rountree, 51 S. O. 405, 29 S. E. W.
•00 Halrston v. Garwood. 123 N. a 845, 81 S. B. 653.
»oi Town of Oiiiro v. Ward, 19 Wis. 232; Decker v. Grares, 10 Ind. App.
25, 37 N. E. 550. Compare Malek v. Kodad, 92 Iowa. 763. GO N. W. 491.
«02 Schnltzler v. Fourth Nat Bank, 1 Kan. App. 674. 42 Pac. 406.
«08 Cooley v. BarbourvIUe Land & Improvement Co.'s Assignee (Ky.) 43 S.
W. 404.
•04 Ennis v. Fourth St Bldg. Ass'n, 102 Iowa. 520. 71 N. W. 426w
(51G)
Ch. 14) VACATING AND OPENING JUDGMBNTB. § 338
appear for him, though without disclosing his defense, and had no
knowledge that his letter was not delivered to the attorney until
after the judgment was rendered and the court had adjourned, is
not a sufficient excuse.'®" Nor is it sufficient that the party failed
to appear at the time his case was called in consequence of misunder-
standing his attorney's statement as to when the court met,'®* nor
that his absence from home on a business trip prevented him from
receiving notices sent to him by his counsel, as to the progress of
the case and the time of its trial.*®^ On the other hand, mental
unsoundness is such a "misfortune,'* within the meaning of the stat-
utes, as will authorize the court to vacate or modify a judgment.'®'
And if a party is deprived of the opportunity to interpose a meri-
torious defense by being detained as a convict in the penitentiary,
the court may, on a proper application after his release, open the
default and vacate the judgment.'®' But mere ignorance of the
English language is not a sufficient ground for such relief, if the
defendant knew that a suit had been commenced against him.'^®
I 338. Sickness of Defendant.
In some of the states, it is held that the illness of a party, oc-
curring on or continuing through the day of trial, and so severe as
to confine him to his house and prevent him from attending the
court and trying his suit, is such an "unavoidable casualty or misfor-
tune" as entitles him to have the judgment against him set aside.'^*
And in other states, this is considered a case of "excusable neg-
lect." '^^ But in some few jurisdictions there is a manifest reluctance
306 School District No. 13 v. Lovejoy (C. 0.) 16 Fed. 323; Ganzer v. Schiff-
bauer. 40 Neb. 633, 59 N. W. 98.
3o« Ross V. Louisville & N. R. Co., 92 Ky. 583, 18 S. W. 456.
»07 Bates v. Bates, 66 Minn. 131, 68 N. W. 845.
308 Bean y. Haffendorfer, 84 Ky. G85. 2 S. W. 556, 3 a W. 138; SmaU v.
Reeves, 104 Ky. 289, 46 S. W. 726.
5 09 Bonnell v. Rome, W. & O. R. Co., 12 Hun (N. Y.) 218.
sio Helsterhagen v. Garland, 10 Mo. 66.
«ii Gheer v. Huber, 32 Kan. 319, 4 Pac. 290; Luscomb v. Maloy, 26 Iowa,
444; French v. Eversole a^y.) 32 S. W. 211.
312 Sage V. Matheney, 14 Ind. 369; Flanagan v. Patterson, 78 Ind. 514;
Monroe v. Paddock, 75 Ind. 422; Depriest v. Patterson, 85 N. C. 376; Good-
(517)
I 839 LAW OF JUDGMENTS. (Ch. 14
to admit sickness as a sufficient excuse. In Georgia, a motion to
set aside a judgment by default, on the ground that the defendant
was sick when it was rendered and could not put in his plea, was
overruled, no reason being shown why the plea was not filed before
the trial term.*^* And in Indiana, the latest rulings decide that a
judgment should not be vacated because the defendant was too sick
to be present at the trial, as he might have appeared by attorney.***
This seems to be the doctrine also in Illinois.'** In one case the
defendant showed that he was confined to his house, during the
pendency of the action, by a wound in the foot, but the court refused
to open the judgment.**' The sickness of a member of the de-
fendant's family may be a ground upon which the judge may grant
a continuance, but it is not a reason for setting aside a default.**'
§ 339. Siokness of Govnseli
It is held by several very respectable authorities that the illness
of defendant's counsel, so severe as to prevent him from appearing
and trying the case, is a good ground for vacating the judgment.***
This, however, has been fairly denied.*** It seems reasonable to
hold that such an excuse would not be sufficient if the party' had
any opportunity to retain other counsel, or otherwise to escape the
Ime V. Meyers, 58 Tex. 405; HoUiman v. Pearlstone (Tex. dv. App.) 29 S.
W. 542; Carey v. Browne. G7 Hun, 516, 22 N. Y. Supp. 521; In re Tniver. 9
Misc. Rep. 621, 30 N. Y. Supp. 851; Bank of Princeton v. Johnston, 41 W-
Va. 550, 23 S. E. 517.
818 Cannon v. Harrold, 61 Ga. 158.
81* Jonsson v. LIndstrom, 114 Ind. 152, 16 N. E. 400.
81 B Shaffer v. Sutton, 49 111. 506; Edwards v. McKay, 73 HI. 570.
8i« Gardenhire v. Vinson, 39 Ark. 270.
817 Skinner v. Bryce, 75 N. C. 287; Seiberling v. Schuster, 83 Iowa, 747.
49 X. W. 844; Herbst Importing Co. v. Hogan, 16 Mont. 384, 41 Par. 1:Uk
Compare Thornall v. Turner, 23 Misc. Rep. 363, 51 N. Y. Supp. 214.
3i8Wilmai:th v. Gatfield, 1 How. Prac. 52; Bristor y. Galrin, tKJ Ind. 352;
Stout V. Lewis, 11 Mo. 438; Harralson v. McArthur, 87 Ga. 478, 13 S. E. 55M,
13 L. R. A. 689; Callanan v. Aetna Nat. Bank. 84 Iowa, 8, 50 X. W, e9:
Southwestern Telegraph & Telephone Co. v. Jennings (Tex. Civ. App.) 51 S.
W. 288.
81 p Clark V. Ewing, 93 111. 572; McFarland v. White. 13 La. Ann. .-CM. See
Ilittle V. Zeiraer, 164 111. 64, 45 N. E. 419; Heatou v. l»eteison, G Ind. App. 1.
31 N. E. 1133.
(518)
Cb. 14) VACATING AND OPENING JUDGMENTS. § 340
default or verdict. But if the attorney's illness was so sudden that
there was no time to employ other counsel, or if it was unknown
to the defendant, or he was unable to act in the matter, or no one
was present to ask for a continuance, it would be manifestly unjust
to visit the misfortune upon the defendant who was guilty of no
carelessness or lack of diligence. And indeed the cases hold that if
both the attorney and the defendant were sick, whereby the former
was prevented from attending to the case and the latter was pre-
vented from retaining- other counsel, the judgment should be va-
cated.*'^ Whether the illness or death of a member of the attor-
ney's family occurring at such a juncture as to draw him away from
the case, is a sufficient ground for relief, is an unsettled question."^^
But without doubt it should be decided on the lines above laid down
with respect to the counsel himself. In a case where the defend-
ant employed a prominent attorney, who died three weeks before
the return term, and whose death was conspicuously noticed in the
newspapers, and the defendant then neglected to employ other coun-
sel, and suffered a default, it was held that he was not entitled to
have the judgment vacated.*'*
f 340. Excusable Neglect.
The "excusable neglect" of the defendant is specifically mentioned,
in the statutes of several states, as one of the grounds upon which
judgments may be set aside.'"* And under this designation may
be classed the unavoidable absence of the party, when he is kept
away from the trial of his case by the performance of duties which
he cannot legally postpone or escape.*"* Thus, it is a good excuse
for failure to attend if he was compelled, at that time, to appear
1 20 Harvey v. Wilson, 44 Ind. 231; Goodhue v. Meyers, 58 Tex. 405.
aai Compare Powell v. Washington, 15 Ala. 803, with Stout v. Lewis, 11
Mo. 438.
•22 Kivett V. Wynne, 80 N. C. 39.
82» Supra, § 334. See Egan v. Rooney, 38 How. Prac. (N. Y.) 121; Keith v.
McCaflfrey. 145 Mass. 18, 12 N. E. 419.
324 But the fact that defendant was a milkman, delivering milk every day
In a city, and had no one to attend to his duties in his absence, is not suffi-
cient excuse for his neglect to appear and defend an action against him.
Landa T. McGehee (Tex.) 19 S. W. 516,
(519)
§ 340 LAW OF JUDGMENTS. (Ch. 14
before a grand jury,'*" or before another court,*** or if he was
necessarily absent in the actual military service of the United
States.'*^ Again, it is a case of "excusable neglect" if the party's
failure to plead, or to follow up his case, or to be present at its
trial, was due solely to his reliance upon assurances given him by
those upon whom he had a right to depend (as, the adverse party,
or counsel retained in the case, or a competent business adviser)
that it would not be necessary for him to take an active part in the
case, or that the suit would not be prosecuted.*** But the fact that
the defendant supposed a summons which was served on him to be a
paper in another cause pending between himself and the plaintiff,
and for that reason took no measures to answer it, is not excusable
neglect.*** But where the officer did not read or give a copy of the
summons to the defendant, but told him it was a subpoena for him
as a witness in a case pending in another court, and the defendant
did not learn the truth until too late, this was held a sufficient ex-
cuse.***
An application to open or vacate a judgment on this ground must
show the cause of the party's neglect of the case, and that it was
325 Frazier v. Bishop, 29 Mo. 447.
s26Tullis y. Seott, 38 Tex. 537. Compare Kitson r. Blake, GO Hun, 579.
14 N. Y. Supp. 446.
»27 Piper V. Aldrich, 41 Mo. 421.
sssWicke V. Lake, 21 Wis. 410, 94 Am. Dec. 552; Rowland v. Jones, 2
Heisk. (Tenn.) 321; Birch v. Frantz, 77 Ind. 199; Hull v. Vinlng. 17 Wash.
352, 49 rac. 537; City Block Directory Co. v. App, 4 Colo. App. 350, 3o Pae
985; Craig v. San Bernardino Inv. Co., 101 Cal. 122, 35 Pac. 558; Ilendenoo
V. Lange, 71 Minn. 468, 74 N. W. 172. Compare State t. Casey, 9 S. D. 436*
69 N. W. 585; Craig v. Major, 139 Ind. 624, 35 N. E. 1098. The fact that
defendant relied on the assurance of a constable, who had no autfaortty to
give such assurance, that the suit would be abandoned, does not excuse bis
neglecting the case. Harding v. R. S. Peale Co., 44 111. App. 344.
329 White V. Snow, 71 N. C. 232. See State v. O'Neill, 4 Mo. App. 221.
33oHIte y. Fisher, 76 Ind. 231. See Lowe y. Hamilton, 132 Ind. 406C SI
N. E. 1117. Where a summons was served on a director of a corporatSoo.
who neglected to notify the managing officers or attorneys until after the
entry of a judgment by default, and they had no knowledge of the suit, and
showed a defense to part of the claim, it was held that the default should
he oponiMl. 6. S. Congdon Hardware Co. v. Consolidated Apex Mln. Co., U
S. D. 376, 77 N. W. 102:i.
(520)
Ch. 14) VA<3ATINa AND OPENING JUDGMENTS. | 340
excusable.'** If the papers disclose mere carelessness, lack of at-
tention, or indiflference to his rights, on the part of the applicant or
his counsel, he cannot expect an opportunity to redeem the past.
The law exacts diligent attention from all suitors. If the party's
negligence is without excuse or justification, he must abide the con-
sequences.*'^ And as indicating the kind and amount of diligence
required of him, it may be stated, first, that unless he means to try
his own case, it is his duty to retain an attorney, more especially
where the party himself is a non-resident.'*' He must see to it that
the attorney understands and accepts the retainer. It will not be
sufEcient excuse for a default that a letter sent to an attorney, ask-
ing him to appear in the case, was not delivered until after the trial,
if there was time to secure counsel by telegraphing."* If an attor-
ney employed to represent the defendant dies or withdraws from the
case, an effort to supply his place in due season must be shown.'"
SSI Mitchell y. AHen, 110 Ga. 282, 34 S. B. 851. The mere fact that de-
fendant reached the court half an hour too late, and after the case had been
disposed of, constitutes no excuse for the default. Mullane y. Roberge, 21
Misc. Rep. 342, 47 N. Y. Supp. 155.
S82 Brand v. Stafford, 28 La. Ann. 51; Fritz v. Roney. 9 Pa. Dist. R. 27;
Griffin y. Brewer, 96 Ga. 758, 22 S. E. 284; Athens Leather Manuf'g Co. y.
Myers, 98 Ga. 396, 25 S. E. 503; Harms y. Jacobs, 160 111. 589, 43 N. E. 745;
Nauer v. Benham, 43 Minn. 252, 47 N. W. 796; Shay y. Chicago Clock Co.,
Ul Cal. 549, 44 Pac. 237; Myers y. Landrum, 4 Wash. St. 762, 31 Pac. 33.
It is gross negligence to pay no attention to an action for 18 months after
service of process. Grootemaat y. Tebel, 39 Wis. 576. In a case in North
Carolina, where defendant retained counsel and fully informed him of his
defense, and subpoenaed witnesses, but thought his own presence at the trial
would not be necessary, and therefore did not attend, but the witnesses did
not appear and there was no one to ask for a continuance, and Judgment
was taken against him, It was held that his negligence was inexcusable, and
the judgment should not be opened. Waddell y. Wood, 64 N. C. 624. And
see Oliyer y. Gerstle, 58 111. App. 615.
«3» Union Cent. Life Ins. Co. y. Lipscomb (Tex. Civ. App.) 27 S. W. 307.
»34 Finlayson v. American Ace. Co., 109 N. C. 196, 13 S. E. 739. It is no
ground for opening a Judgment that the attorney' did not receiye the letter
aaking him to appear and defend the suit in time to do so, where the defend-
ant himself, though several times in the town where the attorney lived, failed
to inquire for him or seek information regarding the suit. Post y. Carr,
42 W. Va. 72. 24 S. E. 583.
3SB Simpson y. Brown, 117 N. C. 482, 23 S. E. 441. Compare Grady v. Donii-
faoo, 106 Cal. 211, 41 Pac. 41.
(521)
§ 340 LAW OF JUDOMBNT8. (Ch. 14
Having retained counsel, it is the client's duty to inform him fully
of the nature and grounds of his defense, to assist him in the prepara-
tion of the case, and to attend at the trial, unless advised by his
counsel that his presence is not- necessary. If he fails in these par-
ticulars, his negligence cannot be held to be excusable.'** Un-
doubtedly a party has a right to depend on his attorney's keeping
him informed of the progress of the case ; and a judgment may be
vacated for excusable neglect or surprise, although the defendant
was represented by counsel.'*^ But it is not sufficient excuse for a
default that defendant's counsel did not notify him of the time of
the trial, if the defendant himself had actual notice that the case
would probably be tried at a given term, at which it actually was
tried.*"
But in all these cases, the party's failure to take the steps required
of him was due to his own want of diligence or attention. The
situation is entirely different where, in the exercise of all due vig-
ilance and activity, he was prevented from filing a pleading or at-
tending the trial by an accident or chain of accidents which he could
not have controlled,'** or by a genuine and excusable mistake or
miscalculation.**® It is not, however, a case of excusable neglect
when the only reason for not filing an answer in time was that the
peculiar nature of the case required more than the usual time in the
preparation of an answer, and the attorney could not give it his un-
divided attention.'** And a judgment will not be set aside on the
ground that the defendant was prevented from being represented at
the trial and making his defense, when the defense set up in the affi-
'••Cowles V. Cowles, 121 N. C. 272, 28 S. E. 476; SulUvan v. Shell. 3«
S. C. 578, 15 S. E. 722, 31 Am. St. Rep. 8J>4; Habn v. Gates. IfiO IlL 290. 48
N. E. 398; Parker v. Belcher. 87 Ga. 110, 13 S. E. 314; Schroer v. WefiwU,
80 111. 113; Norton v. McLaurin. 125 N. C. 185, 34 S. E. 260.
»»T Ex parte Roundtree, 51 S. C. 405. 29 S. E. 66.
»3 8 Leader v. Dunlap. C Pa. Super. Ct. 243. And see Vick v. Baker, 122
X. C. 98, 20 S. E. 64.
38» Fitzpa trick v. Campbell. 58 Minn. 20. 59 N. W. 620: MitcheU A Lewis
Co. V. Downing. 23 Or. 448, 32 Pac. 394; Blain v. Shaflfner. 37 IlL App. 3JW:
Williams v. Richmond & D. R. Co.. 110 X. C. 466. 15 S. E. 97.
340 .Jensen v. Barbour. 12 Mont 566, 31 Pac. 592. See, also. In re Davis*
Estate, 15 Mont. 347, 30 Pac. 202.
a*i Bailey v. Taaflfe, 29 Cal. 422,
(r»22)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 34Ca
davit in support of his motion is entirely new and not disclosed by
the original pleadings.***
I 340a. Mistake, Isnoranoe, or Erroneoiu Adviee of Oounsel.
Certain of the cases lay down a broad general rule that the mis-
take or ignorance of a party's counsel will not relieve him from a
judgment rendered against him.'** But a majority of the decisions
favor the principle that a mistake of the party's attorney may war-
rant the vacation oi the judgment, as well as a mistake made by the
party himself, provided it was a mistake of fact, and not of law>
and provided it was such as might reasonably and genuinely have
occurred. Thus, we find authorities justifying the grant of such re-
lief where the judgment was entered in consequence of the attorney's
mistake or misapprehension as to the real facts of the case, or the
circumstances of the transaction out of which the suit arose,*** or
his mistake or miscalculation as to the time for pleading or for the
trial, or as to the case being set for trial or placed on the calendar.***^
3 *2 Kehler v. New Orleans Ins. Co. (C. O.) 23 Fed. 709.
•4s AVilson V. Smith, 17 Tex. Civ. App. 188, 43 S. W. 1086.
»44 xrnderwood v. Underwood, 87 Cal. 523, 25 Pae. 1065; McCredy v. Wood-
cock, 41 App. Div. 526. 58 N. Y. Supp. 656.
3-15 Melde v. Reynolds, 129 Cal. 308, 61 Pac. 932; Springer v. Gillespie (Tex.
riT. App.) 56 S. W. 369; Lathrop v. O'Brien, 47 Minn. 428, 50 N. W. 530;
Hermance v. Cunningham, 49 Xeb. 897, 69 N. W. 311; Horton v. New Pass
Gold & S. Min. Co., 21 Nev. 184, 27 Pac. 376; Scott v. Smith, 133 Mo. 618, 34
S. W. 864; CoUier v. Fitzpatriclj, 22 Mont.. 553, 57 Pac. 181. But no suffi-
cient excuse is shown by an affidavit of counsel that he had forgotten on
what day the term began, when he admits receiving the summons before the
term, and the summons Itself showed when the term began. Baltimore &
O. R. Co. V. Flinn, 2 Ind. App. 55, 28 X. E. 201. Nor is it sufficient ground
for opening a judgment that a clerk in the office of defendant's attorneys
inadvertently placed the cause on the office diary for the January term in-
stead of the December term, when the attorneys knew, when the suit was
begun, that the answer would have to be filed at the December term. Bar-
rett V. Queen City Cycle Co., 179 111. 68, 53 N. E. 550. A custom in one sec-
tion of the state for circuit courts not to try cases on the first day of the
term is no excuse for the absence of an attorney whose case is set for trial
on that day, where it Is not shown that the custom is invariable. Wilson v.
Scott, 50 Mo. App. 329. And see, as denying that the attorney's mistake or
miscalculation of time is ground for vacating a judgment, Smith v. Watson,
28 Iowa, 218; People v. Rains, 23 Cal. 127.
§341 LAW OP JUDGMENTS. (Ch. 14
So, a showing that defendant, after receiving service, engaged an
attorney to conduct his defense, and that the latter failed to find
the case because it was docketed in a wrong name, and for that
reason omitted to make any defense, is sufficient to warrant the set-
ting aside of a default.'** And the same rule applies where the at-
torney mistakenly advised his client that the action had been dis-
continued.**^
But if the mistake made by the attorney was a mistake of law,
such relief cannot be granted. This principle is applied not only
where he was in error, legally speaking, as to the rights or duties of
his client, or as to the legal effect of substantive facts in the case,
but also where the attorney takes a wrong course or fails to take
m
the right course in consequence of his ignorance or misunderstand-
ing of the rules of procedure.'*' Where a defendant who really has
a good defense to the action is dissuaded from setting it up and
contesting the suit, and suffers a default, by reason of erroneous
advice from his attorney, it is thought, in several of the states, that
this will constitute a sufficient ground for vacating the judgment
rendered against him.'*' But elsewhere, on the ground that such a
mistake is one of law, it is ruled that an application to open or
vacate the judgment cannot be based on such grounds."*
S 341. Hesliceaoe of AtUnemmf^
In a majority of the states, the courts have steadily refused to set
aside a judgment on the sole- ground of the neglect or carelessness
of the attorney for the party against whom it was rendered. The
»*e aifford V. GnieUe (Ky.) 32 S. W. 937.
»*T Searles v. Christensen, 6 S. D. 650, 60 N. W. 29.
»*« In re Hoopes' Estate, 185 Pa. 167. 39 Atl. 840; HIcklin v. McClear, 19
Or. 508, 24 Pac. 902; Phifer v. Travellers' ins. Co., 123 X. C. -KX), 31 S. R.
715; Brooks v. Johnson, 122 Cal. 569, 55 Pac. 423; Harbaugh ▼. Honey Lake
Valley Land & Water Co., 109 Cal. 70, 41 Pac. 792; Shearman ▼. Jorgensen,
106 Cal. 483, 39 Pac. 863.
3*» Baxter v. Chute, 60 Minn. 164, 52 N. W. 379, 36 Am. St R^. 633: Dons-
lass V. Todd, 96 Cal. 655, 31 Pac. 623, 31 Am. St. Rep. 247.
>»o Mouser v. Harmon, 96 Ky. 591, 29 S. W. 448: Oox r. Armstrong (Ky,)
43 S. W. 189; MUwaukee Mut. Loan & Bldg. Soc. v. Jagodzlnskl, 84 Wis. Xi.
54 N. W. 102.
(524)
Ch. 14) VACATING AND OPENING JUDGMENTS. > § 341
act or omission of the attorney is the act or omission of the client,
and no negligence will be excusable in the former which would not
be excusable in the latter.*'** This view has recently found ex-
pression in a case in Kansas, of which the circumstances were so
unusually severe as to deserve somewhat detailed mention. It ap-
peared that the plaintiff resided in Kansas and the defendants in
another state; that the defendants employed an attorney in Kansas
to file an answer and attend to the case; that the attorney never
filed such answer, but, before the time for filing it had expired, he
left the state, and never returned, and no answer was ever filed in
the case; that after more than four months had elapsed since the
defendants made default by not filing an answer, a judgment was
rendered against them in accordance with the prayer of the plain-
tiff's petition; that the defendants had no knowledge of the negli-
gence of their attorney, or of the rendition of such judgment, until
a long time after both had occurred ; that the attorney was insolvent ;
and that the defendants had a good defense to the action. It was
held that neither of these circumstances, nor all combined, could be
considered such an "unavoidable casualty or misfortune preventing
the party from defending" the action, that the defendants could have
the judgment vacated and be let in to defend.'"* It is generally
«»i Babcock v. Brown, 25 Vt 550, 60 Am. Dec. 200; Davison v. Heffron.
31 Vt 687; Burke v. Stokely, 65 N. 0. 560; Foster v. Jones. 1 MeOord (S. C.)
116; Tarrant CJo. v. Lively, 25 Tex. Supp. 399; Welch v. Challen, 31 Kan.
C96, 3 Pac. 314; Kreite v. Kreite, 93 Ind. 583; Spauldlng v. Thompson, 12
Ind. 477, 74 Am. Dec. 221; Jones v. Leech, 46 Iowa, 186; Niagara Ins. Go.
▼. Rodecker, 47 Iowa, 162; Ordway v. Suchard, 31 Iowa, 481; State v. Elgin,
11 Iowa, 216; Bosbyshell v. Summers, 40 Mo. 172; Austin v. Nelson, 11 Mo.
192; Gehrke v. Jod, 59 Mo. 522; Kerby v. Chadwell, 10 Mo. 392; Matthis v.
Inhabitants of Town of Cameron, 62 Mo. 504; Merritt v. Putnam, 7 Minn. 493,
(Gil. 399); Smith v. Tunstead, 56 Gal. 175; People v. Rains, 23 Gal. 127; Ekel
V. Swift, 47 Cal. 020: Harper v. Mallory, 4 Nev. 447; United States v. Wal-
lace (D. 0.) 46 Fed. 569; Phillips v. GolUer, 87 Ga. 66, 13 S. E. 260; Merrill
V. Roberts, 78 Tex. 28, 14 S. W. 254; Woolley v. Sullivan (Tex. Giv. App.)
43 S. W. 919: Metropolitan Life Ins. Co. v. Bergen, 64 HI. App. 685; Moore
▼. Horner, 146 Ind. 287, 45 N. E. 341; Parker v. Indianapolis Nat. Bank, 1
Ind. App. 462, 27 N. K. 650; Jackson v. Gould, 06 Iowa, 488, 65 N. W. 406;
Church V. Lacy, 102 Iowa, 235. 71 N. W. 338: Anderson v. Green (Ky.) 55
a W. 420; Wynn v. Frost, 6 Okl. 89, 50 Pac. 184.
tsa Welch v. GhaUen, 31 Kan. 696, 3 Pac. 314.
(525)
§341 LAW OF JUDGMENTS. (Ch. 14
held that the attorney's neglect to file a plea or answer in the action
will not justify the setting aside of a judgment by default.*** But a
case in New York holds that where the defendant's counsel omitted
to enter a plea, and the neglect of the client to examine the records
to see whether his plea was on file was excusable, there was good
ground to open the judgment.*** Where a party had time to give
his personal attention to the defense of the action before a default
was entered, and he failed to do so, it was held that the fact that
counsel, whom he supposed he had engaged to make his defense,
omitted to do so, did not make it imperative on the court to set
aside the default.'** Moreover, it is the duty of an attorney to fol-
low up with diligence the cases in which he is retained, to watch
the progress of each cause with vigilance, to note carefully the vari-
ous steps taken by his adversary or by the court, and to secure due
notice of every successive development in the action which requires
movement on his part. His carelessness or inattention in these re-
spects is not excusable. If the client suffers a default, or otherwise
loses his case, because of the failure of his attorney to pursue and
follow up the action with due care and watchfulness, it will not be
ground for vacating the judgment.***
On the other hand, it is held in a few states (and notably in New
York) that the negligence of the attorney is a sufficient ground for
setting aside the judgment, provided the client himself was not di-
1 68 Austin V. Nelson. 11 Mo. 192; Kerby v. Chadwell, 10 Mo, 392; Harper
V. Mallory, 4 Nev. 447; Butler v. Morse, CG N. H. 429. 23 Atl. 90; Bentley
V. Finch, 86 Ga. 800, 13 S. E, ir>5; Schultz v. Mei8en>ar. 144 III. 20, 32 X. E.
550; Thomas v. Chambers, 14 Mont. 42.3. 3G Pac. 814; Edwards v. Hellings;
103 Cal. 204. 37 Pac. 218; Tarrant Co. v. LIvel3% 25 Tex. Supp. 399; Jones
V. Leech, 46 Iowa, 186.
804 Clark v. Lyon, 2 Hilt. 91.
sBB Schroer v. Wessell, 80 111. 113. Ne;;ligence of counsel Is not excusable
neglect, for which a judgment will be set aside, where the client took no
interest In the case, did not attend the court, gave no instructions to bis
attorney, nor aslved any from him. Norton v. McLaurln, 125 N. C. 1S5. :!4
S. E. 209.
8 66 Brumbaugh v. Stockman, 83 Ind. 583; Norton v. McLaurln, 125 N. r.
185, 34 S. E. 269; McDauiel v. McLendon, 85 Ga. 614, 11 S. E 869; Padjcitt
V. Evans (Tex. Civ. App.) 51 S. W. 513; Pearson v. I>robaz Fishing Co.. lO
Cal. 425. 34 Pac. 76; Ilaggin v. Lorentz, 13 Mont. 406, 34 Pac ti07; liTer-
pool & L. & G. Ins. Co. V. I»errin (N. M.) 61 Pac. 124.
(526)
Ch. 14) VACATING AND OPENING JUDGMENTS. i 341
rectly in fault.* *^ A party may be relieved from a judgment ob-
tained against him by reason of the negligence, ignorance, or fraud
of his attorney, without compelling him to resort to an action against
the attorney or show the latter to be insolvent.'** And even in
the states which generally adhere to the stricter rule, there is a
disposition to relax it somewhat under exceptional circumstances.
Thus, where an attorney overlooked the case on the trial-calendar,
by reason of its being placed thereon under a title calculated to
mislead, and the case was called and defaulted, and there was a
meritorious defense, it was held that the default and judgment ren-
dered thereon might be set aside, application being made at the
same term."* So where it was made to appear by affidavit of de-
fendant's attorneys that the reason why they did not appear and
file an answer was on account of an accidental misplacement of the
petition and notice handed to them by the plaintiff, whereby the
case was overlooked by them in examining their papers at the com-
mencement of the term, in order to ascertain what cases they had
to attend, it was considered that setting aside the default was no
abuse of discretion.**® So it is proper to vacate an order of dis-
missal, on motion of the plaintiff's attorney, supported by his state-
ment that he had consented to the dismissal improvidently, and ac-
companied by his offer to refund the costs paid by the defendant
a»T Nash v. Whetmore, 33 Barb. (N. Y.) 159; Curtis v. Ballagh, 4 Edw. Ch
(N. Y.) 639; Clark v. Lyon, 2 Hilt. (N. Y.) 91; Phillips v. Hawley, 6 Johns
(N. Y.) 129; Tripp v. Vincent, 8 Paige (N. Y.) 180; Millspaugh v. McBrlde, 7
Paige (N. Y.) 509. 34 Am. Dec. 3(50; Meacham v. Dudley. 6 Wend. (N. Y.) 514
Gideon v. Dwyer, 17 Misc. Rep. 233, 40 N. Y. Supp. 1053; De Marco v. Mass
31 Misc. Rep. 827, 64 N. Y. Supp. 768. And see, also, Thompson v. Goulding
5 Allen (Mass.) 82; Bradford v. Coit, 77 N. C. 72; Oriel v. Vernon, 65 N. C
76; Hanson v. Mlchelson, 19 Wis. 498; Babcock v. Perry. 4 Wis. 31; Ash
ton V. Dashaway Ass'n (Cal.) 33 Pac. 440. But the mere fact that the defend
ant wrote to an attorney requesting him to enter an appearance for him
which the attorney failed to do, In consequence of which judgment was en
tered by default, does not make out such a case of ^'excusable neglect" as
would justify the court in vacating the judgment. Burke v. Stokely, 65 N.
C. 569.
«58 Sharp V. Mayor of City of New York. 31 Barb. (N. Y.) 578.
»»• AUen V. Hoffman, 12 IH. App. 573.
««o Ordway v. Suchard, 31 Iowa, 481.
(527)
§342 LAW OP JUDGMENTS. (Ch. 14
after notice of the motion.'** The negligence of any person who is
delegated or employed by the attorney to attend to the case or take
his place is of course imputable to the attorney himself, and will
not be excusable in the one unless it would have been in the other.***
And where an attorney is engaged simply to employ counsel to ap-
pear at another place^ he is a mere agent, and his negligence in fail-
ing to employ counsel is the negligence of his principal.*** The
burden is on a party seeking to be excused by the neglect of coun-
sel to show that he employed counsel practising habitually in the
particular court or who specially agreed to attend to the case***
S 342. Mlsimclerstancliiis of CovaaeL
A misunderstanding between the defendant in an action and an
attorney, as to whether the latter had been retained or not, in con-
sequence of which the judgment goes by default, will be good ground,
provided the mistake was genuine, for setting aside the judgment.***
So where, in consequence of a misunderstanding between a defend-
ant and his attorney, attributable to the negligence of a third per-
son, the real defense is not interposed, and he does not discover the
fact until after judgment has been recovered against him, it is no
abuse of discretion to vacate the judgment.*** So in a case where
the defendant in a judgment by default applied to the court to open
the same, and showed in his affidavit that he believed the case was
being defended in his behalf by the attorneys who represented his
co-defendants, and the record entries in the early stages of the cause
»«i Benwood Iron-Works Co. v. Tappan, 56 Miss. 659.
862 Davison v. Heffron, 31 Vt. 687; Webster v. McMahan, 13 Mo. 582.
303 Fiulayson v. American Ace. Co.. 109 N. O. 196. 13 S. K 739.
384 Manning v. Roanolce & T. R. Co.. 122 N. C. 428, 28 S. E. 963.
865 Panesl v. Boswell, 12 Heisk. (Tenn.) 323; MelOnley v. Tuttle, 34 CaL
235; Bcatty v. O'Connor. 106 Ind. 81, 5 N. E. 880. But see section 340. supra,
as to the duty of the defendant to see to it that his attorney understands
and accepts the retainer. It is said that the fact that defendant's counsel.
through a misunderstanding, failed to appear at the trial, is no ground for
setting aside a default, where defendant's only complaint Is that the Judg-
ment is for more than he thinks it ought to be. McRae v. Adam8» 85 UL
App. 528.
»e« Dixon V. Lyne (Ky.) 10 S. W. 469.
(528)
Ch. 14) VACATING AND OPENING JUDGMBNT& S 348
showed that those attorneys appeared for "the defendants" generally,
and there was shown to be a good defense on the merits, it was
held that good cause appeared for opening the judgment.**^
i 343. UnaToidable Absenoe of CoiinseL
Where, in the unavoidable absence of the defendant's attorney (as,
when he is engaged in trying a case- in another court, which was
begun before the plaintiff's case was called, and is unexpectedly pro-
tracted) a judgment is entered for the plaintiff, if all appears to have
been done in good faith, and the defendant could not proceed with-
out his counsel, and there is a meritorious defense, the cases gen-
erally hold that this will be good ground for vacating the judg-
ment.**' Similar rulings have been made in cases where the attor-
ney's absence was caused by the sudden and dangerous illness of a
near relative,*** or by his necessary attention to the duties of a
public office which he holds.*^® On the other hand, there are de-
cisions to the effect that it is not a sufficient excuse for the attor-
ney's absence that he was "detained by important legal business
elsewhere," or that he was in attendance upon the legislature as a
member of that body.*^* But the rule which appears to rest upon
the surest foundation of sound legal reason is that which requires
proof that the attorney's absence was truly unavoidable, in the sense
that he could not have prevented judgment going against his client,
in his absence, by any vigilance, or precaution on his part. Accord-
ing to the decisions favoring this rule, if counsel has cases coming
on in two different courts at the same time, he must obtain leave
aeiKupferle v. Merchants' Nat. Bank, 32 Ark. 717. And see Heaps v.
Hoopes, 68 Md. 383, 12 Atl. 882.
3«8 McArthur v. Slauson, GO Wis. 293, 19 N. W. 45; BeaU v. Marietta Pa-
per MUl Co., 45 Ga. 28; Stout v. Lewis, 11 Mo. 438; Smith v. Moreton Truck
& Storage Oo.. 19 Ohio Cir. Ct. R. 628.
3«o Martin v. St Charles Tobacco Co., 53 Mo. App. 655; Burns v. Scooffy,
98 Cal. 271, 33 Pac. 86. Compare Cresswell v. White, 3 Ind. App. 306, 29
N. B. 612.
•TO Hill V. Crump, 24 Ind. 291.
ail Wilson v. Scott, 50 Mo. App. 329; Dick v. Williams, 87 Wis. 651, 58
N. W. 1029; Carr v. Dawes, 46 Mo. App. 351, 698; Butte Butchering Co. v.
Clarke, 19 Mont. 306, 48 Pac. 303.
1 LAW JUDG.-^ (529)
§ 344 LAW OF JUDGMBNTa. (Ch. 14
of absence from one or other of the courts and arrange that his
case shall not be proceeded with there in his absence.*'* If he is
likely to be detained elsewhere by business of importance, legal or
otherwise, he must apply to the opposing counsel for a continuance
or an extension of time.*'* If, starting from a distant point, he
finds that he cannot reach the place of trial in due season, he should
telegraph to the judge and ask to have the case held until his ar-
rival.*'* And it is quite clear that a judgment should not be set
aside on this ground when no explanation or excuse for the attor-
ney's absence is offered, or when it appears that he was guilty of
carelessness or lack of attention, or that he withdrew from the court
room in the mistaken belief that his case would not be reached be-
fore his return.*''
S 344. Fraud of Attorney*
If an attorney corruptly sells out his client's interest to the other
side, a judgment thus obtained may be set aside on the charge of
fraud. So also, if a plaintiff is guilty of so influencing the attorney
of the defendant by the payment of money without the knowledge
or consent of his client, as to make it the interest of such attorney
that the plaintiff should obtain a judgment against his client, and
such attorney, in the absence of his client, does not make any oppo-
sition to the rendition of the judgment in favor of the plaintiff, a
new action may be maintained by the defendant to set aside such
judgment and open the case for a new and fair hearing.*^* It has
even been held that, where an attorney withdraws from the case,
and judgment goes against his client, the mere fact that the latter
did not consent to the withdrawal or know of it, will enable him to
^T2 Western & A. R. Co. v. Pitts, 79 Ga. 532, 4 S. E. 021.
378 Grove v. Bush, 86 Iowa, 94. 53 N. W. 88.
374 Oaughey v. Northern Pac. Elevator Co., 51 Mhin. 324, 53 N. W. 545.
sTspitzele V. Lutkins, 85 111. App. 662; Huntington v. Emery, 74 Md. tu.
21 Ati. 495; Gray v. Sabin, 87 Cal. 211, 25 Pac. 422.
37«Haverty v. Haverty, ai Kan. 438, 11 Pac. 364; Beck v. Bellamy, 93 N.
•C. 129. But in Iowa, a Judgment cannot be vacated for fraud and negligence
•of attorneys in not interposing a valid defense, under Oode, f 4091, author-
izing vacation of Judj?ment for fraud in obtaining it McCormick v. Ilc-
(Cormlck. 109 Iowa, 700, 81 N. W. 172.
(630)
Ch. 14) VACATINQ AND OPENING JUDGMENTS. § 845
haye the judgment opened.*'^ A stronger case for such relief is. of
course made out where it is shown that the attorney's withdrawal
was caused by hostility to his client for alleged nonpayment of his
fees.*^* If the client consents to the withdrawal of his attorney's
appearance, he precludes himself from moving for the vacation of
the judgment.'^*
S 345. Misinformation mm to Time of Trial*
Where a party who seeks the vacation of a judgment rendered
against him in the absence of his counsel and himself explains their
failure to attend the trial by showing that they relied on a state-
ment made by the judge of the court that the case would not be tried
at the current term, or that it could not be reached before a dis-
tant date, or that nothing further would be done without notifying
counsel, notwithstanding which a default was taken, it is generally
held to be a case of "excusable neglect," such as will warrant the
opening of the judgment.'*** And a similar rule is applied where
counsel was misled by information or assurances given him by the
clerk of the court, as to the time when the case would be reached in
its order, or as to the time when the court would proceed with the
business before it.*'* But some of the authorities maintain the rule
»T7 Utah Ctoinmercial & Savings Bank v. Trumbo, 17 Utah, 108, 53 Pac.
J063. In South Carolina, it is not necessary to show fraud and collusion be-
tween an attornej' who filed a demurrer for defendant and afterwards with-
drew it, and allowed Judgment by default, and the plaintiff, in order to au-
thorize the court to set such Judgment aside, since there was no trial. Ex
imrte Roundtree, 51 S. C. 405, 29 S. E. G6.
378 Mchells V. Nichells, 5 N. D. 125, 64 N. W. 73. 33 L. R. A. 515, 57 Am.
St Rep. 540; Herbert v. Lawrence, 21 Cir. Proc. R. 336, 18 N. Y. Supp. 96.
»T»F!ncher v. M^lcolmson, 96 Cal. 38. 30 Pac. 835; Dudley v. Broadway
Ins. Co., 42 App. Div. 555, 59 N. Y. Supp. 668.
»»« Ratiiff V. Baldwin, 29 Ind. 16. 92 Am. Dec. 330; Cruse v. Cunningham.
79Ind. 402; Sanders v. Hall, 37 Knn. 271, 15 Pac. 197; Jean v. Ilennessy, 74
Iowa, 348, 37 X. W. 771, 7 Am. St. Rep. 488; Buena Vista Co. v. I. F. & S.
a R. Co.. 49 Iowa. 657; Melde v. Reynolds. 129 Cal. 308, 61 Pac. 932; Fleet-
wood V. Eciuitable :Mortg. Co., 108 Ga. 811. 33 S. E. 1014.
»»i Hewitt V. Hazard. 33 App. Div. 630, 53 N. Y. Supp. 340; Xash v. Den-
Ion, 59 Kan. 771. 51 Pac. 896; Anaconda Min. Co. v. Salle, 16 Mont. 8, 39
Pac. 909, 50 Am. St. Rep. 472. But the fact that Judgment is rendered in
tbe absence of defendant's counsel, because he relied on the clerk of the court
(531)
§ 345a L.AW OF JUDGMENTS. (Ch. 14
that even such official assurances will not relieve litigants (or their
counsel) from the duty of exercising thie utmost vigilance in watch-
ing the progress of their causes.'"*
f 345a. Estoppel to Apply for Vaemtion of JvdKinemt.
A party, against whom a judgment has been taken under circum-
stances which would ordinarily entitle him to apply for its vacation,
may be estopped by his conduct to ask for such relief. This is held
to be the case where he has been guilty of fraud in attempting to
elude execution on the juH'^ment by setting up a claim under a fic-
titious name to the goods ^ought to be levied on,'*' or where he
has made a "declaration of no defense" to the note on which the
judgment was entered and offered to pay it to the present holder
before maturity,'** or where a judgment by default, barring redemp-
tion, has been rendered against a junior incumbrancer through his
excusable neglect, and he learns of the judgment while the period of
redemption is running, but fails to redeem.'" On the other hand,
it is said, in New York, that a defendant is not estopped to apply to
have a default opened and for leave to set up a meritorious defense,
unless the plaintiff has been prejudiced by the loss of some substan-
tial advantage which he would have had if the defense had been in-
terposed at the proper time."* And it seems that the fact that a
default judgment has been satisfied by a sale of the defendant's prop-
erty does not deprive him of relief, unless it is shown that some one
was misled by his failure to prevent the sale."^
to inform him of the day of tiial, which the latter failed to do, does not make
a case of "excusable neglect." Western Union Tel. Go. v. Griffin, 1 Ind. App.
40. 27 N. E. 113.
8«2 National Fertilizer Co. v. Hinson, 103 Ala. 532, 15 South. 844; Wilson
V. Smith, 17 Tex. Civ. App. 188. 43 S. W. 1086; Stewart v. Cannon, 06 Minn.
64. 68 N. W. 604; Elton v. Brettscbneider. 33 111. App. 355; American Brew-
ing Co. V. Jergens, 21 Ind. App. 595, 52 N. E. 820.
888 Rohrbacker v. Schultz. 10 Pa. Co. Ot. R. 282.
8 84 Humphrey v. Tozler, 154 Ta. 410, 26 Atl. 542.
8 86 Becker v. Hutbsteiner. 142 Ind. 09, 41 N. E. 323.
88e Smith V. Weston. 81 Hun. 87. 30 N. Y. Supp. 649.
887 Shepherd v. Marrel. 16 Ind. App. 417, 45 N. E. 526. Compare Coifey
V. Carter, 47 Kan. 22, 27 Pac. 128.
(532)
Cb. 14) VA^CATINO AND OPENING JUDGMENTS. § 34G
Part VII. Practice on Vacating Judgments.
§ 346. Notioe of Applloatton.
Where the power to vacate judgments depends upon such statu-
tory provisions as we have been considering, it is generally requisite
that notice of the application be given to the other party. But at
common law this is not always necessary. It is not irregular for a
court to set aside during the term a judgment rendered by. it, with-
out notice to the defendant. It cannot be assumed that the want of
notice was prejudicial to him, the court having authority to set aside
such judgment despite any objections he could make.'"® And in one
case this was done, without notice, although the docket had been
closed, the plaintiff's counsel had left the court, and a similar mo-
tion had been previously refused.*'® But after the term the case is
different. Then the parties are no longer before the court, actually
or constructively, and a judgment cannot be set aside on motion
without notice to the adverse party or his representatives.'"® The
notice should in general be addressed to and served upon the party
himself. But it is held that the authority of an attorney so far con-
tinues after final judgment that service on him of notice of a mo-
tion to vacate the judgment for fraud in obtaining it or for want of
»8s Smith V. Robinson, 11 Ala. 270; Rich v. Thornton, 60 Ala. 473; Desrlbes
V. Wilmer, GO Ala. 25, 44 Am. Rep. 501; Lake v. Jones, 40 Ind. 207; Burn-
side V. Ennls, 43 Ind. 411; Yancy v. Teter, 30 Ind. 305.
8«> AlUson V. Whlttier, 101 N. C. 400, 8 S. E. 338.
3*0 Ingram v. Belk. 2 Rich. Law (S. C.) Ill; Martlndale v. Brown, 18 Ind.
2H4; Smith v. Chandler, 13 Ind. 513; Lake v. Jones, 40 Ind. 207; Burnside
r. Ennis, 43 Ind. 411; Yancy v. Teter, 30 Ind. 305; Lane v. Wheless, 46
Miss. 666; Coleman v. McAnulty, 16 Mo. 173, 57 Am. Dec. 220; Nuckolls v.
Irwin, 2 Neb. 60; Hettrick v. Wilson, 12 Ohio St. 130, 80 Am. Dec. 337; Regester
V. Woodward Iron Co., 82 Md. 645. 33 Atl. 320; Chapdelalne v. Handy, 18
R. I. 706, 30 AU. 342; Texas Land & Loan Co. v. Winter, 03 Tex. 560, 57 S.
W. 30; Alliance Trust Co. v. Barrett, 6 Kan. App. 689, 50 Pac. 465; Brady
V. Washington Ins. Co., 67 lU. App. 150; Fisk v. Thorp, 51 Neb. 1, 70 N. W.
408. Where a motion to vacate a Judgment is filed during the trial term,
but no notice thereof is given to the adverse party until after the commence-
ment of a subsequent term, it will be considered as made during the subse-
quent term. Morrell Hardware Co. v. Princess Gold Min. Co. (Colo. App.)
e:? Pac. 807.
(5,33)
§ 346 LAW OF JUDGMENTS. (Ch. 14
jurisdiction will bind his client.*®* And no notice to the adverse
party of such a motion is necessary when he is present by his coun-
sel at the time the motion is made,*®* or when he appears by his
counsel and takes part in the hearing on the motion.*** If the party
is dead, his personal representative should receive the notice. The
proper practice is to take an order reciting the judgment, the
grounds relied on, the death of the party, and the qualification of the
representative, and calling upon him to show cause why the judg-
ment complained of should not be set aside, and this order should
be served as others are.*** Generally speaking, all the parties to a
judgment should be made parties to a proceeding, either in equity or
at law, under the statute, to annul it.*** But a defendant mort-
gagor need not be served with notice of a motion by his co-defend-
ant, a prior mortgagee, to set aside a default judgment in the fore-
closure proceedings, under which the property was sold to the plain-
tiff.*** And where a judgment which had been standing for several
terms, and upon which an execution had issued, resulting in the sale
of defendant's land, had been set aside on motion of the defend-
ant, it was held that no notice of a motion on the part of the plain-
tiff to revoke the order setting the judgment aside, and to reinstate
the same and the execution on the docket, was necessary.**'
«»i Phelps V. Heaton. 70 Minn. 476, 82 N. W. 090; Jordan v. TarT», 92
Ga. 379, 17 S. E. 351; Pick v. Glickman, 54 111. App. G46. Where an attor-
ney has appeared for a party In an action, and has prosecuted it to judgment,
he remains attorney for the party until he has secured a Judgment not liable
to vacation for any cause provided by statute or established practice, and
hence a motion made by a defendant to vacate a judgment, on the ground
that no summons had been served on him, or on the ground of fraud, maj
properly be served on the attorney of record for the plaintiff. Sturgias v.
Dart, 23 Wash. 244, 62 Pac. 8o8; Beach v. Beach, 6 Dak. 371. 43 N. W. YOl;
Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095.
3 92 Hill V. Crump, 24 Ind. 201; Jensen v. Barbour. 12 Mont. 566, 31 Pae.
102.
8»3 Worth V. Wetmore. 87 Iowa. 62. 54 N. W. 56; Acock ▼. Ilalsey. 90
215, 27 Pac. 103; Jennings v. Pearce. 101 Ala. 438, 14 South. 319.
894 Grier v. Jones, 54 G a. 154.
896 Day V. Goodwin, lOi Iowa, 374, 73 N. W. 864, 65 Am. St. Rep. 403.
896 Schart v. Schart, 116 Oal. 01, 47 Pac. 027.
897 porry v. Pearce. 68 N. C. 367.
(5:]4)
_ ^
Cti, 14) VACATING AND OPENINO JUDGMENTS. § 346a
S 340a. Beqnialtes of Petitioii or MoTing Papevi.
Where the statute authorizes the vacation of judgments for cer-
tain causes "on complaint or motion filed within two years," a writ-
ten complaint or motion must be filed, in order to obtain the relief
desired.**' The papers must show the existence of one of the stat-
utory causes for setting aside the judgment, or must aver such facts
as will be sufficient to warrant the court, in the exercise of its gen-
eral jurisdiction, in taking such- action.*®* It is not sufficient to al-
lege, in the words of the statute, that the applicant was prevented
from defending the suit by "unavoidable casualty or misfortune," or
that the judgment was taken against him through his "inadvertence"
or "excusable neglect;" but the facts constituting the casualty or
misfortune, or relied on as excusing the inadvertence or neglect,
must be fully set forth.**® Furthermore, the applicant must show
that he has a valid and meritorious defense to the action; and this
must be made to appear, not by a mere averment that he has such a
defense, but by setting forth fully the facts which constitute the pro-
posed defense.*** And in some of the states, it is provided by stat-
soa Oh!o Falls Car Go. v. Sweet & Clark Co., 7 Ind. App. 163, 34 N. E. 533.
8»» Klrkham v. Gibson, 52 Neb. 23, 71 N. W. 960.
400 Shearman v. Jorgensen, 106 Cal. 483, 39 Pac. 863; American Brewing
Co. T. Jergens, 21 Ind. App. 595, 52 N. E. 820; Combs v. Bentley (Ky.) 41
S. W. 8; Deane y. Loucks, 58 Hun, 555, 12 N. Y. Supp. 903. A statement
tbat the defendant had reason to believe that his counsel would attend to
the case, which the latter failed to do, is fatally defective in not setting forth
the facts on which such belief was founded. Brown v. Warren, 17 Nev. 417,
30 Pac. 1078. Statements that the court was not legally in session when the
Judgment was rendered, and had no authority to hold a term at that time,
are of conclusions of law, merely, and unavailing. Long v. Ruch, 148 Ind.
74, 47 N. E. 156.
*•! Mayer v. Mayer, 27 Or. 133, 39 Pac. 1002; Young v. Oonklin, 3 Misc.
Bep. 122, 23 N. Y. Supp. 993; Ellis v. Bonner, 7 Tex. Civ. App. 539, 27 S. W.
687; Provlns v. Lovl, 6 Okl. 94, 50 Pac. 81; State v. Lockhart, 18 Wash. 531,
52 Pac. 315; Sanford v. Weeks. 50 Kan. 339, 31 Pac. 1088; Brewster v.
Boyle, 64 Hun. 636, 19 N. Y. Supp. 146; Hughes v. Ilousel. 33 Neb. 703, 50
N. W. 1127; Keator v. Case (Tex. Civ. App.) 31 S. W. 1099. An affidavit
which merely states that the defense "Is purely one of law,*' without setting
oat the facts, is not sufficient. Brewer & Hoffman Brewing Co. v. Lonergan,
63 111. App. 28. A judgment entered on a Judgment note will not be opened
on a petition by defendant alleging that, if he signed the note. It was when
(535)
§ 34t3a LAW OF JUDGMENTS. (Ch. 14
ute that a judgment shall not be vacated until it is adjudged that
there is a valid defense to the action, or, if the plaintiff seeks its vaca-
tion, that there is a valid cause of action.*®* Where this provision
is in force, it is error for the court to render a judgment of vaca-
tion before it has adjudged that there is a valid defense.*®* Again,
in some states, it is required that the applicant for the vacation of
a judgment shall file with his moving papers a copy of the answer
which he proposes to put in, in case the judgment is opened; and
it is held that this provision is mandatory, and that such an appli-
cation should by no means be granted unless the statute is complied
with in this particular.*®* In New York, however, it has been said
that where the moving papers show the nature of the defense and
the good faith of the applicant, it is not absolutely necessary to serve
the proposed answer with the motion.*®'
In general, it may be stated that while good practice requires a
strict compliance with the statutes in these applications, mere irreg-
ularities in the method of obtaining the vacation of a judgment, — ^as
where the showing in support of the motion, and the motion itself,
he was drunk, the indebtedness not being denied. Ford v. Tissue, 8 Kulp
(Pa.) 428.
*o2 Oode Neb. § 606; Miller's Code Iowa, § 3159.
*o8 Bond V. Wyeoflf. 42 Neb. 214, 60 N. W. 5G4; Western Aasur. Co. t.
Klein. 48 Neb. 904, 07 N. W. 873; Follett v. Alexander, 58 Ohio St 202, 50
N. B. 720. Compare State v. Puncan, 37 Neb. 631, 56 N. W. 214.
«04 Richardson v. Sun Printing & Publishing Ass'n, 20 App. Div. 329. 46 N.
y. Supp. 814; Worth v. Wetmore, 87 Iowa, 62. 54 N. W. 56; McBrien t.
Riley, 38 Neb. 561. 57 N. W. 385; Lawler v. Bashford-Burmister Co. (Arlx.)
46 Pac. 72. There is no difference between legal and equitable actions in
respect to this requirement of the statute. Superior Consol. Land Co. v.
Dunphy, 03 Wis. 188, 67 N. W. 428. A demurrer does not satisfy a rule re-
quiring the applicant to file a copy of his proposed "answer." Bagley v.
Cohen, 121 Cai. 60i, 53 Pac. 1117. But he is not precluded from afterwards
obtaining leave of court to file an additional paragraph to his answer. Bry-
ant y. Richardson, 126 Ind. r45, 25 N. E. 807. In Washington, the party need
not tender his answer until after the determination of the merits of his appli-
cation. Wheeler v. Moore, 10 Wash. 309, 38 Pac. 1053. And in Indiana, the
rule is complied with by filing the answer at the time of entry of the order
opening the Judgment. Brj'ant v. Richardson, 126 Ind. 145. 25 N. E. 8UT.
408 Carey v. Browne, 67 Hun, 516, 22 N. Y. Supp. 521. And see Worth t.
Wetmore. 87 Iowa. 62. 54 N. W. 56. But compare Richardson t. Sun Print-
ing & Publishing Ass*n, 20 App. Div. 329, 46 N. Y. Supp. 814.
(536)
(%. 14) YACATINO AND OPENING JUDGMENTS. § 347
are not strictly in conformity with the statute, — will not defeat the
order vacating the judgment.**^* The motion should not be denied
upon the particular grounds assigned thereby, and the mover left
to make another motion for the same purpose, simply assigning in
its support a ground not before specified, but which plainly appears
in the record/®^ If the judgment has been affirmed on appeal, it
will not be vacated on the application of the losing party, based on
the same grounds which he urged in a motion for a new trial in the
original suit.**^® If the motion is denied, the court should find the
facts on which it bases its conclusion that no just and reasonable
cause has been shown for the setting aside of the judgment.*®*
f 347. AAdATlt' of Merits.
In order to justify the opening or vacation of a judgment, it is not
sufficient to show that the applicant did not have an opportunity to
be heard in the case ; but there must also be a prima facie showing
that, if he had presented his defense, it would have prevailed, so that
the judgment, as it stands, works injustice. In addition, therefore,
to setting forth some one of the statutory grounds for setting aside
a judgment, and the nature of the cause which prevented a defense
being made, or the party's excuse for not defending, as stated in the
preceding section, the application must be supported by an affidavit
alleging a good and meritorious defense to the action on the merits,
called an ''affidavit of merits." This is imperatively required under
the statutes authorizing the vacation of judgments for specified
causes.**® And independently of statutes, it has always been the
406 Boston Loan & Trust Co. v. Organ, 53 Kan. 386, 36 Pac. 733; Wilson
& Toms Inv. Oo. v. HiUyer, .50 Kan. 446, 31 Pac. 10G4; Hoag v. Old People's
Mat. Ben. Soc., 1 Ind. App. 28, 27 N. E. 438.
401 Skinner v. Terry. 107 N. C. 103, 12 S. E. 118.
408 Friedman v. Mauley, 21 Waah, 675, 59 Pac. 490.
*o9 Bacon v. Johnson, 110 N. C. 114, 14 S. E. 508.
410 Van Horne v. Montgomery, 5 How. Prac. (N. Y.) 238; Hunt v. Wallls,
6 Paige (N. Y.) 371; Gold v. Hutchinson, 26 Misc. Rep. 1. 5o N. Y. Supp. 575;
Cross T. Birch, 27 Misc. Rep. 295, 58 N. Y. Supp. 438; OahiU v. Lilienthal,
:M) Misc. Rep. 429, 62 X. Y. Supp. 524; Thomall v. Turner, 23 Misc. Rep. 363,
Ol N. Y. Supp. 214; Draper v. Bishop, 4 R. I. 489; Richardson v. Finney, 6
Dana (Ky.) 319; Grundy v. Kelley (Ky.) 41 S. W. 20; Foster v. Martin, 20
Tex. 118; Coolr v. PhillJp«. 18 Tex. 31; Watson v. Newsham, 17 Tex. 437;
(537).
§ 847 LAW OF JUDOMBNT8. (Ch. 14
practice of our courts, from the very earliest times, on an application
to open or set aside a judgment, to require some sort of showing, by
affidavit or otherwise, that the judgment is unjust as it stands and
prejudicial to the party complaining, and that he has a meritorious
defense.**^ It may therefore be regarded as a universal requirement.
But the rule is subject to a few well-defined exceptions in peculiar
cases.*^- Thus a judgment by default, entered before the court has
acquired jurisdiction in the case, may be set aside without an affidavit
of merits.*'* So the rule does not apply where it was grossly irreg-
ular for the default to have been entered; *** or where the defendant
complains of irregularity amounting to denial of his substantial
rights;*** or where the judgment is alleged to have been procured
by fraud.*** But in all cases wheYe the application is not based upon
want of jurisdiction or irregularity, but upon something presented as
an excuse by the defendant, he must make an aHidavit of merits.
And nothing else can take its place and serve its purpose. An an-
swer to the complaint, already on file or which the defendant pro-
poses to file, is not equivalent to an affidavit of merits, although it
Frost y. Dodge, 15 Ind. 139; D^le v. Bugh, 16 Ind. 233; Lake v. Jones. 49
Ind. 297; Grubb v. Crane, 5 111. 153; Lamb v. Nelson, 34 Mo. 501; Palmer
v. Russell, 34 Mo. 470; Adams v. Hickman, 43 Mo. 168; Butler r. Mitchell.
15 Wis. 355; People v. Rains, 23 Cal. 127; Bailey v. Xaaffe, 29 Cal. 422;
Reese v. Malioney, 21 Oal. 305; Parrott v. Den, 34 Cal. 79; Gautliler v.
Ruslcka, 3 N. D. 1, 53 N. W. 80; Sargent t. Kindred. 5 N. D. 8, 63 K. \r.
161; Judd V. Patton, 13 S. D. 648, 84 N. W. 199.
*ii Miller V. Alexander, 1 N. J. Law, 400.
412 In Washington, no affidavit of merits is required of a defendant peti-
tioning for the vacation of a judgment by default, and for leave to answer,
since the petition must state the facts and be verified. Wheeler v. Moore,
10 Wash. 309, 38 Pac. 1053. In Colorado, it is said that an affidavit of merits
is not a necessity to the setting aside of a judgment by default, though good
l)ractice requires it. State Board of Agriculture v. Meyers. 13 Colo. App. 500,
58 Pac. 879.
413 Rice v. Griffith, 9 Iowa, 539; Branstetter v. Rives, 34 Mo. 318; Norton
V. Atchison, T. & S. F. R. Co., 97 Cal. 388, 32 Pac. 452, 33 Am. St, Rep. 196.
Compare Kramer v. Gerlach, 28 Misc. Rep. 525, 59 N. Y. Supp. 855.
* I* Browning v. Roane, 9 Ark. 354, 50 Am. Dec. 218.
*iB Walla Walla Printing & Publishing Co. v. Budd. 2 Wash. T. 336, 5 Pac.
602.
*i« Crescent Canal Co. v. Montgomery, 124 Cal. 134, 50 Pac. 797; Morris v.
Kahn, 31 Misc. Rep. 25, G2 N. Y. Supp. 1040.
(538)
Cb, 14) YACATINO AND OPENING JUDGMENTS. § 347
discloses a defense apparently complete and meritorious^ and al-
though it is verified.*^ ^ In several of the states the authorities hold
that this affidavit is not sufficient if it merely states that the defendant
has a meritorious defense to the action; but it must contain a full
statement of the facts constituting the proposed defense, in order that
the court may judge whether it is a good and meritorious defense or
not.*** And the facts must be stated positively and affirmatively;
allegations mereiy on "information and belief" are not sufficient.*'®
But in some other states, it is a rule established by statute, or by
the settled practice of the courts, that the affidavit of merits is suffi-
cient if it sets forth that the defendant has fully and fairly stated the
case to his counsel and that he is advised by him, and believes, that
he has a full, perfect, and meritorious defense to the action.*** But
an afiidavit framed under this rule must be very full and explicit, and
must not omit any of the particulars just mentioned.**^ And it
*iT Mowry v. Hill, 11 Wis. 140; Jones v. Russell, 3 How. Prac. 324. Com-
pare Town of Omro v. Ward, 19 Wis. 232. See Spencer v. Thistle, 13 Neb.
227, 13 N. W. 214. Where the court allowed a party to file an intervention,.
and afterwards an answer and cross-complaint, to authorize the opening of
a Judgment against such party an affidavit of merits Is not required. Orescent
Canal Co. v. Montgomery, 124 Cal. 134, 56 Pac. 797. An order opening a de-
fault will not be reversed solely because of the Insufficiency of the affidavit
of merits or of the answer, unless the answer is such that it could be stricken
out on motion. Forln v. City of Duluth, 66 Minn. 54, 68 N. W. 515.
*i8 Palmer v. Rogers, 70 Iowa, 3Sl, 30 N. W. 645; Lamb v. Nelson, 34 Mo.
501; Gastllo v. Bishop, 51 Mo. 162; Foster v. Martin, 20 Tex. 118; Roberts
T. Corby, 86 111. 182; Frost v. Dodge, 15 Ind. 139; Toledo, W. & W. R. Co. v.
Gates, 32 Ind. 238; Goldsberry v. Carter, 28 Ind. 59.
419 Columbus Mut. Life Ass'n v. Plummer, 86 111. App. 446; Jenkins v.
Gamewell Fire Alarm Tel. Co. (Cal.> 31 Pac. 570; Superior Consol. Land Co.
V. Dunphy, 93 Wis. 188, 67 N. W. 428.
*20Burnham v. Smith, 11 Wis. 258; Woodward v. Backus, 20 Oal. 137;
Reldy v. Scott, 53 Cal. 69; Francis v. Cox, 33 Cal. 323; Klrschner v. Kirsch-
ner, 7 N. D. 291, 75 N. W. 252.
421 The affidavit must allege that the party has stated the **case" or "the
facts of the case" to his counsel; if it merely shows that he has stated the
•*faet8 of his defense" to his counsel it is not sufficient. Morgan v. McDon-
ald, 70 Cal. 32, 11 Pac. 350; Burnham v. Smith. 11 Wis. 258. An affidavit
that deponent is advised by his counsel that he has a good and sufficient
defense, but without stating that he has fulb' and fairly stated the case to
Ills counsel, will not answer. Gold v. Hutchinson, 26 Misc. Rep. 1, 55 N. Y.
Supp. 575. And see Day v. Mertlock, 87 Wis. 577, 58 N. W. 1087.
(530)
§ 348 LAW OF JUDGMENTS. (Ch. 14
seems that this manner of averring merits will not answer at all in
chancery. Such an affidavit is not sufficient to authorize a court of
equity to set aside a re^^ilar default or decree, but the affidavit should
state the substance of the defense, or it should be stated under oath
in some form, so that the court may judge whether it is meritori-
ous.*-- The affidavit should be made by the applicant himself, unless
good reasons exist for having it made by another person.*-' It may
be made by an attorney if he has personal knowledge of the facts to
be sworn to in it.*** But the aEidavit of an attorney, that from his
client's statement of the case to him he beUeves that the client has a
good and substantial defense upon the merits, is not sufficient.***
Nor is an affidavit which states that from an examination of the de-
fendant's case, so far as he has made such examination, he verily be-
lieves that it is better than the plaintiff's.*'* It is also considered
necessary, when the affidavit is made by the defendant's attorney, to
set forth some good and sufficient reason why the party himself does
not make it.**' An affidavit of an attorney, upon information and
belief, as to a defense on the merits, but containing no statement of
the facts on which the .same is based, and alleging as an excuse an
unsuccessful search for the papers by a third person, who makes no
affidavit to that effect, is insufficient.*'*
S 348. Meiitoiiovfl Defence mvst lie sliown.
The defense, it is said, must be meritorious. By this we mean that
it must be substantial and not merely technical, fair and honest and
not unconscionable.*'* It is considered in Pennsylvania that an ap-
4«t Goodhue v. Churchman. 1 Barb. Ch. 596; Winship v. Jewett W. 1T3;
McGaffigan v. Jenkins, 1 Barb. 31.
428 Bailey v. Taaffe, 29 Cal. 422.
*2* Frankoviz v. Smith, 35 Minn. 278, 28 N. V^'. 508; Horton ▼. New Pass
Gold & Silver Min. Co., 21 Xev. 184, 27 Pac. 376; Pettigrew v. City of Sioux
Falls, 5 S. D. 646, 60 N. W. 27; WiU v. Lytle Creek Water Co^ 100 CaL
:U4» 34 Pac. 830.
4 55 Stllson V. Rankin, 40 Wis. 527.
4 2« Bailey v. Taaffe, 29 Cal. 422.
42 7 Davis V. Solomon. 28 Civ. Proc. R. 420, 56 N. Y. Supp. 80; People's Ice
Co. V. Schlenker, 50 Minn. 1, 52 N. W. 219.
*«« HitchtH)ck V. Ilerzer, 90 111. 543.
♦!• Welton v. Littlejohn, 103 Pa, 205, 29 Atl. 871; Daly v. Thomii*>n, 5
(540)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 348
plication to open a judgment is in effect a demand for equitable relief,
and the applicant must make out a case which would justify a chan-
cellor in entering a decree.*'® Where the complaint, in an action to
set aside a judgment, does not attempt to show that the plaintiff had
or has any valid defense to the original action, a demurrer to the
answer, whether good or bad, is properly overruled. "A bad answer
is sufScient for a bad complaint." *'^ In another case, where it was
proposed to set aside a default and reinstate the case that the defend-
ant might plead to the merits, and it appeared that substantially the
same matters proposed to be pleaded had been determined against
the defendant in a former litigation, it was held that the motion was
properly denied.**' But where a default has been taken against a
person upon whom there was no service of process, and over whom
the court acquired no jurisdiction, he is entitled to have the judgment
annulled without showing a meritorious defense to the action.**** A
defendant who seeks to open a judgment which he has suffered vol-
untarily and under the advice of counsel, must show the court specifi-
cally in what his defense consists; general allegations will not suf-
Pa. Dist. B. 749; Jospe v. Lighte, 22 Misc. Rep. 146, 48 N. T. Supp. 645;
Phillips Y. Equitable Life Assur. Soc., 26 N. Y. Supp. 522; Jeffries v. Aaron,
120 N. C. 167, 26 S. E. 696; Le Due v. Slocomb. 124 N. 0. 347, 32 S. B. 726;
Reab v. Sherman, 93 Ga. 792, 20 S. E. 642; Pacific Mut. Life Ins. Go. v. Wil-
liams, 79 Tex. 633, 15 S. W. 478; Durham t. Moore, 48 Kan. 135, 29 Pac.
472; Becker v. Huthsteiner, 142 Ind. 99, 41 N. B. 323; West v. MiUer. 125
Ind. 70, 25 N. E. 143; Davis v. Steuben School Tp., 19 Ind. App. 694, 50 N.
EL 1; Culver v. Brinkerhoff, 76 Hi. App. 679; Mann v. Warde, 64 111. App.
108; Kime y. Fenner, 54 Neb. 476, 74 N. W. 869; Gilbert v. ^klarrow, 54 Neb.
77. 74 N. W. 420; Clark v. Charles, 55 Neb. 202, 75 N. W. 563; Pettigrew v.
City of Sioux Falls. 5 S. D. 640, 60 N. W. 27; Tacoma Lumber & Manuf'g
Co. V. Wolff, 7 Wash. 478, 35 Pac. 115; Western Security Co. v. Lafleur, 17
Wash. 406, 49 Pac. 1061; White v. Hinton, 3 Wyo. 753, 30 Pac. 953, 17 L. R.
A. 06. The rule is sometimes stated in this form; that a Judgment will not
be set aside where, on a ne^* trial, the judgment must be the same. Rich-
ardson Drug Oo. V. Dunagan, 8 Colo. App. 308, 46 Pac. 227; Brooks v. John-
son, 122 Cal. 569, 55 Pac. 423.
*»o Knarr v. Elgren (Pa.) 9 Atl. 875.
431 Rupert v. Martz, 116 Ind. 72, 18 N. E. 381.
*•« Storey v. Weaver, 66 Ga. 296.
*»» Dobbins v. McNamara, 113 Ind. 54, 14 N. E. 887, 3 Am. St. Rep. 626;
Roberts v. Pawley, 50 S. C. 491, 27 S. E. 913; Taylor v. Coughlan, 73 111. App.
378.
(541)
§ 349 LAW OF JUDQMSNTS. (Ch. 14
fice.*** But on a motion to open a default the court will not deter-
mine absolutely whether the defense interposed will be sufficient at
the trial, but merely see that it is not frivolous. If set up in good
faith, and with a sufficient excuse for the party's negligence in not
having presented it at the proper time, he will be let in to answer as
of course.***
S 349. TeoluUeal or UaeoBsoiomable Defease mot SvAeteat.
The privilege of vacating judgments is to be used only in the fur-
therance of justice, and a judgment should not be set aside unless it
is unjust as it stands. Hence, if it is regular on its face, it will
never be opened up merely for the purpose of letting in an uncon-
scionable, dishonest, or purely technical defense.*'* That usury is to
be regarded as a defense of this character is settled beyond question.
The court will not open a judgment merely to allow the plea of usury
to be set up, or, if it opens the judgment on other grounds, may for-
bid the defendant to interpose that defense.*'^ In regard to a plea of
the statute of limitations, there is room for more doubt. Some of
the cases hold that such defense is not sufficient to justify the court
4S4 EUls V. Jones, 6 How. Prac. (N. Y.) 296.
436 Excise ComYs v. HoUister, 2 Hilt. (N. Y.) 588. Before the court will
set aside a Judgment on a money Judgment it must be shown that the peti-
tioner was not Indebted to the Judgment plaintiff: the defense of nol iM,
record is not sufficient Banic of Stratton t. Dixon, 105 Iowa, 148, 74 N. W.
019.
43« Parrott v. Den, 34 Cal. 79: Thatcher v. Haun. 12 Iowa, 303: Niagara
Ins. Co. V. Rodecker, 47 Iowa, 102; Bank of Statesville v. Foote, 77 N. C. 131;
Mulhollnn v. Scoggin, 8 Neb. 202: Anderson v. Beebe, 22 Kan. 768; Jorgen-
sen y. Griffin. 14 Minn. 464 (Gil. 34($); Pennington^s Adm*x t. Gibson. 6 Ark.
447; Hazelrigg v. Wainwright, 17 Ind. 215; Marsh v. Lasher, 13 X. J. E«i.
253: AiidulKin v. Excelsior Ins. Co., 10 Abb. Prac. (S. Y.) 64; Bard v. Fort,
3 Barb. Ch. (N. Y.) 632; Gay v. Gay. 10 Paige (X. Y.) 374; Gourkiy t. Hat-
ton. 10 Weud. (N. Y.) 5U5: St Paul & D. R. Co. v. Blackmar. 44 Minn. r»l4.
47 N. W. 172; Wyche v. Uoss, 119 X. C. 174, 25 S. E. 878; Herald v. HarpU
(Ky.) 54 S. W. 958. Compare Benedict v. Arnoux, 85 Hun. 283, 32 X. Y.
Supp. 9CK).
4«7 Farish v. Corlies, 1 Daly (X. Y.) 274: Lovett v. Cowman, 6 HUl (X. Y.»
226; Candler v. Pettit 1 Paige (X. Y.> 427; Marsh t. lusher. 13 X. J. Eq. 2.%:?:
Morris v. Slatery, <l Abb. Prac. (X. Y.) 74: Grant v. McCaughin. 4 How. Pnir.
(X. Y.) JUl: Quincy v. Foot 1 Rirb. Ch. (X. Y.) 49i5; Hazelrigg T. Wain
Wright 17 Ind. 215.
(542)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 349
in opening the judgment, at least if there is nothing to show that the
debt is not still morally and honestly due/'® Indulgence, it is said,
should not be granted for the defendant's laches merely to enable'
him to deny the like indulgence to the laches of his adversary. In
Ohio the decisions are that this plea is one not to be favored, and
where an issue has been made up, or the defendant is in default, he
will not be allowed to put in the plea of the statute, unless under
peculiar circumstances.*** But on the other hand, in some states it
is held that the statute of limitations is a good and meritorious plea,
that it is sufficient ground for opening the judgment, and that if the
trial court refuses to set aside the judgment unless the defendant
will agree to waive this defense, it is a manifest abuse of discretion.**^
A set-oflF may perhaps be considered, in some instances, as a meri-
torious defense within this rule, but a judgment should not be opened
to the prejudice of the plaintiff merely to enable the defendant to
interpose a counter-claim which he may enforce by action, where
there is no doubt as to the plaintiff's responsibility.*** So again, the
court will not open up a default to permit a defense of the statute of
frauds to be made either by demurrer or plea, unless under special
and peculiar circumstances.**^ In equity, a decree fairly and reg-
ularly obtained by default, for want of an answer, will not be set
aside to let in a defense founded on a fraudulent speculation unde-
serving of the favor of the court.*** A judgment should not be open-
ed where the only defense set up is a technical objection to the
plaintiff's capacity to sue, such objection not appearing on the face
*»» Pennington's Adm'x v. Gibson, 6 Ark. 447; Hawes v. Hoyt, 11 How.
Prac. (N. Y.) 454; Haines v. Lytle, 4 West. Law J. 1; Douglas v. Douglas,
3 Bdw. Ch. (N. Y.) 390; Meiners v. Frederick Miller Brewing Co., 78 Wis.
364, 47 N. W. 430, 10 L. B. A. 58C.
4s» Sheets v. Baldwin's Adm'rs, 12 Ohio, 120; Newsom's Adm'r v. Ran,
18 Ohio, 240.
4*0 ElUnger's Appeal, 114 Pa. 505, 7 Atl. 180; Mitchell v. CampbeU, 14 Or.
454, 13 Pae. 190; Garvie v. Greene, 9 S. D. 608, 70 N. W. 847. See, also, Goui-
lay V. Hutton, 10 Wend. (N. Y.) 595.
*4i Leahey v. Kingon, 22 How. Prac. (N. Y.) 209; Croop v. Dodson, 7 Kulp
(Pa.) 13; Cresswell v. White, 3 Ind. App. 30(5, 29 N. E. 612; Boas v. Heffron,
40 ni. App. 652.
44* McCulloch V. Tapp, 4 West. Law Month. 575.
44» Parker v. Grant, 1 Johns. Ch. (N. Y.) 630.
(543)
§ 350 LAW OP JUDGMENTS. (Ch. 14
of the complaint.*** So where the judgment was entered on a me-
chanic's lien, and the defense offered is that the lien was defective
as being for a lump sum, instead of setting out the articles furnish-
ed.**'* Where municipal officers are sued on a warrant drawn by
them, a judgment by confession will not be struck off at the suit
of a tax payer on the mere ground that the action should have been
on the original debt, instead of on the warrant, where it is not denied
that, the debt was just.*** Again, a judgment by default on a policy
of insurance should not be set aside where the defense is a forfei-
ture of the policy, unless it is shown that the alleged forfeiture has
not in any way been waived, and that, on a trial, the result would
probably be different.**^ But on the other hand, a plea of a dis-
charge in bankruptcy or insolvency is not technical, but goes to the
merits as a plea in bar.*** And the same is true of a plea of res
judicata. To prohibit the defendant from pleading a former judg-
ment in bar of the present action, as a condition to lifting a default
against him, is error.*** And so, where the action is on a note, the
defense that it was given for money lost in gaming is a defense to the
merits, and should be allowed.**^® In California, it is said that the
statement that the defense appears on the face of the complaint shows
it to be of a technical character merely and therefore insufficient,*'*
S 350. Openins Judgment to admit Defeuo.
In Pennsylvania, the usual and favorite practice, upon a proper
and timely application for relief against a judgment by confession or
default, is to open the judgment, but without vacating it and without
impairing its lien, and let the defendant in to a defense on the raer-
*** Abram Fiencli Co. v. Marx» 8 Misc. Rep. 490. 28 N. Y. Supp. 749.
44B Caldwell v. Carter, 153 Pa. 310. 25 Atl. 831.
440 Maneval v. Jackson Tp., 141 Pa. 426. 21 AU. G72. 28 Wkly. Notea Oi#.
130.
4*7 Union Cent. Life Ins. Co. v. Lipscomb (Tex. Civ. App.) 27 S, W. 307.
448 Kalin V. Casper, 51 App. Dlv. 540, 64 X. Y. Supp. 838; Tuttle t. Scott.
119 Cal. 586. 51 Pac. 849.
449 Audubon v. Excelsior Fire Ins. Co., 10 Abb. Prac. (N. Y.) C4.
460 Kuckman v. Pitcher, 1 N. Y. 392; Bank of Kinderbook v. Gifford, 40
Barb. (N. Y.) 659; Grant v. McCaughin, 4 How. Prac. (N. Y.) 216.
461 People V. Rains, 23 JDal. 127.
(544)
Ch. 14) VACATING AND OPBNINQ JUDGMENTS. § 350
its.*** It is in the light of this statement that we are to understand
the remark that to open a judgment is not to set it aside, and that
when it is closed by the action of the court it takes its place as if it
had never been disturbed.*** Thus, for example, a judgment entered
on a warrant of attorney should be opened to let the defendant plead
his discharge in bankruptcy, when he acts immediately upon notice.***
On opening a judgment, in accordance with this practice, the judg-
ment itself may be regarded as standing in the place of a declaration,
and the entry of a non pros, for want of a declaration is irregular.***
But the opening of the judgment leaves the burden and the mode
of proof exactly the same as if the judgment had never been entered.
Hence if the defendant pleads non est factum as to the instrument
on which it was founded, the record of the judgment is not even
prima facie evidence for the plaintiff.*** When a judgment is thus
opened, the defenses which may be set up are limited. For instance,
it does not become subject to set-off generally. If the defendant has
a valid claim against the plaintiff exceeding the amount of the judg-
ment, he cannot recover a verdict for the excess. He may be per-
mitted to attack the validity of the claim on which the judgment is
founded, or the good faith of the transaction connected with the
consideration, or to show subsequent payment of the debt or equita-
ble discharge therefrom. But in some manner, either in law or eq-
uity, the subject-matter of defense must have attached to the judg-
ment or the consideration on which it rests.**^ The defendant can
urge defenses existing at the time of the rendition of the judgment,
but not those accruing subsequently.*** If a judgment be opened
upon an affidavit of defense, and the defendant let in to a defense
upon the merits, he will not, upon the trial, be permitted to take
advantage of a technical exception to the form of action.*** And,
generally, the rules stated in the preceding section will apply to this
*»2 Oochran v. Eldridge, 49 Pa. 365.
*»» Glonlnger v. Hazard. 4 Phlla. (Pa.) 354.
4B4 Wise'8 Appeal, 09 Pa. 193; Adam's Appeal, 101 Pa. 471.
4»6 Bush V. Monteith, 2 Wkly. Notes Cas. (Pa.) 112.
*»• West V. Irwin. 74 Pa. 258; Collins v. Freas, 77 Pa. 493.
457 Beaty v. Bordwell, 91 Pa. 4.38.
458 Curtis V. SIoBson, 6 Pa. 265.
459 Ekel V. Snevily. 3 Watts & S. (Pa.) 272, 88 Am. Dec. 76&
1 LAW JUDG.~35 (545)
§351 LAW OF JUDGMENTS. (Ch. 14
manner of practice. So where a judgment on a note is opened, with
leave to the defendant to defend on matters stated in his petition, he
cannot set up a breach of contract not alleged in the petition.^**
S 351. Eridemee.
The party who seeks the opening or vacation of a judgment must
sustain the burden of proof, and must establish his right to the re-
lief asked by clear and satisfactory evidence.*** Where the ground
alleged is irregularity or want of jurisdiction, there are some author-
ities showing a reluctance to permit contradiction of the record.***
But the rule obtaining in the majority of the states is that the re-
citals of the recorcf (as, for instance, a recital that the defendant was
duly served with process) are presumed to be correct and will prevail
in the absence of sufficient countervailing evidence; but that the
defendant may contradict and overthow such recitals, the only ques-
tion being upon the strength and clearness of his evidence.*** Of
course it is equally open to the adverse party to present affidavits
sustaining the record and showing jurisdiction, and the issue will
then be determined upon the preponderance of the evidence.*** Where
it is sought to have a judgment or decree set aside on the ground of
fraud in procuring it, the evidence must be clear and cogent, so as
to convince the court that the facts alleged to constitute the fraud
existed, and were operative in procuring the decree.*** If the evi-
4«o Marsh t. Nordyke & Marmon Co. (Pa.) 15 Atl. 875.
*«i Smith V. Black, 51 Md. 247.
««2 PuUiam v. DiUard, 71 Ga. 598; Stony Island Hotel Co. ▼. Johnson, 57
111. App. 608; Arnold t. Kilchmann, 80 111. App. 229.
<«8 Shortz v. Quigley, 1 Bin. (Pa.) 222; Guernsey v. Froude, 13 Pa. Super.
Ct 405; Gay v. Grant. 101 N. C. 206, 8 S. E. 90; Atchison Sav. Bank v.
Means, 61 Kan. 857, 58 Pac. 989; Kolb v. Ralsor, 17 Ind. App. 551. 47 N. K.
177; Wolf y. Shenandoah Nat. Bank, 84 Iowa, 138, 50 N. W. 561; Jamison
V. Weaver, 84 Iowa, 611, 51 N. W. 65; Farnsley v. StillweU, 107 Iowa, 631,
78 N. W. 678; Whitney v. Daggett, 108 (>il. 232. 41 Pac. 471; McKlnlej t.
Tuttle, 34 OaJ. 235; Norton v. Atchison, T. & S. P. R. Co., 97 Cal. 3S8, BO
Pac. 585, 33 Am. St Rep. 198; Whitfield v. Howard, 12 S. D. 355, 81 X. W.
727.
*«* Stover V. Hough, 47 Neb. 789, 66 N. W. 825; Provost v. Provost, 64 Hun.
:634, 18 N. T. Supp. 806; Bansman v. Tilley, 46 Minn. 66. 48 X. W. 439,
4«s Smith T. Miller (Tenn. Ch.) 42 S. W. 182; National Mut Bldg. Ass'n t.
Kondrak« 9 Kulp (Fa.) 14.
(546)
Ch. 14) VACATING AND OPENING JUDGMENTS.. • § 351
dence presented by the applicant is not contradicted, it will justify
the court in vacating the judgment, provided it is plain, positive, and
specific.*'* But if his allegations are traversed by affidavits or tes-
timony presented on behalf of the adverse party, then the applicant
must establish his contention by a fair preponderance of evidence.*'^
So, where the ground offered for the vacation of the judgment is the
disability of the defendant (as, that he was insane when the action
was commenced), he must assume the burden of proving the fact,
by superior weight of testimony.***
Where a party moves for the vacation of a judgment taken against
him by reason of "unavoidable casualty or misfortune," or through
his "mistake, surprise, or excusable neglect," as provided by the stat-
utes, he must furnish clear and satisfactory proof of the facts consti-
tuting the cause which prevented him from defending, or excusing
his default ; *** affidavits may be filed contradicting the matters which
he alleges : *^* and the motion will not be granted, where the evidence
is conflicting, unless the applicant makes out his case by a fair pre-
ponderance of the testimony.*^*
An application for the vacation of a judgment, as has been already
stated, must be accompanied by a showing that the defendant has a
good defense on the merits. But while the court may inquire
whether the proposed defense is meritorious, and whether it would
be sufficient, if established, to defeat the plaintiff's claims,*^^ the in-
4«« Yost v. Mensch. 141 Pa. 73. 21 Atl. 507, 27 Wkly. Notes Cas. 562.
*«T Tidioute & Tiona Oil Co. v. Shear, 161 Pa. 508. 29 Atl. 107; Lomlson v.
Faust. 145 Pa. 8. 23 Ati. 377; Oberly v. Oberly. 190 Pa. 341, 42 Atl. 1105;
Layton v. Prewitt (Ky.) 25 S. W. 882; Brown v. Stegemann (Iowa) 81 N. W.
450. But in Pennsylvania, it is said that the rule that, the presumption being
in favor of the validity of a Judgment, the burden is on the defendant to
establish invalidity by a preponderance of evidence, and when the proof Is in
equipoise the Judgment will not be opened, does not apply where it was ob- *■
taineil by defendant's attorney or agent through fraud and abuse of trust re- "
lations. Gillespie v. Weiss, 22 Pa. Co. Ct. R. 177. ,
48 8 Smith V. McClure. 146 Ind. 123, 44 N. E. 1001.
*«• Spalding v. Crawford. 3 App. D. C. 361. i
470 Butte Butchering Oo. v. Clarke. 19 Mont. 306, 48 Pac. 303.
471 Quick v. Lawrence Nat Bank. 10 Ind. App. 523, 38 N. B. 73; Mogol-
berg V. Clevinger, 93 Iowa, 736. 61 N. W. 1092; Poirier v. Gravel. 88 Cal. 70,
25 Pac. 902.
47 2 Gibbons v. Campbell, 06 Hun, 631, 21 N. Y. Supp. 283; Randall v. Unit-
(547
• ■
. .♦
§ 351 ^ LAW OF JUDGMENTS. (Ch. 14
quiry does not include the truth of the defense. If the proposed plea
or answer is investigated at all, on the motion to v;-cate or open the
judgment, it is only to the extent of ascertaining whether the facts
set up, assuming their truth, constitute a good and meritorious de-
fense. Those facts must of course be proved on the subsequent trial,
but they are not in issue on the motion to open or set aside the judg-
ment. Hence, generally speaking, counter affidavits cannot be filed,
nor counter evidence heard in any form as to the matters alleged as
constituting a defense to th,e original action.*^* But in Pennsyl-
vania, on a rule to open a judgment, evidence may be heard both for
and against the proposed defense ; and the judgment will not be dis-
turbed if the defendant's assertion of the facts on which he relics is
not corroborated and is traversed by an equally positive and com-
prehensive denial on the part of the plaintiff. If further testimony
is introduced, the court will decide the motion according to the pre-
ponderance of evidence, or it may, in the exercise of a sound discre-
tion, open the judgment and let the issue be decided by the verdict
of a jury.*^* And a similar practice is observed in Illinois.*^*
ed Life & Accident Ins. Ass'n, 59 N. Y. Super. Ct. 587, 14 N. T. Supp. 631:
ritzele v. Lutkinu, 85 III. App. 002.
*78 Benedict v. Amoux, 85 Hun, 283, 32 X. Y. Supp. 905; Buck v. Havens.
40 Ind. 221; Hill v. Crnmp, 24 Ind. 291; Pratt v. Kells, 28 Ala. 390; Hasten
V. Indiana C3ar & Foundry Co., 25 Ind. App. 175, 57 N. E. 148; Worth v. Wet-
more, 87 Iowa, 62, 54 N. W. 56; Francis v. Cox, 33 Oal. 323; Onicier v. Weir,
45 Cal. 53; Douglass t. Todd, 96 Cal. 655, 31 Pac. 623, 31 Am. St Bep. 247;
G. S. Congdon Hardware Co. v. Consolidated Apex Min. Co., 11 S. D. 376. 77
N. W. 1022; Grlswold Linseed Oil Co. v. Lee, 1 S. D. 531. 47 N. W^. 955, 36
Am. St. Rep. 761.
*74 Woods V. Irwin, 141 Pa. 278, 21 Atl. 603. 23 Am. St Rep. 282. 28 Wkly.
Notes Oas. 185; City of Philadelphia v. Weaver, 155 Pa. 74. 25 AU. 876:
StockweU V. Webster, 160 Pa. 473, 28 Atl, 837; Steiner v. Scholl, 163 Pa. 4«r>.
30 Atl. 159; Gillespie v. Webster, 180 Pa. 405. 36 Atl. 928; Barley v. FIlby,
103 Pa. 374. 44 Ati. 453; Krebs v. Clark, 9 Pa. Co. Ct R. 420; McXeal v.
Banks, 6 Kulp, 371; Hildreth v. Davis, Id. 336; Fishblate v. McCuUough, 7
4T6 Helling V. Van Zandt, 162 111. 162, 44 N. E. 424; Matzenbangh r. Doyle.
156 111. 331, 40 N. K. 035; Sundberg v. Temple, 33 111. App. 033; Anderson v.
Studebaker, 37 III. App. 532; Triiby v. Case. 41 111. App. 153. Compare Dlonoe
V. Matzenbaugh, 49 III. App. 527. In Brown v. Huber, 79 111. App. 109. It is
said that, where the evidence on a motion to vacate a Judgment by confes-
sion is conflicting, and the contested matter in doubt, the motion should be
allowed.
(548)
Ch. 14) VACATING AND OPBNINQ JUDQMBNT&L § 352
% 352. Impositlom of Terms.
Since the opening or vacating of a judgment, in any case where an
imputation of laches or inattention rests upon the party applying, is
an act of grace and favor and is discretionary with the trial court, it
has power to impose such terms as may be juSt and reasonable, as a
condition to the granting of such relief, and its action in this respect
will not be interfered with, unless for a gross and manifest abuse of
discretion.*^* But the converse of this rule is equally true. The im-
position of terms is by no means a necessary condition to the opening
of a judgment (unless made so by statute), and the judgment-creditor
cannot complain that terms were not imposed, unless he can also
show that the action of the court was arbitrary and unjust,*^ ^ more
especially where a judgment by default is opened at the same term
at which it was entered.*'* The most usual application of this power
of imposing terms is the requirement that the party pay all previous
costs in the action as a condition precedent to the opening of the
judgment. It is clearly within the power of the court to make the
payment of costs a condition to granting the relief asked,*'* includ-
Pa. DIst. R. 364; Lee v. Sallada. 7 Pa. Super. Ct. 98; Heilner v. Falls Coal
Co., 9 Pa. Super. Ct. 78. The rule as stated In Klopfer v. Bkls, 155 Pa. 41,
25 Atl. 785, Is that a x>etition to open a Judgment should not be granted un-
less there is more than oath against oath; but when there is more than this,
and it comes to the question of weight of the evidence, it is for the court be-
low, in the exercise of a sound discretion, to decide to which side the scales
incline, and if It is in doubt on this question, or as to the credibility of the
witnesses, a prudent course would be to open the Judgment, and thus obtain
the aid of a Jury at the trial.
<7« Ensly V. Wright, 3 Pa. 501; McMurray's Heirs v. City of Erie, 59 Pa.
223; Huston Township Co-op. Mut. Fire Ins. Co. v. Beale, 110 Pa. 321, 1
Atl. 926; Hornthal v. Finelite, 9 Misc. Rep. 724, 29 N. Y. Supp. 686; Fowble
V. Walker, 4 Ohio, 64; Hovey v. Middleton, 56 111. 468; Mason v. McNamara,
57 ni. 274; Burhans v. ViUage of Norwood Park. 138 111. 147. 27 N. E. 1088;
Young V. BIrcher, 31 Mo. 136, 77 Am. Dec. 638; Magoon v. Callahan, 39 Wis.
141; Howe v. Coldren, 4 Nev. 171.
*77 Kelber v. Pittsburg Xat Plow Co., 146 Pa. 485, 23 Atl. 335; Warder v.
Patterson, 6 Dak. 83, 50 N. W. 484; Johnson v. McCurry, 102 Ga. 471, 31 S. E.
88.
4T8 Boutin V. Catlin, 101 WMs. 545, 77 X. W. 910.
*T» Goodness v. Metropolitan St. Ry. Co., 49 App. Div. 76, 63 N. T, Supp.
476; Szerlip v. Baler, 22 Misc. Rep. 351, 49 N. Y. Supp. 300; Schwartz v.
(549)
§362 LAW OP JUDGMENTS. (Ch. 14
ing, in a proper case and where justice appears to require it, the dis-
bursements of the opposite party,**® a proper fee to his attorneys,***
and his reasonable personal expenses incurred in connection with the
suit,***^ and also the costs of the motion itself.*'* But the imposi-
tion of costs is not a legal necessity. It is equally in the discretion
of the court, if it considers such action just and proper in the partic-
ular case, to omit this requirement. Thus, an order vacating a judg-
ment on account of surprise or excusable neglect, need not require
the payment of all costs as a condition precedent.*"* And indeed,
where the ground of the application is a want of jurisdiction in the
court, no process having been served on the defendant, it would not
be at all proper to require him to pay the costs, since, in that case, he
is not chargeable with any kind or degree of fault or carelessness.**'
Another very common requirement, on the opening of a judgment, is
Schendel, 24 Misc. Rep. 701, 63 N. Y, Supp. 773; Cooper v. Borough of King-
ston. 6 Kulp (Pa.) 344; Stewart v. Scully, 46 Kan. 491, 28 Pac. 957; Yost v.
Minneapolis Harvester Works, 41 111. App. 556; Ueland y. Lyncb, 77 Minn.
543, 80 N. W. 700. 77 Am. St. Rep. 698; Leake v. Gallogly, 34 Neb. 857, 52 N.
W. 824; Howe t. Independence Consol. Gold & Silver Mln. Co., 29 CaL 72;
Leet T. Grants, 36 Cal. 288; Bailey v. Taaffe, 29 CaL 422; People t. 0*Con-
nell. 23 Cal. 281; Roland v. Kreyenhagen, 18 Oal. 455.
480 MuUer v. Post, 58 Hun. 604, 11 N. Y. Supp. 615; Traltteur v. Lering-
ston, 59 N. Y. Super. Ct. 140, 13 N. Y. Supp. 603; Ketcham v. EUiott, 66 Hun,
627, 20 N. Y. Supp. 745; Meiners t. Frederick Miller Brewing Co., 78 Wis.
364, 47 N. W. 430, 10 L. R. A. 586.
481 McCarty v. Altonwood Stock Farm, 68 Hun, 551, 22 N. Y. Supp. 1091:
Ormsby v. Conrad, 4 S. D. 509, 57 N. W. 778; Freiberg v. Le Clair, 78 Wis.
164, 47 N. W. 178.
482 Behl V. Schuette, 95 Wis. 441, 70 N. W. 559; McCarty v. Altonwood
Stock Farm, 68 Hun, 551, 22 N. Y. Supp. 1091.
48S Richardson v. Sun Printing & Publishing Ass*n, 20 App. Dlv. 329. 46 N.
Y. Supp. 814.
484 Ryan y. Mooney, 49 Cal. 33; Robinson v. Merrill. 80 Oai. 415, 22 Pac.
200; Boutin v. Catlin, 101 Wis. 545, 77 X. W. 910. In Georgia, it is said that,
whUe. under the rule of court, a Judgment by default should never be opened
without the payment of costs, yet where these terms are not insisted upon by
opposite counsel, the court may. in its discretion and in conformity to local
practice, for special reasons, allow pleas to be filed without the payment of
costs, though such practice is unsound. Butler v. Richmond & D. R. Co., 88
Ga. 594, 15 S. E. 668.
485 Waller v. Weston, 125 Cal. 201, 57 Pac. 892; Stanton-Thompson Co. ▼.
Crane. 24 Xev. 171, 51 Pac. 116.
(550)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 352
that the party shall plead to the merits, or shall forbear to set up
some particular defense which is considered unconscionable or purely
technical. It cannot be doubted that this rests in the discretion of
the court/®* But it seems that the order requiring defendant to "an-
swer" should not be so framed as to exclude his right to demur.**^
And requiring him to consent that the verdict on the trial shall be
final and that no appeal shall be taken for any reason, is in excess of
the court's authority.*** Other conditions may be imposed where it
is necessary to save to the judgment-creditor the fruits of the judg-
ment he has already recovered. Thus, it is not an abuse of discre-
tion, where the circumstances of the particular case warrant it, to re-
quire the defendant to consent to the appointment of a receiver of
the property in question.*®* So also, the court may order that the
judgment shall stand as security for the amount ultimately recovered
by the plaintiff, or may require the defendant to give a bond with
sureties conditioned for the payment of any judgment the plaintiff
may recover,*'® or order him to give an undertaking not to sell or
incumber any of his property to hinder the plaintiff in the collection
of his claim.*'^ It has even been held to be a fair exercise of the
court's discretion, as a condition on opening a judgment by default,
to require the defendant to deposit with the clerk of the court a sum
of money sufficient to secure the plaintiff's claim, together with the
costs and disbursements.*** But in regard to all such conditions as
486 Bailey v. Clayton, 20 Pa. 295; Thompson v. Dickinson, 150 Mass. 210,
34 N. £. 262; Dennison T. Chapman, 102 Oal. 618, 36 Pac. 943; Ridley t. Man-
hattan By. Co., 72 Hun, 164, 25 N. Y. Supp. 380. See Anaconda Mln. Co. v.
SaUe, 16 Mont. 8, 39 Pac. 009.
4«T Berg V. Pohl, 24 Misc. Rep. 740, 53 N. T. Supp. 700.
488 Puchs & Lang Manufg Co. v. Springer & Welty Co., 15 Misc. Rep. 443,
37 N. Y. Supp. 24.
*«• Exley V. Berryhill, 36 Minn. 117, 30 N. W. 436.
*»o Dudley v. Brlnclc, 8 Misc. Rep. 76, 28 N. Y. Supp. 527; Hart v. Wash-
bum, 17 N. Y. Supp. 85, 62 Hun, 623; Halter v. Spokane Soap-Works Co., 12
Wash. 662, 42 Pac. 126. Cofupare Glickman v. Loew, 20 App. Div. 470, 51 N.
Y. Supp. 1078; Brown v. Brown, 37 Minn. 128, 33 N. W. 546; Union Nat. Bank
V. Benjamin, 61 Wis. 512, 21 N. W. 523.
4»i Schwartz v. Schendel. 24 Misc. Rep. 701, 53 N. Y. Supp. 773.
4»2 Fuchs & Lang Manuf'g Co. v. Springer & Welty Co., 15 Misc. Rep. 443,
37 N. Y. Supp. 24. Compare Stivers v. Ritt, 29 Misc. Rep. 341, 60 N. Y. Supp.
507.
(551)
§ 353 LAW OP JUDGMENTS. (Ch. l4
these, it must be remembered that the question is not one of the
court's power in the matter, but of the exercise of a sound judicial
discretion ; and therefore the conditions to be imposed in each indi-
vidual case must rest upon the distinctive facts of that case. Oner-
ous terms should not be imposed upon a defendant who is not greatly
in fault. On the other hand, if the judgment is now good and col-
lectible, it should not be set aside without adequate security fur-
nished, where there is a prospect that a subsequent recovery on the
same claim could not be enforced. Justice to both parties should
guide the court, and all the pertinent facts of the particular case
should be considered.
It is to be noted that a judgment ordered to be set aside **on pay-
ment of all costs" remains in full force imtil such payment is made.**'
And so, if an order is made setting aside a judgment on condition
that the moving party pay to the other a sum of money and file an
answer within a certain time, the conditions must be complied with
within the time fixed, or the judgment will remain in force as if the
order had never been made.***
S 353. PartlAl VaoAtion of Jvdcmeat.
Where a judgment is rendered on a petition which contains two
distinct causes of action, though not separately stated and numbered,
but united in a single count, and a motion is made to vacate and set
aside the judgment and grant a new trial for defects apparent in the
retord, and the record discloses that judgment was properly entered
on one cause of action and improperly entered on the other, the
court may sustain the motion in part and vacate the judgment as to
the one cause of action, while at the same time it overrules the mo-
tion in part and refuses to disturb the judgment in respect to the
other cause of action.*®* But it is thought that a defendant cannot
take advantage of so much of a decree as is favorable to him, and
*»3 Gregory v. Haynes, 21 Cal. 443; Furman T. Furman, 153 N. Y. 309, 47
N. E. 577, 60 Am. St. Rep. 029.
4»4 Hartman v. Olvera, 49 Cal. 101.
*»» Weaver v. Leach, 26 Kan. 179. See Wise v. Schloesser, 111 Iowa, 16, 82
S, W. 439.
(552)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 854
have it set aside as to the residpe;**® A judgment may also be
opened as to some of the defendants, and not as to the others, where
their interests are severable and the judgment is not an entirety.*'^
But in Texas, under a statute providing that only one final judgment
shall be entered in any cause, a judgment in a suit by a seller to re-
cover goods procured from him through fraud, entered against the
vendee, his trustee in insolvency, a receiver of his property, and his
sureties, is an entirety, and cannot be set aside as to a part of the
judgment-debtors.**® So an order setting aside, a judgment enfor-
cing a lien for street improvements against the lots of various owners
goes to the entire judgment, and not merely to the judgment as
against the persons who moved to set it aside.***
§ 354. Allowanoe of ApplicAtioii disoretionAry.
A motion to vacate or set aside a judgment is addressed to the
sound legal discretion of the trial court on the particular facts of the
case, and its action in the matter, whether of allowance or refusal,
will not generally be disturbed by the appellate court, unless there
has been a manifest abuse of such discretion.'®® The nature of this
discretion has been described, in a well-considered opinion of the
*•« Ross V. Ross, 21 Or. 9. 26 Pac. 1007.
4»7 Wright V. Churchman, 135 Ind. 683, 35 N. E. 835.
*•« Levy V. Gill (Tex. Civ. App.) 46 S. W. 84.
499 Bitzer V. O'Bryan (Ky.) 54 S. W. 951.
BOO Eldred v. Hazlett's Adin'r. 38 Pa. 16; Gllliland v. Bredin, 63 Pa. 39S;
Iamb's Appeal, 89 Pa. 407; Sweesey v. Kitchen, 80 Pa. 160; McClelland v.
Pomeroy, 75 Pa. 410; Earley's Appeal, 90 Pa. 322; Wemet's Appeal, 91 Pa.
319; Leader v. Dunlap, 6 Pa. Super. Ct. 243; O'Brien v. Sylvester, 12 Pa.
Snper. Ct 408; City of New York v. Smith, 138 N. Y. 676, 34 N. E. 400; Cun-
ningham V. Hatch, 18 N. Y. Supp. 458; Seiffert v. Caverley, 19 N. Y. Supp.
r»20; St. Clair v. Oonlon, 12 App. D. C. 161; Hudglns v. White, 65 N. C. 393;
Herren v. Harralson, 97 Ga. 374, 24 S. E. 457; Bridges v. Blakeman, 108 Ga.
801, 34 S. E. 122; Elliston v. Bank of Commonwealth, 3 Dana (Ky.) 99; Hop-
kins v. Hopkins, 47 Kan. 103, 27 Pac. 822; Cavanaugh v. Toledo, W. & W. R.
Co., 49 Ind. 149; Hoag v. Old People's Mut. Beu. Soc, 1 Ind. App. 28, 27 N.
E. 438; Burke v. Ward, 50 111. App. 283; Carr v. School District of Belton, 42
Mo. App. 154; Hunt v. Jenney, 2 Mo. App. Rep'r, 1249; Merritt v. Putnam, 7
Minn. 493 (Gil. 399); Granse v. Frings. 46 Minn. 352, 49 N. W. 60; Pine Moun-
tain Iron & Coal Co. v. Tabour. 55 Minn. 287, 56 X. W. 895; St. Mary's Hos-
pital T. National Ben. Co., 60 Minn. 61, 61 N. W. 824; Seymour v. Board of
(553;
§ 354 LAW OP JUDGMENTS. (Ch. 14
supreme court of California, in terms which would probably be ac-
cepted as accurate and reasonable in all jurisdictions. "The dis-
cretion intended," says the court, "is not a capricious or arbitrary
discretion, but an impartial discretion, guided and controlled in its
exercise by fixed legal principles. It is not a mental discretion^ to
be exercised ex gratia, but a legal discretion, to be exercised in con-
formity with the spirit of the law and in a manner to subserve and
not to impede or defeat the ends of substantial justice. In a plain
case this discretion has no office to perform, and its exercise is lim-
ited to doubtful cases, where an impartial mind hesitates. If it be
doubted whether the excuse offered is sufficient or not, or whether
the defense set up is with or without merits in foro legis, when exam-
ined under those rules of law by which judges are guided to a con-
clusion, the judgment of the court below will not be disturbed. If,
on the contrary, we are satisfied beyond a reasonable doubt that the
court below has come to an erroneous conclusion, the party com-
plaining of the error is as much entitled to a reversal in a case like
the present as in any other." *®^ It is also said, however, that as a
general rule, in a doubtful case, the court should incline to relieve.
The exercise of the court's discretion ought to tend in a reasonable
degree to bring about a judgment on the merits of the case, and
when the circumstances are such as to lead the court to hesitate
upon the motion to open the default, it is better, as a rule, that the
doubt should be resolved in favor of the application, proper terms
and conditions being imposed.*** A doubt as to the propriety of
allowing the motion may arise from the nature of the evidence or the
Supers of Obippewa County, 40 Wis. 62; Wheeler & WUson Mannrg Co. v.
Monahan, 63 Wis. 194, 23 N. W. 109; Evans v. Fall River County. 4 S. D. 119,
55 N. W. 862; Dougherty v. Nevada Bank, 68 Cal. 275, 9 Pac. 112; Gamer t.
Erlanger, 86 Cal. 60, 24 Pac. 805; Williamson v. Cummings Rock DriU Co.. 95
Cal. 652, 30 Pac. 762; Clarke v. AVitram. 99 Cal. 50, 33 Pac. 798; Robert E.
Lee Silver Mln. Go. v. Englebach, 18 Colo. 106, 31 Pac. 771; White v. North-
west Stage Co., 5 Or. 99; Askren v. Squhre, 29 Or. 228. 45 Pac. 779; Lovejo^
V. Willamette Transp. & Locks Co., 24 Or. 569, 34 Pac. 600; City of Spokane
Falls V. Curry, 2 Wash. St 541, 27 Pac. 477; Llresley v. O'Brien. 6 Was'j. 553*
34 Pac. 134; Ilagar v. WlkofT, 2 Okl. 580, 39 Pac. 281.
•01 Bailey v. Taaffe, 29 Cal. 422.
602 Watson v. San Francisco & H. B. R. Co., 41 Gal. 17; Vermont Marble
Co. V. Black (Cal.) 38 Pac 612.
(554)
Ch. 14) VACATING AND OPENING JUDGMENTS. § 354
fact of its being evenly balanced. Thus, where the oath of the peti-
tioner is opposed by the oath of the plaintiff in the judgment, it is
no abuse of discretion to refuse to open the judgment.*®' But if the
relief is accorded, it will be presumed, in the court above, that there
was sufficient evidence to justify th^ order. '^^^ Where the situation
of the judgment-creditor has undergone a material change, as by the
incurring of expense in issuing and levying execution, and by the
fact that a material witness has, by the death of the judgment-debtor,
become disqualified, there is no abuse of discretion in refusing to
open the judgment.*®*
But it is only in cases of doubt as to the facts of the case, or as to
the propriety of allowing the motion, that the discretion of the court
comes into play. Where the case is plain and free from all uncer-
tainty, it is not a question of discretion but of legal right. For in-
stance, if absolutely no excuse is offered for the default of the mov-
ing party, an order vacating the judgment is not within the discre-
tion of the court.*®* On the other hand, if adequate cause for set-
ting asi.de the judgment is shown by the uncontradicted evidence or
affidavits of the petitioner, the court must grant relief; it has no
discretion to refuse ; *®^ and the petitioner may even have man-
damus to compel the court to act, if the judgment or decree cannot
be taken up on appeal.*®* In Missouri it is said that "while this
court will not interfere with the discretion of the trial court in re-
fusing to vacate and set aside a judgment where there is a conflict
of evidence, it will do so when the evidence is all on one side and it
is clear that the discretion has been abused." *®® In Wisconsin, the
area of the court's discretion appears to be more contracted. It
is said that "unless the default of the party is excused and a verified
answer tendered showing a defense on the merits," the appellate
»«• Barton's Appeal (Pa.) 7 Atl. 168; Rleker v. Doerr, 16 Lane. Law Rev. 59.
504 WlUett v. MUlman, 61 Iowa, 123, 15 N. W. 866.
•05 Jeflferson Co. Bank v. Bobbins, 67 Wis. 68, 29 N. W. 893.
Bo« Milwankee Mut. Loan & Bldg. Soc. y. Jagodzinski, 84 Wis. 35, 54 N. W.
102.
•07 Hull v. Vlning, 17 Wash. 352, 49 Pac. 637.
i08 CampbeU v. Donovan, 111 Mich. 247, 69 N. W. 514; Bridgeport Electric
& Ice Co. V. Bridgeport Land & Imp. Co., 104 Ala. 276, 16 South. 93.
•09 Craig v. Smith, 65 Mo. 536.
(555)
§ 354s LAW or JrmsMExn, CCh. 14
court will not interfere with a refusal to open the judgment.'^* A
court having jurisdiction to set aside a judgment has the right to
give any less relief by which justice may be obtained and by which
the rights of a party in excusable detank ma^- be protected, and the
mode of effecting this object is under the control and subject to the
discretion of the c6urt.'^^ In California the trial court has no power
to review its own order setting aside a judgment for want of service
of summons, where the order was regularly made after hearing and
consideration.*^' According to the practice in some of the states,
the refusal of the court below to open a judgment is ground for an
appeal, but cannot be brought up on wmt of error/^*
f 354*. PnMtiee am Oveaias Defttslt.
Where the relief sought by a judgment-debtor is not that the judg-
ment should be stricken off or absolutely set aside as being void,
but that a default should be opened, so that he may contest the case
on the merits, and the application is granted, the proper practice is
for the court to include in its order a direction that the party have
leave to plead, or that a new trial be granted, or that the case be
set down for trial or hearing, according to the situation of the par-
ticular case.'^^ It is not proper to enjoin the enforcement of the
judgment."' But where matters arise, in an application to vacate a
confessed judgment, which are proper to be submitted to a jury,
>!• rnkn Lambering Oo. v. Board of Sup'rs of Chippewa Co^ 47 Wla. 2^
2 X. W. 281.
•11 McCan v. MeCall, 54 N. Y. 541.
»i2 Hanson v. Hanson (CaL) 20 Pac. 736.
»i3 GiUcspie T. Campbell (Pa.) 1 AtL 665.
*i* Beck V. Jnckett 111 Iowa, 339, 82 N. W. 762; Belknap v. Groover (Tex.
CiT. Apiui 56 8. W. 249; Gormully & Jeffery ^lanoTg Co. r. Catharine, Z>
Misc. Rep. 338, 55 N. T. Sopp. 475. In Pennsylrania, where a jndgment is
set aside sitter the term at which it was rendered, it is better that the
formal eatry should be, "Judgment vacated, Terdict set aside, and new triil
jmnted," instead of merely "ftnle abftolute for new trial,'* which does not at
once show aU tliat has been done. Fisher t. HestonTille, K. & F. Fusl By.
Co., 185 Pa, 602, 40 AtL 97.
si» Hnnton t. Euper, 63 Ark. 323, 38 S. W. 517.
(55G)
Ch. 14) VACATING AND OPENING JUDGMBNTS. § 355
further proceedings under the judgment may be stayed, and the mat-
ters accordingly submitted.'^^' Where, after a judgment by default,
leave is granted to the defendant to plead, **the judgment to stand,"
and, on trial of the general issue filed accordingly, plaintiff has a ver-
dict for less than the amount of the original judgment, it is proper to
let the judgment stand as of its original date for such reduced
amount, rather than to enter it as of the date of the verdict/*'
S 355. Elfeot of VacatiiiK Judsment.
If a judgment is absolutely void and a mere nullity, of course it is
no protection or justification to any person, and it is immaterial
whether it be set aside or not. But if it is voidable only, and not
void, it seems clear, as a matter of legal reason, that acts done un-
der it by the plaintiff or others ought not to be invalidated by its
subsequent vacation, provided that the reason for setting it aside be
not attributable to the plaintiff, but the relief be granted as a matter
of grace and favor to the defendant and on account of his mistake
or excusable neglect. On the other hand, if the judgment is to be
vacated by reason of the fraud or misconduct of the plaintiff, or for
any irregularity for which he is actually or constructively to blame,
h isi equally clear that he should not be permitted to justify under it.
And herein there is an important difference between the setting aside
of an irregular judgment and the reversal of an erroneous judgment.
"Although a void judgment, or one that is voidable for irregularity,
will not, after being set aside, justify the acts of the party done un-
der it before it was set aside, this principle has never been applied
to a judgment merely erroneous and reversed for error by a court
of review. An irregular judgment is called voidable, and when set
aside is treated as though void from the beginning; for the party
himself is held chargeable with the irregularity; while a judgment
pronounced by the court, although upon an erroneous view of the
law, and subject therefore to be reversed by an appellate tribunal,
is never treated as void, but valid for all purposes of protection to
91 « Rasmussen v. Smith, 82 111. App. 334.
•17 Dulle T. Lally. 167 III. 485, 47 N. £. 753.
(557)
5 365 LAW OP JUDOMENT& (Ch. 14
the party acting under it before reversal. The fact that in the one
case the party is responsible for the irregularity, and in the other
whatever of error there is in the judgment is the error of the court,
seems to be the ground of distinction between the two, and it is
manifestly a just and proper distinction. While it may well be held
that a party is not justified by a judgment which is subsequently set
aside for an irregularity in entering it up, it would seem unjust to
hold that a judgment duly rendered by the court shall fail to pro-
tect a party acting under it before reversal, because reversed for
error committed by the court." '^^ Under the Pennsylvania prac-
tice, as already explained,*** an order opening a judgment and let-
ting the defendant in to a defense, does not destroy the lien from
the date of its original entry.**" But in some other jurisdictions, the
vacation of a judgment, especially at the same term at which it was
rendered, leaves the case as if there had been no entry of judg-
ment.*** A more difRcult question concerns the intervening rights
of third persons. Some of the cases hold that a judgment by de-
fault may be opened on showing of an adequate cause, where the
case has not been enrolled, though third parties have purchased in
reliance on the judgment.*** But the prevailing opinion appears
to be that the setting aside of a judgment will not affect the title to
property which was the subject of the judgment, or is affected by it,
»!• Simpson v. Hombeck, 3 Lans. (N. Y.) 53.
810 Supra. § 350.
620 Steinbridge's Appeal, 1 Pen. & W. (Pa.) 481. A Jadfirment Ifl a jwSg-
ment to aU intents and purposes, and with all its incidents and attributes, after
the allowance of a rule to open it the same as before; and hence, when it is
closed again, after a trial on the merits by a verdict for a sum due, an exei*n-
tion Issues upon it for the amount^o found as if it had not been disturbed.
McAnulty v. National Life Ass*n, 6 Lack. Leg. N. 128.
B21 jKtna Life Ins. Co. v. Board of Com'rs of HamUton County, 25 C. C. A.
9i, 79 Fed. 575; Olson v. Nunually, 47 ICan. 391, 28 Pac. 149. 27 Am. St. Ro^
296. In Nebraska, a court has no power, on setting aside a mere vaonvj
judgment, to continue in existence the statutory Judgment lien so that it nuj
attach to such judgment as may be subsequently rendered in the same ctiu**.
Farmers' Loan & Trust Co. v. Kllllnger. 46 Neb. 677, 05 N. W. 790, 41 U R, A
222.
522 Benedict v. Auditor General, 104 Mich. 2Cl>, 02 N. W. 304.
(558)
i
Ql. 14) VACATING AND OPENING JUDGMENTS. § 855
if it has passed to a purchaser in good faith^ relying on the judg-
ment.**'
»«• Security Abstract of Title Co. v. Longacre, 56 Neb. 460, 76 N. W. 1073.
In Minnesota, the matter Is regulated by a statute which provides that the
setting aside of a Judgment shall not prevail against a bona flde purchaser,
whose titie was based thereon, where the Judgment had been of record in the
proper county for a period of not less than three years before the application
to set aside the Judgment was made. Gen. Laws Minn. 1887, c. 61; Drew
V. 01 ty of St Paul, 44 Minn. 501, 47 N. W. 158; Gowen T. Conlow, 51 Minn.
213. 63 N. W. 866.
(569)
§ 356 LAW OF JUDQMBNT& {fjtL, 15
CHAPTER XV.
BELIJBJF IN EQUITY AGAINST JUDGMENTS AT LAW.
Pabt L Jurisdiction ov E<^niTT to Bkjoin the Ekfokcbmext or
S 356. Origin of the Power.
357. Nature of Belief granted.
358. What Adjudications subject to the Power.
359. What Parties may Apply.
360. What Courts exercise the Power.
361. Concurrent Remedies.
362. Same; Relief on Motion.
363. Same; Appeal, Error, or OertlorarL
3iM. Same; Cross-Actions and Actions oyer.
Part II. Grounds for Enjoining JuDGMKHli^
365. General Grounds for Equitable Relief.
366. General Rule Stated.
367. Errors and Irregularities.
368. Fraud.
369. Fraud in Preventing Defense.
370. Fraud in Procuring the Judgment.
371. Deceit and Concealment
372. Perjury.
373. Taking Judgment contrary to Agreement
374. Unauthorized Appearance of Attorney.'
375. Negligence or Mistake of Counsel.
376. Want of Jurisdiction.
377. Judgment founded on False Return of Servicei
378. Legal Defense not Interposed
379. Illegality of Consideration.
380. Excuses for not defending at Law.
381. Same; Mistake.
382. Same; Surprise.
383. Same; Accident or Misfortune.
384. Ignorance of Legal Defense.
385. Discovery must have been sought
386. Newly-discovered Evidence.
387. Negligence of Party precludes Relief.
388. Defense not available at Law.
389. Defense available either at Law or Equity.
390. Satisfaction or Release of Judgment
391. Injunction as a Means of securing Set-Off.
392. Personal Disability of Pardes.
(560)
Ch. 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW, § 356
Part III. Practicb on Application to Enjoin Judokbnt.
3d3. Nature and Requisites of BUI.
393a. Evidence.
393b. Joinder of Parties.
394. Conditions on Granting Relief.
395. Effect of Enjoining Judgment
396. Dissolution of Injunction.
Part L Jurisdiction op Equity to Enjoin the Enforcement of
Judgments.
§ 356. Origin of the Power.
The power and jurisdiction of the courts of equity to enjoin a
party from enforcing a judgment which he has obtained, when it
would be against conscience to permit him to do so, is at the present
day so firmly established, so salutary in its operation, and so thor-
oughly in accord with the promptings of justice, that it is difficult to
realize the stubbornness and bitter jealousy with which the begin-
nings of its exercise were resisted. That such was the fact, how-
ever, is fully certified by the historians. This species of jurisdiction
"was one of the first subjects that engaged the attention of the
English chancellors, and though violently resisted by common-law
lawyers and judges, the power was largely exercised by Cardinal
Wolsey in the reign of Henry VIII, and, according to Mr. Reeves,
with great ability and justice. It is related of Sir Thomas More,
who succeeded Cardinal Wolsey, that having invited the judges to
dine with him, he showed them the number and nature of the causes
in which he had granted injunctions to judgments of the courts of
common law, and the judges, upon full debate of the matter, confessed
that they could have done no otherwise themselves. Still, how-
ever, clamors against the equity jurisdiction continued until they
culminated in the famous controversy in the reign of James I, which
was conducted principally by Lord Coke against, and by Lord Elles-
mere in favor of, the chancery jurisdiction. The Very point of this
controversy, according to Judge Story (i Story's Eq. § 51), was
whether a court of equity could give relief from or against a judg-
ment at common law, and it was finally decided in favor of the equity
1 JLAW JUDG.~36 (561)
§ 366 LAW bV JUDOMfiNTS. (Oh, 16
jurisdiction.* From that time down to this day the jurisdiction has
been exercised in England, and decrees of ecclesiastical courts have
often been relieved against on the ground of fraud ; * and so in
like manner have awards,* and verdicts,* and judgments at law.'
And even decrees in chancery may be avoided for the same cause." •
Nor have the improvements of the law or the changes in judicial
organization superseded this power of equity or obviated the neces-
sity of its occasional exercise.' A recent decision of the supreme
court of the United States declares that the appropriate remedy to
set aside or enjoin the execution of judgments at law wrongfully
obtained is by bill in equity.' But this jurisdiction, though unques-
tioned, is one which, from the pressure of hardship, always an element
in these cases, is liable to abuse ; and the abuse of it, say the courts,
is extremely mischievous, tending as it does to conflict between juris-
dictions and to the promotion of needless litigation.' Hence "bills
seeking relief from final judgments, solemnly rendered in the due and
ordinary course of administration of justice by courts of competent
jurisdiction, are always watched by courts of equity with extreme
jealousy, and the grounds upon which interference will be allowed
are, confessedly, narrow and restricted." ^*
1 Spence, Chanc. Jur. p. 674.
2 Van Brough v. Cock, 1 Ch. Cas. 201; Bissel v. Axtell, 2 Vera. 47.
« LoDsdale v. Littledale, 2 Ves. Jr. 451.
« Williams v. Lee, 3 Atk. 223; Bateman y. WiUoe, 1 Sehoales & L. 201.
BBamsley y. Powell, 1 Ves. Sr. 119; Galnsborougli y. Gifford, 2 P. Wmfl.
424; Humphreys v. Humphreys, 3 P. Wms. 394.
• Cochran v. Eldridge, 49 Pa. 365, 368. citing Uoyd y. Mansell, 2 P. Wms.
73; Galley v. Baker, Cas. t. Talbot, 201; Bradlsh v. Gee, Amb. 229.
t The statutes limiting the time within which Judgments may be set aside
on motion or pctitiou. for mistake, surprise, excusable neglect, etc., have
no application to a suit in equity to enjoin or annul a judgment on the ground
of fraud. McXeil v. McNeil (C. C.) 78 Fed. 834; Ex-Mission Land & Water
Co. V. Flash, 97 Cal. 610, 32 Pac. 600; Irvine v. Leyh, 102 Mo. 200, 16 S,
W. 10.
8 Phillips V. Negley, 117 U. S. 665, 6 Sup. Ct 901, 29 L. Ed- 1013.
0 Kersey v. Rash, 3 Del. Ch. 321.
10 Johnson v. Templeton, GO Tex. 238.
(562)
Ch, 1 6) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 367
I 357. Natnre of Relief Kxantecl.
The action of a court of equity in giving relief against a judgment
at law is almost always indirect Courts of chancery, it must be
remembered, do not claim to exercise any supervisory power over
the courts of law, or their proceedings. Judgments are not reversed
or vacated in equity. Adjudications at law are not overhauled or
re-examined. It is to the party himself that the energies of the court
of equity are directed, and its remedial power is exercised by putting
restraint upon his usual liberty of following up his judgment by the
appropriate process for its collection. Equity therefore acts on the
person, not the proceeding; and while it will enjoin the enforcement
of a judgment, in proper cases, it will not interfere with the judg-
ment itself.*^ Some of the cases hold that a court of equity cannot
set aside the judgment of a law court and award a new trial. And
indeed this is rarely done, if ever, in express terms; but the same
end is effected by decreeing that unless the party consents to have
the judgment set aside and a new trial had, he shall be perpetually
enjoined from collecting his judgment.*' But cases sometimes
arise where the right to move for a new trial at law was lost, or an
application was refused, in consequence of some of the circumstan-
ces which equity always regards as sufficient warrant for its inter-
ference. In such instances, the complainant being in no fault, it is
generally considered to be within the power of equity to grant a
new trial.** Thus relief of this character may be granted where tht
11 Yancey v. Downer, 5 Litt. (Ky.) 8, 15 Am. Dec. 35; Richardson v. City
of Baltimore, 8 Gill (Md.) 433; Contee v. Cooke, 2 Har. & J. (Aid.) 179;
Blighrs Heirs v. Tobin, 7 T. B. Mon. (Ky.) 612, 18 Am. Dec. 219; Farmers*
Bank y. Collins. 13 Bush (Ky.) 138; Harding v. Fiske, 25 Abb. N. C. 348,
12 N. Y. Supp. 139; Justice v. Scott, 39 N. C. 108. But equity may reform
a Judgment at law, by the addition of something omitted through mistake,
when due cause therefor is shown. Hamburg-Bremen Fire Ins. Co. v. Polzer
Mauuf'g Co., 22 C. C. A. 283, 7G Fed. 479. It is no objection to the main-
tenance of an action to enjoin the enforcement of a Judgment that it is a
collateral attack on the judgment. Ross v. Banta, 140 Ind. 120, 34 N. E. 805.
laPelham v. Moreland, 11 Ark. 443; Lawless v. Reese, 3 Bibb (Ky.) 48G;
Gainty t. Russell, 40 Conn. 4r)0; Yancey v. Downer, 5 Utt. (Ky.) 8, 15 Am.
Doc. 35.
"Knifong V. Hendricks, 2 Grat. (Va.) 212, 44 Am. Dec. 385; Carter v.
(5C3)
I
§ 358 LAW OP JUDGMENTS. (Ch. 15
judgment is against conscience, and the applicant had no opportunity
to make defense, or was prevented from defending by accident, or
the fraud or improper management of the adverse party, and with-
out fault on his own part.^* There is much learning in the books
on this point, but it is merely collateral to our present subject and
belongs more properly to a treatise on equity. A few words must
be added as to the measure of the relief granted. It should always
be adjusted to the exigencies of the particular case. If it is claimed
that the judgment at law is excessive,— either because of the fraud
or unfair dealing of the other party, or in consequence of a mistake
or miscalculation, — ^that is no ground for enjoining the whole judg-
ment. The creditor should merely be prohibited from proceeding to
collect the excess.** So where the execution of a judgment has been
enjoined, and the defendant, upon being interrogated, admits a par-
rial payment of such judgment, the injunction should be perpetuated
for the amount admitted to have been paid, and dissolved as to
the remainder still due.**
§ 368. Wluit Adjndieations subject to tke Power.
Generally speaking, all judgments rendered or purporting to be
rendered by courts of law are subject to the equitable power here
considered. As to the particular case of a judgment that is abso-
lutely void, however, the authorities do not agree. Some of the deci-
sions hold that the defendant in a judgment cannot have equitable
relief against it because it is either erroneous or void, since, if void.
it may be disregarded or may be set aside on motion, and if erro-
Bennett 6 Fla. 214; Iloskins v. Hattenback. 14 Iowa. 314; Land t. EUfot
1 Smedes & M. (Miss.) 608; How v. MorteU. 28 111. 478; Deputy v. TobiaK,
1 Blackf. (Ind.) 311, 12 Am. Dec. 243. But equity will not set aside a jndg>
ment at law on grounds which were presented to the trial conrt in a mo-
tion for a new trial, and held insutficient. Telford y. BrinkerhofT. 163 IlL 439,
45 X. E. 156; Hendrickson v. Bradley, 29 C. C. A. 303, 85 Fed. 50a
1* Carrington v. Ilolabird, 17 Conn. 530.
IB Hale V. Bozeman, 60 Miss. 965; Booth v. Kesler, 6 Grat (Va.) 350:
Barrow v. Kobichaux, 14 I-.a. Ann. 207; Thompson v. Laughlin, 91 CaL 313,
27 Pac. 752. Or the court may order satisfaction of the Judgment on pay-
ment of the amount actually due. LJndley v. Roes, 137 Pa. 629, 20 Atl. W4,
16 Perry v. Kearney, 14 La. Ann. 400. And see Kamm v. Stark, I Sawy.
547, Fed. Cas. No. 7,604.
(564)
Ch. lo) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 358
neous It may be revised on appeal.*^ There is much to be said in
favor of this view, especially in contemplation of the known re-
luctance of equity to interfere if any adequate remedy offers itself
at law. If the judgment is merely void, a sale under it would be a
nullity. The purchaser would take no title, and the officer would be
liable as a trespasser. Still, in some of the states, a bill for an in-
junction is considered the appropriate method for obtaining relief
even against a void judgment, and this practice has become fully
established by the rulings of the courts.*® An injunction will lie to
prevent the collection of a judgment which has been vacated or set
aside by the court which rendered it.** And an execution issued on
a judgment the record of which has been destroyed, there being no
renewal by substitution, will be enjoined.*® But in the case of a
judgment on a promissory note which was given solely for the pur-
pose of testing, by a collusive action, whether the maker had any
title in property held in trust for his wife, the chancery court refused
to interfere, because the whole proceeding was "an abuse of legal
process and a fraud on the law." ** A judgment by scire facias is
of the same force as any other, and while it may be enjoined in a
proper case, the defendant is not entitled to any greater indulgence,
ill respect to his own neglect or omission, than in any other case.**
It is also held that a court has power to enjoin the collection of a
judgment which it had power to render, although, by reason of the
accrued interest and costs, the amount exceeds the limit of original
jurisdiction.*' As a general rule, equity will not re-examine and re-
17 Murpbree v. Bishop, 79 Ala. 404; Lockridge v. Lyon, 68 Ga. 137; Sanchez
T. Carriaga, 31 Cal. 170; St. Louis. X. M. & S. Ry. Co. v. Reynolds, 89 Mo.
140, 1 8. W. 208. See Fuller v. Townsley-Myrlck Dry-Goods Co., 58 Ark.
314, 24 8. W. 635.
18 Glass V. Smith, 66 Tex. 548, 2 S. W. 195; Smith v. Deweese, 41 Tex.
595; Cooke v. Burnham, 32 Tex. 129; Chambers v. Hodges, 23 Tex. 110;
Hernandez v. James, 23 La. Ann. 483; Tomllnson v. Litze, 82 Iowa, 32, 47
N. W. 1015, 31 Am. St. Rep. 458; Heath v. HalfhiU, 106 Iowa, 131, 76 N.
W. 522; Smith v. Morrill, 12 Colo. App. 233, 55 Pac. 824.
i» Rickets v. Kitchens, 34 Ind. 348.
«o Cyrus v. Hicks, 20 Tex. 483.
21 Wells V. Smith, 13 Gray (Mass.) 207, 74 Am. Dec. 631.
22 Thomp.son v. Hammond. 1 Edw. Ch. (N. Y.) 497.
28 Davis V. Davis, 10 Bush (Ky.) 274.
(565)
§ 359 LAW OP JUDGMENTS. (Ch. 15
adjust settlements which have been made by compromise judgments
in courts of law having jurisdiction of the subject-matter. Yet a
compromise judgment, if obtained by fraud, accident, or mistake, may
be relieved against by injunction.** There is also undoubted juris-
diction in equity to set aside an award, if good and equitable reasons
are presented for such action.** But a bill will not lie to vacate an
award on the ground of mistake on the part of the arbitrators or
failure to determine all the matters submitted; for these matters
may be pleaded in defense to an action at law on the award.**
Where, under a code practice, decrees are to be enforced by execu-
tion in the same manner as judgments at law, an injunction may be
granted, if otherwise proper, to restrain the execution of a decree.*'
The fact that a judgment has been affirmed on appeal does not ex-
empt it from liability to attack by an original bill in equity for fraud,
perjury, or mistake.** But equity will not interfere to set aside an
interlocutory decree in a cause then pending in another court.**
S 359. Wliat Parties mmj Apply.
As a rule, relief in equity against a judgment at law is given only
to the parties to the action,** or their privies,** or those whose rights
are directly affected by the judgment. Thus, one who has pur-
chased land subject to the lien of a judgment cannot go into equity
to enjoin the judgment, his grantor making no objection to it, unless
he can show that it was founded in fraud and expressly designed
to injure him in his rights as a purchaser.** So an execution in
a«Hahn v. Hart, 12 B. Mod. (Ky.) 420; United States Electric UisbtiDg
Co. V. Leiter. 19 D. C. 575; Steiner v. Lenz, 110 Iowa, 49, 81 X. W. 190;
Swanson v. Jordan (Tenn. Ch.) 52 S. W. 1102; City of Goliad v. Welalger,
4 Tex. Civ. App. 653, 23 S. W. 694.
2 5 Milnor v. Georgia R. & Banking Co., 4 Ga. 385.
2c Mickles v. Thayer, 14 AHen (Mass.) 114.
aT Oro Fino & Morning Star Mln. Co. v. Cullen, 1 Idaho, 126.
as Nelson t. First Nat. Bank (C. C.) 70 Fed. 526.
20 Furnald v. Glenn, 12 C. C. A. 27, 64 Fed. 49.
»o Mayes v. Woodall, 35 Tex. 687; Marriner v. Smith, 27 Cal. 649.
«i Bullock V. Winter, 10 Ga. 214.
82 Man-lner v. Smith, 27 Cal. 649; Shufelt v. Shufelt, 9 Paige (N. Y.) 137,
37 Am. Dec. 381; French v. Shotwell, 6 Johns. Ch. (N. Y.) 235.
(56C)
Oh, 16) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 359
ejectment will not be restrained at the instance of a stranger holding
a paramount title, for if his title is good the judgment does not affect
him.'* Nor will an injunction be granted to restrain execution-
creditors from proceeding to sell the property of their debtor, on the
ground that certain claims to the property have been interposed, cast-
ing a cloud upon the title, and rendering it probable that the prop-
erty will bring less than its value, to the injury of other creditors of
the same debtor, the debtor being insolvent.'* A stranger to an
execution^ whose goods have been levied on under it, cannot have
an injunction on the ground that the judgment was erroneous; for
he has a good remedy at law." But on the other hand, it has been
held that where a judgment-creditor may collect from property that
his debtor has not conveyed, but refuses or fails to do so, he may be
enjoined from proceeding against the debtor's grantee.'* It is cer-
tainly clear that a third person may maintain an action to enjoin per-
petually the enforcement of a judgment which was procured through
fraud and for the purpose of defrauding him.'^ And in some states
it has been held that where a judgment is entered by confession with-
out action, unless the statute authorizing such entry has been sub-
stantially complied with, the enforcement of the judgment may be
enjoined, upon principles of equity, at the suit of a third party preju-
diced thereby." If the applicant is in privity of interest or estate
with the defendant, he is of course not regarded as a stranger to the
action, and his right to interfere is more easily established. Thus,
where a suit was brought in Massachusetts against a corporation on
a judgment rendered in New York, and no defense had been made by
the company in the latter state, a temporary injunction was granted
restraining the suit on a bill filed by an individual stockholder.'"
So the receiver of a national bank, though not a party to a suit
•« Harper v. Hill, 35 Miss. 63. And see Whitman v. Willis, 51 Tex. 429.
Compare Alexander v. Mortgage Co. of Scotland (C. C.) 47 Fed. 131.
3 4 Robinson v. Thompson, 30 Ga. 933. See Mentzer y. Ellison, 7 Colo.
App. 315, 43 Pac. 4(M.
sft Markley v. Rand, 12 Cal. 275.
seHurd y. Eaton, 28 lU. 122.
•7 Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245.
»• Schuster v. Rader, 13 Colo. 329, 22 Pac. 505.
<• Sumner v. Marcy, 3 Woodb. & M. 105, Fed. Cas. No. 13,609.
(567)
§ 360 LAW OP JUDGMENTS. (Ch. 15
against the bank in a state court, may appear in that court and contest
the vaHdity of the judgment.**® The same rule applies to a holder of
bonds of a corporation, the value of which is impaired by a collusive
decree, to which he was not a party, establishing other claims against
the corporation as liens upon its property superior to the lien of its
bonds.*^ So also, the beneficiaries of a trust estate may maintain a
bill to enjoin a fraudulent judgment against their trustee, to which
they were not parties.** And the same principle applies as between
a principal and guarantor, or principal and surety.*' A judgment at
law against two defendants may be annulled by a decree of a court
of chancery as to one and remain binding as to the other.** But if
the bill is filed by one defendant alone, the other should be made a
party to the action, unless sufficient reasons for the omission be
stated.*' And where a separate judgment is rendered against each
of two joint wrong-doers, neither judgment can be perpetually en-
joined while both remain in force and unsatisfied, although one of
such judgments has been assigned by the holder to a third person.**
Since the sovereign is beyond the reach of any prohibitory process,
it follows that an injunction cannot be issued to restrain the United
States from collecting a judgment in its favor.*^
I 360. Wliat Courts Exercise the Power.
The enjoining of a judgment at law is a purely equitable remedy.
But it is not necessary for its exercise that the tribunal should be
distinctively and individually organized as a chancery court. This
power is habitually brought into play in those states where, for want
of separate equity courts, the law courts apply equitable remedies.
*o Denton v. Baker, 35 C. C. A. 187, 03 Fed. 4G.
*i Kuhardson v. Loree, 36 C. C. A. 301, 94 Fed. 375.
*» Suelllng V. American Freehold Land Mortg. Co., 107 Ga. 852. 31 L.
R. A. 59, 33 S. E. 634, 73 Am. St. Rep. 160.
*3 Bradshaw v. Miners' Bank, 26 C. C. A. 673, 81 Fed. 902; MIchener t.
Springlield Engine & Thrasher Co., 142 Ind. 130. 40 N. E. 679.
** Kennedy v. Evans, 31 lU. 258; Bamett v. Lynch, 1 Marv. (Del.) 114, 40
Atl. 666. See Fulliam v. Drake, 105 Iowa, 615, 75 N. W. 470.
* 5 Gates V. Lane, 44 Cal. 392.
*o Meixell v. Kirkpatrick, 25 Kan. 19.
*7 Hill V. United States, 9 How. 386, 13 L. Ed. 183.
(568)
Ch. 15) RELIEF IN EQUITY AOAINST JUDGMENTS AT LAW. § 360
And even under the codes, where law and equity are fused, equitable
jurisdiction, equitable proceedings, and equitable remedies are not
abolished, although metamorphosed as to their external appearance.
Questions as to the power to enjoin judgments most commonly arise
between co-ordinate courts. In several of the states it is held that
one court has no jurisdiction of an action to enjoin or annul the
judgment of another court of concurrent jurisdiction, or of a court of
co-ordinate rank in another district or division of the same state.**
And in some, this rule is established by statute.*" But in others, it
is thought that any court having jurisdiction of the parties and the
subject-matter may issue its injunction to restrain the enforcement of
a judgment, in a proper case, as* where the judgment has been paid
or satisfied, or was procured by fraud and conspiracy, though it was
rendered by a court of concurrent or equal jurisdiction.*® Thus, in
Tennessee, it is held that one chancery court may enjoin the execu-
tion of a judgment wrongfully taken in another chancery court.'*^
In the exercise of its jurisdiction over the parties, a court may enjoin
the enforcement of a judgment rendered in another state,*** and an
execution issued upon a judgment of the supreme court of a state
may be enjoined by the district court of the county in which it is
sought to be enforced.*** Also, chancery has jurisdiction to cancel,
4 3 Plunkett V. Black, 117 Ind. 14, 19 N. E. 537; Beck r. Fransham, 21
Mont. 117, 53 Pac. 90; Reynolds v. Dunlap, M Ga. 727, 19 S. E. 906; Ellis
V. Harrison, 24 Tex. Civ. App. 13, 57 S. W., 984; Corbln v. Gaslna Land Ck).,
26 App. Div. 408, 49 N. Y. Supp. 929; Mo'sby v. Glsborn, 17 Utah, 257, 54
rac. 121.
4» Civ. Code Prac. Ky. § 285, provides that "an Injunction to stay pro-
ceedings on a Judgment shall not be granted In an action brought by the
party seeking the Injunction In any other court than that in which the
Judgment was rendered." A similar rule Is enacted in Iowa (Miller's Code, i
9 3396), and in Connecticut (Gen. St. § 775). See Jacobson v. Wernert (Ky.) i
41 S. W.281; Oberholtzer v. Hazen (Iowa) 70 N. W. 207; Smith v. Hall, 71 j
Conn. 427, 42 Atl. 86. , j
60 Say era v. Bmkhardt, 29 C. C. A. 137, 85 Fed. 246; Ashcraft v. Knoblock,
146 Ind. 169, 45 N. E. (K); Holderraan v. Tedford, 7 Kan. App. 657, 53 Pac.
887; Sheriff v. Judge of Twenty-First Judicial District Court, 46 La. Ann.
29, 14 South. 427.
»i Douglass V. Joyner. (M) Tenn. 32.
»2 Davis V. Cornue, 151 X. Y. 172, 45 N. E. 449.
»3 Massle v. Mann, 17 Iowa, 131; Brown v. Walker (C. C.) 84 Fed. 532.
(569)
§ 361 LAW OF JUDGMENTS. (Ch. 15
and enjoin the enforcement of, a void judgment rendered by a justice
of the peace.**
The federal courts are prohibited by statute from granting writs
of injunction to stay proceedings in any of the state courts, and this
prevents them from enjoining the enforcement of a judgment recov-
ered in a state court.'* But a federal circuit court, where the requi-
site diversity of citizenship exists, and the amount in controversy is
sufficient, has jurisdiction to entertain a suit and enter a decree
which, as between the parties, shall set aside, annul, and vacate a
judgment of a state court, and the proceedings taken and rights
acquired thereunder, on the ground that such judgment was pro-
cured by fraud or was void for want of jurisdiction.** A state court
has no power or jurisdiction to restrain an action in any of the fed-
eral courts, nor to enjoin the enforcement of a judgment rendered by
a court of the United States, though its injunction may be directed in
personam against the parties entitled to the benefit of the decree or
judgment.*^
I 361. Concurrent Bemediofl.
Embarrassing questions sometimes arise as to the right and power
of equity to interfere by injunction against a judgment while the
party has a concurrent and equally efficacious remedy by application
to the court which rendered the judgment, or by appeal to a higher
court. The general rule, however, as established by the best author-
ities, is that the party seekisg relief must have exhausted all his
resources at law, for equity will not grant an injunction where there
r »4 Leonard v. Capital Ins. Co., 101 Iowa, 482, 70 N. W. 629.
BO Rev. St. U. S. § 720; LoulsviUe Trust Co. v. aty of Cincinnati (C. C.)
73 Fed. 716; Foote v. Glenn (C. C.) 52 Fed. 529. See Terre Haute & I. K-
Co. V. Peoria & P. U. R. Co. (C. C.) 82 Fed. 943.
»« Howard v. De Cordova, 177 U. S. 609. 20 Sup. a. 817. 44 L.* Ed. 90B;
Davenport v. Moore (C. C.j 74 Fed. 945; McNeil v. McNeil (C. C.) 78 Fad.
834; Young v. Sigler (C. C.) 48 Fed. 182; Northern Pac. R. Co. r. Kortznuui
(a C.) 82 Fed. 241.
B7 Riggs V. Johnson Co., 6 Wall. 166, 18 L. Ed. 768; United States r.
Keokuk, 6 Wall. 514, 18 L. Ed. 933; Central Nat Bank v. Stevens. 16S> U.
S. 432, 18 Sup. Ct 403, 42 L. Ed. 807; Prugh v. Portsmouth Sav. Bank. 4S
Neb. 414, 67 N. W. 309; Strozier v. Howes, 30 Ga. 578; EngUsh v. MiU«*r,
2 Rich. Eq. (S. C.) 320; Coster v. Griswold, 4 Bdw. Ch. 364.
(570)*
Cb. 15) REUEP IN EQUITY AGAINST JUDGMENTS AT LAW. § 362
is an adequate remedy at law.'* Nor will the court grant an injunc-:
tion to stay proceedings in another court having the same power to
grant relief.*® But the remedy at law, though adequate to the case,
may have been lost through circumstances not attributable to the
neglect or fault of the party seeking relief. In such instances, all
question as to the right of equity to lend its aid is at once removed.
Thus, where there are statutes authorizing the law courts to grant
relief from their judgments in certain cases, this will not preclude a
party, in a proper case, from obtaining relief in equity after the time
limited for applying for relief under those statutes has elapsed, pro-
vided sufficient reasons are shown for not having made such appli-
cation in time.^** If, for example, the judgment was fraudulently and
secretly entered up, and the defendant had no notice or knowledge
of its existence until after the expiration of the time within which he
might have moved the law court to vacate it, it is a case for equitable
interference, merits being shown.*^
§ 362. Same; Belief on Motion.
The liberal practice of the courts in granting new trials and enter-
taining motions to vacate or open their own judgments, and the
enactment of statutes in many of the states authorizing the setting
aside of judgments taken against a defendant "through his mistake,
inadvertence, surprise, or excusable neglect," have considerably
abridged the province of equity in giving relief by injunction. And
the rule is generally adhered to, as the more safe and conservative
principle, that equity will not grant relief against an execution if the
party can equally well be relieved, on motion to open, vacate, or
»« Wilkinson v. Rewey, 59 Wis. 554, 18 N. W. 513; Crandall v. Bacon,
20 Wis. 639, 91 Am. Dec. 451; Blbend v. Kreutz, 20 Cal. 109; Hart v. Lazaron,
46 Ga. 396; Johnson v. Driver, 108 Ga. 595, 34 S. E. 158; Burch v. West,
134 111. 258, 25 N. E. 658; Missouri, K. & E. Ry. Oo. v. Hoereth, 144 Mo. 136,
45 S. W. 1085; Bankers' Life Ins. Co. v. Bobbins, 53 Neb. 44. 73 N. W. 269;
Cadwallader v. McClay, 37 Neb. 359, 55 N. W. 1054, 40 Am. St. Rep. 496.
5» Grant v. Quick, 5 Sandf. (N. Y.) 612; Dufossat v. Berens, 18 La. Ann.
339.
•0 DIstrlr-t Twp. of Newton v. White, 42 Iowa, 008; Baker v. O'Riordan, Go
Cal. 3rKS, 4 I»ac. 232.
• 1 Spooner v. Leland, 5 R. I. 348.
(571)
§ 362 LAW OP JUDGMENTS. (.Cll. 15
modify the judgment, or to stay or quash the execution, in the court
which issued the execution or has control of it.** It is true that some
cases maintain a different view, holding that although the judgment
might be vacated or set aside on motion, and although the time for
so moving has not yet expired, still equity may enjoin the enforce-
ment of the judgment.** But in so holding they depart from the
fundamental principles of equity and are not to be commended. If
the time limited by law for seeking relief in the law court has already
expired, without the neglect or fault of the party, that, as stated in
the preceding section, is a different matter, and the right of equity to
interfere is unquestioned.** It has been held that the summary re-
fusal of a motion for a new trial or for the vacation of the judgment
will not prevent the party from coming into equity with a bill for an
injunction, based on the same grounds.** But the weight of author-
•
«« Cowley V. Northern Pac. R. Co. (C. C.) 46 Fed. 325; Puraald v. Glenn
(C. C.) 56 Fed. 372; Reed v. Prescott, 70 X. H. 88. 46 Ati. 457; Smith v.
Kanamerer, 152 Pa. 98. 25 Atl. 165; Brown v. Chapman, 90 Va. 174, 17 S. E.
855; Morrison v. Speer, 10 (Jrat. (Va.) 228; Howell v. Thomason, 34 W.
Va. 794, 12 S. E. 1088; Henderson v. Moore, 125 N. C. 383. 34 S. E. 44«:
Crocker v. Allen, 34 S. C. 452, 13 S. E. 650, 27 Am. St. Rep. 831; Hart v.
Lazaron, 46 Ga. 39<>; J. A. Roebling Sons Co. v. Stevens Electric Co., W
Ala. 39, 9 South. 369; Hlntrager v. Sumbargo. 54 Iowa. 604, 7 N. W. Hi*
(compare Connell v. Stelson, 33 Iowa, 147); Hulett v. Hamilton, 60 Minu.
21, 61 N. W. 672; Hockaday v. Jones, 8 Okl. 156, 56 Pac. 1054; Imlay x.
Carpentier, 14 Cal. 173; Bibend v. Kreutz, 20 Cal. 109; Logan t. Hllle|as5.
16 Cai. 201.
•8 Meyers v. Smith, 59 Neb. 30, 80 N. W. 273; Norwich Union Fire Ids.
Soc. V. Stang, 18 Ohio Cir. Ct. R. 464; Landnim v. Farmer, 7 Bush iKji
46; Hernandez v. James, 23 La. Ann. 484; Caruthers v. Hartsfleld, 3 Yerip.
(Tenn.) 366, 24 Am. Dec. 580.
e* Thompson v. Laughlin, 91 Cal. 313, 27 Pac. 752: Larson v. Williams.
100 Iowa, 110, 63 N. W. 464. 62 Am. St. Rep. 544; Radzuweit v. WatkiD<
53 Neb. 412, 73 N. W. 679; Spooner v. Leland, 5 R. I. 348. But if the party
knew of the judgment against him in time to have moved for its vacatl**.
that remedy being available, he cannot have relief in equity without sbowmz
some sufficient reason why he did not proceed at law. Woodward v, Pik**.
43 Neb. 777, 62 N. W. 230; Rowlett v. Williamson. 18 Tex. Ov. App. >.
44 S. W. 624; Long v. Elsenbels. 18 Wash. 423, 51 Pac. 1061.
«5 Simpson v. Hart, 14 Johns. (N. Y.) (>3; Sherer v. Akers. 74 Ma .\if-
217. Where a justice of the peace refuses to vacate a judgment obtain**'
in his court through fraud, and no appeal lies, the judgment del)tor In entitl<<^
to relief In equity. Merriman v. Walton, 105 CaL 403, 38 Pac 1108* 3U L
R. A. 786, 45 Am. St Rep. 50.
(572)
Ch. 15) RELIEF IN EQUITY AQAINST JUDGMENTS AT LAW. § 363
ity is against this proposition. The best cases hold that equity will
refuse to act by injunction when the grounds alleged have already
been considered and held insufficient on a motion at law ; in such case
the whole matter is res judicata and equity will not re-open it.** To
show the disposition of the chancery courts in this regard, we cite
the case of Dalhoff v. Keenan,*^ where it appeared that the party
had filed his petition for a new trial in the law court within the time
prescribed by the code, alleging that the judgment was fraudulent,
but this petition was dismissed because a necessary witness was
absent and because the other party promised that he would make "a
fair offer of compromise," and afterwards the complainant brought an
action in equity to set aside the judgment and for a new trial of the
issues. But it was held that the action in equity was properly dis-
missed, because the coipplainant had an adequate and speedy remedy
at law, which he had begun to pursue but had improvidently aban-
doned.
§ 363. Same; Appeal, Error, or Certiorari.
In 'pursuance of the same general principle, the party must have
exhausted his possible remedies by appeal, writ of error, or certiorari,
before equity will hear him. If, by failing to appeal, or by prose-
cuting an appeal in a defective or insufficient mode, he loses his
remedy at law, he cannot proceed in equity by injunction, unless new
and sufficient equities be alleged.** Nor will a judgment be enjoined
«• Wnson V. Buchanan, 170 Pa. 14, 82 Atl. 620; Matson v. Field, 10 Mo.
100; Davis v. Bass, 4 Ind. 313; Collins v. Butler, 14 Cal. 223; Critchneld
V. Porter, 3 Ohio, 518; Gray v. Barton, 62 Mich. 186, 28 N. W. 813.
«7 66 Iowa, 679, 24 X. W. 273.
es Leet v. I^eet, 12 App. Div. 11, 42 N. Y. Supp. 174; Ludwig v. Lazarus,
10 App. Div. 62, 41 N. Y. Supp. 773; Rafferty v. Potter, 21 R. I. 517, 45
Atl. 152; Brumbaugh v. Schnebly, 2 Md. 320; Flanneken v. Wright, 64 Miss.
217, 1 South. 157; Long v. Smith, 30 Tex. 160; Texas-Mexican R. Co. v.
Wright (Tex. Civ. App.) 29 S. W. 1134; McIIugh v. Sparks, 15 Tex. Civ.
App. 57, 38 S. W. 537; San Antonio & A. P. R. Co. v. (Jlass (Tex. Civ.
.\pp.) 40 S. W. 330; James' Adm'r v. Neal's Adm'r, 3 T. B. Mon. (Ky.) 369;
Todd V. Jackson, 22 Ky. Law Rep. 1(597, 61 S. W. 1; Evans v. International
Trust Co. (Tenn. Ch.) 59 S. W. 373; Palmer v. Malone, 1 Helsk. (Tenn.) 549;
Ward V. Derrick, 57 Ark. 500, 22 S. W. 03; Parsons v. Pierson, 128 Ind.
479. 28 N. E. 97; Ross v. Banta, 140 Ind. 120, 34 N. E. 865; Wyman v.
Ilardwick, 52 Mo. App. 621; Renfroe T. Renfroe, 54 Mo. App. 429; Brown
(573)
§ 868 LAW OP JUDGMENTS. (Ch. lo
when the complainant has neglected to except to it as he might havi
done.** So a judgment which is not appealed from, and which di-
rects a forced sale of articles for its satisfaction which are by law
exempt from forced sale, is not a nullity, however erroneous; and
when no means have been used to correct the error by appeal, the
conclusive force of the judgment cannot be evaded by a resort to
injunction.^* Nor is the death of a party before judgment sufficient
ground for an injunction; the proper remedy is by error coram
nobis.^* If the right of appeal has been lost by lapse of time, the
party seeking the aid of equity must be able to show that such loss
was not the result of his own negligence, default, or indifference."
If he has been deprived of his opportunity to appeal by the fraud or
deceit of the adverse party, or by a trick played upon him, this will
furnish a stronger ground for equity to interfere, but it must also
appear that the complainant has no adequate remedy at law.^'
Where the right of appeal has been cut off by the death or resigna-
tion of the trial judge before signing the bill of exceptions, equity
V. Campbell, 110 Gal. 644, 43 Pac. 12; Daty v. Pennle, 86 Cal. 552, 25 Pac
67, 21 Am. St. Rep. 61; Mayer v. Nelson, 54 Neb. 434, 74 N. W. »41. See.
per contra, Baldwin v. Davidson, 139 Mo. 118, 40 S. W. 765, 61 Am. St. Repi
460; Williams v. Pile. 104 Tenn. 273, 56 S. W. 833.
•9 DibWe V. Tmluck, 12 Fla. 185.
TO Rountree v. Walker, 46 Tex. 200.
71 Williamson's Adm'r v. Appleberry, 1 Hen. & M. (Va.) 206. And see
Holman v. G. A. Stowers Furniture Co. (Tex. Civ. App.) 30 S. W. 1120.
"Waldo V. Thweatt, 64 Ark. 126, 40 S. W. 782; HoUenbeak v. McCoy,
127 Cal. 21, 59 Pac. 201. The fact that petitioner relied on a promise of th^
trial Judge to Inform him of his decision in time to enable petitioner to file
a bill of exceptions for the purpose of appeal, and that the Judge forgot to do
so, is not sufficient ground for equity to set aside the Judgment, for it shows
that the petitioner was not free from default and neglect. Donaldson v.
Roberts, 109 Ga. 832, 35 S. E. 277.
73 In case of a default Judgment, the mere fact that plaintiff did not notify
defendant of the entry of judgment, and did not sue out execution until
after the lapse of a year, in order that defendant might not petition for a
writ of review, is not such fraud as will entitle defendant to restrain the
enforcement of the Judgment. Trustees of Amherst College v. AUon. 1»V>
Mass. 178, 42 N. E. 570. So, where the successful party wrongfully obtalnt-d
possession of a case made for appeal by the defeated party, and withheld It
until the time for appeal had passed, It was held to be no ground to enjoin
the judgment. For the remedy was by petition in error in the a|)pcUate
court. Muse v. Wafer, 29 Kan. 279.
(574)
Ch. 15) RELIEF* IN EQUITT AGAINST JUDGMENTS AT LAW. § 363
may enjoin the enforcement of the judgment, if it is shown to be
unjust and oppressive, and if the applicant for relief has not been
guilty of any want of due diligence.^* And if a meritorious bill of
exceptions is dismissed because of a mistake made by the certifying
judge, without the fault of counsel, an injunction may be granted
against the judgment until the matters set up in the dismissed bill
of exceptions can be heard.*"* But it is held that enforcement of a
judgment should not be enjoined merely because the trial judge
wrongfully refused to allow an appeal, or to sign the bill of excep-
tions, or to approve the bond offered for appeal; for in such cases
there is an adequate remedy by mandamus.''* On the other hand,
equity may relieve against a judgment from which no appeal could
be taken because the amount in controversy was too small, and will
do so where a meritorious case for its interference is made out.^^
And so where the attempt to appeal was frustrated by the destruction
of the records by fire, provided the complainant has been in no
fault.^"
In Illinois, it was at one time held that relief might be obtained
against a judgment on the ground of fraud, though the party might
have a remedy at law; and that, even if he had notice of the judg-
ment in time to appeal, and made an abortive attempt to do so, this
would not prevent him from appl)dng to equity for an injunction.''®
But later decisions hold that, if a judgment is not the result of the
negligence of the person against whom it is rendered, it is unjust;
and if he cannot appeal from it, he may sue out a writ of certiorari,
T4 Kansas & A. V. Ry. Co. v. Fitzhugh, 61 Ark. 341, 33 S. W. 960, 54 Am.
St. Kep. 211; Little Rock & F. S. Ry. C5o. v. Wells, 61 Ark. 354, 33 S. W.
208, 30 L. R. A. 560, 54 Am. St. Rep. 216; Grafton & G. R. Ck). v. Davisson,
45 W. Va. 12, 29 S. E. 1028, 72 Am. St. Rep. 799; Galbraith v. Barnard.
21 Or. 67. 26 Pac. 1110.
T5Kohn V. Lovett, 43 Ga. 179.
7 6 Houston, E. & W. T. Ry. Co. v. Elllsor, 14 Tex. Civ. App. 706, 37 S. W.
972; Boyd v. Weaver, 134 Ind. 266, 33 N. E. 1027. Compare Picket v. Mor-
ris, 2 Wash. (Va.) 255.
77 Gulf, C. & S. F. Ry. Co. v. King, 80 Tex. 681, 16 S. W. 641; Gulf, C.
& S. F. Ry. Co. V. Henderson, 83 Tox. 70, 18 S. W. 432.
7 8 Bailey v. Stevens, 11 Utah. 175, 39 Pac 828.
TO Xelson y. Rockwell, 14 HI. 375.
(575)
§ 364 LAW OP JUD0UENT8. {Ch, 15
and have a new trial ; and therefore he cannot sue to enjoin its col-
lection.**
§ 364. Same; CroM- Actions and Aetions orer.
In a number of instances courts of equity have refused to enjoin
the collection of a judgment (unjust and inequitable though it might
be), where the party had an adequate and available remedy at law by
a cross-action, as for breach of warranty of the property for the
price of which the suit was brought.*^ So where the defendant was
prevented by unavoidable accident from setting up offsets to the
plaintiff's demand, which were not connected with the claim sued
on and may be enforced at law, he is not entitled to enjoin the judg-
ment and interpose his counterclaims against it, but must pursue
his remedy at law.** The availability of the legal remedy being the
test, it would seem that the existence of a counterclaim, capable of
being used as an independent cause of action, should be no bar to
equitable relief, if it could not be enforced against the plaintiff in
consequence of his being a non-resident and keeping beyond the
jurisdiction. But the courts hold otherwise. On this state of facts
an injunction has been refused.*' On the same principle, equity will
not interfere to give relief where the judgment debtor is in such a
position that he may make himself whole, immediately upon paying
the judgment, by a suit at law against a person who is responsible
over to him for the loss or damage he may suffer.** Thus, injunction
will not issue to restrain the execution of a void judgment, when re-
plevin against the officer would furnish a full and adequate rem-
edy.** But in some states it is held that a cause of action by a judg-
ment defendant against the officer who falsely returned a service on
defendant is not an adequate remedy at law, such as to prevent equity
80 Booth V. Koehler, 51 111. App. 370; Reid t. Stock Yards L. Coal & F.
Co., 88 111. App. 32.
81 Ponder v. Cox, 26 Ga. 485; Henry v. EUlott 59 N. C. 175; Gorman
V. Young (Ky.) 18 S. \V. 369. See Murphy v. Cuddlby, 111 Iowa, 615, 82 X.
W. 999.
8 2 Hudson V. Kline, 9 Grat. (Va.) 379.
88 Beall V. Brown, 7 Md. 393.
84 Drake v. Lyons, 9 Grat. (Va.) 64.
t^B Straub T. Simpson, 74 Mo. App. 230,
(576)
Ch. 15) RELIEF IN EQUITY AGAINST JUDOMBNTS AT LAW. § 865
from enjoining the enforcement of the judgment as obtained by the
fraud of the officer.**
Part II. Grodnds for Enjoining Judgments.
§ 366. Oeaeral Orovnda for Equitable Belief.
There are two reasons why equity is slow to interfere with the
operation of judgments recovered in a court of law. In the first
place, it is sensitive to the imputation of seeking to usurp a species
of appellate jurisdiction and so to extend its power over all other
courts. And secondly, a judgment on the merits ought to be forever
conclusive between the parties, no re-examination should be allowed,
and it is neither the function nor the ambition of equity to overhaul
judgments at law. Hence, in applying to equity for relief, it is nec-
essary that something more than a merely erroneous or irregular
judgment should be shown.®^ Some of the elements which univer-
sally afford an attaching-point for the equitable jurisdiction must be
present, making it tmconscientious for the successful party to en-
force his judgment as it stands. Thus, if the defense was one which
could not be interposed at law, equity will relieve, because the party
has not had a fair trial. So if he was ignorant of his defense, and
guilty of no laches in failing to discover it; or was prevented from
setting it up by fraud or accident, or the act of his adversary, without
any negligence or fault on his own part. The object of an injunc-
tion to stay proceedings at law is to prevent the party against whom it
issues from availing himself of an unfair advantage, resulting from
fraud, accident, mistake, or otherwise, and which would therefore be
against conscience.®® Hence equity cannot relieve against the oper-
•• Dowejl V. Goodwin, 22 R. I. 287, 47 Atl. 693, 51 Ia R. A. 873, 84 Am.
St. Rep. 842.
«T Questions which have been adjadicated In a court of law having juris-
diction of the parties and the subject-matter cannot be reviewed by the
defeated party In a suit in equity, since equity has no power to review or
correct errors In a proceeding at law. Fulliam v. Draliie, 105 Iowa, 61o,
75 X. W. 479.
«• Little V. Price, 1 Md. Ch. 182; Bachelder v. Bean, 76 Me. 370; Mason
V. House, 20 Tex. Civ. App. 500, 49 S. W. 911; Handley v. Jackson, 31 Or.
552, 50 Pac. 915, 65 Am. St. Rep. 839; Crocker v. Allen, 34 S. C. 452, 13
8. £. 650, 27 Am. St Rep. 831; Perry v. Johnston (C. C.) 95 Fed. 322.
1 LAW JUDG.-37 (577)
§ 366 LAW OP JUDGMENTS. (Ch. 15
ation of a judgment at law simply on account of its hardship.** It
must first of all appear that it would be unjust and against conscience
to enforce the judgment.*® Then it must be shown that if a new
and fair examination of the merits be had, the result will be other
than that already reached.** There must be a meritorious defense.
No matter what circumstances of fraud or irregularity may have
attended the entry of the judgment, if it appears that no defense was
made because no valid defense existed, and that the instrument in
suit was given for a valid and valuable consideration, an injunction
will be refused.** Nor will equity interfere unless it shall also be
shown that the party has used due diligence and exhausted every
means of defending the case or obtaining redress at law.** But on
the other hand, where a proper case for relief by injunction is made
out, the fact that the judgment-creditor is of undoubted solvency
and able to refund the money which may be collected on the execu-
tion, will not prevent such equitable intervention.**
I 366. General Bvle stated.
The leading case in America upon the subject of equitable reKcf
against judgments at law, is that of Marine Insurance Co. v. Hodg-
son.** In that case Chief Justice Marshall specified the grounds for
the interference of equity in the following terms : "Without attempt-
ing to draw any precise line to which courts of equity will advance,
and which they cannot pass, in restraining parties from availing
themselves of judgments obtained at law, it may safely be said that
any fact which clearly proves it to be against conscience to execute
a judgment, and of which the injured party could not have availed
himself in a court of law, or of which he might have availed himself
at law, but was prevented by fraud or accident unmixed with any
8B HiJrs Ex'x y. Rogers, Rice, Bq. 7; Hamilton t. Adams. 13 Ala. 586,
50 Am. Dec. 150.
»o Fowler v. Lee, 10 GUI & J. (Md.) 358, 32 Am. Dec. 172.
•1 Taggart v. Wood, 20 Iowa, 236; Sauer v. City of Kansas, G9 Mo. 46^
»2 Sohler v. Merril, 3 Woodb. & M. 179, Fed. Cas. No. 13,158.
»« Wells, Fargo & Co. v. Wall, 1 Or. 295; Nevins v. McKee, 61 Tex. 412.
•4 CaningtoD v. Ilolabird, 19 Conn. 84. See Shipman t. Fletcher*s Adm'r,
i95 Va. 585, 29 S. E. 325.
•B 7 Cranch, 332, 8 L. Ed. 362.
(578)
Gh. 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 866
fault or negligence in himself or his agents, will justify an application
to a court of chancery." And the principles here set forth, though
perhaps somewhat extended by more recent decisions, have been
adopted without question, as a general statement of the rule, in all
our courts.** "When a party goes into chancery after a trial at
law/' says a learned judge in New York, "he must be able to impeach
the justice and equity of the verdict, and it must be upon grounds
which either could not be made available to him at law, or which he
was prevented from setting up by fraud, accident, or the wrongful
act of the other party, without any negligence or other fault on his
part.'* •^ "A court of equity does not interfere with judgments at
law unless the complainant has an equitable defense, of which he
could not avail himself at law because it did not amount to a legal
defense, or had a good defense at law, which he was prevented from
availing himself of by fraud or accident, unmixed with negligence of
himself or his agents." •* So speak all the authorities.
•• RaUroad Co. v. Neal, 1 Woods, 363, Fed. Cas. No. 11,534; Emerson v.
Udall, 13 Vt 477, 37 Am. Dec. 004; Pettes v. Whitehall Bank. 17 Vt. 435;
Wingate v. Haywood, 40 N. H. 437; Hibbard v. Eastman, 47 N. H. 507,
93 Am. Dec. 467; Vilas v. Jones, 1 N, Y. 274; Briesch v. McCauley. 7 Gill
(MdL) 189; Uttle v. Price, 1 Md. Ch. 182; Kent v. Ricards, 3 Md. Ch. 392;
Wlndwart v. Allen, 13 Md. 196; Alford v. Moore's Adm'r, 15 W. Va. 597;
Braden y. Reitzenberger, 18 W. Va. 286; Ponder y. Cox, 26 Ga. 485; Watts
V. Gayle, 20 Ala. 817; Lafon's Ex'rs v. Desessart, 1 Mart. N. S. (La.) 71;
Nerlns v. McKee, 61 Tex. 412; Lester v. Hosklns, 26 Ark. 63; Miller v.
Morse, 23 Mich. 365; Kelleher v. Boden. 55 Mich. 295, 21 N. W. 346; Proctor
V. Pettitt, 25 Neb. 96, 41 N. W. 131; Wells, Fargo & Co. v. Wall, 1 Or. 295;
Mastick v. Thorp, 29 Cal. 444; Boston v. Haynes, 33 Cal. 31,; Taggart v.
Wood, 20 Iowa, 2.S6; Graham v. Citizens' Nat. Bank, 45 W. Va. 701, 32 S.
E. 245; West v. Magness (Tenn. Ch.) 46 S. W. 469; Foshee v. McCreary,
123 Ala, 493, 26 Soutii. 309; Wilson S. M. Go. v. Curry, 126 Ind. 161, 25 N.
Ew 896; Kaufman v. Schneider, 35 111. App. 256; Losey v. Neldig, 52 Neb.
167, 71 N. W. 1067; Kaufroann v. Drexel, 56 Neb. 229, 76 N. W. 559; City
of Broken Bow v. Broken Bow Waterworks Co., 57 Neb. 548, 77 N. W.
1078; McBrlde v. Wakefield, 58 Neb. 442, 78 N. W. 713. Equity will not
enjoin the collection of a Judgment against a municipal corporation, regularly
ohtainod and supported by a moral obligation to pay, even though there may
be a goml technical defense. Skirving v. National Life Ins. Co., 8 C. C.
A. 241, ri9 Fed. 742.
97 Vilas V. Jones, 1 N. Y. 274.
ta Ueudrickson y. Hinckley, 17 How. 443, 15 L. Ed. 123.
(579)
§ 367 LAW OF JTJDOMENTd. (Ch. 15
I 367. Error* and Itrrei^ularities.
The doctrine is fully established that a court of equity will not, on
the application of the defendant in a judgment at law, who has had
a fair opportunity to be heard upon a defense over which the court
pronouncing the judgment had full jurisdiction, set aside the judg-
ment or enjoin its enforcement simply on the ground that it was
unjust, irregular, or erroneous, or because the equity court would,
in deciding the same case, have come to a different conclusion.** A
•• 2 Story's Bq. Jur. f 1572; Baker V. Morgan, 2 Dow, 526; Tarrer t.
Ta^^'e^, 9 Pet. 174, 9 L. Ed. 91; Ludlow v. Ramsey, 11 WaU. 581, 20 I* Ed.
216; Pettes v. Whitehall Bank, 17 Vt. 435; Fletcher v. Warren, 18 Vt 4o:
Paddock v. Palmer, 19 Vt. 581; StUwell v. Carpenter, 59 N. Y. 414; Sbotten-
klrk v. Wheeler, 3 Johns. Gh. 279; De Relmer ▼. Cantlllon, 4 Johns. Gb. 85:
H<^mes V. Rems'en, 7 Johns. Ch. 286; Donovan v. Finn, 1 Hopk. Ch. 59; Bosh
V. O'Brien. 47 ApQ, DIv. 581, 62 N. Y. Supp. 685; Vanarsdelen v. Whitaker,
10 Phila. 153; Holmes v. Steele, 28 N. J. fiq. 173; Phillips v. Pollen, 45 N.
J. Eq. 5, 16 Ati. 9; Stout v. Slocum, 52 N. J. Eq. 88, 28 AtL 7; Methodist
Protestant Church v. Mayor of City of Baltimore, 6 Gill (Md.) 391. 48 Am.
Dec. 540; Boyd v. Chesapeake & O. Canal Co., 17 Md, 195, 79 Am. Dec WC:
Slack V. Wood, 9 Grat. (Va.) 40; McDowaU v. McDowall, BaUey, Eq. (S. O
324; Stockton v. Briggs, 58 N. C. 309; Grantham v. Kennedy, M. X. C. 148:
Cohen V. Dubose, 1 Harp. Bq. (S. O.) 102, 14 Am. Dec, 709; Hunt t. Coach-
man, 6 Rich. Eq. (S. C.) 286; Turpin v. Thomas* Representatives, 2 Hen.
& M. (Va.) 139, 8 Am. Dec. 615; Robuck v. Harkins, 38 Ga. 174; Jones r.
Watkins, 1 Stew. (Ala.) 81; Coffin v. McCuUough's Adm'r, 30 Ala. 1<>T:
Saunders v. Albritton, 37 Ala. 716; Ammons v. Whitehead, 31 Miss. IK*:
Walker v. Villa vaso, 26 La. Ann. 42; FItzhugh v. Orton, 12 Tex. 4; Prror
V. Emerson, 22 Tex. 162; RoUer v. Wooldridge, 46 Tex. 485; Rejmolds v.
ilorine, 13 B. Mon. (Ky.) 234; Burke v. Wheat, 22 Kan. 722; Missouri Pao.
R. Co. v. Reid, 34 Kan. 410, 8 Pac. 846; Publishing House of Evangelicil
Ass'n V. Heyl, 61 Kan. 634, 60 Pac. 317; Ex parte Christian, 23 Ark. 611:
Clopton V. Carloss, 42 Ark. 560; Dunn v. Fish, 8 Bhickf. (Ind.) 407: Macr
V. Lloyd, 23 Ind. 60; De Haven y. Covalt, 83 Ind. 344; Davis t. Clements.
148 Ind. 606, 47 N. E. 1056, 62 Am. St. Rep. 539; Fitch v. Byall, 149 Ind
554, 49 N. E. 455; Hart v. O'Rourke. 151 Ind. 205, 51 N. E. 330; Chicao*
Waifs Mission & Training School v. Excelsior Electric Co.. 44 IlL App. 42:.:
Hendron v. Kinner, 110 Iowa, 544, 81 N. W. 783; Drake v. Han&haw, 47
Iowa, 201; Hazeltlne v. Reusch, 51 Mo. 50; Corley v. McKeag. 57 Mo. App,
415; Missouri, K. & T. Ry. Co. v. Warden, 73 Mo. App. 117; F<»d t. HHl
92 Wis. 188, 66 N. W. 115, 53 Am. St. Rep. 902; Merritt v. Baldwin. 6 Wi^
439; Jilsun v. Stebbins, 41 Wis. 235; Ableman v. Roth, 12 Wis. 81; P:—
V. Sunol, 6 Cal. 294; Logan v. Hillegass, 16 Cal. 200; Fox t. McCUy, iS Nti^
820, 67 N. W. 888.
(580)
Cb. 16) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 367
good illustration of this rule is furnished by the decision in a case
where the defendant at law, after losing his case by reason of a sug-
gestion of the court that his remedy was in chancery and not at law,
applied for relief in equity. It was said : "If the party chose to be-
lieve in the opinion of the court, it must be at his own hazard, and
it now seems to me to be no good ground for reHef in equity that the
court or his counsel gave him bad advice ; he should have excepted
to the opinion of the court in refusing to continue, and if on examina-
tion this should be found to be error, then he would have had relief;
but having failed to do so furnishes no more ground for relief than
he would have been entitled to if the court had committed any other
error, and he had submitted to it till it was too late to redress it." ^®°
To take another illustration, — where a judgment was rendered ac-
cording to a particular construction of a statute, and, after a writ of
error thereon was barred by the statute of limitations, the supreme
court gave a different construction to the statute in another case, it
was held that equity would not interfere to open the judgment.^®*
Again, that a debt was divided and suits brought on each portion in
a justice's court which would have no jurisdiction over one suit for
the whole amount, is no reason for enjoining the judgment in one
suit, unless it also appears that by means of the division the defend-
ant was deprived of some right or remedy, and that he had not con-
sented to the division.^®* It is well settled that no injunction can be
had against a judgment merely on account of a defect or insufficiency
of the evidence, or because the rules of evidence were violated on the
trial.**' Nor can a court of equity set aside a judgment, rendered
by a court which had jurisdiction, on the ground that it was not war-
ranted by the pleadings,^®* nor because there was no finding of fact
looRisher v. Roush, 2 Mo. 95, 22 Am. Dec. 442.
101 Jones V. Watkins, 1 Stew. (Ala.) 81. And see Oassel v. Scott, 17 Ind,
514.
102 Pryor v. Emerson. 22 Tex. 1G2.
103 Pico V. Sunol, 6 Cal. 294; Hunt v. Coachman, 6 Rich. E>i. (S. C.) 286;
Merritt v. Baldwin, 6 Wis. 439; Vaughn v. Johnson, 9 N. J. Eiq. 173; Brigot's
Heirs v. Brigot, 49 La. Ann. 1428, 22 South. 641; Geyer v. Douglass, 85 Iowa,
V», 52 X. W. Ill; Nashville, C. & St. L. Ry. Co. v. Mattingly, 101 Ky. 219,
40 S. W. 673.
104 Alien V. Allen, 38 C. C. A. 336, 97 Fed. 525; Hunter v. Kansas City
Safe-Deposit & Savings Bank, 158 Mo. 262, 58 S. W. 1053; Moore v. Brit-
, (581)
S 368 LAW OP JUDOMBNT8. (Ch. 15
to support the judgment/®' nor for any irregularities as to the senr-
ice of the summons, the judgment not being shown to be unjust.***
So, an illegal allowance in a judgment, or an error in the calculation
of interest, is no ground for an injunction.^®^ But where, through
fraud, accident, or mistake, a judgment has been entered for an
amount, or in terms, not as intended, equity will give relief, on clear
and satisfying proof.^®* Or, as differently stated, equity will relieve
in cases of mistakes in judgments, decrees, or other matters of rec-
ord, when the mistake is not judicial and there are no other means
of obtaining redress.*®* Thus, where the defendant agreed that
the justice before whom the case was pending should enter a condi-
tional judgment against him, and the justice entered an absolute
judgment by confession, it was considered that equity might re-
lieve.**® So where a judgment was entered against a sheriff, under
a mistake of the clerk in supposing a bail-piece to be insufficient,
when the counsel had agreed that it might be filed, relief was granted
against the judgment.***
8 368. FravdL
Fraud has always been reckoned among the special abhorrences
of equity, and fraud is one of the grounds upon which application is
most frequently made to equity for relief or redress. It is well set-
tled that equity will enjoin a party from enforcing a judgment which
he has obtained by means of fraud.*** "Fraud will vitiate a judg-
ton, 15 Tex. Civ. App. 237. 38 S. W. 528; Preston v. Kindrick. 94 Va. 760.
27 S. E. 588, 64 Am. St Rep. 777; Reast v. Hughes (Tex. Civ. App.i 33 S.
W. 1003.
105 Petaika v. Fltle, 33 Neb. 756, 51 N. W. 131.
io« Garden City Wire & Spring Co. v. Kause. 67 111. App. 108.
lOT Davis V. Wade, 58 Mo. App. 641; Walker v. VlUavaso. 26 La. Ann.
42; Raggett v. Watson, 70 Miss. 64, 11 South. 679. See Oohen v. Dubone,
1 Harp. Ch. 102.
108 Katz V. Moore, 13 Md. 566.
100 Smith V. Rutler, 11 Or. 46, 4 Pac. 517.
110 Gwinn v. Newton, 8 Humph. (Tenn.) 710.
111 Smith V. W'allace, 1 Wash. (Va.) 254.
1" White V. Crow, 110 U. S. 183, 4 Sup. Ct. 71, 28 L. Ed. 113; Wlngate
V. Haywood, 40 N. H. 437; Pearce v. Olney, 20 Conn. 544: Carrington v.
Holablrd, 17 Conn. 530; Greene v. Haskell, 5 R. I. 447; Munn v. W"orrall,
16 Barb. (N. Y.) 221; Corwlthe V. Grilling, 21 Barb. (N. Y.) 9; Whittlesey t.
(582)
Ch« 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 368
ment, and a court of equity may declare it a nullity. Equity has so
great an abhorrence of fraud that it will set aside its own decrees if
founded thereupon." **• The rule is concisely stated by the chan-
cery court in New Jersey in the following language : "The court will
grant relief against a judgment which is against conscience, which
was obtained by fraud or in any other way by which injustice has been
done, and where the injured party has had no opportunity for de-
fense, or could not make it through any defect of the law, and where
adequate relief cannot be afforded by the court where such judgment
is obtained, and timely application for relief is made to this court." ***
A bill will lie to vacate a judgment for fraud, even although it has
already been made the foundation in another state of a suit in which
the defendant's property in that state has been attached.*^' So,
the fact that one is solvent is no ground for refusing to enjoin pro-
ceedings on a judgment which he has obtained by fraud.^^*^ On
the other hand, a judgment cannot be impeached in equity on the
ground of fraud practised by the successful party, where it appears
that the fraud, if attempted, was unsuccessful.*^^ And equity will
not interfere on the ground of fraud unless the fraud is clearly stated
and proved.*** And allegations that the judgment was obtained
"through fraud and other ill practices" are too vague and general.***
Delaney, 73 N. Y. 571; Binsse v. Barker, 13 N. J. Law, ?63, 23 Am. Dec.
720; Burch T. Scott, 1 Bland (Md.) 112; Kent v. Rlcards, 3 Md. Ch. 392;
PolDdexter v. Waddy. 6 Munf. 418, 8 Am. Dec. 749; Smith v. Hays, 64 K.
C. 321; Brown v. Thornton, 47 Ga. 474; Dugan v. McGann, GO Ga. 353;
Hair V. Lowe, 19 Ala. 224; Hahn v. Hart, 12 B. Mon. (Ky.) 426; Crank
Y. Flowers, 4 Heisk. (Tenn.) 629; Ogden y. Larrabee, 57 111. 389; Cowin
V. Toole, 31 Iowa, 513; Bresnahan v. Price, 57 Mo. 422; Payne v. CShea, 84
Mo. 129; Burpee v. Smith, Walk. Oh. (Mich.) 327; Hayden v. Hayden, 46
Cal. 332; Smith v. Quarles (Tenn. Ch.) 46 S. W. 1035; Oliver v. Riley, 92
Iowa, 23, 60 N. W. 180; Larson v. Williams, 100 Iowa, 110, 69 N. W. 441,
02 Am. St. Rep. 544; Smith v. Taylor, 78 Mo. App. 630; Benson r. An-
derson, 10 Utah, 135, 37 Pac. 256.
ii« Whigate v. Haywood, 40 N. H. 437.
114 Moore v. Gamble, 9 N. J. £q. 246.
iisEdson V. Cumlngs, 52 Mich. 52, 17 N. W. 693.
!!• Sanderson v. Voelcker, 51 Mo. App. 328.
iiTAUen y. Allen, 38 C. C. A. 336, 97 Fed. 525.
118 Jones y. Sonth's Adm'rs, 3 A. K. Marsh. (Ky.) 352.
110 Rooks y. WllUams, 13 La. Ann. 374.
(583)
§ 368 LAW OF JUDOMBNTS. (Ch* 15
And further, in order to obtain equitable relief ag^nst a judgment on
the ground of fraud, it is necessary to be alleged and shown that
there is a good defense on the merits.*" Or, as otherwise stated, it
must be made clearly to appear that the judgment has no other foun-
dation than the fraud charged, and that if there had been no fraud
there would have been no judgment.**^ Thus equity will not relieve
against a judgment alleged to have been obtained by fraud, where
the relief asked for is merely a reduction of the damages.*** It has
been adjudged a good ground for the intervention of equity that
the judgment, fairly and regularly rendered, has afterwards been
fraudulently altered so as to increase the amount for which it
stands,*** or so as to include a person not originally named in it nor
made a party to the action.*** Aside from the cases just instanced,
it is evident that the fraud on which the application to equity is based
may be of three different characters, or arise in three several ways.
First, there may have been fraud in the instrument or transaction on
which the judgment at law is founded. This, since it constitutes a
good defense to the suit at law, must be set up then and there. If
the defendant was ignorant of it, or had no opportunity to plead it,
or was prevented from setting it up by the artifice or fraud of his
m
adversary, it may be available on a subsequent application to chan-
cery. But otherwise it furnishes no ground for equitable interfer-
ence.*** Secondly, whatever was the character of the defense, sup-
lao White V. Crow, 110 U. S. 183, 4 Sup. Ct. 71, 28 L. Ed. 113; Hair t.
Lowe, 19 Ala. 224; Peaice y. Olney, 20 Conn. 544; Ableman ▼. Roth. 12 Wis.
81; Way y. Lamb, 15 Iowa, 79; At water v. American Exch. Nat. Bank«
40 111. App. 501; Henkleman y. Peterson, Id. 540.
121 Drlnger y. Receiver of Erie Ry. Co.. 42 N. J. Bq. 573, 8 Atl. 811,
i>2 Inhabitants of Essex County y. Berry, 2 Yt 161; Murdock v. De Vries^
37 Cal. 527.
12 8 Babcock y. McCamant, 53 111. 214.
124 Chester v. Miller, 13 Cal. 558.
126 Muscatine v. Mississippi & M. R. Co., 1 Dill. 536, Fed, Gas. No. 9.971;
Gardiner v. Van Alstyne, 163 N. Y. 573, 57 N. E. 1110; Taylor v. Manory.
70 Md. 1, 23 Atl. 10U8; Adler y. Van Kirk Land & Const Co., U4 Ala. 551,
21 South. 490, 02 Am. St. Rep. 133; Covington y. Chamblin, 156 Mo. 574,
57 S. W. 728; Hamilton y. McLean, 139 Mo. 678, 41 S, W. 224; Link ▼.
Link, 48 Mo. App. 345; Shufeldt y. Gandy, 34 Neb. 32, 51 N. W. 302; Nor-
wegian Plow Co. V. Bellman, 47 Neb. 186, 66 N. W. 292, 31 L. R. A. 747.
A bill to set aside a judgment for fraud must aver that the complainant had
(584)
Ch, 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 369
posing it to b« good and meritorious, the successful party may have
practised fraud or trickery in such wise as to prevent the other from
bringing it before the court. Here equity will relieve, if the appli-
cant himself was guilty of no negligence or fault. And thirdly, the
fraud charged may have been practised in the act of procuring the
judgment to be entered, or in taking judgment in violation of an
agreement to fhe contrary. This also is sufficient ground for the
interference of equity. These propositions will be elaborated in the
next succeeding sections.
§ 309. Fraud 1a PreTentlAK Defense.
Where a party, having a good defense to an action commenced
against him at law, is prevented, by the fraud or fraudulent repre-
sentations of the plaintiff or his attorney, from setting up that de-
fense, and a judgment is obtained against him, without any negli-
gence or fault on his part, it is a proper case in equity for relief
against the judgment.^** As remarked by a learned judge, "a decree
or judgment receives its forCe from the fact that it is the decision of
a competent tribunal, before which both the parties have had an
opportunity of appearing and prosecuting their claims and having
them fairly adjudicated. When this is prevented by the fraud or
circumvention of one of the parties, without the fault or negligence of
the other, the decree or judgment of the court ceases to have its
binding effect, and it is competent for the party injured to resort to a
court of chancery to obtain relief." **^ Thus, in one case, a per-
petual injunction was granted, in order to stay proceedings on a
judgment at law outained in a suit instituted in the name of a person
no knowledge of the fraud before final Judgment was rendered. Noll v.
Chattanooga Go. (Tenn. Ch.) 38 S. W. 287. And see infra, § 378.
126 Hugging V. King, 3 Barb. (N. Y.) 616; Spencer v. Vigneaux, 20 Cal.
442; Cummins v. White, 4 Blackf. (Ind.) 356; Mack v. Doty, Harr. (Mich.)
366; I'oindexter v. Waddy, 6 Munf. (Va.) 418, 8 Am. Dec. 749; De Louis
y. Meek, 2 G. Greene (Iowa) 55, 50 Am. Dec. 491; Lazarus V. McGuirk,
42 La. Ann. 194, 8 South. 253; Dodge v. Williams, 107 Ga. 410, 33 S. E. 4GS;
MltcbeU V. Kirby (Ky.) 38 S. W. 507.
i«T Lockwood V. Mitchell, 19 Ohio, 448, 53 Am. Dec. 438. This was also
the ground of the decision in the remarkable litigation reported as "The
Wagner Cases," 59 Md. 313.
(585)
§ 370 LAW OF JUDGMENTS. {fihm 15
not interested, whose name was used only for the purpose of prevent-
ing a defense which the defendant had against the real plaintiff in
interest.^'* So, equity will relieve where, in ex parte proceedings
in foreign attachment, advantage, after being waited for, has been
deliberately taken of a complainant's absence to obtain, without his
knowledge, a judgment upon a claim to which he has a sufficient de-
fense either at law or in equity, and to sell his land for an inadequate
price to the plaintiff in the attachment suit.^*' It is to be observed
that the rule that a judgment silences all defenses which might have
been urged against its rendition cannot be invoked in an action to
enjoin its execution for fraud, when the fraud alleged consists in acts
of the party which prevented his adversary from setting up his de-
fenses.^'® At the same time, a party to an action at law must not be
too credulous, nor rely too easily upon mere suggestions or repre-
sentations made to him by his adversary. Though the conduct of his
opponent may have been tricky or evasive, it is his own duty to be
careful and ^agilant, and he cannot obtain relief in equity, on this
ground, unless he shows that he is free from the charge of negligence
or lack of due attention to his case.***
§ 370. Fraud In Proenrijis thm Ji&d8;BteAt«
While it is true that equity will not generally listen to an impeach-
ment of a judgment on the ground of fraud, when the fraud alleged
was antecedent to the judgment and was or might have been litigated
in the action at law, yet fraud practised in the very matter of obtain-
ing the judgment is regarded as perpetrated upon the court as well
as upon the injured party, and a judgment so procured may be en-
joined."* The rule has been thus stated: "The question of fraud
128 Greenlcaf v. Maher, 2 Wash. C. C. ot>3, Fed. Cas. No. 5,780.
i»» Herbert v. Herbert, 47 N. J. Eq. 11, 20 Atl. 290.
180 Lazarus v. McGuirk, 42 La. Ann. 194, 8 South. 253.
181 See Hoey v. Jackson, 31 Fla. 541, 13 South. 459; Collins t. Scott 100
Cal. 446, 34 Pac. 1085; German Fire Ins. Co. v. Perry, 45 111. App. 197.
182 Muscatine v. Mississippi & M.^R. Co., 1 Dill. 586, Fed. Cas. Xo. 9,971:
California Beet Sugar Co. v. Porter,'68 Cal. 369, 9 Pac. 313; Lee t. Harmoa
84 Mo. App. 157; Watts v. Fnizer, 80 Ala. 186; Hogg v. Link, 90 Ind. 346:
Pearce v. Olney, 20 Conn. 544; Asbury ▼. Fri8z» 148 Ind. 513, 47 N. E. 32S:
(580)
Ch. 15) RBMEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 370
which is open to examination in such case is as to something which
intervened in the proceedings by which the judgment was obtained,
and it must have occurred in the very concoction or procuring of
the judgment, and not have been known to the opposite party at the
time, and for not knowing which he is not chargeable with neglect
or inattention. The fraud must consist in something of which the
complaining party could not have availed himself in the court giving
the judgment, or of which he was prevented from availing himself
there by fraud." ^"' Or, as otherwise stated, the fraud alleged must
be extrinsic or collateral to the matters involved in the issues or the
trial at law.^'* Where, as in some of the states, the statutes author-
ize the courts to vacate their own judgments for "fraud" practised by
the successful party in obtaining them, it is held that the word
"fraud" is used in its common and direct sense; it means fraud in
fact, not fraud in law, and embraces only intentional wrong.^** The
fraud which will justify a court of equity in thus interfering may as-
sume various shapes. It may consist in deceit and imposition prac-
tised upon the court, as a means of obtaining a judgment which
Turner v. Colson (Ky.) 55 S. W. 551; Schroer v. Pettibone, 16S 111. 42, 45 N.
E. 207.
i«« StllweU V. Carpenter, 2 Abb. N. C. (N. Y.) 238; Seals v. Weldon, 121
Ala. 319» 25 South. 1021.
"* Irvine v. Leyh, 124 Mo. 361, 27 S. W. 512; United States v. Throck-
morton, 98 U. S. 61, 25 L. Ed. 93. A default judgment recovered by means
of false statements In respect to a fact essential to the right of recovery,
which deceived both the defendant and the court, cannot be set aside by a suit
in equity, as this is not a collateral or extrinsic fraud. Ritchie v. McMullen,
25 C. O. A. 50, 79 Fed. 522. Equity cannot set aside an adjudication at law
determining and locating the quantity of lands required for a public use merely
because the parties who brought about the adjudication had a fraudulent or
iUegal intent; but it must appear that the court itself proceeded fraudulently,
or in excess of its powers, or that it committed a gross mistake, or was im-
posed upon by fraudulent methods. Coe v. Aiken (C. 0.) 61 Fed. 24. But
it has been said that the rule that fraud for which equity will vacate a judg-
ment must be fraud in procuring the judgment, is not to be applied in all its
strictness to a judgment based on service by publication against one who
bad no actual notice; but relief will be given in such case on proof that
the judgment was entered on a cause of action known to be without founda-
tion. Irvine v. Leyh, 102 Mo. 200, 14 S. W. 715, 16 S. W. 10.
nsOhio & W. Mortgage & Trust Co. v. Carter, 9 Kan. App. 621, 58 Pac.
1040. And see Williams v. Lumpkin, 86 Tex. 041, 26 S. W. 493.
(587)
§ 370 LAW OF JUDQMENTS. (Ch. 15
never ought to have been rendered/** or in the act of the successful
party in illegally tampering with the jury,**^ or in his wrongful con-
duct in obtaining a judgment and a sale of defendant's property by
a surreptitious use of legal process and proceedings/** or in collu-
sion. Thus, collusion between the plaintiff and the judge or ijustice
who rendered the judgment will be ground for enjoining its execu-
tion.^** So a judgment against an estate may be enjoined when it is
shown to have been obtained by means of collusion between the ex-
ecutor or administrator and the alleged creditor or claimant.*** And
the same is true of a judgment against a corporation recovered by
collusion between its president and the plaintiff.*** Again, one not
a party to an account, who causes an action to be begun thereon for
his own benefit, but ostensibly for the plaintiff, by whom all interest
in the action and in the judgment is disclaimed, should be enjoined
from enforcing the judgment.*** Where a claim on which an action
had been brought was settled before the term of the court began, and
the plaintiff wrongfully entered the action and took judgment, the
136 Benson y. Anderson, 10 Utah, 135, 37 Pac. 256; Larson t. WUliams, 100
Iowa, 110, 69 N. W. 441, 62 Am. St. Rep. 544; Wickersbam y. Gomerford, 96
Cal. 433* 31 Pac. 358. But a court of equity wlU not set aside a Judgment
rendered by a court of competent jurisdiction, on the ground of fraud, be-
cause of false statements made by the defendants to the court as to their
financial condition, by which the court was induced to render, and the plain-
tiff to accept, a Judgment for less than the amount actually due. United
States y. Beebe, 34 G. G. A. 321, 92 Fed. 244. So, aH independent suit can-
not he maintained In equity to set aside a decree aUottlng a homestead to
the widow of a decedent, on the ground that, in procuring such decree, she
misrepresented to the court the facts as to the property. Hanley y. Hanley,
114 Cal. 690, 46 Pac. 736. Again, proof that eyidence which would go to
preyent the recoyery of a Judgment was eoUusiyely withheld from the court
is not alone sufficient to establish fraud or imposition; it must also appear
that the Judgment was in fact unjust First Baptist Ghurch t. Syma, 51
N. J. Eq. 363, 28 Atl. 461.
i»7 Piatt y. ThreadglU (C. C.) 80 Fed. 192.
188 Herbert y. Herbert. 49 N. J. Eq. 565, 25 Atl. 366.
189 Kimble y. Short, 2 Kan. App. 130, 43 Pac 317; Hason ▼. Qulnii, 9
Lrz, Leg. Reg. (Pa.) 543.
i40Elting y. Fhrst Nat. Bank, 173 HI. 368, 50 X. E. 1095; First Baptist
Church y. Syms (N. J.) 31 AU. 717; Ramsey y. Hicks, 53 Mo. App. 190.
141 Babcock Hardware Go. y. Farmers' & Drovers* Bank, 54 Kan. 273, 35
Pac. 256.
142 Marchman y. Sewell, 93 Ga. 653, 21 S. £. 172.
(588)
Ch. 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 871
court in equity granted an injunction against the execution.^** So
where a written agreement was made, on the understanding that pay-
ment might be made in money, or in property at a valuation by two
honest men, and that this understanding should be indorsed upon the
agreement, which the party afterwards refused to do, but took judg-
ment on the contract, it was held that chancery would consider the
indorsement as made and would enjoin the judgment.*** But in
order to obtain this relief it is essential that the complainant himself
should be entirely free from any fraud or improper conduct. Thus
a party against whom a judgment has been entered on a bond cannot
obtain relief in equity, against such judgment, on the ground that he
was acting as the agent of the judgment plaintiff in the sale of terri-
tory in which to sell a patented article, and that such bond was only
a sham, by which to induce others to purchase patent rights, and was
never to be enforced against him.***^
S 371. Deeeit and CoAoealm^nt.
Where a judgment at law has been procured by artifice or con-
cealment on the part of the plaintiff, and the court where the fratid
has been perpetrated is not able to afford adequate relief, a court of
equity will take hold of the party who has committed the fraud and
will prevent his using the judgment to the injury of his adversary.***
i*»DevoU V. Scales, 49 Me. 320; Gates v. Steele, 58 Conn. 316, 20 Ati.
474, 18 Am. St. Rep. 268.
144 Dandrldge v. Harris, 1 Wash. (Va.) 326, 1 Am. Dec. 465.
w5 Bamett v. Barnett, 83 Va. 504, 2 S. E. 733.
i4« Tomklns v. Tomklns, 11 N. J. Eq. 512; Griffith v. Reynolds, 4 Grat.
(Va.) 46; Pratt v. Northam, 5 Mason, 05, Fed. Cas. No. 11,376; Fish v.
Lane, 3 N. C. 342; Spencer v. Vlgneaux, 20 Cal. 442; Mosby v. Glsborn, 17
Utah, 257, 54 Pac. 121. But a defendant cannot claim fraud In the rendering
of a judgment against him merely because the plaintiff therein did not volun-
teer information immaterial to the Issues, and which could have been used
only to affect the credibility of witnesses. Long v. Gilbert (Tenn.) 59 S.
W. 414. A compromise judgment will not be set aside on the ground of fraud,
because of representations by the defendants that they were without prop-
erty, and that nothing could be realized by execution against them, when
no representations are made with respect to the merits of the cause of ac-
tion, and especially where the complaint itself is based upon the fact of their
insolvency. United States v. Beebe, 180 U. S. 343, 21 Sup. Ct. 371, 45 L.
Ed. 563.
(589)
§ 372 I.AW OF JUDQMENIS. (Cb. 15
Thus a vendee of land may come into equity to enjoin a judgment at
law on the notes given for purchase-money, upon alleging the ven-
dor's fraudulent representations of title in himself, a breach of his
warranty of title, and the insolvency of his estate.**^ So on ac-
count of a deficiency^ in the quantity of the land sold, which would
entitle the vendee to a diminution of the price. ^*' So on account of
a representation that the property was free from charges, when in
fact it was incumbered bv liens for more than its value.*** In a case
where the sureties on a replevin-bond alleged that they had been in-
duced, while in a state of intoxication, to sign a blank paper, upon
which the bond was afterwards written in, it was held that equity
would not relieve them unless it were shown that an unfair advantage
had been taken of their condition to their detriment.*'* But equity
will relieve against a judgment entered on an agreement to which one
defendant's name was forged, although, the co-defendant who forged
it was the only culpable party, the judgment being entered under a
mistake of fact.***
§ 372. Perjvrj.
Whether relief will be granted in equity on the ground that the
judgment was procured by the perjury of the plaintiff or a witness, is
disputed. There are some English and American cases holding that
«
such action is proper, where adequate redress cannot be had at law,
and where the proof to convict the perjured witness could not be
obtained in time to be used on the trial.*'* And in at least one state
i*T Walton V. Bonham, 24 Ala. 513; Wray's Adm*rs v. Fumlss, 27 Ala.
471; Cox V. Jerman, 41 N. C. 526; Graham v. Tankersley, 15 Ala. 634; Jaynes
V. Brock, 10 Grat. (Va.) 211; Gray v. Ward (Tenn.) 52 S. W. 1028.
i4« Davis V. Millaudon, 14 La. Ann. 868.
i*» Poe V. Decker, 5 Ind. 150. Compare Amfck v. Bowyer, 3 W. Va. 7.
150 Campbell v. Ketcham, 1 Bibb (Ky.) 406.
151 Lindsley v. Sparks, 20 Tex. Civ. App. 56, 48 S. W. 204.
162 Coddrington v. Webb, 2 Vern. 240; Tovey v. Young, Finch, Prec. Ch.
103; Peagram v. King, 9 N. C. 605; Burgess v. Lovengood, 55 N. C. 457.
The United States supreme court has held that a court of equity may enter-
tain a suit to enjoin the enforcement of a judgment at law when the bill
alleges that the judgment was obtained by the use of a forged letter as
evidence, the complainant being ignorant of the existence of such evhl-nce
before the trial, and not discovering its falsity until too late to move for a
new trial, and not being guilty of any laches in the matter. Man^ball t.
(590)
Ch. 15) RBLIBP IN EQUITY AGAINST JUDGMENTS AT LAW. § 378
(Minnesota) the statutes authorize a suit to be brought to* set aside
a judgment obtained by the fraud or perjury of the prevailing
party.* °' In some other jurisdictions, it is thought that if a party to
a suit intentionally procures and produces false testimony, suborning
his witnesses to perjury and conspiring with them to secure a judg-
ment, this amounts to such fraud as will enable the adverse party, if
defeated in the suit, to secure an injunction against the judgment**^*
But this doctrine is denied in other states,*'^* and indeed the general
current of authority is now in favor of the rule that perjury commit-
ted by the successful party or his witnesses at the trial is no sufficient
ground for vacating the judgment or enjoining its enforcement.***
§ 373. TakiAK Jndsntent eontrary to Asreement.
If the plaintiff or his attorney makes promises or representations
to the defendant, to the effect that the suit will not be pressed, or
brought to trial, or will be dismissed, or that credits will be allowed,
or that no recovery will be sought against him, or any other similar
matter, to induce him to refrain from defending the case, and if the
latter, honestly relying upon the understanding thus established,
omits to present his defense, notwithstanding which the plaintiff
fraudulently and in violation of the agreement proceeds to take a
Holmes, 141 U. S. 589, 12 Sup. Ct 62, 35 L. Ed. 870. A final decree which
plaintiff permits to go against him because of false answers under oath by
defendants, plaintiff being unable to present evidence to overcome the same,
is vitiated by fraud and may be annulled. Graver v. Faurot, 22 G. G. A.
156» 76 Fed. 257.
IBS Gen. St. Minn. 1894, § 5434. See Watkins v. Landon, 67 Minn. 186,
69 N. W. 711.
15* Barr v. Post, 59 Neb. 361, 80 N. W. 1041, 80 Am. St. Rep. 680; Meyers
V. Smith, 59 Neb. 30, 80 N. W. 273; Camp v. Ward, 69 Vt. 286, 37 Atl. 747,
60 Am. St. Rep. 929.
i*» Maryland Steel Co. v. Marney, 91 Md. 360, 46 Atl. 1077; Noll v. Chat-
tanooga Co. (Tenn.) 38 S. W. 287; Ross v. Wood, 70 N. Y. 8.
156 Demerit v. Lyford, 27 N. H. 541; Gott v. Carr, 6 Gill & J. (Md.) 309;
Smith V. Lowry, 1 Johns. Ch. (N. Y.) 320; Woodruff v. Johnston, 61 N. Y.
Super. Ct 348, 19 N. Y. Supp. 861; Ootzhausen v. Kerting (C. C.) 29 Fed.
821; Latimer v. Dean, 31 Plttsb. Leg. J. (N. S.) 192; Smedes v. Ilsley, 68
Miss. 590, 10 South. 75; Guthrie v. Doud, 33 111. App. 68; Barr v. Post, 59
Xeb. 361. 80 N. W. 1041, 80 Am. St. Rep. 680; Friese v. Hummel, 26 Or.
145, 37 Pac. 458, 46 Am. St Rep. 610.
(591)
§ 373 LAW OP JUDGMENTS. ifi^' 1^
judgment, equity will grant relief by injunction.*'^ So where a judg-
ment is fraudulently taken by default in violation of an agreement
for a compromise, the interposition of a defense being thus prevent-
ed, its enforcement will be restrained, and titles acquired under it
(with notice) will be voidable in equity."* So equity will relieve
against a judgment obtained by inducing the defendant to withdraw
an equitable plea filed in the case, by a promise of the plaintiff that
if such plea were withdrawn he would do the. equity set up in the
plea, which he failed to do.^** In another case, where the maker of
a promissory note held a receipt, acknowledging payment thereof,
from the indorsee, who sued upon the note, representing to the
maker that he did not intend to enforce its collection against him,
but against the payee, and judgment was accordingly rendered by
default, it was held that an injunction should be granted perpetually
restraining the collection of the judgment from the maker.***
Where a defendant suffers judgment to be taken against him in con-
157 Pearce v. Olney, 20 Conn. 544; Chambers v. Bobbins, 28 Conn. 552;
Delaney v. Brown, 72 Vt. 844, 47 Atl. 1067; Hinckley v. MUes. 15 Hun (X.
Y.) 170; Dobson v. Pearce, 12 N. Y. 156, 62 Am. Dec. 152; Moore ▼. Gamble,
9 N. J. Eq. 246; MUler v. Harrison, 32 N. J. Eq. 76; Chase y. Manhardt 1
Bland (Md.) 333; Kent v. Bicards, 3 Md. Ch. 392; Holland t. Trotter, 22
Grat. (Va.) 136; Jarman ▼. Saunders, 64 N. C. 367; Markham ▼. Angler.
57 Ga. 43; Purviance v. Edwards, 17 Fla. 140; Brooks y. Whit8<Mi, 7 Smedes
& M. (Miss.) 513; Newman y. Meek, Smedes & M. Gh. (Miss.) 331; Buniler
y. Rice, 21 Tex. 171; Williams y. Fowler, 2 J. J. Marsh. (Ky.) 405; Broaddns
y. Broaddus, 3 Dana (Ky.) 536; Edmondson y. Moseby's Heirs, 4 J. J. Mar>i..
(Ky.) 497; Xewnan v. Stuart, 5 Hayw. (Tenn.) 78; Brandon v. Green, 7
Humph. (Tenn.) 130; Stone y. Lewman, 28 Ind. 97; Johnson's Adm'ra t.
Unyersaw, 30 Ind. 435; Wlerich y. De Zoya, 2 GHman (IlL) 385; Beams
y. Denham, 2 Scam. (111.) 58; How y. Mortell, 28 111. 479; Bogers v. Qwlnn.
21 Iowa, 58; De Louis y. Meek, 2 G. Greene (Iowa) 55, 50 Am. Dec. 491;
Baker v. Redd, 44 Iowa, 179; Perry y. Slter, 37 Mo. 273; Boberts ▼. Miles,
12 Mich. 297; Scrlven y. Hursh, 39 Mich. 98; Keeler y. Elston, 22 Xeb. 310.
34 X. W. 891; Sanderson y. Voelcker, 51 Mo. App. 328; HamUton y. WoodL
55 Minn. 482, 57 N. W. 208; Helm y. Butin (Cal.) 40 Pac. 39; McLeran t.
McXamara, 55 Cal. 508.
158 Murphy y. Smith. 86 Mo. 333; Nealls y. Dicks, 72 Ind. 874; Bridge-
port Say. Bank y. Eldredge, 28 Conn. 556, 73 Am. Dec. 688; Bogers y. Gwfain,
21 Iowa, 58; Hlbbard y. Eastman, 47 N. H. 507. 93 Am. Dec 467; Kent T.
Rlcards. 3 Md. Ch. 392; Brake y. Payne, 137 Ind; 479, 37 K £. 140.
looMnrkham y. Angier, 57 Ga. 43.
i«o Baker y. Redd. 44 Iowa, 179.
(592)
Ch. 15) RBLIBP IN EQUITY AGAINST JUDGMENTS AT LAW. § 374
sideration of an agreement on the plaintiff's part that no money need
be paid on it except upon the happening of a certain event, the plain-
tiff will not be permitted to exact payment in violation of the agree-
ment.**^ So where the liability of the principal had been fixed and
discharged, and the surety had been lulled into security by the delu-
sive promises of his creditor and had been the victim of artifice and
circumvention, and the judgment against him was obtained in con-
tempt of an injunction, and the assertion of any right under it
would be fraudulent, it was considered a proper case for the inter-
vention of equity.**^ In order to induce a court of equity to declare
a judgment confessed for a certain amount to be merely collateral
security for rwhatever sum might be found due from defendant to
plaintiff, the court must be satisfied beyond a reasonable doubt that
such was the agreement of the parties, but upon being so satisfied
it will enjoin the enforcement of the judgment, on the ground that to
enforce it would be a fraud on the defendant.**' A judgment recov-
ered before a justice for an unjust amount, after an executed agree-
ment of settlement, relied on by the defendant, but invalid because
made on Sunday, will be enjoined in equity.***
§ 374* Unantliorised Appearance of Attorney.
It was the rule of the early English law that where a regular attor-
ney of the court appeared and answered for the defendant in a suit
at law, a judgment recovered by the plaintiff would not be vacated,
nor execution enjoined by a court of equity, though the attorney
appeared without authority from the defendant, unless it were shown
that the attorney was not of sufficient ability to answer for the dam-
ages caused by his unauthorized act, or there had been collusion be-
tween him and the plaintiff. And this view was at one time gen-
erally favored by the American courts, and even now it still retains
its force in some few jurisdictions.*** But in the progressive de-
i«i Moore v. Barclay, 16 Ala. 158.
f 2 Cage V. Cassidy, S» How. 109, 16 h. Ed. 430. And see Cassldy v.
Antomatic Time Stamp Co., 185 lU. 431, 56 N. E. 1116.
i«»Keighler v. Savage Manufg Co., 12 Md. 383, 71 Am'. Dec. 600. See
Gooper v. l>ler, 46 ill. 462, 95 Am. Dec. 442.
i«« Blakealey v. Johnson, 13 Wis. 530.
i«» Bunton v. Lyford, 37 N. H. 512, 75 Am. Dec. 144; Smyth v. Bnlch, 40
1 LAW JUDG.-38 (593^
§ 374 LAW OF JUDGMENTS. (Ch. IS
velopment of the law, this harsh and inequitable rule has fallen into
desuetude. It has been abandoned by the English courts. '•• And
in this country, almost universally, it is now held that equity may en-
join the collection of a judgment, unjust in itself, which was procured
upon the appearance of an attorney without authority, without any
regard to the question of the latter's solvency and ability to respond
in damages.^®^ But the complainant must make it appear that the
judgment is inequitable in itself, by reason of some fraud or trick or
collusion, or that the result would or 'might have been different if
there had been a full and fair trial upon the merits.*** If an attor-
ney, assuming without authority to act for a plaintiff, brings a suit
and loses it, the defendant recovering a judgment for, costs, equity
will restrain the enforcement of such judgment in the same circum-
stances which would induce it to relieve the defendant in the converse
case.***
X. H. 363; HoflFmire t. HoflFmlre, 3 Edw. Ch. (N. Y.) 174; Americui Ins.
Go. y. Oakley, 9 Paige (N. Y.) 496. 38 Am. Dec. 561. See 1 Salk. 86.
!•« Bayley y. Buekland, L. R. 1 Exeh. 1; Robson y. Eaton, 1 Term R. G2:
Hubbart v. Phillips, 13 Mees. & W. 702.
i«7 United States y. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Harshey t.
Blackmarr, 20 Iowa, 161, 89 Am. Dec. 520; De Louis y. Meek, 2 G. Greeue
(Iowa) no, 50 Am. Dec. 491; Critchfleld y. Porter, 3 Ohio, 518; Allen y. Stone.
10 Barb. (X. Y.) 547; Jones y. WiUJamson, 5 Cold. (Tenn.) 371; Karrel y.
Manouyrler, 14 La. Ann. 3, 74 Am. Dec. 424; Glfford y. Thorn, 9 N. J. Eq.
702; Cassidy y. Automatic Time Stamp Co., 185 lU. 431, 56 N. E. 1116; Hand-
ley y. Jackson, 31 Or. 552, 50 Fac. 915, 65 Am. St. Rep. 839; Kanfmann t.
Drexel, 56 Neb. 229, 76 N. W. 559; HoUinger y. Reeme, 138 Ind. 363, 315
N. E. 1114, 24 L. R. A. 46, 46 Am. St Rep. 402; Smith y. Johnson, 44 W.
Va. 278, 29 S. K. 509. In United States y. Throckmorton, supra. Mr. Justice
Miller said: "Where the unsuccessful party has been preyented from ex-
hibiting fully his case, by fraud or deception practiced on him by his op-
ponent, as by keeping him away from court, [or by] a false promise of s
compromise; or where the defendant neyer had knowledge of the suit beSn^
kept in ignorance by the acts of the plaintiff; or where an attorney fraudu-
lently or without authority assumes to represent a party and conniyes at hU
defeat; or where the attorney regularly employed corruptly sells out his*
•client's Interest to the other side, — ^these, and similar cases which show that
there has neyer been a real contest In the trial or hearing of the case, are
i-easons for which a new suit may be sustained to set aside and annul the
former judgment or decree, and open the case for a new and a fair bearin^c.**
io8Budd V. Gamble. 13 Fla. 265; Harris y. 6 win, 18 Miss. 563. Com-
pare Mills y. Scott (C. C.) 43 Fed. 452.
i«» Smyth T. Balch, 40 N. H. 363; Robson y. Eaton, 1 T^m R. 62.
(594)
Ot 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 375
I 375. Neslisenee or Mistake of Comisel.
It is well settled that equity will not relieve against a judgment at
law on account of any ignorance, unskilfuUness, or mistake of the
party's attorney (unless caused by the opposite party), nor for coun-
sel's negligence or inattention.^^^ The fault is in such cases attrib-
uted to the party himself. Thus the neglect of an attorney to plead
a valid and proper defense, or to attend the trial, either intentiopally
or through forgetfulness, and his failure for like reasons to notify his
client of the time of trial, whereby a judgment is wrongfully obtained
against the client, furnishes no ground for relief against the judg-
ment.*^' So a party cannot obtain a new trial in equity, on the
ground that his counsel mistook the facts of his defense, if he was
present at the trial.*''* Nor is it an adequate ground for relief that
the counsel neglected to assign errors on an appeal in the case.*^"
In a case in California it appeared that the defendant's attorney on
the trial objected to the introduction of certain testimony, and the
iTocrim T. Handley, 94 U. S. 652, 24 L. Ed, 216; Village of CeUna v.
Eastpcrt Sav. Bank, 15 O. O. A. 495, 68 Fed. 401; Trustees of Amherst
CoUege V. Allen, 165 Mass. 178, 42 N. E. 570; Scroggln v. Hammett Grocer
Co., 66 Ark. 183, 49 S. W. 820; Funk v. Kansas Manufg Co., 53 Neb. 450, 73
N. W. 931; Sasser v. OUlff, 91 Ga. 84, 16 S. E. 312; Wynn v. Wilson. 1
Hemp. 698, Fed. Cas. No. 18,116; Rogers y. Parker, 1 Hughes, 148, Fed.
Cas. No. 12,018; Warner v. Conant, 24 Vt. 351, 58 Am. Dec. 178; Bm'ton
V. Wiley, 26 Vt. 430; McBroom v. Sommervllle, 2 Stew. (Ala.) 515; Watts
T. Gayle, 20 Ala. 817; Broda v. Greenwald, 66 Ala. 538; Dibble v. Truluck,
12 Fla. 185; Barrow v. Jones, 1 J. J. Marsh. (Ky.) 470; Morton's Ex*rs v.
NonneUy, 3 Hayw. (Tenn.) 210; Chester v. Apperson, 4 Heisk. (Tenn.) 639;
Graham v. Roberts, 1 Head. (Tenn.) 56; Burton v. Hynson, 14 Ark. 32;
White V. Bank of United States, 6 Ohio, 529; Winchester v. Grosvenor, 48
IlL 517; Dlnet v. Elgenmann, 96 111. 39; Kern v. Strausberger, 71 lU. 413;
FuUer v. Little, 69 lU. 229; Shricker v. Field, 9 Iowa, 366; Jones v. Leech,
46 Iowa, 186; Miller v. Bernecker, 46 Mo. 194; Bowman v. Field, 9 Mo. App.
576; Huobschman v. Baker, 7 Wis. 542; Farmers' Loan & Trust Co.' v. Wal-
worth County Bank, 23 Wis. 249; Boston v. Ha>iies, 83 Cal. 31; Quinn v.
Wetherbee, 41 Cal. 217.
iTi Sharp y. MotUtt, 94 Ind. 240; Bardonski v. Bnrdonski, 144 III. 284. 33
N. E. 39; Payton v. McQuown, 97 Ky. 757, 31 S. W. 874, 31 L. R. A. 33, 53 Am.
St. Rep. 437; Fears v. Riley, 148 Mo. 49, 49 S. W. 836.
172 .Tamison v. May, 13 Ark. 600.
ITS Miller y. Bernecker, 46 Mo. 194; Dinet y. Eigemnann, 96 111. 39.
(595)
i <i76 LAW OP JUDGMENTS. (Ch. 15
court erroneously overruled the objection. An exception was taken
to the ruling, and by reason of such erroneous ruling the plaintiff re-
covered judgment. The testimony was taken down by the official re-
porter, who failed to note the objection and exception. The defend-
ant moved for a new trial, and adopted as his statement the report
of the oiTicial reporter, without observing the error in the report, and
for that reason failed to obtain a new trial. It was held that the mis-
take had been accompanied by such negligence on the part of the
attorney that a court of equity would not relieve against the judg-
ment.*^* A few exceptions to this rule are to be discovered in the
books. Thus, in an early case in Tennessee, where a defendant at
law had instructed his counsel in his defense, but the plea was so
framed that the evidence did not support it and the defense therefore
failed, it was considered that equity would be justified in giving re-
lief.*^* In New York — where, to be sure, the practice is excessively
liberal in this respect — ^the courts will entertain a motion for the
vacation of a judgment on the ground of the neglect or mistake of
counsel. With a fine spirit of humanity, but with little regard for
the settled principles of law, they declare that they will not suffer a
client to be ruined because he has employed an incompetent or un-
worthy attorney.*^*
§ 376. TXTaat of JvrUdiotioB.
It is generally held that where a judgment at law is void for wan:
of jurisdiction, no summons or notice having been served on the de-
fendant, nor opportunity given him for defense, nor any appearance
entered by or for him, equity will relieve against the judgment, if it
be shown that there is a meritorious defense to the action.*'' And
1T4 Qulnn V. Wetherbee,-41 Oal. 247.
1T6 Click V. Gillespie, 4 Hayw. CTenn.) 4.
iT« Sharp V. Mayor, etc., of City of New York, 31 Barb. 578.
1T7 Myers v. Daniels, 59 X. C. 1; Morgan r. Scott, Minor (Ala.) 81. 1-
Am. Dec. 35; Brooks v. Harrison, 2 Ala. 209; Secor v. Woodward, 8 Ala. ri<»i:
Crafts V. Dexter, 8 Ala. 767, 42 Am. Dec. 666; Stubbs v. Leavitt, 30 Alt. Z:<1:
Robinson t. Reid's Ex*r, 50 Ala. 69; Dunklin v. Wilson, 64 Ala. 162; Southern
Ex. Co. V. Craft, 43 Miss. 568; McFaddin v. Spejicer, 18 Tex. 440; Wofford t.
Booker, 10 Tex, Civ. A pp. 171, 30 S. W. 67; Jenninirs v. Shiner (Tex. CIt.
App.) 43 S. W. 276; Tucker y. Wllliamg (Tex. Civ. App.) 56 S. W. 585; Walktr
(590)
Ch. 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 376
the fact that the law-court, in rendering judgment, passed on the
sufficiency of an alleged service of the notice is not a bar to a read-
judication of the question in an action to restrain execution of the
judg^ent.^^* It is also held that where a judgment passes against
a party before actual notice to him, although a copy of the writ was
left at his residence, he being then absent from the state, equity will
relieve if there is a substantial defense.*^* But it is no ground for
relief that the defendant forgot that the writ was served upon him,
whereby he was prevented from appearing and defending,^*® or that
he erroneously supposed the suit was intended to be against another
person.^ *^ Nor will equity relieve on account of the want of notice,
where it appears that the rendition of the judgment was suspended,
by consent, until the opinion of the supreme court in another case
between the same parties could be had, and that the judgment was
not given until after such opinion had been obtained.*** Chancery
has also refused to interfere in a case where the defendant, not deny-
ing that he had been duly served, alleged that he was not a citizen or
resident of the state and had been fraudulently decoyed within the
jurisdiction in order to procure service on him ; for, said the court,
the objection should have been taken by appearing in the original suit
and moving to set aside the service.*** Applications of this char-
acter are most commonly made in cases where, out of several defend-
v. Wynne, 3 Yerg. (Tenn.) 62; Ingle v. McOurry, 1 Heisk. (Tenn.) 26; Ridgeway
V. Bank of Tenn., 11 Humph. 523; Ryan v. Boyd, 33 Ark. 778; Montague v.
Mitchell, 28 111. 481; Weaver v. Poyer, 79 111. 417; Wilday v. MeConnel, 63 111.
278: Coon v. Jones, 10 Iowa, 131; Glvens v, Campbell, 20 Iowa, 79; Jamison v.
Weaver, 84 Iowa, 611, 51 N. W. 65; Iowa Union Tel. Co. v. Boylan, 86 Iowa,
90, 52 N. W. 1122; United States Mut. Ace. Ins. Co. v. Relslnger, 43 Mo. App.
571; Cobbey v. Wright, 34 Keb. 771, 52 N. W. 713; White v. Espey, 21 Or.
328, 28 Pac. 71; Roberson v. Crow (Ind. T.) 53 S. W. 534; Campbell v. Ed-
wards, 1 Mo. 324; San Juan & St. Ii. Mining & Smelting Co. y. Finch, 6 Oolo.
214; Martin v. Parsons, 49 Cal. 94; Jeffery v. Fitch, 46 Conn. 601. Per contra,
Armsworthy v. Cheshire, 17 N. C. 234, 34 Am. Dec. 273.
178 state Ins. Co. v. Waterhouse aowa), 43 N. W. 611.
IT© Jones v. Commercial Bank, 5 How. (Miss.) 43, 35 Am. Dec. 419.
180 Cullum V. Casey, 1 Ala. 351; Dewees v. Richardson, 1 A. K. Marsh. (Ky.)
312.
181 Hlggins V. Bullock, 73 111. 205.
i8« Stein V. Burden, 30 Ala. 270.
3 88 Yastine v. Bast, 41 Mo. 493. Compare Grass v. Hess, 37 Ind. 193.
(597)
§ 376 LAW OP JUDOMBNT8. (Ch* 16
ants, only a part have been notified of the suit. Thus a judgment
rendered against a joint maker of a note, without service upon him
of any summons or process, is void, and where it appears that the
right of action on the note has expired, so that there exists a good
defense, a perpetual injunction will be granted, restraining the exe-
cution of such judgment.^** So a judgment confessed by one part-
ner against the firm, without the consent of the others, will be en-
joined.^®* But on the other hand, where a judgment has been ob-
tained against a principal and surety, it is no ground for an injunction
in favor of the surety that the principal was not served with process
and had no opportunity to defend.*** Equity also has jurisdiction to
vacate a judgment which has been fraudulently altered so as to in-
clude a defendant who was not served and not originally included in
the judgment.**^ So, where a suit between citizens of the same state
has been brought in a federal court, by collusion or otherwise, on the
ground of defendant's alienage, and a default decree entered, such
proceedings are wholly without jurisdiction and void, and the exe-
cution of the decree may be enjoined.*** The same remedy may also
be sought where the failure of jurisdiction was in respect to the sub-
ject-matter of the controversy or the amount involved.*** But in
any case the complainant has the burden of proving affirmatively the
facts constituting want of jurisdiction.*** And he must show that he
has not been negligent in failing to avail himself of such remedies as
the law would afford him.*** Although the general consensus of
judicial opinion is as stated in the beginning of this section, the de-
cisions in some of the states hold that equity ought not to restrain
a judgment on the mere ground that it was void for want of jurisdic-
tion, since the complainant has an adequate remedy at law, by motion
i«* Gerrlsh v. Seaton, 73 Iowa. 15. 34 N. W. 485,
186 Christy v. Sherman, 10 Iowa, 535.
186 Mason v. Miles, 63 N. C. 564.
187 Chester v. MUler. 13 Cal. 558.
188 Broadis v. Broadls (C. C.) 86 Fed. 051.
189 See Hill v. Gordon (C. C.) 45 Fed. 276: Donbam ▼. Springfield Hard-
ware Co., 10 a C. A. 294, 62 Fed. 110.
100 Eichoff V. Elchoff, 107 Cal. 42, 40 Pac. 24. 48 Am. St. Rep. 110: West-
brook V. ITiompson, 104 Tenn. 363, 58 S. W. 223.
i»i Hamblin v. Knight, 81 Tex. 351, 16 S. W. 1082, 26 Am. St Kep. »15L
(598)
Ch. 16} RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 377
or Otherwise, in the original cause.*** Probably the true note of dis-
tinction is struck in the cases which rule that equity will not enjoin
the judgment unless it is shown to be inequitable and. unjust; if the
party merely relies upon a defect of jurisdiction, without attempting
to show that the merits are with him also, he must seek his remedy
at law."»
§ 37^* Jndgnktikt founded on Falsa Return of Serrlea*
Equity may vacate or enjoin the judgment of a court of law, when
it is shown to be unjust and that the court rendering it never had
jurisdiction of the person of the defendant, although assuming it, in
consequence of a false return of service by the sheriff or other
officer.*** In a case in California, where the action was to enforce a
tax-lien on land, and there was no service of summons and no ap-
pearance by the defendants, and the court commissioner drafted the
decree, and either fraudulently or by neglect inserted a clause in the
decree that the summons had been served and the judge, deceived by
the false recitals in the decree, signed it and ordered it to be entered
as the judgment of the court, and at the sheriff's sale under the de-
!•> Fnllan v. Hooper, 66 How. Prac. 75; Morris t. Morris, 76 Ga. 733; Partin
T. Luterloh, 59 N. C. 341.
i»3 Stokes v. Knarr, 11 Wis. 389; Gerrish v. Hunt, 66 Iowa, 682, 24 N. W.
274; Off v. Title G., A. & T. Co., 87 111. App. 472; Newman v. Taylor, 69 Miss.
670, 13 South. 831; Flckes v. Vlck, 50 Neb. 401, 60 N. W. 951; Combs v. Hamlin
Wizard Oil Co., 58 Ul. App. 123.
!•* Miller v. Gorman, 38 Pa. 309; Brooks v. Harrison, 2 Ala. 209; Crafts v.
Derter, 8 Ala. 767, 42 Am. Dec. 666; Walker v. Gilbert, Freem. Ch. (Miss.) 85;
Jones v. Commercial Bank, 5 How. (Miss.) 43, 35 Am. Dec. 419; Ridgeway v.
Bank of Tenn., 11 Humph. (Tenn.) 522; Ingle v. McOurry, 1 Heisk. (Tenn.) 26;
Bell V. Williams, 1 Head (Tenn.) 229; Estis v. Fatten, 3 Yerg. (Tenn.) 382;
Ryan v. Boyd, 33 Ark. 778; Owens v. Ranstead, 22 lU. 161; Harshey v. Black-
ma rr, 20 Iowa, 161, 89 Am. Dec. 520; Newcomb v. Dewey, 27 Iowa, 381; Stone
V. Skerry, 31 Iowa, 582; Johnson v. Coleman, 23 Wis. 452, 99 Am. Dec. 193;
DoweU V. Goodwin, 22 R. I. 287, 47 Atl. 693, 51 L. R. A. 873, 84 Am. St.
Rep. 842; Bramlett v. McVey, 91 Ky. 151, 15 S. W. 49; Huntington v. Crouter.
33 Or. 408. 54 Pac. 208, 72 Am. St Rep. 726; DuBols v. Clark, 12 Colo. App.
220, 55 Pac. 750. But equity will not enjoin the enforcement of a Judg-
ment merely because the return on the summons Is defectlye, if it appears
that the summons was properly served, and defendant had ample oppor-
tunity to defend. Peoria. D. & E. Ry. Co. v. Duggan, 32 III. App. STA; Mc-
Faddin T. Garrett, 49 La. Ann. 1319. 22 South. 358.
(599)
i 877 LAW OP JUDQMBNTa. (Ch. 15
cree the commissioner became the purchaser and obtained a sheriff's
deed, it was held that a court of equity would grant relief to the
owner, by restraining the purchaser from setting up the judgment as
an estoppel or from using it to perpetuate the advantage he had
gained.^*** It should be remarked that there is a line of decisions
wherein the application of the rule above stated is materially re-
stricted. These cases hold that equity should not grant relief unless
the false return of service was procured or induced by the plaintiff, or
unless the latter can be in some way connected with the deception,
thus linking the case supposed with the category of those wherein
the defendant was prevented from setting up his defense by the trick-
ery or fraud of his adversary.^®* The analogy here presented is
plausible, but deceptive. For in case the plaintiff is in no fault, and
the officer is alone to blame for the false return, these decisions can
suggest no remedy except that the defendant should pay the judg-
ment and then bring his action against the officer.^*'^ Practically,
however, this remedy must often be illusory. And at its best, it in-
volves a circuity and remoteness of obtaining redress which is foreign
to the spirit of equity. But although the main rule for cases of this
sort may be regarded as generally well settled, there is a material dif-
ference of opinion as to whether the relief will be granted when there
still exists a complete and adequate remedy in the original suit.
Numerous respectable authorities hold that it should be granted ; ***
others that it should be refused.^*® But at all events, before equity
!•«» Martin v. Parsons, 49 Cal. 95.
106 Walker v. Robbins, 14 How. 584, 14 L. Ed. 552; Johnson ▼. Jonefi, 2
Neb. 126; Taylor v. Lewis, 2 J. J. Marsh. (Ky.) 400, 19 Am. Dec. 135; Gregorj
v. Ford, 14 Cal. 138, 73 Am. Dec. 639; Gardner v. Jenkins, 14 Md, 68; Preston
v. Klndrick, 94 Va. 760, 27 S. E. 588, 64 Am. St. Rep. 777.
i»T In Walker v. Robbins, 14 How. 584, 14 L. Ed. 552, It was said: 'In
cases of false returns affecting a defendant, where the plaintiff at law is not
in fault, redress can only be had in the court of law where the record
was made, and if relief cannot be had there, the party injured must seek hii
remedy against the marshal.*'
108 Landrum v. Farmer, 7 Bush (Ky.) 46; Caruthers v. Hartsfleld, 3 Tcii^
(Tenn.) 366, 24 Am. Dec. 580; McNairy v. Eastland, 10 Yerg, (Tenn.) 309; Coo-
nell V. Stelsou, 33 Iowa, 147; Hernandez v. James, 23 La. Ann. 4S3; Johnson
y. Coleman, 23 Wis. 452, 99 Am. Dec. 193.
i»» BIbend v. Kreutz, 20 Cal. 109; Sanchez v. Carrlaga. 31 Cal. 170; Comst^&
(600)
Ch. 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 378
will interpose by injunction in a case of this description, it must be
averred and proved that the defendant has a meritorious defense, or
at least something more than the mere barren right of being per-
mitted to defend.=*»^
§ 378. Legal Defense not Interposed.
The rule is well settled and perfectly inflexible, that if the defendant
in an action at law had a good defense, purely legal in its nature, of
the existence of which he was aware, and which he had an oppor-
tunity to set up, but neglected to defend himself, he cannot come into
equity seeking relief against the judgment in that action, on the same
grounds which constituted that defense, unless his failure to make
the defense was due to circumstances of fraud, accident, or surprise,
entirely unmixed with negligence or fault on his own part.^®* In
V. ClemeDs* 19 Cal. 77; Chambers v. King Wrought Iron Bridge Manufactory,
16 Kan. 270; CrandaU v. Bacon, 20 Wis. 639, 91 Am. Dec. 451.
200 Gregory v. Ford, 14 Cal. 138, 73 Am. Dec. 639; Coon v. Jones, 10 Iowa,
131; Secor v. Woodward, 8 Ala. 500; Gardner v. Jenkins, 14 Md. 58; Harris v.
Gwln, 10 Smedes & M. (Miss.) 563; Fowler v. Lee, 10 Gill & J. (Md.) 358, 32
Am. Dec. 172.
201 Hungerford v. Sigerson, 20 How. 156; Wynn v. Wilson, 1 Hempst. 698,
Fed. Cas. No. 18,116; New Orleans v. Morris, 3 Woods, 103, Fed. Cas. No.
10,182; Emerson v. Udall, 13 Vt. 477, 37 Am. Dec. 604; Tyler v. Hamersley, 44
Conn. 419, 26 Am. Rep. 479; Le Guen v. (Jouvemeur, 1 Johns. Cas. (N. Y.)
436, 1 Am. Dec. 121; Foster v. Wood, 6 Johns. Ch. (N. Y.) 86; Mills v. Van
Voorhis, 10 Abb. Prac. (N. Y.) 152; Ingalls v. Merchants' Nat. Banit, 51 App.
Div. 305, 64 N. Y. Supp. 911; Katz v. Moore, 13 Md. 566; Ewing v. Nlckle, 45
Md. 413; Lryday t. Douple, 17 Md. 188; Huston v. Ditto, 20 Md. 305; Harns-
barger's Adm»r v. Kinney, 13 Grat. (Va.) 511; Smith v. McLain, 11 W. Va. 654;
Jackson v. Patrick, 10 S. C. 207; Bobbins v. Mount, 3 Ga. 74; Pollock v. Gil-
bert, 16 Ga. 398; Vaughn v. Fuller, 23 Ga. 366; Neal v. Henderson, 72 Ga.
209; Bailey v. State Sav. Bank, 97 Ga. 398, 24 S. E. 40; Stames v. Mutual Loan
& Banking Co., 97 Ga. 400, 24 S. E. 138; Griffin v. Smyly, 105 Ga. 475, 30
S. E. 416; Foster v. State Bank, 17 Ala. 672; Thomas v. Phillips, 4 Smedes
& M. (Miss.) 358; Williams v. Jones, 10 Smedes & M. (Miss.) lOS; Sempie
V. McGatagan, 10 Smedes & M. (Miss.) 96; Scroggins v. Howorth, 23 Miss.
514; Shipp V. Wheeless, 33 Miss. 646; Jordan v. Thomas, 34 Miss. 72, 69 Am.
Dec. 387; Gaines v. Kennedy, 53 Miss. 103; Minor v. Stone, 1 La. Ann. 283;
Todd V. Fisk, 14 La. Ann. 13; McRae v. Purvis, 12 La. Ann. 85; Gibson v.
Moore, 22 Tex. 611; Jordan v. Corley, 42 Tex. 284; Prewitt v. Perry, 6 Tex.
260; Coffee v. Ball, 49 Tex. 16; Smith v. Durrett, Sneed (Ky.) 236; Cowan
V. Price. 1 Bibb (Ky.) 173; Paynter v. Evans, 7 B. Men. (Ky.) 420; Galbraith
V. Martin, 5 Humph. (Tenn.) 50; Brandon v. Green, 7 Humph. (Tenn.) 130;
(601)
§ 378 LAW OP JUDQMBNTS. C^h. 15
Other words, "a court of chancery will not entertain a party seeking
relief against a judgment at law in consequence of his default upon
grounds which might have been successfully taken in the said [law]
court, unless some reason founded in fraud, accident, surprise, or
some adventitious circumstances beyond the control of the party be
shown why the defense at law was not made." ^®* Thus relief in
equity was refused in a case where the defendant had a good defense
of a discharge under the bankrupt act, but neglected to answer or
plead it because the plaintiff had commenced the suit before his dis-
charge in bankruptcy, and continued it, unknown to him, from term
to term, until after his discharge, before taking judgment; for he
knew of the institution of the suit and was bound to notice every-
thing else that was done.***' Nor will equity relieve because the
party did not prove on the trial payments which he alleges he had
made, unless he shows some fraud or circumvention practised to pre-
vent his making the proof.*^* Nor because the promissory note
upon which judgment was rendered was without consideration.***
That the legal defense was not presented or considered through the
oversight of counsel or the error of the judge, or the failure on the
part of the defendant to collect the evidence in due season and present
it in a way to be available, is no sufficient excuse.*®* And if the de-
Ohio & W. Mortg. &r Trust Oo. v. Carter, 9 Kan. App. 621, 58 Pac. 1040; Kim-
ball V. Hutchison, 61 Kan. 191, 59 Pac. 275; Andrews v. Fenter, 1 Ark. 186;
Lester t. Hoskins, 26 Ark. 63; Bently y. Dillard, 6 Ark. 79; Heaipetead
y. Watklns, 6 Ark. 317, 42 Am. Dec. 696; Menifee's Adm*r y. Ball, 7 Ark.
520: Rabum y. Shortrid^e. 2 Blackf. (Ind.) 480; Skinner y. Demin^, 2 Ind.
558. 54 Am. Dec. 463; Smith v. PoweU, 50 111. 21; Hlgglns y. Bullock, 73 IB.
205; Carney y. ViUage of Marseilles, 136 lU. 401, 26 N. E. 491, 29 Am. St.
Rep. 328; Newman y. Schueck, 58 111. App. 328; Lewis y. Firemen's Ins. Co..
67 111. App. 195: Spraker y. Bartlett, 73 111. App. 522; Johnson y. I^on. 14
Iowa, 431: Faulkner y. Campbell, Morris (Iowa) 148; Collier y. Baston, 2 Mo.
146; Kelly y. Hurt, 74 Mo. 561; Kelleher y. Boden, 55 Mich. 295, 21 X. W.
346; Sargeant v. Bigclow, 24 Minn. 370; Clark y. Lee, 58 Minn. 410. 59 N-
W. 970; Snyder v, Vanuoy, 1 Or. 344; Marsh y. Edgerton, 1 Chanil. fWis-V
198, 2 Pin. 230; Phelps y. Peabody, 7 Cal. 50; Agard v. Valencia, 39 CaL 292.
202 Braden y. Reitzenberger, 18 W. Va. 286; Nevins y. McKee, 61 Tex. 412.
208 Bellamy v. Woodson, 4 Ga. 175, 48 Am. Dec. 221.
204 Deaver v. Erwin, 42 N. O. 250; Harnsbarger*8 Adm'r y. Kinney. 13 GraL
(Va.) 511; Sullivan v. Shell, 36 S. C. 578, 15 S. E. 722, 31 Am. St Rep. 894.
206 Garrison v. Cobb, 106 Ind. 245, 6 N. E. 332.
20 e i^bauon Mut. Ins. Co.'s Appeal (Pa.) 1 AtL 559.
(602)
Ch. 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 379
fendant is precluded from setting up in equity defenses which he
might have made available at law, much less can he urge, as a ground
for relief in equity, any defenses which actually were tried and deter-
mined at law. Equity will invariably decline to re-examine a ques-
tion which was fully and fairly examined at law. The decision, how-
ever inequitable it may appear, is final, and the matter is res judi-
cata.*®^ Hence a judgment obtained without fraud or mistake, upon
issue joined and after litigation, will be interfered with by a court of
equity only when it appears, first, that to allow its execution would
be against equity and good conscience, and second, that the facts
rendering it thus inequitable were not available as a defense in the
action in which the judgment was recovered.^***
f 379. Illegality of Consideratioiu
In regard to judgments rendered upon a contract which was inher-
ently illegal or immoral, there has been some difference of opinion
as to whether equity ought not to relax the strictness of the rule
stated above, and enjoin such judgments, irrespective of the fact that
such illegality of the consideration might and should have been set
up as a defense at law. Some cases are to be found in which relief
has been thus granted where the judgment was founded upon
usury.^®* But the more favored opinion is that where the defense of
usury was open to the defendant at law and he had an opportunity to
set it up, but neglected to do so, equity will not relieve.*^® There
are also precedents for the intervention of equity to annul gaming
>07 Bateman v. WlUoe, 1 Schoales & L. 204; Marine Ins. Co. v. Hodgson, 7
Crancli, 332. 3 t.. Ed. 3fJ2; Truly v. Wanzer, 5 How. 141, 12 L. Ed. 88; Hen-
drickson v. Hinckley, 17 How. 443. 15 L. Ed. 123; Foray the v. McCreight, 10
Kich. Eq. (S. C.) 308; More v. Bagley, Breese, 94, 12 Am. Dec. 144; Yongue v.
Billups, 23 Miss. 407; Brlescb v. McCaiiley, 7 Gill (Md.) 180; Brown v. Wilson,
56 Ga. 534; White v. Cahal's Adm'r, 2 Swan (Tenn.) .ISO; Simpson y. Hart, 1
Johns. Ch. 97; Etnerson v. Udall, 13 Vt. 477, 37 Am. Dec. 604; Agard v.
Valencia, 39 Cal. 292; Foster v. State Bank, 17 Ala. 672; Snyder v. Vannoy, 1
Or. 344; Sumner v. Whitley, 1 Mo. 708; Matson v. Field, 10 Mo. 100.
208 Clute V. Potter, 37 Barb. (N. Y.) 199.
2o»Frlprson v. Moody, 3 Humph. (Tenn.) 561; Greer v. Hale, 95 Va. 533,
28 S. E. 873, 64 Am. St. Rep. 814.
210 Lucas V. Spencer, 27 111. 15; Chinn v. :Mit(lioll, 2 Mete. (Ky.) 92; Brown
V. ToeU'B Adm'r, 5 Rand. (Va.) 543, 16 Am. Dec. 759.
(G03)
^379 LAW OP JUDGMENTS. (Ch. 15
contracts, though the defense could have been interposed at law.*"
In Illinois, a statute provides that all judgments, mortgages, bonds,
notes, etc., given or executed for any money won by gaming, may be
set aside by any court of equity upon bill filed for that purpose by the
person giving, entering into, or executing the same, or by any other
person interested therein. This, it is held, applies as well to judg-
ments rendered in contested actions as to judgments on confession.
And, such a suit being authorized by statute, the fact that the ille-
gality of the contract sued on would have constituted a good defense
to the action in which the judgment was recovered, does not oust the
court of chancery of jurisdiction.*^* In a recent case it was held that
a bill would lie to enjoin the plaintiff from collecting a judgment con-
fessed five years previously, under a warrant of attorney in a bond,
the defendant having had no day in court, upon the ground that the
consideration of the bond was an agreement to suppress a prosecu-
tion for a felony.*^' But the supreme federal court holds, and with
undoubted justice, that equity should not relieve against a judgment
at law on the ground that it was founded on a consideration illegal
and expressly forbidden by the laws of the state, when the party ap-
plying for relief was in pari delicto with the other ; "a position," says
the court, "which, however it might shield him against attempts from
associates in wrong, so far as these should be iu"ged through the in-
strumentality of courts of justice, can invest him with no rights,
either at law or in equity, as against advantages acquired by his con-
federates." "*
211 Woodson v. Barrett, 2 Hen. & M. (Va.) 86, 3 Am. Dec. 612; Skipwith v.
Strother, 3 Rand. (Va.) 214; OLaj v. Fry, 3 Bibb. (Ky.) 248, 6 Am. Dec. 6W.
Compare Owens v. Van Winkle Gin & Machinery Oa„ 96 Ga. 408, 23 S. EL
416, 31 L. R. A. 767.
212 Rev. St. 111. c. 38, § 135; West v. Carter, 129 111. 249, 21 N. E. 782;
Mallett V. Butcher, 41 111. 382; Lucas v. Nichols, 66 111. 41; Harris v. M<y
Donald, 79 111. App. 638. See also Lucas v. Waul, 12 Smedes & M. (Miss.) 157.
218 Glven's Appeal, 121 Pa. 260. 15 Atl. 468, 6 Am. St. Rep. T95. And
see Heath v. (3obb, 17 N. C. 187.
214 Sample v. Barnes, 14 How. 70, 14 L. Ed. 330; Creath y. Sims, 5 How.
192, 12 L. Ed. 110.
(G04)
Ch. 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 380
§ 380. Eaccvses for Dot defendliiK at La^r.
Among the excuses for not making one's defense at law which are
generally considered as sufficient to justify the interference of equity
are the following : — fraud, circumvention, or any other improper act
of the other party whereby a defense was prevented; mistake, sur-
prise, or accident ; and justifiable ignorance of the facts constituting
a defense.^*" Some of these have already been considered, and the
others will be considered in their order. But first it is necessary to
advert to certain kinds of excuses which have been adjudged inade-
quate, and to the manner of satisfying the court of the existence of
a valid excuse. That the debtor had a valid defense, but was ad-
vised by his counsel that it was not necessary to bring it forward be-
fore the court, is unanimously condemned as insufficient to warrant
the intervention of a court of chancery.*^* Nor can equity enjoin
a judgment where the only reason alleged for the failure of the de-
fendant to avail himself of a legal defense is an erroneous ruling of
the law court excluding such defense.^^'' So when the grounds re-
lied on in equity are equally available at law, it is no ground for relief
that parties, who were not at the time of the trial examinable as wit-
nesses, have since been made so by statute.*^* If a party, having a
good defense at law, by his own voluntary act deprives himself of the
means of making it, a court of equity will not interpose in his behalf ;
as where a party, having a good defense to a note, voluntarily exe-
219 A good statement of tbe rule is that, to entitle a party to relief in
equity against a Judgment on account of the loss of his defense, it must be
shown that it was occasioned by the fraud or fault of the adverse party, or
by his own mistake, unmixed with any negligence or fault of himself, his
counsel, or agents. Telford v. Brinkerhoff, 163 111. 439, 45 N. E. 156.
21 « Duckworth v. Duckworth's Adm*r, 35 Ala. 70; Brown v. Wilson, 56 Ga.
5^1; Shricker v. Field, 9 Iowa, 367.
"TGriswold V. Hazard, 141 U. S. 260, Jl Sup. Ct. 972, 35 L. Ed. 678;
Edmanson v. Best, 6 C. C. A. 471, 57 Fed. 531; Ingwersen v. Buchholz, 88 111.
App. 73.
«i» Kendall v. Wlnsor, 6 R. I. 453. A Judgment in a suit by an administrator
cannot be enjoined merely because, under the statute, the defendants wore
not competent to testify In the suit In which the Judgment was entered, and
there was no other evidence to sustain their defense. Williams v. Carr, 4
Colo. App. 368, 36 Pac. 646.
(G05)
§ 381 LAW OP JUDGMENTS. (Ch. 15
cutes a deed of trust to secure its payment, equity will not enjoin the
execution of the trust on account of such defense to the original
note.^^** In regard to the evidence to prove the state of facts al-
leged as an excuse for the party's failure to make his defense at law,
it is said that "the same certainty of proof is not required to establish
an excuse for not making the defense at law that would be de-
manded to establish the existence of that defense." **• Yet as it is
the excuse, and not the defense, which must be established at this
stage of the proceedings, it is of no avail to prove the defense if the
excuse remains without evidence to support it. For example, where
A. pays a debt for which he and B. are liable, and afterwards recovers
a judgment at law against B. for half the amount, and on a bill by
B. for relief against the judgment, on the ground that he was surety
for A. in the debt, he fails to prove his alleged reason for not making:
the defense at law, but proves that he was surety for A., there can be
no relief afforded to him in equity.^^*
§ 381. Same; MUtak*.
A mistake of fact, provided it be honest and genuine, and such as
a man might reasonably make, will be a sufficient excuse for not de-
fending an action at law, and will warrant a court of equity, if the
judgment be against conscience, in interposing by injunction to re-
strain its enforcement.^^* For instance, where A., a creditor of B.,
called upon the latter to execute a bond with surety for the debt, and
supposing liimself authorized by the conversation, applied to C. to
execute the bond as surety, who did so accordingly, and A- subse-
quently recovered judgment on the bond, it was held; upon a bill by
C. showing that A.'s representation of his authority from B. was
made under a mistake, that the judgment should be enjoined as
210 Fanning: v. Farmers' & Merchants' Bank, 8 Smedes & M. (Miss.) 13a
220 Rice v. R. R. Bank. 7 Humph. (Tenn.) 39.
221 Turner v. Davis, 7 Leigh (Va.) 227. 30 Am. Dec. 502.
222 Bibend v. Krexitz, 20 Cal. 109; Chase v. Manhardt, 1 Bland Ofd.) 350;
Ford V. Ford, Walk. (Miss.) 505, 12 Am. Dec. 587; Drew v. Clarke; Cooke
(Tenn.) 374, 5 Am. Dec. 098; Partridge v. Harrow, 27 Iowa, 96, 99 Am. Deo.
043; Wilson v. Bouphton, 50 Mo. 17; Kohn v. Lovett. 43 Ga. 180; Lumpkin
V. Williams, 1 Tex. Civ. App. 214, 21 S. W. 967; Clark v. Sayers. 48 W. Va.
33, 35 S. E. 882.
(G06)
Ch. 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 882
against C.^** But it is no ground for relief in equity that the party
was prevented from making his defense at law by a mistake of law,
although it was a mutual mistake of both parties to the suit.*** Nor
that the defendant mistook his rights and so failed to make a defense
which it was competent for him to present at law.*** Nor will equity
interfere because of his ignorance of the nature of the proceeding
against him and a misapprehension of what was necessary to charge
him.*** Nor because he misunderstood the nature of the action and
because those interested in the matter were out of the county.**^
Nor will relief be granted where the defendant, misnamed ia the pro-
cess, was in court when the judgment was rendered against him by
default, and failed to defend by adA4ce of his counsel.*** Where an
application for relief is made upon this ground, due diligence must be
shown and the facts set forth showing how the omission occurred.***
§ 382. Same; Surprise*
In the cases where surprise has been accepted as a sufficient excuse
for not defending at law, it has generally transpired that the surprise
was one intentionally prepared by the plaintiff and sprung upon the
defendant at the trial, whereby the case is assimilated to that of a
fraud or trick on the former's part. Thus, in an early case, the payee
of an usurious note pretended to have sold and transferred the same
to a third person, in whose name a suit at law was brought upon the
note, whereby the makers of the note were induced to suppose that
the payee of the note could be examined by them as a witness in that
suit to prove the usury, but such payee, when called as a witness at
the trial, testified that he was one of the real plaintiffs in interest in
«»» Bird V. Chaffln, 21 N. C. 55.
««4 Richmond & P. R. Co. v. Shippen, 2 Pat. & H. (Va.) 327; Meem v. Ruck-
er. 10 Grat. (Va.) 506; Hubbard v. Martin, 8 Yerg. (Tenn.) 498; City of Broken
Bow V. Broken Bow Waterworks Co., 57 Xeb. 548, 77 N. W. 1078.
225 Dickerson v. Board of Com'rs of Plpley Co., 6 Ind. 128, G3 Am. Dec. 373;
Snider v. Rinehart, 20 Colo. 448, 39 Pac. 408.
226 Meem v. Rucker, 10 Grat 50C; English y. Aldrich, 132 Ind. 500, 31 N.
B. 456, 32 Am. St. Rep. 270.
227 state Bank v. Stanton, 2 Gilman (111.) 352.
228 Graham v. Roberts, 1 Head (Tenn.) 50.
228 Simmons v. Martin, 53 Ga. 620; Slappey v. Hodge, 90 Ala. 300, 13 South.
256.
(607)
§ 383 LAW OF JUDGMENTS. (Ch^ 15
the suit, and declined to testify as to the alleged usury, and from the
state of the pleadings he could not be examined as a plaintiff under
the statute for the prevention of usury. It was held that the defend-
ants in that suit could maintain a bill in chancery against the real
plaintiffs in the suit at law for discovery and relief, upon the ground
that they had been deceived and defrauded out of their defense at
law.*'^ But an injunction will not be allowed on the ground of sur-
prise, where there was no surprise but such as the party might have
reasonably anticipated.*** And a party seeking relief in equity on
this ground must show that the surprise was not in consequence of
his own negligence.*** Thus it is no excuse that the witness on
whom the defendant relied, but whom he had never questioned, failed
to prove the defense set up.**' So the fact that the party's counsel
was surprised by the production of a certain piece of evidence is no
ground for relief in equity, if he was previously cognizant of the evi-
dence.*** On the sariie principle, surprise of a party or his counsel,
at the fact that the supreme court refused to review the judgment of
the circuit judge, under a stipulation of the parties which had, in
effect, made the decision of such judge final, is no ground for equi-
table interference with the judgment.***
§ 383. Same; Aoeident or msfortaae*
Unavoidable accident or misfortune, preventing the party from
making his defense at law, is a sufficient ground for the interference
of equity in an otherwise meritorious case.*** This, it will be re-
membered, is one of the grounds specified in the statutes of some of
the states as authorizing the vacation of a judgment on motion in the
court where rendered.**' It may be stated that equity is guided by
«8o Post V. Boardman, 10 Paige, 580.
231 Fowler v. Roe, 11 N. J. Eq. 367; Shannon v. Reese, 38 Ala. 586.
««« Lawson v. Bettison, 12 Ark. 401.
288 Winiams V. Loekwood, 1 Clarke. Ch. (N. Y.) 172.
284 Gibson V. Watts, 1 McCord, Kq. (S. 0.) 490; Hall v. Griffin, 110 Ala. 214,
24 South. 27.
288 Farmers' Loan & Trust Co. v. Walworth Co. Bank, 23 Wis. 249.
286 Kersey v. Rash, 3 Del. Ch. 321; Radzuwelt v. Watkina, 53 Neb. 412, 73
N. W. 679; Herbert v. Herbert, 49 N. J. Eq. 70, 22 AtL 789.
287 Supra, §§ 337-340.
(60S)
Ch. 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 383
practically the same rules which have been applied by the courts of
law in construing these statutes, excef.!:, perhaps, that the lines are
rather more closely drawn in equity, and less indulgence is shown in
respect to the kinds of accident which are accepted as sufficient ex-
cuses, and in respect to the possibility of the party's surmounting the
obstacle and making his defense. A few illustrative cases may follow
here. It has been broadly held that the sickness of a party, or of his
near relative, or the pendency of another suit against him requiring
his attendance, will not authorize the interference of equity.^'* And
this is undoubtedly true, if it would have been possible for him to be
represented by counsel. Floods, which prevented him from reaching
the place of trial, will furnish a sufficient excuse, but only in case the
bill is very explicit as to the time of the prevalence of high water and
of the meeting and adjournment of court, and as to the efforts that
were made to reach it, and as to the impossibility of a successful de-
fense in the absence of the defendant.^*® In another case, equity re-
fused to enjoin a judgment on the ground that the defendant was pre-
cluded by intense excitement prevailing in the country from attend-
ing court, that it was dangerous to travel from home, that it was
generally understood there would be no court, and that the judge of
the court said that he should hold no session for the trial of cases. **°
It should be remarked, in this connection, that a good excuse for not
being present at the term at which judgment was rendered, is not
sufficient where no counsel was employed, nor witnesses summoned,
nor any other steps taken to defend the action.'*^ The inability of
the party's attorney to attend the court, or his sickness, may, under
some circumstances, entitle the party to reHef in equity ; **^ but it is
no ground for an injunction that defendant's counsel was absent,
238Pharr v. Reynolds, 3 Ala. 521. See Hord v. Dlshman. 5 Call (Va.) 279;
Wood V. Lenox. 5 Tex. Civ. App. 318, 23 S. W. 812, Roller v. Ried (Tex.) 24
S. W. 655; Hopper v Da vies, 70 111. App. 682; Owen v. Gersou, 119 Ala. 217,
24 South. 413.
««» English V. Savage. 14 Ala. 342; Brooks y. Whitson, 15 Miss. 513.
240 George v. Tutt. 36 Mo. 141. See Kye v. Sochor, 92 Wis. 40, 65 N. W.
854, 53 Am. St. Rep. 896.
«*i McCoUum V. Prewitt, Ala. Sel. Cas. 498; Oole v. Hundley, 16 Miss. 473.
«*« McBroom v. Sommeryille, 2 Stew. (Ala.) 515. See Sasser v. Olllff, 91
Ga. 84, 16 S. E. 312.
1 LAW JUDG.-^ (000)
§ 384 LAW OF JUDGBiENTS. (Ch. 15
when it appears that the defendant, if present at the trial, might have
emplo>ed other counsel equally competent.^*' So the death of de-
fendant's original counsel, and want of familiarity, on the part of the
counsel who succeeds him, with the grounds of the defense, do not
furnish a suflScient reason for equity to enjoin the enforcement of the
judgment.*** On the other hand, equity has thought it proper to
give relief on account of the loss of a written contract without which
the defense at law could not be made;*** but has refused its aid
where it was not satisfied that the loss of the particular document
Ayould endanger the complainant's defense in the court of law.'** In
a case where parties were prevented from making their defense at
law by the acts of the plaintiff, until the only witness by whom the
defense could be proved was dead, and a resort to a court of chan-
cery in consequence thereof became indispensable, it was held that
they were entitled to relief in that court.**^ But the fact that a wit-
ness omitted, in giving his testimony, to state a material fact, and that
the complainant, by reason of his deafness, did not know of such
omission until after the trial, is no ground for relief.***
§ 384. IcBoranoe of Lesal Dafenae.
It may be regarded as well settled, upon the authorities, that equity
will grant relief against a judgment at law where it is shown that
there is a good and valid defense to the action on the merits, of
which the defendant was ignorant at the time of the trial, and which
he could not have discovered, by the exercise of reasonable and
proper diligence, in time to set it up at law.*** For example, where
248 Crim T. Handley. 94 U. S. 652, 24 L. Ed. 216; Mock v. Oondlff. 6 Port.
(Ala.) 24.
244 PoweU V. Stewart, 17 Ala. 719.
245 Vathir v. Zane, 6 Gi-at. (Va.) 246,
2 46 Rogers v. Cross, 3 Chaud. 34.
247 Mack V. Doty, Har. (Mich.) 3G6.
248 Stone V. Moody, 6 Yerg. (Tenn.) 31.
249 Davis V. TUeston, 6 IIow. 114, 12 L. Ed. 366; Garrett t. I^yncb, 45 AUl
'211; Wales v. Bank of Michigan, Har. (Mich.) 308; Hubbard y. Hobson,
Brcese (111.) 190; Jones v. EJlgore, 2 Rich. Eq. (S. C.) 63; Pearce y. Gbastain,
;3 Ga. 226, 46 Am. Dec. 423; Iglehart y. Lee. 4 Md. Ch. 314; Baltzell y. Kan-
.dolph, 9 Fla. 366; Meek v. Howard, 10 Smedes & M. (Miss.) 502; Brown y.
Xiuehrs, 79 IlL 575; Wells, Fargo & Oo. y. Wall, 1 Or. 295; Ludington y.
(610)
Ch. 15) RBLIEF IN BQmTT AGAINST JUDOMBNTS AT LAW. | 884
an administrator has recovered judgment for the purchase money of
property of his intestate sold by him, it is a sufficient excuse to the
vendee for not defending at law, that he did not know until after the
judgment was rendered that the administrator had no authority to
sell.^** So where the creditor obtains a judgment at law against the
sureties before they have notice of an agreement to forbear suit,
equity will enjoin its collection.*'** But it is an important corollary
to the above rule — or, indeed, an integral part of the rule — ^that mere
Ignorance of his defense is not sufficient ; it must be shown that the
party is guilty of no negligence, and that he could not possibly have
ascertained it by the exercise of careful and reasonable diligence.*^*
It must appear that the defendant's ignorance was not due to any
lack of diligence on his part, or that it was caused by the act of the
opposite party.*'* "A party who seeks the aid of a court of chan-
cery, after a judgment at law against him, on the ground that he
was Ignorant of the defense, must show the exercise of ordinary dili-
gence to discover it ; or that he was prevented from employing such
diligence by fraud, accident, or the act of the opposite party, unmixed
with fault or negligence on his part." *** Thus an alteration in an
instrument sued on at law may be taken advantage of there, and tho
failure of the defendant to discover the alteration until after judg-
ment is no ground for relief in equity.*"^' So the allegation that
there was a mistake in an account, upon which a judgment at law was
recovered, which was not discovered until after the trial and verdict,
HaDdley, 7 W. Va. 209; Taylor v. Sutton. 15 Ga. 103. 60 Am. Dec. 682; Rust
V. Ware, 6 Grat. (Va.) 50, 52 Am. Dec. 100.
«8o Crisman v. Beasley, 1 Smedes & M. Ch. (Miss.) 561.
251 Armlstead v. Ward, 2 Pat. & H. (Va.) 5(H.
«»2 Brown v. Swann, 10 Tet. 497, 9 L. Ed. 508; Avery v. U. S.. 12 WaU. 304,
20 L. Ed. 405; Marine Ins. Co. v. Hodgson, 7 Cranch, 333, 3 L. Ed. 362:
Metropolitan El. Ry. Co. v. Johnston, 158 N. Y. 739, 53 N. E. 1128; Devlin v.
Boyd, 61 Hun, 625, 16 N. Y. Supp. 37; McCollum v. Prewitt, 37 Ala. 573;
Taylor v. Sutton, 15 Ga. 103, 60 Am. Dec. G82; Leggett v. Morris. 6 Smedes &
M. (Miss.) 723; Slack v. Wood, 9 Grat. (Va.) 40; Taliaferro's Adm'r v. Branch
Bank, 23 Ala. 755: Skinner v. Deming, 2 Ind. 558, 54 Am. Dec. 463; McCown
V. Macklin*s Ex'r, 7 Bush (Ky.) 308; Thompson v. Berry, 3 Johns. Ch. (N. Y.)
395; Tutt V. Ferguson, 13 Kan. 45; Garrett v. Lynch, 45 Ala. 204.
2 5» Carolus v. Koch, 72 Mo. 645.
2 54 Stinnett v. Branch Bank, 9 Ala. 120.
tsB Shelmlre v. Thompson, 2 Blackf. (Ind.) 270.
(611)
i 385 LAW OF JUDGMBNT8L (Ch. 15
is not sufficient to authorize an injunction against the judgment.***
Nor is it any ground for rehef in equity that defendant did not know,
at the time of the trial at law, what the legal criterion of damages
was.***
S 385. DisooTery must luiTe lieen fouclftt.
It is no excuse for failure to set up a legal defense in the action at
law that the defendant could not make it available without invoking^
the aid of chancery to get a 'discovery ; he should have obtained such
discovery oeforc going to trial at law.**' This principle was once
stctted by Chancellor Walworth in the following terms : "As a gen-
eral rule, if a party against whom an action is brought has a legal
defense, he must avail himself of it in the suit at law. It will be
too late, after he has suffered a judgment to be recovered against
him there, to apply to this court for relief. And even where the
facts constituting the legal defense can only be established by a dis-
covery from the plaintiff, if they are fully known to the defendant,
and he can avail himself of them upon the trial by the aid of a bill
of discovery, he should resort to that mode of defense when the ne-
cessity of it is apparent, or he may be precluded by the judgment in
that suit. In cases of this kind, however, this court will accept of
a satisfactory excuse for not resorting to a bill in the first instance,
and may grant relief after judgment has been obtained in the suit at
law." "»
2»e Falls v. Robinson, 5 Md. 3&5.
a»7 McKean v. Read, 6 Litt. Sel. Cas. (Ky.) 395, 12 Am. Dec. 318.
258 Norton v. VS^oods, 5 Paige (N. Y.) 249; Bartholomew v. Yaw, 9 Paige
(N. Y.) 1G5; Pollock v. Gilbert, 16 Ga. :m8, 60 Am. Dec. 732; Albritton v.
Bird, R. M. Charlt (Ga.) 93; Barker v. Elkins, 1 Johns. Ch. (N. Y.) 465. 8ee
also Norrls y. Hume, 2 Leigh (Va.) 334, 21 Am. Dec. 631; Brown T. Swann, 10
Pet 497, 9 fj. Ed. 508; Green v. Massle. 21 Grat. (Va.) axS.
2B9 Norton V. Woods, 5 Paige (N. Y.) 249. An exactly opposite view was
taken in Deputy v. Tobias, 1 Blackf. (Ind.) 311, 12 Am. Dec. 243, where IIoI-
man, J., said: '*But a bill of discovery is the dernier resort In obtaining tes*
timony, inasmuch as when it is resorted to, it shuts the door against every
other method. Therefore It is purely discretionary with every suitor whether
he will file such a bill or not, and he can never be considered In laches for not
seeking a discovery from the opposite party."
(612)
Ch. 15) RELIEF IN EQUITY AGAINST JUDQMBNT8 AT LAW. § ciiSU
§ 386. Newly-discoTered XSridenee.
On principles analogous to those just considered, it is held that
where the defendant knew of his defense at the time of the trial at
law, but had no evidence to support it, was ignorant that any such
evidence existed, and could not have discovered it by the exercise of
due diligence, equity will grant him relief upon the ascertainment and
production of such evidence.^** But here, it is obvious, any court
would be slow to pardon any negligence or sloth on the part of the
defendant in seeking for the evidence which he needs. Being aware
that he has a good legal defense, it is his duty, as well as his interest,
to make the most careful and exhaustive efforts to arm hUnself with
the testimony which will support it. If he has not done this, — if he
has been negligent in the search for evidence, — equity will not relieve
him.**^ And the substance of the newly-discovered evidence must
be set forth in the bill, in order that the chancery court may judge
whether it is of the requisite character and weight.^** In regard to
the last point, the circumstances under which equity will grant a new
trial because of newly-discovered evidence have been summed up as
follows : (i) The evidence must have been discovered since the trial.
(2) It must be evidence that could not have been discovered before
the trial by the plaintiff or defendant, as the case may be, by the ex-
ercise of reasonable diligence. (3) It must be material in its object,
and such as ought, on another trial, to prbduce an opposite result on
the merits. (4) It must not be merely cumulative, corroborative, or
collateral.^*' It remains to be stated that the statutory provisions,
2«o Alley V. Ledbetter. 16 N. C. 449; Levan v. Patton, 2 Helsk. (Tenn.) 108;
<'ox r. Mobile & G. R. Co., 44 Ala. 611; McGehee v. Gold, 68 111. 215; Rust v.
Ware, 6 Grat. (Va.) 50, 52 Am. Dec. 100; Iglebart v. Lee, 4 Md. Oh. 514;
Foote V. Sllsby, 1 Blatchf. 545, Fed. Cas. No. 4,918; Taylor v. Sutton, 15 Ga.
l(i:t, CO Am. Dec. 682; Fcarce v. Ghastain, 3 Ga. 226, 46 Am. Dec. 423; Mills
V. Van Voorhis, 10 Abb. Prac. (N. Y.) 152; Melick v. First Nat. Bank, 52 Iowa,
t>4. 2 N. W. 1021; Wilson v. Wilson. 113 Ala. 670, 21 South. 67. Per contra,
( I usman t. De Poret, 33 La, Ann. 333.
2«i Taylor v. Bradshaw, 6 T. B. Mon. (Ky.) 145, 17 Am. Dec. 132; Glover
V. Hedges, 1 N. J. Eq. 113; McCaulis v. Duval, 69 Ga. 744.
2«2 Miller v. McGuire, 1 Morris (Iowa) 150.
2C3 Wynne v. Newman's Adm'r, 75 Va. 816; Willems v. WlUems, 72 111.
App. 200; Meyers v. Smith, 59 Neb. 30, 80 N. W. 273. The evidence must be
(613)
§ 387 LAW OF JUDGMENTS. (Ch. 15
in many of the states, authorizing the law courts to grant new trials
on the ground of newly-discovered evidence, do not divest the courts
of equity of the power to grant a new trial in cases where the facts
will justify it»«*
§ 387. KeglisMMe of Partj pr^olndea BeU«f.
A litigant is required to exercise the greatest degree of watchful-
ness over the progress of his case in court ; and if he fails to attend
the trial and assert his rights, merely in consequence of his own
opinion of the state of the docket, or through forgetfulness, or negli-
gence of #ny other kind, he will have no standing in equity after a
judgment.^** That he omitted to defend the suit in consequence of
being misled by the clerk of the court as to its character, is con-
sidered as inexcusable negligence.'** So, where a garnishment suit
is pending, but is not prosecuted to judgment for two terms after that
to which it was made returnable, the garnishee has no ri^^ht to think
that the suit is abandoned as to him and settle his debt, and if he
does so, equity will not grant him relief from a judgment subse-
quently obtained against him in the garnishment suit.**^ So where
a defendant at law, having a good legal defense, merely writes to
counsel to defend him, without instructing him in his defense, he is
guilty of such neglect as to preclude relief in equity against a judg-
of such a conclusive character that if it bad been offered It would hare pro-
duced a different result. Bloss v. Hull, 27 W. Va. 503.
. 2 64 Horn y. Queen, 4 Neb. 108; Colyer v. Langford*8 Adm'rs, 1 A. K. Marsh.
(Ky.) 287; Duncan v. Lyon» 3 Johns. Ch. 350, 8 Am. Dec. 513; Baltxell v.
Randolph, 9 Fla. 366. See Snider v. I^inehart, 20 Colo. 448. 39 Pac. 408.
16 6 "Warner v. Conant, 24 Vt 351, 58 Am. Dec. 178; Yancey v. Downer. 5
Utt. (Ky.) 8, 15 Am. Dec. 35; Stroup v. Sullivan. 2 Ga. 275. 46 Am. Dec. 3S8;
Briggs V. Smith, 5 R. I. 213; Mc Vicar v. Filer, 31 Mich. 304; Gardiner t. Van
Alstyne, 22 App. Div. 579, 48 N. Y. Supp. 114; Berry v. Bnrghard, 111 Ga.
117. 36 S. E. 459; Barr v. Post. 59 Neb. 301, 80 X. W. 1041. 80 Am. St. Rep.
680; Ohio & W. Mortgage & Trust Co. v. Garter, 9 Kan, App. 621. 58 Pac.
1040; Mason v. Jones. 7 D. C. 247; Ivey v. McConnell (Tex. Civ. .App.) 21 S.
W. 40;^; Roots y. Cohen (Miss.) 12 South. 5$)3: HoHinger v. Reeme, 138 Ind.
363, 36 N. E. 1114, 24 L. R. A. 40, 46 Am. St. Rep. 402.
see Hanna v. Morrow, 43 Aric. 107.
207 Stroup y. Sulllyan, 2 Ga. 275, 46 Am. Dec. 389.
(6U)
Ch. 15) RBLIBP IN EQUITY AGAINST JUDGMENTS AT LAW. § 388
ment.**' But a distinction must be taken between such neglect as
is attributable solely to the party himself and such as is brought
^bout by the improper or deceitful conduct of the other side. The
former is not excusable, the latter sometimes is.^**
It is not only in making his defense at law that a party is re-
quired to exercise diligence. Though he may have a good excuse
for failing to set up such defense at the proper time, still equity will
refuse to give him an injunction against the judgment if he negligent-
ly omitted, having full knowledge of the facts, to apply in due season
for such remedies as were open to him by appeal, motion for a new
trial, or motion to vacate the judgment.*^® And aside from this,
chancery will be slow to extend assistance to one who has been so
dilatory or slothful in seeking its aid as to be chargeable with
laches.*^*
§ 388. Defense not available at Iiat^.
Thus far we have been speaking only of defenses purely legal in
their character and which could have been interposed in the action
at law. But where the case varies from this type, entirely different
rules apply. If the matter relied on by the complainant could not
have been received as a defense in the trial at law, because it fell
within the exclusive jurisdiction of chancery, or by reason of the
forms of legal procedure, equity will relieve notwithstanding there
may have been an ineffectual attempt to defend at law.^^^ And
«•« Stanard v. Rogers. 4 Hen. & M. (Va.) 438; Hill v. Bowyer, 18 Grat (Va.)
^iM; Sanders y. Fisher. 11 Ala. 812.
s«« Rowland y. Jones. 2 Helsk. (Tenn.) 821.
*T0 Heller v. Dyervllle Manuf g Co., 116 Cal. 127, 47 Pac. 1016; Perkins v.
St Louis. K. 0. & 0. R. Co., 143 Mo. 513, 45 S. W. 2B0; Graham v. Citizens'
Nat. Bank, 45 W. Va. 701, 32 S. E. 245.
2T1 Rio Grande Irrigation & Colonization Co. v. Gildersleeve, 174 U. S. 603,
19 Sup. Ct 761, 43 L. Ed. 1103; Furnald v. Glenn. 12 C. C. A. 27, 64 Fed. 49;
Cheney v. Hovey. 56 Kan. 637. 44 Pac. 605. See Raisin Fertilizer Co. v. Mc-
Kenna, 114 Ala. 274,* 21 South. 816.
872 Crim V. Handley, 94 U. S. 652, 24 L. Ed. 216; Hendrickson v. Hinckley,
17 How. 443. 15 L. Ed. 123; Ferriday v. Selcer. Freem. Ch. (Miss.) 258; CaHo-
way V. McElroy, 3 Ala. 406; Clifton v. Livor, 24 Ga. 91; King v. Baldwin, 17
Johns. 384. 8 Am. Dec. 415; Vennum v. Davis, 35 111. 5G8; Dunham v. Downer.
31 Vt. 249; Kersey v. Rash, 3 Del. Ch. 321; Newton r. Field. 16 Ark. 216;
Stevens v. Hertzler, 114 Ala. 563, 22 South. 121; Yanscoy v. Stinchcomb, 29
(615)
§ 389 tAW OP JUDGMENTS. (Ch. 15
where the defendant has both a legal defense and an equitable de-
fense, the latter not cognizable at law, a failure to use diligence in
making his legal defense will not, it seems, prevent a court of equit>^
from granting an injunction upon proof of the equitable defense, in
case a judgment is rendered against him.'" The most difficult ques-
tion under this head arises in connection with the codes of practice,
enacted in several of the states, which confer large equitable powers
upon the courts of law. One decision holds that such a statute mere-
ly permits, but does not require, an equitable defense to be made to
an action on a legal demand; and therefore, if the defendant fails
to avail himself of this privilege, and permits a judgment to go against
him, he may still bring an equitable action to obtain relief against
the judgment.^'* Notwithstanding the plausibility of this reasoning,
it is opposed by the weight of the authorities, which rule that the
fact that a defense is equitable is no excuse for not setting it up at
law, if available under the code.*^*
§ 389. Defense aTailable either at Iaw or Eqvltr*
There is a third possibility in regard to the character of the defense
to the action; it may be one that is equally available either at law
or in equity. In this event, where the defense is a matter of which
courts of law and equity have concurrent jurisdiction, it is generally
held that the party may choose the forunj in which to make his de-
fense, and if he omits to do so at law, he may then have recourse to
equity for relief against the judgment. '^' Thus, in some of the
states, equity will relieve against a judgment at law, by default, for
W. Va. 263, 11 S. E. 927; Gillett v. SuUlvan, 127 Ind. 327. 28 X. E. 827;
Hawkins v. HardiDg, 37 111. App. 564. Compare Gentle ▼. Atlas Savings &
Loan Ass'n, 105 Ga. 406, 31 S. £. 544.
«T3 Cornelius v. Thomas, 1 Tenn. Ch. 283; Winchester ▼. Gleares, 3 Hajw.
(Tenn.) 213.
«74 Dorsey v. Reese, 14 B. Mon. (Ky.) 157.
27 6 Kelly V. Hurt, 74 Mo. 561; Winfleld v. Bacon, 24 Barb. (N. T.) 154;
Savage v. Allen, 54 N. Y. 458.
27 6 Harlan v. Wingate's Adm'r, 2 J. J. Marsh. (Ky.) 138; Dwsey t. Rec«e.
14 B. Mon. (Ky.) 157; Morrison's Ex'r v. Hart, 2 Bibb (Ky.) 4, 4 Am. Dec.
663; Hempstead y. Watklns, 6 Ark. 317, 42 Am. Dec. 696; Bently r. DlUard,
6 Ark. 79; Rathbone v. Warren, 10 Johns. 587. But compare Vaugtm t* John-
son, 9 N. J. Eq. 173; Galbraith y. Martin, 5 Humph. (Tenn.) 50.
(616)
Ch. 15) RELIEF IN EQUITY AGAINST JtTDGMENTS AT LAW. § 390
money won at gaming, because here the jurisdiction of law and
equity is concurrent, and the party may have his election where he
will set up his defense ; and if he so chooses he may let judgment go
by default at law, and then resort to equity; although it would of
course be otherwise if he had presented his defense at law and fail-
ed.''^ For if, in any case where the jurisdiction of law and equity
is concurrent, the party makes his defense in the trial at law, he will
be regarded as having made his election ; and if he fails he will have
no ground for a bill in equity for relief against the judgment, unless
his defeat occurred through fraud or accident.*'* And this election
is manifested, it is said, "by offering any defense whatever, it matters
not whether by demurrer to the declaration, or by plea in abatement
or in bar." ^'^ But it is also held that if there is a doubt whether a
defense is available at law, and there is an undoubted jurisdiction in
equity, and at law the defendant omits to make his defense, or if he
makes it and it is overruled on the ground that it cannot be consid-
ered at law, a court of equity may afford relief, notwithstanding a
trial at law.*"
§ 390. SatUfaotion or Release of Jndgmeiit.
Payment, release, or discharge of the claim on which a suit is
founded must generally be set up as a defense before judgment. It
forms no exception to the rule that matters cannot be heard on a bill
in equity which might have been pleaded in the action at law, un-
less the party was prevented from bringing them before the court
by fraud or accident, without his own fault or negligence.*®^ But
payment made after the institution of suit, where it cannot be brought
277 Clay V. Fry, 3 Bibb (Ky.) 248, 6 Am. Dec. 654; Lucas v. Nichols, 66 111.
41; Gough V. Pratt, 9 Md. 526; Collins v. Lee, 2 Mo. 16. See supra, § 379.
27 8 Haughey v. Strang, 2 Port. (Ala.) 177, 27 Am. Dec. 648; DutU v. Pacheco,
21 Cal. 438, 82 Am. Dec. 749; Burton v. Hynson, 14 Ark. 32; Dickson v. Rich-
ardson, 16 Ark. 114; Morrison's Ex'r v. Hart, 2 Bibb (Ky.) 4, 4 Am. Dec. 663;
Dunham v. Downer, 31 Vt 249; Farmers' Fire Ins. Co. v. Johnston, 113 Mich.
426, 71 N. W. 1074.
27» Le Guen v. Gouvemeur, 1 Johns. Cas. 505, 1 Am. Dec. 12L
280 King V. Baldwin, 17 Johns. 884, 8 Am. Dec. 415.
281 Foster v. Wood, 6 Johns. Ch. (N. Y.) 90; Duncan v. Lyon, 3 Johns. Oh.
<X. Y.) 356, 8 Am. Dec. 513.
(617)
§ 891 LAW OF JUDGMENTS. (Ch. 15
to the notice of the court before judgment, under the local practice^
is good ground for enjoining the judgment.*** Whether a bill in
equity for an injunction is the proper remedy to prevent a judgment*
plaintiff from proceeding to collect anew a judgment which has been
in fact satisfied, has been disputed. Some of the cases hold that such
an application is meritorious and should be allowed.*** But others^
and we think with better reason, consider that equity ought not to
interfere in such a case, inasmuch as the party has a prompt and
adequate remedy at law.*** But it is held that a court of equity will
relieve against the suing out or levy of any process of execution upon
a judgment enjoined which has been discharged by proceedings in
bankruptcy.***
§ 391. lajunetion as a Kmuis of MovrUiK 8et-<W.
As equity may order one judgment to be set off against another,
so also it has power to restrain the execution of a judgment when it
is made to appear that the judgment-defendant has a debt against the
plaintiff exceeding the judgment in amount and that the latter is
insolvent.*** But a bill for this purpose cannot be sustained on the
iliere ground that the defendant has claims against the plaintiff which
might be the subject of set-off, if there is no averment to show that
the former for any reason could not have availed himself of his right
of set-off in the action in which the judgment against him was recov-
282 Humphreys v. Leggett, 9 How. 297, 13 L. Ed. 145; Florat v. Handj, 35
La. Ann. 816.
2S8 Bo wen v. Clark, 46 Ind. 405; Shaw ▼. Dwight, 16 Barb. 536; MaUorj t.
Norton, 21 Barb. 424; Texas Land & Mortg. Co. v. Worsham, 5 Tex. Civ.
App. 245, 23 S. W, 938; Smith v. Taylor, 78 Mo. App. 630; Kallander v. Neid-
hold, 98 Mich. 517, 57 N. W. 571; Johnson v. Huber, 106 Wis. 282, 82 X. W.
137; Phillips v. Kuhn, 35 Neb. 187. 52 N. W. 881; Marks v. WUlls, 36 Or.
1, 58 Pac. 526, 78 Am. St. Rep. 752; Thompson v. LanghUn, 91 Cal. 313, 27
Pac. 752.
284 McRae v. Davis, 58 N. C. 140; Perrine v. Carlisle, 19 Ala. 686; Lansing
V. Eddy, 1 Johns. Ch. (X. Y.) 49; Robinson v. McDowell, 125 N. C. 337, 34
S. E. 550; Rollins v. Xational Casket Cto., 40 W. Va. 590, 21 S. E. 722.
286 Peatross v. McLaughlin, 6 Grat. (Va.) 64.
286 McCleUan v. Klnnaird, 6 Grat. (Va.) 352. And see also Hinrichsen v.
Reinback, 27 111. 295; Sunmer v. Whitley, 1 Mo. 708; Capehart v. Etheridge,
63 X. C. 353; Jarrett v Goodnow, 39 W. Va. 602, 20 S. E. 575, 32 L. R. A.
321; Dunham Lumber Co. v. Holt, 124 Ala. 181, 27 South. 65a
(618)
Ch. IS) REUEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 392
ered.**^ Nor will proceedings on a judgment at law be enjoined in
equity in order to give the defendant an opportunity to set off or
recoup a counterclaim, where such claim is unliquidated and arose
out of an entirely distinct transaction.^*' An injunction granted to
restrain the collection of a judgment on the ground that the debtor
therein is entitled to a credit for a sum less than the whole amount
of the judgment, should provide that the judgment-creditor may pro-
ceed by execution to collect the undisputed balance of the judg-
ment,***
S 392. Personal DliabiUty of Partiei.
Courts of equity are sometimes called upon to restrain the enforce-
ment of a judgment on the ground that it was taken against a person
who, at the time, was incapacitated for legal action by some personal
disability, such as infancy, coverture, or lunacy. The degree of val-
idity to be attributed to such judgments is chiefly disputed, as we
have already seen, in cases where a judgment by default has been
rendered upon a cause of action to which the infancy or coverture,
if pleaded, would have been a complete defense.^*" If, on the one
hand, such disability of the defendant is not regarded as a jurisdic-
tional defect, a judgment of this character will at most be voidable
and not void. This is the position taken by many of the courts, as
will appear from the sections just cited. But in such case, the rem-
edy is obviously by motion or other appropriate proceeding in the
court rendering the judgment. And any application to equity for
relief would be met by the familiar rule that an injunction cannot be
granted on account of matters which might and should have been
pleaded in defense to the action at law.**^ But if, on the other hand^
as many decisions hold, such a status as coverture amounts to a ne-
28 T Wolcott V. Jones, 4 Allen (Mass.) 367; Garvin v. Squires, 9 Ark. 533^
50 Am. Dec. 224; Twigg v. Hopkins, 85 Md. 301, 37 Ati. 24; Zinn v. Dawson,
47 W. Va. 45, 34 S. E. 784. 81 Am. St. Rep. 772.
288 Jackson v. Bell, 31 N. J. Eq. 554.
289 Levy v. Stelnbach, 43 Md. 212.
2»o See, as to married women, §§ 188-101; as to Infants, §§ 193-197; and
as to lunatics, § 205.
2»i See Wyman v. Hardwlck, 52 Mo. App. 621; Evans v. Caiman, 92 Mich.
427, 52 N. W. 787, 31 Am. St. Rep. 606; Levysteln v. O'Brien, 106 Ala. 352,
17 South. 550, 30 L. R. A. 707, 54 Am. St. Rep. 50.
(619)
§ 393 LAW OP JUDGMENTS. (Ch. 15
gation of that juristic personality which is essential to the formation
of any and all legal relations, then it is equally evident that the courts
of law can acquire no jurisdiction over a defendant so circumstanced,
and that a judgment such as that supposed would be simply null.
That equity would have power to restrain its collection seems clear
beyond doubt. And it will become still more clear if we reflect that,
since, on the premises, the defendant would have no power to em-
ploy an attorney or interpose a defense, the case is brought well
within the confines of the rule which has formed the connecting
thread of this whole chapter, viz. : that chancery will relieve against
an inequitable judgment on grounds which could not have been
pleaded at law.^®^ The reader will be further advised of the doc-
trines on this topic by referring to the discussion of the general sub-
ject in a previous chapter. It is held that service of process on a
privileged person (as a member of the legislative body) is not void,
and his remedy is by motion or plea, and not by injunction to re-
strain an execution on a judgment by default against him on such
service.^"*
•
Part III. Practice on ApM.tcation to Enjoin Judgment.
S 393. Nature and Beqvisites of BilL
A bill in equity for the vacation of a judgment, or to enjoin its
enforcement, should always show that the merits of the controversy
are with the complainant. If it fails to allege a good and meritori-
ous defense to the claim on which the judgment was rendered, so
that it would be inequitable and unjust to allow the enforcement of
the judgment as it stands, the bill states no cause of action and must
be dismissed.^** Nor is it enough to aver that complainant has stat-
2»2 Griffith V. Clarke. 18 Md. 457; Medart v. Fasnatch. 15 La. Ann. 021
«»8 Peters v. League, 13 Md. 58, 71 Am. Dec. 622.
2»* White V. Crow, 110 U. S. 183, 4 Sup. Ct. 71, 28 L. Ed. 113; Massachu-
setts Benefit Life Ass'n v. Lohmlller, 20 C. C. A. 274, 74 Fed. 23: Home IJfe
Ins. Co. V. Caulk, 86 Md. 385, 38 Atl. 901; Anderson v. Oldham, 82 Tex. 228.
18 S. W. 557; Rotan's Heirs v. Springer, 52 Ark. 80, 12 S. W. 156: Bontain
V. Blackburn, 27 111. 406; Combs v. Hamlin Wizard Oil Co., 58 111. App. 123;
Tompkins v. I^ang, 74 111. App. 500; Ableman v. Roth, 12 Wis. 81; Petalka
T. Fitle, 33 Neb. 756, 51 N. W. 131; Janes v. Howell, 87 Neb. 320, 55 N. W.
(620)
Ch. 15) RBLIBP IN EQUITY AGAJNST JUDGMENTS AT LAW. § 393
ed the facts to his attorney and is advised by him that he has a good
defense; he must allege explicitly that he has .such a defense, and
set out the facts constituting it.^®** Even a void judgment will not
be set aside in equity where no meritorious defense to the action is
shown, if the invalidity is not apparent on its face.'^®* So, on a bill
in equity to vacate a judgment and obtain a new trial, the relief will
be denied where it appears that the evidence on a new trial would be
4
in direct conflict, and might properly result in a second judgment
identical with the first.^*^^
Again, the bill must show, by sufficient averments, that there is
some adequate ground for equity to interfere with the judgment at
law, such as fraud, accident, or mistake, want of jurisdiction, excus-
able failure of the complainant to present his defense at law, or the
like, and it must set forth the facts constituting the fraud or other
ground on which he means to rely.**® Thus, where it is alleged
that the adverse party practised fraud in obtaining the judgment, the
facts showing such fraud must be stated in a plain and concise man-
ner, as in other cases, mere knowledge of certain facts not being
sufficient; the fraudulent acts and proceedings of such party, de-
signed and practised for the purpose of securing an unfair and un-
just judgment, must be clearly shown.*** But a petition to set aside
965, 40 Am. St. Rep. 4»4; Eldred v. White. 102 Cal. 600, 36 Pac. »44. A Joint
complaint to review a Judgment for newly-discovered matter must state a
cause of action as to all the complainants. Wame v. Irwin, 153 Ind. 20, 53
N. E. 926. The rule above stated does not apply where the plaintiff himself is
seeking affirmatively to enforce the Judgment. Campbell Trinting Press &
Manuf'g Co. v. Marder, Luse & Co., 50 Neb. 283, 69 N. W. 774, 61 Am. St.
Rep. 573.
206 Eldred v. White, 102 Cal. 600, 36 Pac. 944.
2»e Pilger v. Torrence, 42 Neb. 903, 61 N. W. 99.
28 7 Roots V. Cohen (Miss.) 12 South. 593.
2»8Wlllems V. Willems, 72 111. App. 200; Young v. Sigler (C. C.) 48 Fed.
182; Handley v. Jackson, 31 Or. 552, 50 Pac. 915, 65 Am. St. Rep. 839; Camp
V. Ward, 69 Vt. 286, 37 Atl. 747, 60 Am. St. Rep. 929; McDonald v. Pearson,
114 Ala. 630, 21 South. 534. A bill to enjoin the enforcement of a Judg-
ment rendered by a court of competent Jurisdiction must state facts sufficient
to overcome the presumption that the Judgment is valid. Davis v. Clements,
148 Ind. 605, 47 N. E. 1056, 62 Am. St. Rep. 539.
«•» Ohio &c W. Mortgage & Trust Co. v. Carter, 9 Kan. App. 621, 68 Pac.
1040. A bfil attacking a Judgment as fraudulent by reason of the Judge's
having been counsel before the trial should state on whose behalf he so acted.
(621)
§ 393 LAW OF JUpOMENTS. (S^^- 1^
a judgment obtained by fraud, which sets out the facts showing the
fraud, is sufficient though it lacks a specific allegation of fraud,'**
Where the ground of attack on the judgment is want of jurisdiction,
a petition alleging that there was no service of process on the judg-
ment-defendant, that he did not employ counsel or authorize any one
to retain counsel to represent him in the suit, and that he knew
nothing about the suit or the judgment rendered therein, is g^ood on
demurrer.'®^
In the next place, the complainant in such a suit must exonerate
himself; that is, he must introduce proper averments to show that
the judgment against him was not attributable to his own negli-
gence or lack of attention to the progress of the case, and that he
has been diligent in seeking to make his defense, and he must set
forth the facts which he relies on as showing such diligence.*** For
instance, a statenrent that complainant used all the diligence in his
power to procure the evidence necessary to defeat the suit at law is
not sufficient; the facts in regard to the diligence used must be set
out, so that the court can determine whether proper diligence has
been exercised. •®*
Further, the complainant must allege that he has no adequate rem-
edy at law against the judgment, or (if the case be so) that he has
unavailingly exhausted his legal remedies; or, if he failed to seek
redress at law, he must show the reason for such failure and clear
himself of the charge of negligence or carelessness.***
Finally, a bill seeking to enjoin the collection of a judgment and
and that the complainant objected to hlB sitting, or failed to object by reason
of ignorance of tbe Judge's disqualification. Griffith v. Griffith (Teiu.) 46 S.
W. 340.
BOO Oliver v. Riley, 92 Iowa. 23, 60 N. W. 180.
801 Graham v. East Texas Land & Imp. Co. (Tex.) 50 S. W. 579.
802 Ratliff V. Stretch, 130 Ind. 282. 30 X. K. 30; Combs v. Hamlin Wizard
Oil Co., 58 111. App. 123; Gulf, C. & S. F. Ry. Co. v. Henderson. 33 Tex.
70, 18 S. W. 432; Griffith v. Griffith (Tenn.) 46 S. W. 340; East Texas I^nd
& Improvement Co. v. Graham, 24 Tex. Civ. App. 521, GO S. \V. 472; Warne
V. Irwin, 153 Ind. 20. 53 N. K 926.
808 Brady v. Horvath. 79 III. App. 17.
804 Eldred v. White, 102 Cal. 600, 36 Pac. 944; Lininger v. Glenn, 33 Neb.
187. 4t> X. W. 1128; Xational Fertilizer Co. v. Hinson, 103 Ala. 532, 15 South.
844; IIo< kaday v. Jones, 8 Old. 156, 56 Pac. 1054.
(622)
Ch, 15) RELIEF IN EQUITY AGAINST JUDGMENTS AT LAW. § 393b
execution, which does not so identify them as to make it appear
what judgment and execution are meant, and which does not limit
the prayer to any particular judgment and execution, is demurra-
ble.'*** A bill to vacate a decree for fraud may be filed without leave
of court first obtained, unless that is made necessary by local statute
or rule of court.***
§ 393a. Bridence.
In a proceeding in equity to enjoin the enforcement of a judgment
at law, the presumption is in favor of the regularity and the just-
ness of the judgment attacked, and the burden is upon the complain-
ant to show that he is equitably entitled to be relieved from the ob-
ligation of the judgment.**^ While there is no rule as to the pre-
cise measure of proof which will justify a court of equity in opening
or enjoining a judgment, it is stated that the weight of the evidence
should be clearly with the party seeking relief against the judg-
ment.*** Or, as stated with reference to a judgment alleged to have
been procured through fraud, the evidence of the fraud must be clear
and convincing.*** Where the answer is a general denial, evidence
of matters occurring after the rendition of the judgment is not ad-
missible.***
§ 393b. Joinder of Parties.
In a bill in equity to enjoin or set aside a judgment or decree, it is
generally necessary to join as parties defendant all persons whose
rights would or might be aflfected by the grant of the relief asked.*^^
But where one of several joint judgment-debtors sues to restrain
the enforcement of the judgment as against himself alone, he need
not join the others as parties plaintiff.*** Where the action is
805 Adams v. White, 23 Fla. 352, 2 South. 774.
»oe McDonald v. Pearson, 114 Ala. 630, 21 South. 534.
»oT Tompkins v. Lang, 74 III. App. 50<); Mutual Xat. Bank v. Moore. 104
La. 150, 29 South. 103; Adams School Tp. v. Irwin, 150 Ind. 12, 49 N. E. 806.
808 Fisher v. Holbrook, 7 Pa. Super. Ct. 647.
»o» Mulcahey v. Dow, 131 Cal. 73, 63 Pac. 158; Evans v. International Trust
Co. (Tenn.) 59 S. W. 373.
810 Burnett v. Milnes, 148 Ind. 230, 46 N. E. 464.
ail Harrison v. Wallton's Ex'r, 95 Va. 721, 30 S. E. 372, 41 L. R. A. 703,
64 Am. St. Rep. 830.
3u Meniman v. Walton, 105 Oal. 408, 38 Pac 1108, 30 L. R. A. 786, 45
Am. St Rep; 50.
(623)
{
§394 LAW OF JUDGMENTS. (Ch. !>
brought against the sheriff or other officer holding process under
the judgment, to restrain him from proceeding for its collection, it
is said that the person in whose favor the judgment was rendered
should be made a defendant." *• But on the other hand, in Texas, if
the suit is against the judgment-creditor, neither the justice of the
peace who rendered the judgment, nor the officer who is about to
levy execution under it, is a proper party, notice to them of the in-
junction being sufficient.'**
§ 394. CondlttoBS on Grunting Relief.
In accordance with the general rule and policy of equity, it is held
that he who seeks relief against a judgment must do equity; that is,
he must restore any advantage he may have gained, and he must
submit to all orders of the court necessary to adjust the rights of the
litigants in entire accordance with equity.'*' Thus, if the whole
amount involved is not disputed, the complainant must pay or offer
to pay what he admits to be due, or show some sufficient excuse for
his failure; otherwise his case cannot be sustained.'*' An order for
813 East Riverside Irr. District v. Holcomb, 126 Gal. 315, 68 Pac. 817. Co-
known heirs of a former grantee, made parties in proceedings leading to a
decree afTecting tlje title to real estate, are proper, but not necessary, parties
defendant in a later action to set aside such decree on the ground of fraad.
where such unknown heirs are not parties to the firaud attacked. Kannallr
V. Renner, 84 111. App. 51.
'i« Gulf, G. & S. F. Ry. Go. y. Blankenbecklor, 13 Tex. Giy. App. 248, 35
S. W. 331.
315 Creed v. Scruggs, 1 Heisk. (Tenn.) 590; Reeves v. Cooper, 12 X. J. Eq.
223; Baragree v. Cronkhite, 33 Ind. 192; Yonge y. Shepperd, 44 Ala. 315; Oyer-
ton y. Stevens, 8 Mo. 622; Flickinger y. HnU, 5 GiU (Md.) 60; Shelton y. GUU
11 Ohio, 417; Hill y. Harris, 42 Ga. 412.
816 Yonge y. Shepperd, 44 Ala. 315; Jordan y. Ghester (Tex.) 43 S. W.
901; Keifer v. Summers, 137 Ind. 106. 35 N. E. 1103; Tompkins y. Lang, 74
111. App. 500; Herwick y. Koken Barber Supply Oo., 61 Mo. App. 454; Brewer
y. Mock, 14 Colo. App. 454, 60 Pac. 578. Code N. Y. § 613, proyides that an
order staying proceedings on a money judgment shall not be granted unless
the full amount of the judgment is paid into court, or an undertaking giyen
in lieu thereof, as well as an undertaking to secure payment of damages; and
this applies to a motion for an injunction restraining the sheriff from paying
over the proceeds of a sale under a judgment. Ingalls y. Merchants' Nat.
Bnnk, 51 App. Div. 305, &4 N. Y. Supp. 911. In Alabama, where a bin to
restrain the enforcement of a Judgment admits that a certain amount of
(02-1)
Ch. 15) RBLIEP IN EQUITY AGAINST JUDGMENTS AT LAW. § 395
an injunction to a sale under execution does not become effectual
until any conditions required by the order (such as the execution of
a bond) have been complied with.*^^ Equity will of course be guid-
ed, in the matter of imposing conditions, by the peculiar circumstan-
ces of the individual case.
S 395. Effect of EnJoiainK Judsment.
An injunction to prevent a judgment-plaintiff from proceeding fur-. '
ther with his execution does not generally operate as a release of
errors.'** And so the injunction, if not perpetual, does not destroy
the Hen of the judgment, but merely suspends it until the dissolution
of the injunction.'*® Hence, "when the operative energy of an exe-
cution has been suspended by an injunction, a sale under a junior
execution does not affect the lien acquired by such elder execution,
but the property in the hands of any person remains liable to a levy
when the injunction is removed." •^'^ But where the collection of
an execution is enjoined, and the officer has other junior executions
in his hands, and proceeds to sell the property levied upon, he can-
not apply the proceeds to the execution enjoined, although before
the return of the process the injunction, by consent, is dissolved by
order of court. '^* A judgment suspended by injunction may be re-
vived on the death of either party, and the injunction operates on the
judgment on scire facias, prohibiting execution thereon."* Where
the execution of a judgment is restrained by injunction until the
lien is lost by limitation, the party proceeding by injunction, upon
its dissolution, cannot take advantage of such loss of the lien.'^'
Where a judgment upon a bill of exchange against an acceptor was
it is due, such amount should be paid into court. A simple offer to pay
is Insufflciei^t. J. A. Roebllng Sons Go. v. Stevens Electric Light Ck)., 93 Ala.
3^, 9 South. 369.
817 Pell V. Lander, 8 B. Mon. (Ky.) 554.
318 St. Louis, A. & T. H. R. Oo. v. Todd, 40 111. 89.
•!• Smith v. Bverly, 4 How. (Miss.) 178.
• 20 Lynn y. Gridley, Walk. (Miss.) 548, 12 Am. Dec. 591.
»2i Newlhi V. Murray, 63 X. C. 566.
»«a Richardson's Adm'r v. Prince George Justices, 11 Grat. (Va.) 190.
•as Work y. Harper, 31 Miss. 107, 66 Am. Dec 549.
1 LAW JUDG.-^ ' (625)
§ 396 LAW OP JUDGMENTS. C^"' ^^
enjoined, it was held not to enjoin suits against the other parties to
the bill."*
§ 306. BUsolvtion of InJunotioB.
Where the injunction of an entire judgment at law has in the
first instance been properly granted, and the answer shows that the
complainant is entitled to some relief, though not to the extent claim-
ed in the bill, the injunction may be dissolved in part, or continued
on such terms as will insure ultimate justice between the parties;
but to authorize such dissolution, or a requirement that the com-
plainant pay a portion of the judgment into court, as a condition to
the continuance, the answer should show expUcitly the amount which
the plaintiff at law is in equity entitled to receive. If this be not done,
and there is no danger of the debt being lost by continuing the in-
junction, it should be retained until the final hearing.'" On dis-
solving an injunction shown to be groundless, damages may be
given against the complainant according to the amount of the judg-
ment enjoined.***
824 Bohannon v. Combs, 12 B. Mon. (Ky.) 563.
826 Maulden v. Armistead, 18 Ala. 500.
»J»« Stewart v. Robinson, 24 La. Ann. 182. See Off ▼. Titie G., A. & T. Co.,
87 111. App, 472.
(626)
Ch. 16) THB LIEN OV JUDQMENTS. § 397
THE LIEN OF JUDQMENTS.
Part I. Ouioin and Nature of Judohekt-Libnb.
S 397. Early History of Judgment-Liens.
398. Judgment-Lien is Statutory.
399. Legislative Control of Judgment-Liens.
400. Lien gives no Property In Debtor's Land.
401. Lien is General.
402. Courts cannot control the Lien.
403. Parties cannot change Nature of Lien.
404. Docketing the Judgment.
405. Indexing the Judgment
406. Certainty required in Docket and Index as to Names of Parties.
406a. Same; As to Amount.
Part IL What Judgments create Liens.
407. What is Necessary to Judgment-Liens.
408. Interlocutory Judgments.
409. Judgments against Personal Representatives.
410. Nunc Pro Tunc Judgments.
411. Decrees in Chancery.
412. Judgments of Inferior Courts.
413. Judgments of Federal Courts.
414. Statutory Basis of such Liens.
415. Territorial Extent of such Liens.
416. Decrees in Admiralty.
Part HI. To "what Propektt the Lten attaches.
417. Territorial Restriction of Lien.
418. Transfer of Judgment to Another County.
419. Lien binds Real Estate.
420. Actual Interest of Debtor bound.
421. Title held in Trust.
422. Inchoate Title.
423. Land Fraudulently Conveyed.
424. Exempt Property.
425. Homestead Property.
426. Life-Estates. '
427. Estates by Curlesy.
428. Reversions and Remainders.
429. Leasehold Interests.
(627)
§ 897 LAW OF JUDOMBNT& {fih. 16
Pabt IIL To what Propertt ths Lisk attaches— Coniinaed*
430. Land held by Joint Owners.
431. Partnership Property.
432. After-Acquired Property.
433. Equitable Estates and Interests.
434. Equity of Redemption.
435. Judgment against Trustee.
436. Land held under a Pow^er.
437. Judgment against Cestui Que Trust.
438. Interest of Vendor under Executory Ck)n tract.
439. Interest of Vendee under Executory Contract
439a. Sale of Land After Entry of Judgment
440. Estates successively conveyed.
Part IV. Date of the Lien.
441. Common Law Rule.
442. Exceptions to the Rules.
443. Present Statutory Rules.
444. Cases in which Lien relates back.
Part V. PRionrrr akd Precedence of JuDOMENT-LiKHiL
445. Lien is subject to Prior Rights and Equities.
446. As against Prior Unrecorded Conveyance.
447. Precedence of Purchase-Money Mortgage.
448. Priority of Government Claims.
449. Priority by Date of Entry.
450. Two Judgments entered the Same Day.
451. Judgment and Conveyance entered the Same Day.
452. Judgment given to secure Future Advances.
453. Prior Undocketed Judgment
454. As against Subsequent Dower Right
455. Priority by Superior Diligence.
456. Priority by Prior Levy.
457. Postponement by Stay of Execution.
458. Postponement by Failure to Revive,
459. Sale under Junior Judgment.
460. Order of Priority on After- Acquired I^nds.
Part VI. Duration of the Lien*
461. General Rules.
462. Dormant Judgment Acts.
463. Legislative Abridgment of the Time.
464. Lien of Transf v rred Judgment
465. Extension of Lien by Agreement of Partlea.
((528)
Ch, 16) THB LIBN OF JUDQMBNTS. § 3U7
Part VI. Duration op the Lien— Continued.
466. Survival against Judgment-Debtor.
467. Death of Judgment-Debtor.
468. Remedies of Creditor after Expiration of Lien.
Part VII. Suspension and Dibcharqb of Judgmekt-Liens.
469. General Principles.
470. Suspension of Lien by Injunction.
471. Stay of Procaedlngs.
472. Opening or Vacating Judgment.
473. Appeal or Error.
474. Bankruptcy.
475. Appointment of Receiver.
476. Taking Defendant on Capias.
477. Payment.
478. Cancellation or Entry of Satisfaction.
479. Sale of the Land.
480. Acquisition of Title by Judgment-Creditor.
481. Release of Lien.
Part I. Origin and Nature of Judgment-Liens,
§ 397. Early Hiitory of JudKinent-Iiieiii.
At common law, except for debts due the king, the lands of a
debtor were not liable to the satisfaction of a judgment against him,
and consequently no lien thereon was acquired by a judgment. "This
was in accordance with the policy of the feudal law, introduced into
England after the Conquest, which did not permit the feudatory to
charge, or to be deprived of, his lands for his debts, lest thereby he
should be disabled from performing his stipulated military service,
and which, moreover, forbid the alienation of a feud without the
lord's consent. The goods and chattels of the debtor, therefore,
and the annual profits of his lands, as they arose, were the only
funds allotted for the payment of his debts. This continued to be
the law until the passage of the statute of Westminster 2d, 13 Ed-
ward I, c. 18, by which, in the interest of trade and commerce, the
writ of elegit was for the first time provided for. By that statute
the judgment-creditor was given his election to sue out a writ of fieri
facias against the goods and chattels of the defendant, or else a writ
(G29)
§ 398 LAW OF JUDOMBNT8. (Ch. M
commanding the sheriflf to deliver to him all the chattels of the de-
fendant (except oxen and beasts of the plough) and a moiety of his
lands until the debt should be levied by a reasonable price or extent.
When the creditor chose the latter alternative, his election was en-
tered on the roll, and hence the writ was denominated an elegit, and
the interest which the creditor acquired in the lands by virtue of the
judgment and writ was known as an estate by elegit." * It will be
at once apparent that the right thus conferred upon the creditor gave
rise to a true judgment lien, although it diflfered materially, both in
its extent and the manner of its enforcement, from the type with
which we are now familiar.
I 398. Jndcment-Ideii Is Stmtvtory.
If we inquire, therefore, in any case, for the ultimate basis of the
lien of a judgment on land, it must be supported by statutory author-
ity. In most, if not all, of the American states, the legislatures have
enacted in express and positive terms that judgments shall be liens
on land for a prescribed number of years. But in some, this direct
creation of a most eflfective remedy did not come until comparatively
late in their history. In the interval, it is true, real estate was con-
sidered bound by a judgment against its owner, but that was only in
virtue of the early English statute above referred to, which had been
adopted by the state or not repudiated. Thus the statute of West-
minster 2d "was substantially adopted in Virginia at an early day,
and in consequence of this right to subject a moiety of the defend-
ant's lands, the courts held that a lien was acquired by the judgment,
which extended to all the defendant's lands within the state, and
which was superior to the claims of subsequent purchasers, though
for valuable consideration and without notice. The lien thus ac-
quired was a legal lien, and remained so long as the capacity to sue
out an elegit continued, whether the writ was sued out or not." *
1 Hutcheson v. Grubbs, SO Va. 2.54; Jones y. Jones, 1 Bland <Md.) 443. 18
Am. Dec. 327; 2 Co. Inst. 394; 3 Bl. Comm. 418; Bac. Abr. •♦Execution," D.
2 Hutcheson v. Grubbs, 80 Va. 254; Borst v. NaUe, 28 Grat (Va.) 423; Price
V. Thrash. 30 Grat. (Va.) 515; Leake v. Ferguson, 2 Grat. (Va.) 420; Taylor's
Adm*r v. Spindle, Id. 44. See, also, Coombs ▼. Jordan, 3 Bland (Md.) 284. 22
Am. Dec. 236.
((>30)
Ch. 16) THB LIEN 09* JUDOMBNTS. § 399
But, compared with the species of judgment Hen now commonly
known, it could only be regarded as a qualified or restricted lien.
For, from the nature of the writ which occasioned it and by which it
was to be enforced, it could not be foreclosed by a sale of the realty,
but only by taking it into possession and receiving the rents and
profits. In the absence, then, of express legislative enactment, judg-
ments do not attach as liens to real estate in the modern sense of the
term.* "Unless there is a statute in the particular state expressly
making a judgment a Ken on real estate, no such property will at-
tach to it ; and the only kind of lien belonging to it will be that aris-
ing in consequence of the right to take out an elegit." * An illus-
tration of this may be found in a decision of the supreme court of
Pennsylvania that, in divorce proceedings, an order for the payment
of the wife's expenses and support pendente lite is not a judgment
such as to create a lien on the husband's lands ; the ruling being based
on the ground that there is no statutory authority for so regarding
it»
I 399. Iiesiilatlve Gontrol of JudKinent-Ideiii.
Since liens arising from judgments are exclusively the creatures
of statute, we should naturally expect to find them largely under the
control of the legislature, except in so far as the necessity of pre-
serving vested rights and contractual obligations should forbid such
interference. And so the decisions have always held. Thus a law
requiring a judgment to be docketed in each county where it is sought
to bind real estate of the defendant, although previously it was a
lien throughout the state without this, is constitutional and valid.*
So a statute changing the mode of acquiring a lien under an existing
judgment upon the property of the debtor (for example, by substitut-
ing the lien of a docketed judgment for that formerly created by a
• Walker v. Elledge, 65 Ala. 51; Carlisle v. Godwin, 68 Ala. 137; Mitchell
V. Wood. 47 Miss. 231; Converse v. Michigan Dairy Co. (C. C.) 45 Fed. 18;
Thompson v. Avery, 11 Utah, 214, 30 Pac. 829. ,
/ United States v. Morrison, 4 Pet. 124, 7 L. Ed. 804.
» Groves' Appeal, 68 Pa. 143.
• Tarpley v. Hamer, 9 Smedes & M. (Miss.) 310; Spencer v. Rippe, 7 Okl.
G08, 56 Pac. 1070. Compare Rock Island Nat. Bank v. Thompson, 74 111. App.
(631)
§ 399 LAW OP JUDGMENTS. (Ch. 16
fieri facias) is not objectionable on constitutional grounds.^ So
again, it has been held that a statute which provides that "no judg-
ment heretofore rendered or which may hereafter be rendered, on
which execution shall not have been taken out and levied before the
expiration of one year next after the rendition of such judgment,
shall operate as a lien upon the estate of any judgment-debtor to the
prejudice of any bona fide judgment-creditor," affects the remedy
merely, and, in its operation upon judgments rendered before its
passage, it is not to be considered ex post facto, nor does it impair
the obligation of contracts.® But the latest decisions regard the
statute giving the right to a judgment lien as a part of the contract
on which the judgment is based; and hence it is now held that a
law which absolutely destroys the lien of a judgment, or provides
that it shall cease and determine at the end of a limited period after
the date of the judgment, is unconstitutional and void, so far as it
relates to judgments rendered prior to its passage, as impairing the
obligation of contracts and invading vested rights.* But however
it may be in regard to judgments entered before the passage of the
act, it is certain that a statute denying to final judgments thereafter
rendered the incident of a lien on real property does not impair the
obligation of contracts made before its enactment.** And converse-
ly, it is entirely competent for the legislature to invest existing judg-
ments, as well as future judgments, with the incidents of a lien, by
retrospective laws.**
T Whitehead v. Latham, 83 N. C. 232.
8 McCormlck v. Alexander, 2 Ohio, 65; Bank of Fnlted States ▼. liongworth,
1 McLean, 35, Fed. Cas. No. 923; Bay v. Thompson, 43 Ala. 434, 94 Am. Dec.
696.
9 Merchants* Bank of Danville v. Ballon, 98 Va. 112. 32 S. E. 481, 44 L. R.
A. 306, 81 Am. St. R^p. 715; Palmer v. Laberee, 23 Wash. 400, 63 Pac. 216:
Raught V. Lewis, 24 Wash. 47, 63 Pac. 1104.
10 Moore v. Holland, 16 S. C. 15. A statute is valid which provides that a
judgment recovered for money won by defendant from another at gaming
shall be a lien on the property where the gambling took place, provided it
was with the knowledge^of the owner; for the reason of the statute has refers
ence to the discouragement of gambling, rather than to the natural justice of
the case as between parties. Trout v. Marvin, 62 Ohio St 132, 56 N. E. es^
11 Moore v. Letehford, 30 Tex. 185, 14 Am. Hep. 3C3.
(632)
Cb. 16) THB LIEN OF JUDOMBNTS. § 400
I 400. Lien gives no Property in Debtor's Land.
"If anything is settled by reason and authority, it is that a judg-
ment-creditor is not entitled to the protection of a purchaser of the
legal title against an equitable owner or his creditors, or to any
advantage which his debtor had not." ** A judgment-lien, binding
the present and future real property of the debtor, is a creation of
statute laws and has no other existence ; a general lien by judgment
does not constitute per se a property in the land itself, but only gives
a right to levy on the same to the exclusion of adverse interests sub-
sequent to the judgment.*' Hence a judgment creditor has neither
jus jn re nor jus ad rem in the debtor's land, but only the right to
make his lien effectual by a sale under execution.** So if A. makes
a verbal contract with B. to sell him a tract of land and puts him in
possession, judgment-creditors of B. do not thereby, by virtue of the
lien of their judgments or the levy of execution, acquire such an
interest in the land as to entitle them to be subrogated to the rights
of B., and to compel A. to make a conveyance to them upon paying
him the purchase-price which B. was to pay.** But on the other
hand, a judgment-creditor has the right to proceed by ancillary pro-
ceedings, in any other court of concurrent jurisdiction with the court
rendering the judgment, to remove clouds from titles to any prop-
erty which he deems to be subject to the lien of his judgment.** A
judgment for a sum of money, which may be satisfied by a sale of
real estate if not otherwise satisfied, is not lis pendens in regard to
the title to the real estate of the defendant in the judgment ; either
i« Reed's Appeal. 13 Pa. 47fi.
13 Finch V. Wlnchelsea. 1 P. Wms. 277; Brace v. Duchess of Marlborough,
2 P. Wms. 491; Conard v. Atlantic Ins. Co., 1 Pet. 443, 7 L. Ed. 189; Pierce
V. Brown, 7 Wall. 205, 19 L. Ed. 134; Cover v. Black, 1 Pa. 493; Reed's Ap-
peal, 13 Pa. 476; Sill v. Swackhammer, 103 Pa. 7; Kollock y. Jackson, 5 Ga.
153; Foute y. Fairman, 48 Miss. 536; Young v. Templeton, 4 La. Ann. 254,
50 Am. Dec. 563; Swarts v. Stees. 2 Kan. 236, 85 Am. Dec. 588; Ashton v.
Slater, 19 Minn. 347 (Gil. 300.)
14 Dall V. Freeman. 92 N. C. 351; Bruce v. Sugg, 109 N. 0. 202, 13 S. B. 790,
26 Am. St. Rep. 562.
*»* Logan v. Hale, 42 Cal. 615.
i« Scottish-American Mortg. Co. v. Follansbee (C. C.) 14 Fed. 125.
(G33)
§ 402 LAW OF JUDQMBNT8. (Ch. 16
it is a Hen or the real estate is not affected by it.*^ Since a judg-
ment-lien constitutes no property in the land itself, the judgment-
debtor has a right, previous, to levy, to cut timber and firewood,
which, if not removed, are his personal property and do not pass by
execution-sale.** An assignee in bankruptcy takes the property sub-
ject to all existing liens, and cannot avail himself of a claim that an
executibn was dormant at the time of the assignment, if the bankrupt
could not.**
I 401. Lien is General.
"A judgment is not a specific lien upon any specific real estate of
the judgment debtor, but a general lien upon all his real estate, sub-
ject to all prior liens, either legal or equitable, irrespective of any
knowledge of the judgment-creditor as to the existence of such
liens." *® In the case, however, where mortgaged premises have been
sold at a sheriff's sale under a judgment junior to the mortgage, and
where the time for redemption has not expired, the general lien of
the judgment is turned into a specific lien upon the premises, to the
extent of the amount of the bid at the sheriff's sale and of the inter-
est thereon.** It should also be noted, that the lien being but an
incident of the judgment, its loss does not necessarily impair the
validity of the judgment as a personal security. Thus a judgment
obtained against a decedent in his lifetime, the lien of which has
expired by failure to revive, is sufficient evidence of a claim in the
distribution of a fund which belongs to his estate.**
S 402. Gourti cannot control the Iden*
As a general rule, and except in special and peculiar cases, it does
not belong to the courts of law to prescribe the kind or extent of the
lien which shall result from the judgments they pronounce, or to con-
17 St. Joseph Maiiufg Co. v. Daggett, 84 111. 556.
18 Independent School Dist. v. Werner, 43 Iowa, 643.
i» Crane v. Penny (D. C.) 2 Fed. 187.
2oRodgers v. Bonner, 45 X. Y. 379;* Lanning v. Oarpenter. 48 X. Y. 408;
Dozier v. Lewis, 27 Miss. G79; Mansfield v. Gregory, 11 Neb. 297, 9 N. W. 87.
21 Snyder v. Stafford, 11 Paige (N. Y.) 71.
22 Esterlj^'s Appeal, 109 Pa. 222.
(034)
Ch. 16) THE LIEN* OP JUDGMENTS. § 404
trol It in any way, as by restricting it to certain described property.**
The court has usually nothing to do with the manner in which its
judgment shall be enforced or the fund from which it shall be satis-
fied; it merely pronounces the sentence of the law upon the facts
before it, to which, thereupon, the incident of a lien attaches by virtue
solely of positive law. It is of course to be understood that reference
is here made to judgments at law, as distinguished from decrees in
chancery. The powers of equity in this respect are sufficiently fa-
miliar.
I 403. Partlei oannot ohaase Nature of Iileii*
"The lien of a judgment upon the lands of the judgment-debtor is
entirely the creature of the statute, and is not dependent in any
manner upon the contract of the parties. It begins, continues, and
terminates at the will of the legislature." ** Hence parties cannot
by agreement convert* a judgment into a chattel mortgage or a bill
of sale, or give to it any greater effect than the law gives it ; and a
parol agreement that a judgment shall be a lien upon all the debtor's
personal property will not be enforced in equity, even as against
subsequent assignees who assent to the arrangement."*
i 404. DooketinK the JudKineiit.
It is a general statutory requisite that judgments shall be duly
entered upon the docket before they can become liens upon the
debtor's realty, at least as against subsequent purchasers in good
faith.** Unless this requirement is complied with, the judgment
will not attach as a lien upon the debtor's property.*^ And it is the
»» Castro V. lilies, 13 Tex. 229; Had win v. Fisk, 1 La. Ann. 43. Where a
judgment Is a legal lien upon real estate, such lien is enforceable by sale of
the property, and does not require tlie aid of a court of equity to enforce It.
Davis V. Harper, 14 App. D. C. 463.
24 Houston V. Houston, 67 Ind. 276.
25 running v. Carpenter, 48 N. Y. 408.
26 But it is held that a judgment, tnough undoeketed, is good against subse-
quent creditors with or without notice. Gordon v. Rlxey, 76 Va. 61>4. Under
the Texas statute which requires judgments to be recorded in order to create
liens, an unrecorded writ of error bond, given upon an unrecorded judgment,
creates no lien. Hart v. Russell, 32 Tex. 31.
2T Callanan ▼. Votruba. lOA Iowa, 672, 74 N. W. 13, 40 L. R. A. 375, 65 Am.
(G35)
§ 405 LAW OP JUDGMENTS. (Ch. 16
duty of the judgment creditor to see to it that his judgment is rightly
and properly entered; for if a mistake is made, it may prevent the
judgment from binding the land in the hands of a subsequent pur-
chaser, though it would remain binding as between the original par-
ties.** The statutory provisions in the diflferent states, as to the
time and manner of entering judgments upon the docket, and as to
the nature and contents of the docket entries, differ so widely that
it would not be profitable to discuss them in this place; but the
reader is referred to certain illustrative cases cited in. the margin.**
I 105. IndezinK the Judgment*
In many of the states there is a further statutory requirement,
designed for convenience and expedition in making searches, that
the judgment be duly indexed. This is usually done in a separate
book or series of books kept for that purpose, and under the judg-
ment-debtor's surname in its alphabetical order. The statute may
be so framed as to make the index an essential part of the record ;
and when this is the case,, a judgment is no lien upon the debtor's
property, until correctly indexed, as against a purchaser who has
searched the index with due care.'® And the judgment, though duly
filed and recorded, creates no lien if it is not indexed.'* Where the
St Rep. 538; Sklower v. Abbott 19 Mont 228, 47 Pac. 001; Act Ga. Dec. 20,
1800 (St 1890, No. 72, p. 17). Ck)mpare Johnson v. Schlosser, 146 IncL 509, 45
N. E. 702, 36 L. R. A. 59, 58 Am. St. Rep. 367.
28 Wood y. Reynolds, 7 Watts & S. (Pa.) 406. See Hesse v. Mann, 40 Wis.
500.
2» Spence v. Brown, 86 Tex. 430, 25 S. W. 413; GuUett Gin Co. v, Olirer,
78 Tex. 182, 14 S. W. 451; Gnnter v. Buckler (Tex. Civ. App.) 32 a W. 229;
Reynolds y. Collier, 103 Ala. 245, 15 Sontb. 608; Lamey y. Coffman, 11 Wash.
301, 39 Pac. 682.
soMetz y. State Bank, 7 Neb. 165; Sterling Manufg Co. t. Early. e»
Iowa, 94, 28 N. W. 458. But where a subsequent mortgagee of land belonging
to a judgment debtor has actual notice that a judgment against the latter
is defectively indexed, the mortgage is subject to such Judgment Butts t.
Cruttenden, 14 Pa. Super. Ct 449. A judgment rendered and entered against
two dofeudants jointly, but indexed as to only one of them, creates a lien on
such defendant's property. Blum v. Keyser, 8 Tex. Civ. App. 675, 28 S. W.
561; Whitacre v. Martin, 51 Minn. 421, 53 N. W. 806.
31 Nye V. Moody, 70 Tex. 434, 8 S. W. 606; Oppenheimer v, RobinscHi (Ter.
Civ. App.) 26 S. W. 320.
(636)
Ch 16) THE LIEN OF JUDGMENTS. § 40(>
original index of a judgment is not sufficient to create a lien, a new '
index, made on the transfer of the record of judgments to a new
book, will not, as an original index, render the judgment a lien as of
the date of the transfer.** And when two indices of abstracts of
judgments are kept by the clerk of the court, it is necessary that
each abstract should be entered in each index.** But when the index
entry is properly made, the lien is not affected by the failure of the
clerk to note on the face of the record that he has indexed it.**
And in Virginia, it has been decided that indexing the judgment is
no part of the record; and a judgment creditor who procures his
judgment to be properly docketed secures a valid lien, even though
it is not properly indexed, as against a purchaser who has been led
to buy by the omission in the index.*"
i 406. Certainty required in Dooket and Index ai to Names of Partiei»
The common occurrence of mistakes in the docketing and in-
dexing of judgments, such as mis-spelling of names and other ir-
regularities, has frequently led the courts to pass upon the degree
of certainty required in these entries. The purport of the decisions
appears to be that the sufficient degree of accuracy is attained if an
intending purchaser (for example), exercising a reasonable degree
of care and a reasonable amount of intelligence in making a search,
could not fail to be apprised of the existence and character of the
judgment. At the same time, "a subsequent purchaser is affected
with such notice as the index entries afford; and if they are of such
a character as would induce a cautious and prudent man to make an
examination, he must make such investigation., or the failure to do
so will be at his peril." *•
•» GlaBscock V. Stringer (Tex. Civ. App ) 32 S. W. 920.
»« Central Coal & Coke Co. v. Southeia Nat. Bank, 12 Tex. Civ. App. 334,
34 S. W. 383.
»♦ GuUett Gin Co. v. Oliver, 78 Tex. 182, 14 S. W. 451.
«» Old Dominion Granite Co. v. Clarke, 28 Grat. 617.
80 Metz v. State Bank, 7 Xeb. 165. A record of a Judgment against one
whose Christian name is indicated only by initial letters is elTectual to put upon
inquiry a subsequent purchaser of lands, the title to which appears of record
in a person of the same surname as such Judgment debtor, and whose Chris-
(637)
§ 406 LAW OP JUDGMENTS. (Ch. 16
Since the principal object of such an index is to afford information
concerning judgment debtors and the liens on their property, it is
generally held that subsequent purchasers and incumbrancers will be
charged with notice of a judgment which is correctly indexed under
the name of the defendant, although the plaintiff's name may be pla-
ced under a wrong letter, or not indexed at all.*' But the entry of
the judgment must be placed under the letter which begins the de-
fendant's surname, not under the initial of his first name." It is
not, however, necessary to specify the character in which the parties
sued or defended ; and the law is sufficiently complied with by placing
the defendant's name in its proper alphabetical position, followed
by the plaintiff's name, though neither party is designated as defend-
ant or plaintiff, and though neither the word "versus" or "against,"
nor any abbreviation thereof, is placed after either name.'*
A description of a person by the name by which he is commonly
known is sufficient for the purposes of a docket entry,*® That the
name is mis-spelled is not always a fatal error. If it is spelled pho-
netically,— ^that is, if the name as written on the index would be pro-
nounced in the same manner as the person's true name is commonly
and habitually pronounced, — it is sufficient to give notice, provided
that the variation in spelling is not so radical that no one would be
likely to think of the names as identical.*^ But there must be such
a degree of approximation as to be readily understood. For in-
stance, a judgment rendered against "Bankhead," and recorded and
tian name has the same initial. Pinney v. Russell & Co., 52 Minn. 443, 54
N. W. 484.
»7 Franke v. Lone Star Brewing Co., 17 Tex. Civ. App. 9, 42 S. W. 861;
Central Coal & Coke Co. v. Southern Xat. Bank, 12 Tex. Ov. App. 334, 34
S. W. 383. But in Alabama, under the statute, the record of a judgment
creates no lien on the defendant's property unless the name of the plaintiff or
the owner of the judgment is shown therein. Duncan v. Ashcraft. 121 Ala.
552, 25 South. 735; Appling v. StOTall, 123 Ala. 398. 26 South. 212; Ivy Coal
& Coke Co. V. Alabama Nat. Bank. 123 Ala. 477. 26 South. 213,
8 8 Willis V. Downes (Tex. Civ. App.) 46 S. \V. 920.
3» WilUs V. Smith, 66 Tex. 31, 17 S. W. 247; Von Stein v. Trexler, 5 Tex.
Civ. App. 299, 23 S. W. 1047.
*o In re Jones' Estate, 27 Pa. 336.
41 Myer v. Fegaly, 39 Pa. 429, 80 Am. Dec. 534.
(038)
C3l. 16) THB LIEN OF JUDQMBNT& § 406
indexed as against "Burkhead," confers no lien.** So it has been
held that "Helen" and "Ellen" cannot be regarded as the same name ;
and a judgment entered and indexed against "Ellen Desney" is not
constructive notice that it is a lien upon lands of "Helen Desney." *•
Again, the statute requiring record notice of judgment-liens intends
that the docket shall exhibit the names spelled in English. It is to
furnish a guide to the eye, not the ear. Hence "Joest" will not serve
for "Yoest." ** Although it is true, as a general rule, that the law
recognizes but one Christian name, and there are decisions to the
effect that the omission of the initial letter of the defendant's middle
name will not render the entry invalid or prevent the judgment from
becoming a lien as against subsequent purchasers,** yet most of
the authorities hold that the entry cannot be considered complete
or sufficient unless it designates, at least by an initial, each of the
names of the defendant preceding his surname, especially where the
statute requires his name to be set out "at length." *•
The term "Junior" is a convenient means of distinguishing be-
tween father and son who bear the same name, but, on common
law principles, it is no part of the younger man's name, and hence is
not required to be included in the docket-entry of a judgment against
him, although the "Senior" of the same name resides in the same
county.*^ A judgment against a firm, docketed without setting out
the Christian names of the individual partners, is held in Pennsylvania
and Texas to be of no effect as a lien, so far as regards subsequent
purchasers and incumbrancers in good faith.** But an opposite view
4» Anthony v. I'aylor, 68 Tex. 403, 4 S. W. 531.
*3 Thomas v. Desney, 57 Iowa, 58, 10 N. W. 315. So, a judgment docketed
and indexed a8 against *'May Alley" is not notice to a purcliaser from "Mary
A. AUely." Phillips v. McKalg, 36 Neb. 853, 55 N. W. 25S).
*♦ Heirs Appeal, 40 Pa. 453, 80 Am. Dec. 590.
*5 Clnte V. p:mmerich, 26 Hun, 10.
*• Crouse v. Murphy, 140 Pa. 335, 21 Atl. 358, 12 L. R. A. 58, 23 Am. St.
Rep. 232; Johnson v. Hess, 126 Ind. 298, 25 N. E. 445, 9 L. R. A. 471; Davis
v. Steeps, 87 Wis. 472, 58 N. W. 769, 23 L. R. A. 818, 41 Am. St. Rep. 51. See
Butts V. Cruttenden, 14 Pa. Super. Ct. 449.
*T BidweU v. Coleman, 11 Minn. 78 (Gil. 45).
*« York Bank's Appeal, 36 Pa. 458; Ridgway's Appeal, 15 Pa. 177, 53 Am.
Dec. 586; Smith's Appeal, 47 Pa. 128; Hamilton's Appeal, 103 Pa. 368; GuUett
Gin Co. ▼. OUver. 78 Tex. 182, 14 S. W. 451; Pierce v. Wimberly, 78 Tex.
(639)
§ 40(3a LAW OF JUDGMENTS. (Ch. 16
obtains in California.^* And it appears to be immaterial that a mis-
take was made in setting out the firm name of the defendants, if
their individual names are correctly given in the docket and index.**
If there are several defendants (not partners), but some of them are
merely formal or nominal parties, it is sufficient if the index contains
the names of those only against whom a personal judgment, or judg-
ment for money, is rendered.** But if all the defendants are equally
affected by the judgment, as real and substantial parties, no lien will
be created upon the lands of any one of them whose name is omitted
from the docket and index, as against subsequent purchasers or in-
cumbrancers, or as against creditors whose subsequent judgments
are duly entered and indexed.** It must finally be observed that a
judgment duly rendered against one whose name is mis-spelled or
otherwise incorrectly given in the proceedings, will be a lien on his
real estate, when docketed, against all but those who can claim that,
by reason of the error, the docket was no notice to them. A fraudu-
lent grantee cannot object to it.'*
I 406m. 8aa&e; As to Amovnt.
The record of a money judgment should always show the amount
for which it was rendered, and the rate of interest which it bears,
so as to convey definite and precise information to subsequent lien-
ors or purchasers. In some states, this is explicitly required by
statute; and a failure to comply with the law in this respect will
deprive the judgment of its character as a hen. Thus, if the amount
for which the judgment was rendered is incorrectly stated, or if it
187, 14 S. W. 454; Steffens'v. Cameron (Tex.) 19 S. W. 1068; Glasscock t.
Price (Tex. Civ. App.) 45 S. W. 415. But It seems that If the oame of the
defendant Is correctly given, It is not a material mistake that the names of
the plaintiffs (a firm) are set forth only in the style of the partnership. Cooke
V. Avery, 147 U. S. 375, 13 Sup. Ct. 340, 37 L. Ed. 209; Openheimer ▼. Robin-
son, 87 Tex. 174, 27 S. W. 95.
4» Hibberd v. Smith, 50 Cal. 611.
50 Willis V. Downes (Tex. Civ. App.) 46 S. W. 920; Semple ▼. Enbanks, 13
Tex. Civ. App. 418, 35 S. W. 509.
61 W. P. Fuller & Co. v. HuU, 19 Wash. 400, 53 Pac. 666.
B3 Dewey v. Sugg, 109 N. C. 328, 13 S. £. 923, 14 L. R. A. 398; Noble t.
Barner, 22 Tex. Civ. App. 357, 55 S. W. 382.
•8 Fuller V. Nelson, 35 Minn. 213, 28 N. W. 511.
(640)
Ch. 16) THE LIEN OP JUDGMENTS. § 407
is not expressed in dollars and cents (either by words or by the
appropriate marks or abbreviations), it will not create any lien on
the property of the judgment debtor.** As to interest on the judg-
ment, it is enough if the rate of interest which the judgment bears
is correctly specified, so that the amount of interest due at any given
time can be ascertained by mere calculation.*^* But an abstract which
fails to show credit for an amount recovered on an execution sale
does not create a lien.**
Part II. What Judgments create Liens.
§ 407. What is neoeiiary to JudKment-Ideiis.
In order that a judgment should create a lien upon the real prop-
erty of the debtor, it is first of all necessary that it should be capable
of collection by execution against such property.*^ A judgment which
by its terms cannot be enforced against the property of a party can-
not become a lien thereon.** So a judgment against a municipal
corporation is not a lien on its real estate, because no execution can
issue against the land.** Next, it is essential that the judgment
should have been rendered by a lawful and validly constituted court.
Upon this point questions have seldom arisen, except in connection
with the acts of courts created by the insurrectionary authorities in
the southern states during the late civil war. Thus it was held in
B* Bush r. Farrls, 18 C. C. A. 315, 71 Fed. 770; In re Boyd, 4 Sawy. 262,
Fed. Cas. No. 1,746; Glasscock v. Stringer (Tex. Civ. App.) 32 S. W. 920.
Failure of the record of the judgment to Include the amount of the costs will
defeat the lien only to the extent of the costs. Lamey y. Coffman, 11 Wash.
301, 39 Pac. 682.
»» P. J. Willlfl & Bro. V. Sommerville, 3 Tex. Civ. App. 509, 22 S. W. 781;
First Nat. Bank v. Cloud, 2 Tex. Civ. App. 627, 21 S. W. 770. But where the
abstract of a judgment erroneously states the date of a credit thereon, so that
a proper calculation of the interest due on the judgment as recorded would
not show the amount actually due, it is defective and creates no lien. Noble
r. Bamer, "22 Tex. Civ. App. 357, 55 S. W. 382.
5« Willis V. Sanger, 15 Tex. Civ. App. 655, 40 S. W. 229.
57 Hagan v. Chapman, 1 Pennewill (Del.) 445, 41 Atl. 974; Heff v. Cox, 5
Ohio N. P. 413.
»« In re Boyd, 4 Sawy. 262, Fed. Cas. No. 1,746.
B» Schaffer v. Cadwallader, 36 Pa. 126; People v. Superior Court of Cook
County, 55 111. App. 376.
1 LAW JUDG.-41 (641)
§ 407 LAW OP JUDOHBNT& (Ch. Ill
Alabama that judgments rendered by the courts of that state, during
the period referred to, did not create such a lien upon the property
of the judgment debtor as, in the absence of legislation, could be
recognized and enforced by the courts of the now existing state gov-
ernment.'® Later decisions, it is true, have recognized a higher de-
gree of validity in such judgments ; •* but it is only by acknowledg-
ing the rightful existence of those courts, so that the change of opin-
ion does not militate against the rule here contended for.
In the next place, in order that there should be a lien, it is neces-
sary that there be a valid and subsisting judgment. If the alleged
judgment is absolutely void and a mere nullity, it can of course
create no lien. Or, to speak more exactly, it creates that which
may bear the semblance and color of a lien, but which is incapable
of originating or transferring rights, since the judgment itself, to
which the lien is only an incident, will not bear the test of judicial
scrutiny. Similarly, where a verdict and judgment are set aside and
a new trial granted, such judgment does not operate as a lien upon
the defendant's property.** And so a judgment which has been re-
versed upon appeal, is not a lien, pending its further appeal, upon
the defendant's estate, and it will not be allowed to prejudice the
title of a bona fide purchaser for value.*' It was even held, in an
early Massachusetts case, that a deed of land was a good and lawful
conveyance, although an execution had been levied upon the land,
when the judgment under which the execution issued, though not
eo Martin v. Hewitt, 44 Ala. 418; Noble y. Cullom, 44 Ala. 554; Barclay v.
Plant, 50 Ala. 509. The incident of lien was accorded to such Judgments bj
Rev. Code Ala. § 2877 (Act Feb. 19, 1867).
61 Parks V. Coffey, 52 Ala. 42; Hill v. Huckabee, 52 Ala. 155; HIU t. Anni-
stead, 56 Ala. 118. See supra, f 173.
•» Paxton V. Boyce, 1 Tex. 317.
88 Foot V. Dillaye, 65 Barb. 521; Meyer v. CampbeU. 12 Mo. 603; Oliver t.
Lansing, 57 Neb. 352, 77 N. W. 802. The subsequent rendition of another
Judgment in the same cause will not revive the lien of a Judgment reversed
on appeal, so as to make it effective from the date of the original judgment.
Id. But where an Injunction against a Judgment Is perpetuated only as to
a part of it, or a reversal is only as to part of a Judgment, the lleo of the
part not affected continues from the date of the Judgment Grafton & G. R.
dDo. V. Davisson, 45 W. Va. 12, 29 S. B. 1028, 72 Am. St Bep. 799.
(042)
Ctk. 16) THE LIEN OP JUDGMENTS. § 407
yet reversed, was so erroneous that it was "legally certain" that it
would be reversed.**
In the next place, it is requisite that the judgment should be for
a definite and certain sum of money.** A judgment which specifies
no sum recovered, but refers to the pleadings to show what is ad-
judged, cannot create a lien on lands of the defendant as against a
party lending on the property without other notice than that afforded
by the registry of the judgment.** But a judgment in an action for
an accounting between partners, requiring the payment of a specified
sum of money by one of the parties to a receiver, may be docketed
in favor of the receiver and be enforced by execution,*' And a
final judgment of a court of record is a lien, although for costs only.**
In the next place, it is important to pay some attention to the
kind or character of the judgment, with reference to its capacity for
creating a lien. A judgment by confession carries with it a lien on
lands,** and so of course does a judgment by default, if it is final atnd
definite. In Pennsylvania, under the statutes on the subject, an
award has no greater effect than the verdict of a jury until approved
by the court and judgment entered on it, and consequently, until that
is done, it does not constitute a lien on realty.'® A decree for alimony
has only the lien of an ordinary judgment for money, as to any prop-
erty of the defendant not specifically dealt with in the decree.'* In
some states, a forfeited forthcoming bond has the force of a judg-
•4 Borden v. Borden, 5 Mass. 67, 4 Am. Dec. 32.
•8 Hamberger v. Easter, 57 Ga. 71; Lirette v. Carrane, 27 La. Ann. 298;
Eames v. Germania Turn Vereln, 74 111. 54; Roane v. Hamilton, 101 Iowa, 250,
70 N. W. 181.
«« Lirette v. Carrane, 27 La. Ann. 298.
•7 Geery v. Geery. 6.3 N. Y. 252.
•8 Bobb V. Graham, 15 Mo. App. 289.
«» Gilman v. Hovey, 26 ^lo. 280.
70 Stephen's Ex'rs* Appeal, '^ Pa. 9. An award of arbitrators In favor of
a plaintiff, from which he appeals, is not a lien upon the defendant's real
estate so long as the appeal stands. Eaton's Appeal, 83 Pa. 152. Under a
statute in Pennsylvania, directing the amount of a verdict to be entered in the
judgment docket, the lien of a verdict partakes of the nature of a judgment
Men. Fuellhart v. Blood, 21 Pa. Co. Ct. R. 601.
71 Coulter V. Lumpkin, 94 Ga. 225, 21 S. E. 461; Conrad v. Everich, 50 Ohio
St. 476, 35 N. E. 58, 40 Am. St. Rep. 679; Phllbrick v. Andrews, 8 Wash. 7,
35 Pac. 858.
(643)
§ 408 LAW OF JUDOMBNTS. (Ch. 16
ment, so as to create a lien upon the lands of the obligors, but only
from the time the bond was returned to the clerk's office.^* A re-
cognizance to the commonwealth, or a judgment thereon in favor
of the commonwealth, creates no lien upon the estate of the party,
unless by express statute.^* So a rule absolute against a sheriflF
requiring him to pay over money is not such a judgment as binds
his property in the same way in which judgments on verdicts bind
it.^* The mere loaning of money to a judgment debtor, to be ap-
plied by him in part satisfaction of a judgment which is a lien upon
the debtor's land, does not operate to transfer such lien, in whole or
in part, to the lender, even though it was understood between the
parties to the transaction that it should have that effect.^*
§ 408. Interloeiitory Judgments.
It IS generally held that an interlocutory judgment by default,
which lacks finality until the amount of the recovery is ascertained,
cannot be considered as creating a lien. The incident of lien does
not attach until the sum to be recovered is made definite and finally
entered up, and then it does not relate back to the entry of the in-
terlocutory judgment.''* But the supreme court of Pennsylvania
has ruled that a judgment entered by default for want of a plea is
not interlocutory but final, and constitutes a lien upon the defend-
ant's real estate from the date of entry, although the damages may
not have been assessed, if the claim is for a sum certain or is ascer-
tainable by calculation/^ But a judgment by confession for a sum
to be ascertained by the prothonotary binds the real estate of the
7« Cabell v. Given, 90 W. Va. 760, 5 S. E. 442.
78 Commonwealth v. Adkins, 8 B. Mon. (Ky.) 380. See Thompson v. Ayery,
11 Utah, 214, 39 Pac. 829.
74 Speer v. McPherson, 24 Ga. 146.
76 Unger v. Leiter, 32 Ohio St. 210.
7< De Saussure v. Zelgler, 6 Rich. (S. C.) 12; Davidson ▼. Myers, 24 Md.
538; Citizens' Loan Ass*n v. Martin, 1 Marv. (Del.) 213, 40 AtL 1108. Bat a
Judgment for money in an action on a note and to foreclose the mortgage
securing it is final, so as to be a lien on other property of the defendant, though
the Judgment of foreclosure is not final. McCaskill v. Graham, 121 N. C. 190^
28 S. E. 264.
77 Sellers v. Burk, 47 Pa. 344; Hays y. Tryon, 2 Miles, 208; Bryan t. Eaton,
4 Wkly. Notes Cas. 493.
(644)
Ch. 16) THE L.IBN OP JVDOMBNT8. § 410
defendant only from the time of the liquidation of the sum by the
prothonotaryj*
I 409. Judgmenta as^^st Peraonal RepreaentatiTea.
Inasmuch as executors and administrators are not' invested with
the title to the lands of the decedent, it follows that judgments ren-
dered against them in their representative character have no opera-
tion as liens upon realty belonging to the estate.^* And in Con-
necticut, under a statute which provides that if the owner of an
unsatisfied judgment shall file a certificate in the town clerk's office,
it shall constitute a lien upon land belonging to the debtor, which
may be foreclosed or redeemed in the same manner as a mortgage,
if an execution could have been levied thereon, it is held that a judg-
ment creditor who has obtained a judgment against the adminis-
trator of his debtor's estate cannot thus obtain a lien against the
land of the estate.*®
§ 410. Nuno Pro Tvno JiidKm«nta*
A purchaser of real estate takes it charged with the lien of only
such judgments as are actually existing at the time of the purchase,
and it is not competent for a court to bind by a lien the land of a
third person by the rendition of a nunc pro tunc judgment against
his grantor/^ In a case in Indiana, two judgments having been ren-
dered by a justice of the peace, the plaintiff took transcripts and filed
them in the clerk's office of the proper county; afterwards the
judgment debtor sold a tract of land situated in that county and
received the purchase-money in full ; a few days later the transcripts,
78 Philadelphia Bank v. Craft, 16 Serg. & R. (Pa.) 347.
TB Laidley v. Kline, 8 W. Va. 218; Woodyard v. Polsley, 14 W. Va. 211;
Di Lorenzo v. Dragone, 25 Misc. Rep. 26, 54 N. Y. Supp. 420; Wright v. Frank-
lin Bank, 59 Ohio St. 80, 51 N. E. 876; Applegate v. Applegate, 107 Iowa,
312, 78 N. W. 34; Mott v. Newark German Hospital, 55 N. J. Eq. 722, 37
Atl. 757.
80 Flynn v. Morgan, 55 Conn. 130, 10 Atl. 466.
81 Miller V. Wolf, 63 Iowa, 233, 18 N. W^ 889; McXamara v. New York, L.
E. & W. R. Co., 56 N. J. Law, 56, 28 Ati. 313; FerreU y. Hales, 119 N. C.
199, 25 S. E. S21.
(645)
§411 lAW OF JUDaMSNT& (Ch. 16
together with the order-book in which they were recorded, were
destroyed by fire; afterwards the justice made out new transcripts,
and these were duly filed. It was held that the judgments, as evi-
denced by the second transcripts, were not liens on the land.** An
»
amendment of a judgment which was originally incomplete cannot
relate back so as to impair the title of one who purchased the judg-
ment-debtor's land, prior to the order of amendment, in good faith
and for a valuable consideration.**
I 411. Deoreea la diaceeiy.
It is generally held, under statutes assimilating judgments and
decrees in respect to their effects and means of enforcement, that a
decree in chancery, if for a liquidated sum of money, creates a lien
upon the debtor's land.®* The proviso here inserted obviously re-
stricts the class of decrees attended with this incident within nar-
row limits. Thus it is said : "A decree of foreclosure is not such a
decree as will confer a general lien as a judgment at law. True, the
statute provides that decrees of courts of chancery 'shall, from the
time of their being pronounced, have the force and effect of a judg-
ment at law.' A judgment at law gives a general lien, but it is not
every decree in chancery that can give a lien similar to a judgment.
There are a great variety of decrees in chancery which give no lien,
such as decrees or injunctions to stay waste, to surrender and can-
cel securities, to set aside fraudulent conveyances, 'and various oth-
ers; yet the language of the statute covers all decrees. Hence the
language of the statute must be limited, and as a lien is only a secu-
rity for a money demand, no decree in chancery can confer a lien
under the statute except a decree expressly for the payment of money.
At law it is only a judgment against a debtor or a judgment for the
payment of money that gives a lien ; a judgment in ejectment gives
no lien. Hence the decrees in chancery that confer liens similar to
judgments are decrees for the payment of money. A decree of forc-
82 Sheldon v. Arnold, 17 Ind. 165.
83 Lea y. Yates, 40 Ga. 56.
84 Soriba v. Deane, 1 Brock. 166, Fed. Cas. No. 12..%59; Ebmes v. Germania
Turn Verein, 74 III. 54; Blake v. Hey ward, 1 Bailey, Eq. (S. C.) 208; Close t.
Close, 28 X. J. Eq. 472.
(046)
Ch. 16) THE LIEN OP JUDGMENTS. § 411
closure is not a decree for the payment of money." ®" A decree pro-
viding that if thie defendant does not, in a given time, pay the plain-
tiff a certain sum, certain property of the defendant, real and per-
sonal, on which the plaintiff has a specific lien, shall be sold, is not
a decree which creates a lien on other real estate of the defendant.®*
In an action to enforce a mortgage, if a judgment is entered direct-
ing a sale of the mortgaged property and an application of the pro-
ceeds on the amo,unt due, and further declaring that, in case of a
deficiency, the plaintiff have execution for the balance, the lien of the
judgment does not attach to real estate of the defendant other than
that mortgaged, until after a sale has been made and a deficiency
reported, even if the judgment is docketed when first rendered.®^ "A
mere contingent provision, referring to no particular amount, and in
abe3raiice until the contingency is determined, is not within the mean-
ing of the statute. It may become a valid and perfect judgment, but
until the amount to be recovered is ascertained and fixed, no effect
can be given to it as a lien." ** It is also held that a judgment re-
covered for a debt secured by a mortgage on lands cannot become a
lien on such lands ; and a sale of the equity of redemption under an
execution on such judgment will not confer any title upon the pur-
chaser ; and it makes no difference that the judgment was not recov-
ered upon the*bond accompanying the mortgage, so long as it was
obtained for the same indebtedness.** It should be added that
chancery may create a lien directly by decree for that purpose.*®
•B Myers ▼. Hewitt, 16 Ohio, 449, 454, per Read, J. And see Hamberger v.
Easter, 57 Ga. 71; Karnes v. Harper, 48 111. 527; Kirby v. Runals, 140 111.
289, 29 N. B. 697; Huntington v. Meyer, 92 Wis* 557, 66 N. W. 500; Kraner v.
Chambers, 92 Iowa, 681, 61 N. W. 373.
«• Linn V. Patton, 10 W. Va. 187.
8T Hlbberd v. Smith, 50 Cal. 511; Culver v. Rogers, 28 Oal. 520; Chapln v.
Brodep, 16 Cal. 403; Winston v. Browning, 61 Ala. 80; Hershey v. Dennis, 53
Cal. 77; Bell v. GUmore, 25 N. J. Eq. 104. See Roll v. Rea, 57 N. J. Law, 647,
32 Atl. 214. Per contra, Fletcher v. Holmes, 25 Ind. 458; Blum v. Keyser, 8
Tex. av. App. 675, 28 S. W. 561; W. P. Fuller & Co. v. Hull, 19 Wash. 400,
53 Pac. 666.
88 Chapln V. Broder, 16 Cal. 403.
99 Greenwich Bank v. Loomis, 2 Sandf. Ch. 70.
•0 Carmlchael v. Abrahams, 1 Desaus. (S. C.) 114. See Branley v. Dambly,
69 Minn. 282, 71 N. W. 1026.
(647)
§412 ULW OF JUDGMENTS. (Ch. 16
i 412. Judgmentm of Inferior Conrte.
■
Judgments rendered by justices of the peace and other inferior
courts are not generally recognized by the statutes as creating a lien
upon the debtor's realty. But it is commonly provided that such
judgments may be transferred, by transcript, to one of the superior
courts, and that, the transcripts being duly filed and entered, the
judgments shall have the same effect, as liens, as if originally ren-
dered by the court to which they are so transferred. The lien at-
taches from the time of filing the transcript with the clerk of the
superior court, and binds the same property which would have been
affected by a judgment of the latter court.** And this is so, al-
though the clerk may neglect to enter such judgment in the docket
of the court. •* The transcript, to become a lien on real estate, must
be filed in the proper court of the county where the judgment was
recovered, and cannot in the first instance be filed in the court of
another county.** The statutes generally limit the time within which
»i Hawkins v. Wills, 4 U. S. App. 274, 1 C. C. A. 339. 49 Fed. 506; Brown
V. Hyman, 27 N. Y. Supp. 436; Dysart v. Branderth, 118 N. C. 968, 23 S. E.
966; Bunding v. Miller, 10 Mo. 445; Tracy v. Whltsett, 51 Mo. App. 149; Work
y. Brown, 38 Neb. 498, 56 N. W. 1082. The Pennsylvania Act ol June 24,
1885, which gives to Judgments of justices of the peace, aMennoi, etc^ the
same force as if originally obtained in the court of common pleas, where
a transcript thereof has been filed in the office of the prothonotary, was in-
tended to give the Judgment creditor the right to levy execution on the
personal estate as well as the real estate of the debtor, which right had been
doubtful under the prior statutes, and was not intended to repeal Act May
5, 1854, which provides that "no execution shall be issued on a Judgment ren-
dered before a Justice of the peace or alderman, after five years from the rendi-
tion of such Judgment, unless the same shall have been revived by scire
facias or amicable confession." Smith v. Wehrly, 157 Pa. 407, 27 AtL 700:
Inquirer Printing & Publishing Co. v. Same, 157 Pa. 415, 27 Atl. 703. In
Nebraska, under Code Glv. Proc. § 561, the docketing in the district court
of a Judgment rendered by a county court or a Justice of the peace, does not
make such Judgment one of the district court, so as to entitle the Judg-
ment creditor to a pro rata distribution of funds with a creditor under a
contemporaneous district court Judgment Moores v. Peycke, 44 Neb. 405,
62 N. W. 1072.
»2 Petray v. Howell, 20 Ark. 615.
»» Pemberton v. Pollard, 18 Neb. 435, 25 N. W. 582; Bowman t. Sllvua, 6
Kulp (Pa.) 496.
(G48)
Ch. 16) THB LIEN OF JUDQMBNTB. f 414
such a transcript of a justice's judgment may be filed, but unless there
is an explicit restriction of the time, it may be done at any time dur-
ing the life of the judgment.®* The transcript may be filed before
the time to appeal from the judgment has expired.**^ But in order
to obtain the advantage of a lien by this method of proceeding, it
is necessary to comply fully with the requirements of the statute.
If the law contemplates the filing of a complete transcript of the jus-
tice's record, it is not satisfied by a mere abstract of the judgment.*®
While the allowance of a claim against the estate of a decedent,
by a probate court, has all the force and effect of a judgment, it is
not generally regarded as creating a lien on the estate.*^
I 413* JvdKmenta of Foderal Ooorta.
In states where the judgments of state courts of record create a
lien upon the lands of the judgment-debtor, the judgment of a United
States circuit or district court, sitting within the state, has the same
operation, as a lien, in the county where rendered, and, under cer-
tain restrictions to be hereafter noticed, throughout the territory of
the state.**
I 414. Statutory Baala of luoli Idena.
If, as we have already seen, judgment-liens are essentially the
creatures of statute law, it is pertinent to inquire how the judgments
of the federal courts came to be invested with this operation. Until
•4 Rhoad V. Patrick, 37 S. C. 517, 16 S. E. 536.
»8 Dawson v. Cunning. 50 HI. App. 286.
•« White V. Espey, 21 Or. 328, 28 Pac. 71.
•TKennerly v. Sliepley, 15 Mo. 648, 57 Am. Dec. 219; Stone v. Wood, 16
in. 177.
•8 Massingill v. Downs, 7 How. 760, 12 L. Ed. 903; WilUams v. Benedict, 8
How. 107, 12 L. Ed. 1007; Pierce v. Brown, 7 Wall. 205, 19 L. Ed. 134; Crop-
sey V. Grandall, 2 Blatchf. 341, Fed. Cas. No. 3,418; Lombard v. :payard, 1
WaU. Jr. 196, Fed. Cas. No. 8,469; CarroU v. Watklns, 1 Abb. U. S. 474, Fed.
Cas. No. 2,457; Barth v. Makcerer, 4 Blss. 20G, Fed. Cas. No. 1,069; Shrew v.
Jones, 2 McLean, 78, Fed. Cas. No. 12,818; Sellers' Lessee v. Corwln, 5 Ohio,
398, 24 Am. Dec. 301; Lawrence v. pelger, 31 Ohio St. 175; Byers v. Fowler,
12 Ark. 218, 44 Am. Dec. 271; Trapnall v. Richardson, 13 Ark. 543, 58 Am.
Dec. 338; Manhattan Co. v. Evertson, 6 Paige (N. Y.) 457; Andrews v. Wilkes,
O How. (Miss.) 554, 38 Am. Dec. 450; Simpson v. Niles, Smith (Ind.) 104; Pol-
lard T. Cocke, 19 Ala. 188.
(649)
§ 414 ULW OF JUDOIOBNTS. (Cb. 1ft
a recent date there was no legislation of congress specifically declar-
ing that such judgments should have the incident of a lien upon land.
Xor could it be within the province of a state legislature to enact
that they should have that effect. The answer to the question is
given in the following language : "J^dS^^ii^s were not liens at com-
mon law, but congress, in adopting the modes of process prevailing
in the states at the time the judicial system of the United States was
organized, made judgments recovered in the federal courts liens in aU
cases where they were so by the laws of the states, and a later act of
congress has provided that judgments shall cease to have that opera-
tion in the same manner and at the same periods in the respective
federal districts as like processes do when issued from the state
courts/' •• It must not be supposed, however, that this indirect
method of vesting such judgments with the quality of lien was in
any sense a recognition of a right in the states to regulate the opera-
tion of federal judgments. Judgment-liens in the federal courts owe
their existence solely to the authority of the national government.
As remarked by the supreme court of Ohio : "That judgment-liens
are the creations of positive law, without which they cannot exists
and that they cannot survive the law which g^ves them being, are prin-
ciples too well settled to be drawn in question. I suppose it equally
clear that they must be created by the government under whose au-
thority the judgment is rendered. The state may determine the ef-
fect of its own judgments, but cannot aflfect those rendered by the
courts of the United States; while the same limitation is equally
true of the legislation of the general government. Each has an equal
right to provide for the security and satisfaction of judgments ren-
dered in its courts, but neither has any power whatever to limit
•B Baker v. Morton, 12 Wall. 130. 20 L. Ed. 262, Clifford, J. See, also.
KoDlng V. Bayard, 2 Paine, 251, Fed. Oas. Xo, 7,924. The act of congress
above referred to is as follows: "Judgments or decrees, rendered In a circuit
or district court, within any state, shall cease to be liens on real estate or
chattels real, in the same manner and at like periods as judgments and de-
crees of the courts of such state cease, by law, to be liens thereon.** Her.
St. U. S. § OCT. This was substantially a re-enactment of the act of Jnly 4.
1840 (5 Stat. aaS) c. 43, § 4. In a territory, the Judgments of the federal
courts are liens on the debtor's land only when Judgments are liens by the
laws of the territory. Thompson v. Avery, 11 Utah« 214, 39 Pac 82a
(650)
Ch. 16) THS LIEN OF JUDOMBNT8. § 415
«
this sovereign right in the other." ^•^ But since congress originally
adopted fte slat^ htws on the Mifejcct, the mtes for <ie!ln mining the
nature and character of the judgments that would g^ve a Hen, for
ascertaining what species of estates were bound thereby, and similar
matters, had to be sought in the laws and decisions of the particular
state.**^ Thus it is ruled that a verdict alone, without the entry of
a judgment, in a federal court, gives no lien upon land in Pennsyl-
vania.*®* So if, under the state law, the lien of a judgment rendered
by a court of the state attaches from the day of the final adjournment
of the term, the same rule applies to federal judgments in that
state.**** So judgment-liens of the federal courts are subject to the
state statute of limitations like the liens of domestic judgments.*®*
And the lien of such a judgment may be modified or suspended, dur-
ing the pendency of an appeal or writ of error, in accordance with
the state practice, in the discretion of the federal court.***
§ 415. Territorial Extent of vneli I«iens«
In the absence of restrictive legislation by congress, the lien of a
federal judgfment was always held to be co-extensive with the juris-
diction of the court which rendered it. That is to say, if the judg-
ment was entered by a federal district court, its lien extended to all
chargeable property of the debtor throughout the district, and was
not restricted to the particular county in which the court was sitting,
although, by the state law, the lien of a judgment rendered by a state
court in that county would not extend into another county ; and simi-
larly, if the judgment were rendered by a United States circuit court,
its lien would cover all property of the debtor within the confines
of the circuit.*®* To this effect was a decision of the chief federal
100 Corwin'g Lessee t. Benbain, 2 Ohio St. SB.
101 Perkins v. Brierfleld Iron & Coal Ck)., 77 Ala. 403.
102 Estate of Morris, 6 Phila. 134.
103 Jones V. Guthrie, 23 III. 421.
104 Abbey v. Ck)mmerclal Bank, 34 Miss. 571, 69 Am. Dec. 401.
105 United States v. Sturgls (D. C.) 14 Fed. 810.
io« Conard v. Atlantic Ins. Co., 1 Pet. 453, 7 L. Ed. 180; Shrew v. Jones, 2
McLean, 78. Fed. Cas. No. 12,818; Cropsey v. Crandall. 2 Blatehf. 341, Fed.
Cas. No. 3.418; Carroll v. Watkins, 1 Abb. U. S. 474, Fed. Cas. No. 2,457;
Lombard v. Bayard, 1 Wall. Jr. 196, Fed. Cas. No. 8,469; Barth v. Makeever,
(651)
§ 415 LAW OP JUDGMENTS. (Ch. 16
court, where it was said : "In those states where the judgment or the
execution of the state court creates a lien only within the county in
which the judgment is entered, it has not been doubted that a simi-
lar proceeding in the circuit court of the United States would create
a lien to the extent of its jurisdiction. This has been the practical
construction of the power of the courts of the United States, whether
the lien was held to be created by the issuing of process or by express
statute. Any other construction would materially affect, and in
some degree subvert, the judicial power of the Union. It would
place suitors in the state courts in a much better condition than in
the federal courts." *®' As a necessary consequence of this doctrine
it was held that state statutes requiring judgments to be recorded in
the county in which the land lies could have no eflect upon the I'en
of the judgment of a federal court.*®* But congress has recently
passed an act which materially changes the law in this respect, and
in effect puts the judgments of the federal courts upon the same foot-
ing with those of the state courts, in respect to the territorial extent
of their lien. The wording of the act is given in a note.**^* * The pur-
port of this statute appears to be as follows: i.. The judgment of a
4 Biss. 206* Fed. Oas. No. 1,069; Byers v. Fowler. 12 Ark, 218. 44 Am. Dec.
271; Trapnall v. Richardson, 13 Ark. 543, 58 Am. Dec. 338; Doyle v. Wade.
23 Fla. 90, 1 South. 516, 11 Am. St Hep. 334; Hall t. Green, 60 Misa. 47;
BraDch v. Lowery, 31 Tex. 96; United States v. Duncan, 12 111. 523, Fed. Cas.
No. 15,003; Sellers' Lessee t. Corwln, 5 Ohio, 398, 24 Am. Dec. 301; Rock
Island Nat. Bank t. Thompson, 173 111. 593, 50 N. E. 1089, 61 Am. St Rep. 137.
107 Masshiglll V. DowDS, 7 How. 760, 12 L. Ed. 903.
108 Doyle v. Wade, 23 Fla. 90, 1 South. 516, 11 Am. St Rep. 334; Carroll t.
Watkins, 1 Abb. U. S. 474, Fed. Cas. No. 2,457. Compare HaU t. Green, 00
Miss. 47.
109 Act Cong. August 1, 1888 (25 Stat 357), provides as foUowa: •That
Judgments or decrees rendered in a circuit or district court of the United
States within any state shall be liens on property throughout such state In the
same manner and to the same extent and under the same conditions only as
if such judgments and decrees had been rendered by a court of general ju-
risdiction of such state: Provided, that whenever the laws of any state re-
quire a judgment or decree of a state court to be registered, recorded, docket-
ed, indexed, or any other thing to be done, in a particular manner, or in a
certain office or county, or parish in the state of Louisiana, before a lien shall
attach, this act shall be applicable therein whenever and only whenever the
laws of such state shall authorize the judgments and decrees of the United
States courts to be registered, recorded, docketed, indexed, or otherwise con-
(652)
Cb. 16) THE LIEN OF JUDGMENTS. § 415
federal court will become a lien upon real property situated in the
county where the court was sitting at the time of its rendition, at all
events and without any reference to docketing, etc., under state
laws. 2. If the laws of the state restrict the liens of judgments ren-
dered by its own courts, in the first instance, to property within the
county where the court has jurisdiction, but provide that a judgment
lien may attach to property situate in another county in the same
state, when the judgment is docketed, or a transcript of it filed, in
the proper office in such other county, and if the statute authorizing
such transfers of judgments, for purposes of lien, from one county
to another, expressly includes judgments of the federal courts in the
description of judgments which may be so transferred, or if there is
a separate statute assimilating judgments of the federal courts, in
this respect, to the judgments of the courts of the state, then the lien
of a judgment rendered by a United States court in such state will be
primarily restricted to property within the county where the court
was sitting at the time the judgment was rendered, but may be ex-
formed to the rules and requirements relating to the judgments and decrees
of the courts of the state.
"See. 2. That the clerks of the several courts of the United States shall pre-
pare and keep in their respective offices complete and convenient indices and
cross-indices of the judgment records of said courts, and such Indices and rec-
ords shall at all times be open to the inspection and examination of the public.
"Sec. 3. Nothing herein shall be construed to require the docketing of a
judgment or decree of a United States court, or the filing of a transcript there-
of, In any state office within the same county or parish in the state of Louisi-
ana in which the judgment or decree is rendered, in order that such judgment
or decree may be a lien on any property within such county."
In several of the states, since 188S, statutes have been enacted to meet and
carry into effect the provisions of the above act of congress. They authorize
judgments and decrees of the federal courts to be docketed (or transcripts to
be filed) in the clerks' offices in the different counties of the state, in the same
manner as judgments of the domestic courts, so as to attach as liens upon
realty in the several counties where they are so recorded. See Alsop v. Mose-
ley, 104 N. C. 60, 10 S. E. 124, construing an act of North Carolina of 1880;
Rock Island Nat. Bank v. Thompson, 173 111. 503, 50 N. E. 1089, 64 Am. St.
Rep. 137, construing Laws 111. 1881), p. 197. See, also, Laws Or. 1891, p. 41.
In Kansas, the existing statute (Gen. St. 1868, c. SO, § 419) is held to satisfy
the requirements of the act of congress. Dartmouth Sav. Bank v. Bates (O.
G.) 44 Fed. 546. On the other hand, the statute of Ohio (Rev. St. § 5056) does
not apply to judgments rendered in the United States courts. Stewart v.
Wheeling & L. E. Ry. Co., 53 Ohio St. 151, 41 N. E. 247, 29 L. R. A. 438.
(653)
§415 LAW OF JUDGMENTS. (Ch. 16
tended to other counties of the state upon compliance with the re-
quirements of the state statute in regard to docketing or filing judg-
ments in other counties. 3. If the laws of the state limit the lien
of its own judgments to the county where rendered, and authorize
the transfer of such judgments to other counties for purposes of lien.
but make no provision for the transfer of judgments of the United
States courts, then the act of congress of 1888 does not apply at all,
and the extent of the lien of judgments of the federal courts in such
state will remain precisely as before the passage of that act; that
is to say, the Hen of a judgment rendered by a federal court within
such state will be co-extensive with the territorial jurisdiction of the
court rendering it.***
In Kansas, where the statute in force before 1888, providing for
the transfer of judgments from one county to another, for purposes
of lien, was already applicable to judgments of the federal courts, it
was held that a creditor who had obtained a judgment in a federal
court in that state before the passage of the act of congress of 1888,
would be obliged, if he wished to bind realty in other counties, to file
transcripts of his judgment therein within a reasonable time after the
enactment of the act of congress ; and that if he neglected for more
than four months after the passage of the law to take such action, he
would lose his lien.'** But elsewhere it has been held that the act of
congress does not affect the lien of a judgment which had attached
prior to the passage of the act.***
It has also been held that a judgment in favor of the United States,
recovered in one of the federal courts outside of a given state, is not
a lien upon lands within that state from the docketing of the judg-
ment, although, by the law of the United States, an execution on such
judgment may be issued against the defendant's property in any state
of the Uiiion.***
110 Dartmouth Sav. Bank v. Bates (C. 0.) 44 Fed. 546.
111 First Nat Bauk v. Clark, 55 Kan. 219. 40 Pac, 270.
112 Commercial Bank v. Eastern Bauliing Co., 51 Neb. 766, 71 N. W. 1024.
ii» Manhattan Co. v. Evertson, 6 Paige (N. Y.) 457,
(654)
Oh. 16) THB LIKN OF JUDGMBNTS. | 417
I 410. Deoreea In Admiralty*
A final decree in admiralty in the United States district court in a
suit in personam, for the payment of money, is a lien on the lands of
the defendant in the district "Exclusive original jurisdiction in
admiralty and maritime cases is conferred upon the district courts of
the United States, but the circuit courts hear such cases on appeal,
and, as a matter of daily practice, render decrees therein for the^ pay-
ment of money ; and it is not to be doubted, we think, that such de-
crees are as much within the provisions under consideration as de-
crees in equity; and if so, no reason is perceived why the same
rule should not be applied to decrees of a like character rendered in
the district courts." *^*
Part III. To what Property the Lien attaches.
§ 417. Territorial Reatriotton of Iden.
Although a judgment in personam has the effect of establishing a
claim against the defendant which follows his person and may be
enforced against him, by some appropriate proceeding, wherever he
may be found, yet it can be collected by the direct process of execu-
tion only within the territory over which the court rendering the
judgment has jurisdiction and within which its process may run.
Hence, as a general rule, the judgment constitutes a lien only upon
the real estate of the debtor lying within such territorial limits. A
judgment rendered in one state or country is not a lien upon land in
another state or country. ^^'^ In order to have that effect, it must be
made the basis of a suit and judgment in the second state or country,
and then the lien will attach as an incident of the second judgment,
not the first. And even within the limits of the same state, unless
114 Ward v. Chamberlain, 2 Black, 430, 17 L. Ed. 319.
iiBBiUan v. Heroklebrath, 23 Ind. 71; Reynolds v. Stockton, 140 U. S.
254, 11 Sup. Ot. 773, 35 L. Ed. 464; Smith v. Eyre, 149 Pa. 272, 24 AU. 288.
But where a Judgment was recovered in M. county, Virginia, and became a
lien on lands in B. county, its lien was neither lost nor impaired by reason
of the division of the state of Virginia into two states and the falling of M.
county into the state of West Virginia. Gatewood's Adm'r v. Goode, 23 Grat.
<Va.) 880.
(G55)
§ 418 UIW OF JUDGMENTS. C^b. 16
it is otherwise provided by the statutes, the lien of a judgment
attaches only to the real estate of the debtor which lies within the
particular county where the judgment was rendered and docketed."*
But where a judgment-lien attaches upon lands in a certain county,
and afterwards a new county is set off, within which these lands (or
part of them) fall, the lien does not cease to exist by reason of such
new organization, but holds during the full period allowed by stat-
ute without any further record.^^^ "It is supposed that when a new
county is organized, with no saving clause in the act, and land sub-
ject to a judgment-lien in the old county falls within the new organiza*
tion, the lien ceases to exist. We do not think so. The lien being
given by express provision, althougfli it is admitted, as a part of the
remedy, to be within the control of the legislature, must, nevertheless,
remain until lost by the act of the judgment-creditor, or taken away
by subsequent legislation." *^*
§ 418. Timmsfer of Jiids»ent to AaotKer Covmtyw
In many of the states there are statutes authorizing a transcript
of a judgment recovered in one county to be docketed in another,
for the purpose of binding lands of the judgment-debtor situated in
the latter county.* ^* Such a transfer, however, does not destroy the
lie King T. Portia, 77 N. G. 25; Baker v. Chandler, 51 Ind. 85; SUte Bank
Y. Carson, 4 Neb. 498; GoodeU v. Blnmer, 41 WIb. 436; Farmers' Bank t.
Heisrhe, 3 Md. 357, See Harnett v. East Tennessee, V. & Q. R. Co. (Tenn.)
48 S. W. 817. In Alabama it was held, in 1843, that the lien of a Judgment
in any court of reeord of the state extended to aU the lands of the judgment
debtor within the state. Campbell y. Spence, 4 Ala. 543, 39 Am. Dec. 301.
And In Pennsylvania, in 1792, a similar ruling was made in regard to the
effect of a Judgment in the supreme court Ralston y. Bell, 2 Dall. 158. 1 L.
Ed. 330.
"T Davidson v. Root, 11 Ohio, 98, 37 Am. Dec. 411; People v. Hovious, 17
Cal. 471; Hays* Appeal, 8 Pa. 182; West's Appeal, 5 Watts (Pa.) 87; Garvin
v. Garvin. 34 S. C. 388, 13 S. E. C25; Dermott v. Carter, 109 Mo. 21, 18 a
W. 1121.
118 Davidson v. Root, 11 Ohio. 98, 37 Am. Dec. 411.
11 • Farmers- Bank v. Heighe, 3 Md. 357; Goodell v. Blumer, 41 Wia 436;
Perry v. Morris, 65 X. O. 221; Neil v. ColweU, 66 Pa. 216; Code Clr. Proo.
Cal. § 674; Acts Ark. ISDl, No. 56, p. 92, § 1; Comp. Laws S. D. § 5101;
Bostwick v. Benedict. 4 S, D. 414. 57 N. W. 78; Code Civ. Proe. Mont S 1200;
A. M. Holter Hardware Co. v. Ontario Mln. Co., 24 Mont. 184, 61 Pac. 3..
(656)
Ch. 16) THE LIEN OP JUDGMENTS. § 4J8
lien of the judgment on the debtor's property in the county where it
was originally docketed. ^■''® But on the other hand, if the statute
enacts that its lien shall continue in the second county for a pre-
scribed term after the filing of the transcript there^ it is held that
the lien will bind the land in the second county during the whole of
such term, although, in the interval, it may have expired by limita-
tion in the first county.^^* It is to be noted that a transcript thus
entered in another county is not a judgment of the court to which
transferred, but a quasi judgment for certain limited purposes, such
as lien, execution, and revival. Hence if the original judgment is set
aside for irregularity, the judgment on the transcript will fall with
it.'*' Another consequence of this principle is that no authority
can be derived from the statute for a transfer of the same judgment
from the second county to a third, — that would be merely an exem-
plification of an exemplification. If it is desired to bind lands in a
third county, a transcript must be taken directly from the first.^**
And when a judgment is so transferred, its merits cannot be inquired
into at all by the court to which it is taken ; it is there only for pur-
poses of enforcement and satisfaction.*** In regard to the requisites
of the transcript, it is necessary that it should be sufficient to give
reasonably certain and definite information to subsequent purchasers
or lienors. It is held to answer this requirement if it sets out the date
of the rendition of the judgment, the names of the parties to the suit,
the amount of the debt, and the costs of the action.**' If the statute
provides that "judgments at law" may be thus transferred from one
county to another, this term will not be given an extensive signifi-
cation, but will be taken in its strict meaning. Thus, a verdict, with-
out the rendition of judgment upon it, is not capable of being taken
to another county for purposes of lien.**' And under a statute
worded as above, a decree of a court of equity cannot be thus trans-
120 Perry v. Morris. 65 N. C. 221.
121 Donner y. Palmerp 23 Gal. 40. Ck)mpare Bradfield y. Newby, 130 Ind
69. 28 N. E. 619.
122 Brandt's Appeal, 16 Pa. 343.
!«• Mellon y. Guthrie. 51 Pa. 116.
124 King v. Nlmick, 34 Pa. 207.
126 Wilson y. Patton, 87 X. C. 31&
120 Bailey v. Eder, 90 Pa. 446,
1 LAW JUDG.-42 (657)
§419 liAW <»" JUI>aMBNT8. (Ch. 16
ferred to another county, although it be for the payment of a definite
sum of money.^'^ But a valid and subsisting judgment may be
transferred after the death of the plaintiff, and the suggestion of death
and substitution of the administrator may be made either before or
after the transfer.***
§ 419. Idea binds Real Estate.
The language usually employed in statutes on this subject is to
the effect that judgments shall be a lien on the "reaLestate" or "real
property" of the defendant."* These terms serve well enough to ex-
empt chattels from this operation of a judgment, but leave room for
a certain ambiguity as to the various species of estates and interests
in land which may possibly come under the designation of realty.
These questions will be examined in succeeding sections. It has been
held that judgments against a turnpike company are not liens upon
the turnpike road.*** And under the laws of Texas regulating rail-
ways, a railroad is not considered real estate within the meaning of
a statute which makes the judgment of a court of record a lien on the
"real estate" of the debtor.*** But if the laws of the particular state
127 Brooke v. Phillips, 83 Pa. 183.
128 Walt's Adm'rs v. Swlneliart, 8 Pa. 97.
is« A Judgment does not create a lien upon personal property belonging to
the debtor. McXamara y. New York, L. E. & W. R. Go., 56 N. J. Law, 56,
28 Atl. 313; Stahlman v. Watson (Tenn.) 39 S. W. 1055. The lien does not
bind choses in action. Fidelity & Deposit Co. t. Exchange Bank, 100 Qa.
619, 28 S. E. 393; Stahlman v. Watson, supra. Nor the right ef a licensee
under an oil lease. Meridian Nat. Bank v. McConica, 8 Ohio Cir. Ct R. 442.
Nor the interest of one holding a parol license to mine, at least while the
license remains revocable. Blindert v. Kreiser, 81 Wis. 174, 51 N. W. 324.
On the other hand, max:hinery permanently attached to realty may become
subject to the lien of a Judgment against the owner of the land, although
sold under an agreement that title should remain in the seller until fuU pay-
ment Raymond y. Schoonover, 181 Pa. 352, 37 Atl. 524. See also, as to
permanent improvements on the land partaking of the character of realty,
Lessert v. Sleberling. 59 Neb. 309, 80 N. W. 900. A Judgment lien existing
at the time an executor sells real estate is transferred from the land to the
fund arising from such sale. Barkman v. Hain, 5 Ohio N. P. 508. The lien
of a judgment against a corporation whose assets consist partly in real estate
is an incumbrance on such real estate. WiUsIe T. Rapid Valley Horse-Ranch
.Co.. 7 S. D. 114, 63 N. W. 546,
ISO Beam's Appeal, 19 Pa. 453.
a»i Scogin v. Perry, 32 Tex. 21.
(G58)
Ch. 16) TUB LIEN OF JUDGMBNTS. { 420
are so framed as to give the character of fixtures to the rolling stock
of a railroad, then such stock will be subject to the lien ol a judg-
ment.^**
I 420. Aetual Interest <if DeMor bevad.
The lien of a judgment attaches to the precise interest or estate
which the judgment-debtor has, actually and effectively, in the land.
By this is meant that, as the recovery of a judgment against him can-
not of itself operate to change the quantity of his interest in the
property, so its lien cannot be made effectual to bind or convey any
greater or other estate than the debtor himself, in the exercise of his
rights, could voluntarily have transferred or alienated. Hence it is
of no consequence that he may have an apparent or colorable inter-
est greater than would pass by his conveyance of the title ; the lien
has no effect except upon his actual estate, legal or equitable, accord-
ing as the law varies in the different jurisdictions.*'* "The general
lien of a judgment-creditor upon the lands of his debtor is subject to
all equities which existed against such lands in favor of third persons
at the time of the recovery of the judgment. And the court of chan-
cery will so control the legal lien of the judgment-creditor as to re-
strict it to the actual interest of the judgment-debtor in the property,
so as fully to protect the rights of those who have a prior equitable
interest in such property or in the proceeds thereof." *•* "The
moment a judgment is docketed it becomes in law a general lien on
all the real estate of the debtor, not only as against himself, but also
112 Milwaukee & M. R. Co. v. Jnmes, 6 Wall. 750, 18 L. Ed. 854.
i»8 Baker v. Morton, 12 Wall. 150, 20 L. Ed. 2G2; In re Estes (D. C.) 6 Sawy.
459, 3 Fed. 134; Sandfoid v. McLean, 3 Paige (N. Y.) 117. 23 Am. Dec. 778;
Coombs V. Jordan. 3 Bland (Md.) 284, 22 Am. Dec. 230; Ex parte Trenholm, 19
S. C. 126; Blankonship v. Douglas, 26 Tex. 225, 82 Am. Dec. 608; Holden v.
Garrett, 23 Kan. 08; Doswell v. Adlcr, 28 Ark. 82; Unknown Heirs of Whit-
ney V. Kimball, 4 Ind. 54(i, 58 Am. Dec. 638; Shan)e v. Davis. 76 Ind. 17;
Heherd v. Wines, 105 Ind. 237. 4 N. E. 457; Churchill v. Morse, 23 Iowa,
229, 02 Am. Dec. 422; I'nion Bank v. Manard, 51 Mo. 548; Uhl v. May, 5 Neb.
157; Gal way v. Malchow, 7 Neb. 285; Colt v. Du Bols, 7 Neb. 391; Berkley
r. Lamb, 8 Neb. 302. 1 N. W. 320; Nessler v. Neher, 18 Neb. 049, 26 N. W.
471; Id., 23 N. W. 345. And see Robisson v. Miller, 158 Pa. 177, 27 Atl. 887;
<'leavenger t. Felton, 46 W. Va. 249, 33 S. E. 117; Hawley v. Smeiding, 3
Kan. App. 159, 42 Pac. 841.
13* Buchan v. Sumner, 2 Barb. Ch. (N. Y.) 207, 47 Am. Dec. 305.
(059)
S
f 421 JJLW OF JUDQMBNTS. (Ch. IG
as against all other persons deriving title through or under him sub-
sequent to such judgment. It affects the legal estate, and the lien of
the judgment cannot at law be detached or defeated by any species of
alienation whatsoever." *•• A judgment is not a lien on land unless
there is a legal or equitable seisin of the judgment-debtor ; but where
he is the actual possessor, that is sufficient, for actual possession is
prima facie e\'idence of title.*'* On the other hand, although tne
legal title to land is in one, yet if another has actual possession, a
judgment against the former is a lien only upon his interest, whatever
that may be, for the possession of the other is notice to all the world
of his claims.*'^ In Illinois it is held that a judgment lien attaches to
whatever interest in real estate the records disclose in the judgment
debtor, in the absence of notice from other sources.***
S 421. Title held in Tniet.
The lien of a judgment does not in equity attach upon the mere
legal title to land existing in the defendant, when the equitable title
is in a third person.* *• And transitory seisin of lands by the judg-
ment-debtor, in trust for another, will not subject the lands to the
judgment-lien.**® To illustrate, in a recent case it appeared that
A. agreed to purchase three lots from B. as agent for C, and the
deed was made out to A., but he declined to receive it on the ground
136 Morris v. Mowatt, 2 Paige (N. Y.) 586, 22 Am. Dec. 661.
^»« Jackson v. Town, 4 Cow. (X. Y.) 599, 15 Am. Dec. 40o.
i»» Uhl V. Bd[ay, 5 Neb. 157; Lumbard v. Abbej, 73 111. 177; Thomas v. Ken-
nedy, 24 Iowa, 397, 95 Am. Dec. 740.
!■« Massey v. Westcott, 40 HI. 160.
"» Ells V. Tousley, 1 Paige (N. Y.) 280; Lounsbury v. Pupdy, 11 Barb. (X. Y.)
490; WithneU v. Com^land Wagon Co. (C. C.) 25 Fed. 372; Hays v. R^er. 102
Ind. 524, 1 N. E. 386. See, also, Fulton's Estate, 51 Pa. 204; Moore T. Iliomas.
137 Ind. 218, 36 N. E. 712; Dodd v. Bond, 88 Ga. 355. 14 S. E. 581. In Iowa,
the doctrine is that a Judgment is not a lien upon land to which the Jotl?-
ment debtor holds only the naked legal title, when the fact that a third person
owns the equitable title is either disclosed by the record or is known to the
Judgment creditor (Brebner v. Johnson, 84 Iowa, 23. 50 N. W. 35); and that
as an express trust cannot be established by parol evidence, such evidence is
not admissible to show that the title of real estate in the name of a Judgment
defendant is held in trust for another, and that therefore the property is not
subject to the lien of the Judgment Brown v. Barngrover, 82 Iowa, 204, -17
N. W. 1082.
1*0 Aicardi v. Craig, 42 Ala. 311.
(600)
Ch. 16} THB LIEN OF JUDGMENTS. § 421
that he could not pay for the lots and had agreed to let D. have
them at the stipulated price. The agent refused to alter the deed,
and D. paid the money to him, and A. conveyed the property to D.
It was held that under these circumstances a judgment against A.
was not a lien on the lands conveyed to D. The court observed
that A. "was vested with the naked legal title. The conveyance was
made to him as a matter of convenience. He was a mere conduit,
and held the legal title in trust for D. Under such circumstances
A. had no interest on which the judgment became a lien. His cred-
itors can only get what he had, and what he had was of no pecuniary
value." ^** So where a grantee is named in a conveyance and desig-
nated as "trustee/' this is sufficient to allow him to hold the title
for the unnamed beneficiary, if one actually exists, and a judgment
and levy of execution against the trustee individually are a lien only
on his personal interest, if any, in the property.^** So in an action
against a partner, who held the legal title to a mine in trust for the
benefit of the firm, to enforce a lien for labor performed thereon,
where judgment is rendered against him, only his interest in the
mine can be sold to satisfy such lien.^** Another important appli-
cation of this principle is in the case where one sells and conveys
real estate to which he has no title, or an imperfect title, at the time
of the sale, and subsequently acquires a perfect title, the same then
enuring to the benefit of the grantee. If, between the date of the
conveyance and the acquisition of the perfect title, a judgment is ren-
dered against the grantor, the title of the grantee is prior to the lien
of the judgment.***
The same rule also applies in the case where the judgment debtor,
though having the legal title to lands, holds it subject to a resulting
trust in favor of another. Thus, where one person pays the purchase
1*1 Atkinson v. Hancock, 67 Iowa, 452, 25 N. W. 701; Dlmmlck v. Rosenfeld,
34 Or. 101, 55 Pac. 100.
1*2 Boardman v. WiUard, 73 Iowa, 20, 34 N. W. 487. But property con-
veyed to an Insolvent purchaser as trustee for his wife, the consideration
being paid by the husband, becomes subject to the lien of a Judgment against
him, which is not divested by a return and cancellation of the deed, the same
not having been recorded. Kline v. Trlplett (Va.) 25 S. E, 886.
1*3 Rosina v. Trowbridge, 20 Nev. 105, 17 Pac. 751.
i*« Watklns v. Wassell, 15 Ark. 73.
(661)
§ 422 LAW OF JUDGMENTS. (Ch. 16
money for a parcel of realty, and procures the title to be placed in
the name of another, if the latter has no substantial interest in the
property, a judgment against him will not be a lien on the land.***
So where one conveys land to another by a deed absolute in form,
but intended as security for the payment of money, or subject to a
parol agreement to reconvey, the grantee has no such interest in the
property as will be bound by the lien of a judgment recovered against
him."*
I 422. laolioate Title.
On the general principle that a judgment-lien attaches to the
precise interest which the debtor has in the land, whatever that in-
terest may be, the authorities hold that the lien may be considered
as binding several species of inchoate or inceptive titles. Thus a
purchaser at a sale under order of the probate court acquires an in-
ceptive title or interest in the property so purchased at the time it is
struck down to him, and judgments entered against him subsequent
to the sale, but prior to its confirmation by the court, are a lien upon
such interest subject to the future confirmation of the sale.**^ So
a purchaser at sheriff's sale, before his deed has been acknowledged,
has an inceptive interest in the land by the contract, which may be
bound by the lien of a judgment.**® And numerous cases have
decided that a judgment-Hen will attach to land which has been pur-
chased from the government, in advance of the issuance of a patent
to the buyer.*** But it is also held, and with much show of reason,
that a judgment is not a lien upon a mere right of pre-emption. *••
1*5 Wade V. Sewell (€. C.) 56 Fed. 129; Carter v. Chanen, 83 Ala. IST..
3 South. 313; Bucknell v. Deering, 99 Iowa, 548, 68 X. W. 825; Coldiron v. Ashe-
vlUe Shoe Co., 93 Va. 364, 25 S. E. 238; Baird v. Williams, 4 Okl. 173, 44 Pir,
217. See Blackburn v. Lake Shore Traffic Co.. 90 Wis. 362, 63 X. W. 289.
i*« Main v. Bosworth, 77 Wis. 660, 46 X. W. 1043; Michael v. Knapp, 4 Tex.
Civ. App. 464, 23 S. W. 280.
147 Holmes* Appeal, 108 Pa. 23. But a purchaser who has utterly faOetl
to comply with the terms of sale, has no estate in the premises, legal or
equitable, to be bound by a judgment-lien. Jacobs* Appeal, 23 Pa. 477.
1*8 Morrison v. Wurtz, 7 Watts (Pa.) 437; Slater's Appeal, 28 Pa. 169.
1*9 Levi V. Thompson, 4 How. 17, 11 L. Ed. 856; Landes v. Brant 10 How.
348, 13 L. Ed. 449; Huntingdon t. Grantland, 33 Miss. 453; Jackson's Lessee
V. Williams, 10 Ohio, 69; Rogers v. Brent, 5 Gllman (111.) 573, 50 Am. Dec.
422; Ca vender v. Smith's Heirs, 5 Iowa, 157.
150 Harrington v. Sharp, 1 G. Greene (Iowa) 131, 48 Am. Dec. 363. In this
(662)
Ch. 16) THE LIEN OP JUDGMENTS. § 428
I 423. LaMd Fnmdwleatly CoKwmjedm
Where a person has aliened his land by a conveyance which is in
fraud of his creditors, and afterwards a judgment is recovered against
him, many of the authorities hold that such judgment does not attach
as a lien upon the land, at least until the commencement of an action
by the judgment-creditor to set aside the conveyance; on the ground
that the fraudulent conveyance is not void, but voidable, and that
it is valid as between the parties, and as to the plaintiff, until at-
tacked.^'* In one of the cases cited in the margin. Judge Deady,
after an extensive review of the authorities, expressed himself as fol-
lows : "In my own opinion the lien of a judgment which is limited
by law to the property of or belonging to the judgment-debtor at the
time of the docketing, does not nor cannot, without doing violence
to this language, be held to extend to property previously conveyed
by the debtor to another, by deed valid and binding between the par-
ties. A conveyance in fraud of creditors, although declared by the
case the court said: "Under our statute a Judgment is a lien only on the
'real estate of the person* against whom it was rendered. By the language
*real estate of the person,' we understand that the fee-simple, or estate of
inheritance, must be in the person, in order to have the Judgment against him
operate as a lien upon the land. A mere pre-emption right confers no such
fee or estate upon a person. It is but a temporary and conditional interest,
unknown to the common law. It only imparts to the pre-emptioner a right
over others to purchase the land within a limited period, at a stipulated price,
and if he fails to pay the price within the time required, the right ceases.
It is of a nature no greater than an estate for years— a mere equitable and
contingent interest; and hence we are firmly of opinion that a Judgment
cannot operate as a Uen upon a pre-emption right to lands." So also, a gen-
eral Judgment is not a lien on a locator's interest in a mining claim on pub-
lic lands for which no patent has been issued. Phoenix Min. & Mill. Co. t.
Scott, 20 Wash. 48. 54 Pac. 777.
181 Miller v. Sherry, 2 Wall. 249, 17 L. Ed. 827; Brooks v. Wilson, 53 Hun.
173, 6 N. Y. Supp. 116; Manhattan Co. v. Evertson, 6 Paige (N. Y.) 465; Mc-
Kee r. Gilchrist, 3 Watts (Pa.) 230; Mulford v. Peterson, 35 N. J. Law, 127;
Neal V. Foster (C. C.) 36 Fed. 29; Rappleye v. International Bank, 93 111. 396;
In re Estes (D. C.) 3 Fed. 134; United States v. Elsonbcis (D. C.) 88 Fed. 4;
Sawtelle v. Weymouth, 14 Wash. 21, 43 Pac. 1101; Doster v. Manistee Nat.
Bank, 67 Ark. 325, 55 S. W. 137; Joyce v. Perry, 111 Iowa, 567, 82 N. W.
941; French Lumbering Co. v. Theriault, 107 Wis. 627, 83 N. W. 927, 51
L. K. A. 910, 81 Am. St. Rep. 856.
(663)
§ 423 LAW OF JUDOMBNTS. (Gh. 16
statute to be void as to them, is nevertheless valid as between the
parties and their representatives, and passes all the estate of the gran-
tor to the grantee; and a bona fide purchaser from such grantee
takes such estate, even against the creditors of the fraudulent grantor,
purged of the anterior fraud that affected the title. Such a convey-
ance is not, as has been sometimes supposed, 'utterly void,' but it is
only so in a qualified sense. Practically it is only voidable, and that
at the instance of creditors proceeding in the mode prescribed by
law, and even then not as against a bona fide purchaser. The opera-
tion of the lien of a judgment, being limited by statute to the prop-
erty then belonging to the judgment-debtor, is not a mode prescribed
by which a creditor may attack a conveyance fraudulent as to himself,
or assert any right as such against the grantor therein. This lien is
constructive in its character, and is not the result of a levy or any
other act directed against this specific property. It is the creature
of the statute, and cannot have effect beyond it." *•*
But, on the other hand, many well considered cases hold that a
subsequent judgment is a lien on land previously conveyed in fraud
of creditors, and that the judgment-creditor may treat the convey-
ance as simply void, and may rest exclusively upon his legal reme-
dies, without invoking the aid of a court of equity; that is, he may
proceed to sell the land upon execution, leaving it to the sheriff's
vendee to impeach the fraudulent conveyance.*'* According to an-
i»a In re Estes (D. C.) 3 Fed. 134, 141.
133 Jackson y. Holbrook, 36 Minn. 494, 32 X. W. 852. 1 Am. St Rep. f%3:
Chautauqua Oo. Bank v. Risley, 19 X. Y. 369, 75 Am. Dec. 347; Danbam
V. Cox, 10 N. J. Eq. 437. 64 Am. Dec. 460; Eastman v. Schettler, 13 Wis. 324;
Smith T. Morse, 2 Cal. 524; First Nat Bank v. Maxwell, 123 Cat 360, 55 Pac
960. 69 Am. St. Rep. 64. In re Lowe (D. C.) 19 Fed. 5S9; Slattery v. Jones,
96 Mo. 216, 8 S. W. 551, 9 Am. St. Rep. 344. In Jackson v. Holbrook, supn,
the choice of remedies open to the Judgment-creditor is indicated as follows:
"A Judgment-creditor seeking relief against prior fraudulent conveyances of
land has the choice of three remedies. He may sell the debtor's land apoo
execution issued on his Judgment, and leave the purchaser to contest the
validity of the defendant's title in an action of ejectment; or, secondly, be
may bring an action in equity to remove the fraudulent obstruction to the
enforcement of his lien by execution, and await the result of the action be-
fore selling the property; or, thirdly, he may, on the return of an execntloD
unsatisfied, bring an action in the nature of a cre<i:tors* bill, to have the con-
veyance adjudged fraudulent and void as to his Judgment, and the lands
(664)
Ch. 16) THB LIEN OF JUDGMENTS. f 423
Other view, if the debtor has fraudulently conveyed away or incum-
bered his real estate, so as to interpose an obstacle which embar-
rasses the creditor in appropriating it by legal process in satisfaction
of his debt, then the latter may file his bill to remove out of the way
such fraudulent conveyance or incumbrance, and it is not necessary
for him to first take out execution on his judgment, for the judgment
is a lien on the land.^'* But of course these rules only apply in
cases where the conveyance was made with intent to hinder and
defraud creditors. Thus a judgment is not a lien on land which the
debtor has previously conveyed in good faith to his son, in trust
for his wife, to pay a debt really due her.*'* And in any other case
where the fraudulent purpose was clearly wanting, the judgment
would be no lien.
fold by a recelyer or other officer of the court, and the proceeds applied to
the satisfaction of the judgment, as in the case of equitable interests the
debtor's assets are reached and applied. Erickson t. Quinn, 15 Abb. Prac.
N. S. (N. Y.) 168. In the first two classes, the creditor enforces his Judgment
at law, and the sale upon execution must necessarily be subject to prior stat-
utory Uens. The purchaser in such cases succeeds to such title only as the
debtor had, treating the debtor's fraudulent transfer as void. Freem. Ex'ns«
§ 447. As to cases falling within the second class, the object of the equi-
table suit is to make the legal remedy more effective. In such case, no trust
is created in respect to the property, but the creditor falls back upon his legal
remedy, and, instead of bringing his equitable suit before the sale, he may,
if necessary, maintain it after sale in the form of an action to remove a cloud
from his title. Erickson v. Quinn, supra. And where assets are applied by
the court in creditors' suits, as respects real estate, the rule is, as in other
cases, to prefer prior liens, in the distribution. 'Where the law gives prior-
ity, equity will not destroy it; and especially where legal assets are created
by statute as Judgment-liens, they remain so, though the creditors be obliged
to go into equity for assistance. The legal priority will be protected and
preserved in chancery.' Kent, C. J., Codwise v. Gelston, 10 Johns. 522; Scou-
ton V. Bender, 3 How. Prac. (N. Y.) 185; Wiswall v. Sampson, 14 How. 67,
14 L. Ed. 322." In Pennsylvania, it is said that a Judgment creditor, who
advises the debtor to make a fraudulent conveyance in order to cheat another
creditor, does not thereby lose the lien of his Judgment Fidler v. John, 178
Pa. 112, 35 Atl. 976.
1S4 Dunham v. Cox, 10 N. J. Eq. 437, 64 Am. Dec. 460.
165 Benson v. Maxwell (Pa.) 14 Atl. 161.
(666)
§ 425 LAW OF JITDGMBNT& (Cb. 16
I 424. Ezeaipt Property.
In the nature of things, a judgment cannot operate as a lien upon
any property which is by law exempt from seizure and sale on exe-
cution. Under a statute providing that judgments shall be liens on
real estate subject to execution, where the entire property of a resi-
dent householder at the time of the rendition of a judgment is less in
value than the amount allowed by law as exempt from execution, and
so continues, the judgment does not become a lien on his real estate,
and his grantee- takes it free from any lien of the judgment or execu-
tion issued upon it.***
425. Homeitead Property.
Since land held as a homestead is not liable to levy and sale on
execution, it is not bound by the lien of a judgment against the
owner, except as to the surplus value of the property, if any, over
the amount Umited as a homestead exemption. Hence, while the
land retains this character, the owner will not be deterred from pla-
cing incumbrances upon it, or even alienating it, by the fact that
there are judgments outstanding against him.*"' But a judgment-
lien against property acquired before the filing of a declaration of
homestead by the debtor and his wife, or before the debtor's mar-
riage, or otherwise before the land acquires the character of a home-
stead, subjects such property to sale under execution; such lien
cannot be divested by any subsequent act of the owners.*** And if
ise Dumbould y. Rowley, 113 Ind. 353, 15 N. E. 463; King y. Easton, 135
Ind. a53, 35 N. E. 181.
157 Ackley y. Chamberlain, 16 Cal. 181, 76 Am. Dec. 516; McDonald y.
Badger, 23 Cal. 400, 83 Am. Dec. 123; SulUyan y. Hendrickson, 64 CbL 258;
MoDroe v. May, 9 Kan. 466; Gapen y. Stephenson, 17 Kan. 613; Lorimer t.
Marshall. 44 111. App. 645; Farmers* Loan & Trust Co. y. Schwenk, 64 Neb,
C37, 74 N. W. 1063; Traders' Nat. Bank v. Schorr, 20 Wash. 1, 64 Pac. 543,
72 Am. St. Rep. 17; Lamb y. Shays, 14 Iowa, 567; Wiggins y. Chance, 54
111. 175; Black v. Epperson, 40 Tex. 162; Briggs y. Briggs, 45 Iowa, 318;
Grimes v. Portman, 99 Mo. 229, 12 S. W. 792.
i38Kennerley v. Swartz, 83 Va. 704. 3 S. E. 348; Smith v. Richards, 2
Idaho, 4G4, 21 Pac. 419, citing Freem. Bx'ns, SS 249, 249d. 249e; Thouip.
Homest. & Exemp. § 317; Smyth, Homest. § 35; Piatt, Mar. Uom. ^ ...
Kelly V. Dill, 23 Mlun. 435; Bullene y. Hiatt, 12 Kan. 98; Robinson v. Wil-
(GG6)
Ch. 16) THB LIBN OF JUDOMBNTS. § 425
the property loses its character as a homestead, it then becomes sub-
ject to existing and future judgments. Thus, under a law which
enacts that the homestead exemption shall exist "so long as the same
shall be owned and occupied by the debtor as such homestead/' a
judgment against the owner of land is a lien which remains dormant
while the land is so occupied, but it becomes living and operative as
soon as the homestead occupation is abandoned.**^* In that event, all
existing judgments will attach together as of the date of the aban-
donment, but without regard to their seniority, and priority will be-
long to the creditor who first manifests his diligence by levying on
the property.**® It is evident that if an abandonment of the home-
stead character of the land precedes the debtor's alienation of it by
such an interval of time that the two acts cannot be considered as
parts of the same transaction, the liens of existing judgments will
attach, and the property will go to the purchaser burdened with such
liens.**^ But a more difficult question arises in case the relinquish-
ment of the homestead consists in the very act of selling it. Accord-
ing to the decisions in some of the states, if the owner of a home-
stead attempts to alienate the land ipso facto he abandons its charac-
ter as a homestead, and at the same instant the liens of existing
judgments against him attach to the property, and the purchaser must
therefore take it charged with such liens.**' This view is based
son, 15 Kan. 595, 22 Am. Rep. 272: Bartholomew y. Hook, 23 Gal. 278; Riz
V. McHenry, 7 Cal. 89; Elston v. Robinson, 21 Iowa, 532.
1B9 Kellennan v. Aultman (C. C) 30 Fed. 888. Compare Horbach y. Smiley,
54 Neb. 217, 74 N. W. 6*23.
ISO Bliss y. Clark, 39 HI. 596, 89 Am. Dec. 330; McDonald v. Crandall. 43
111. 231. 92 Am. Dec. 112. But in Virginia, It is said that the lien of a Judg-
ment which attached before the homestead was claimed will have priority,
after the abandonment of the homestead, over a deed of trust or mortgage
executed during the occupancy of the land as a homestead. Blose v. Bear,
87 Va. 177, 12 S. E. 294, 11 L. R. A. 705.
i«i Ackley v. Chaml>erlain, 16 Cal. 181, 76 Am. Dec. 516; Marriner y. Smith,
27 Cal. 649; Green v. Marks, 25 111. 222.
i«2 Kellerman v. Aultman (C. C.) 30 Fed. 888; Eaton y. Ryan, 5 Neb. 47;
State Bank y. Carson, 4 Neb. 498; Moore y. Granger, 30 Ark. 574; Jackson
v. Allen, 30 Ark. 110; Folsom y. Carli, 5 Minn. 335 (Gil. 264), 80 Am. Dec.
429; Tillolson y. Millard, 7 Minn. 513 (Gil. 419), 82 Am. Dec. 112; Hoyt v.
Howe, 3 Wis. 752, 62 Am. Dec. 705; Whitworth v. Lyons, 39 Miss. 467. Com-
pare Roberts y. Robinson, 49 Neb. 717, 68 N. W. 1035, 59 Am. St. Rep. 567.
(667)
§425 LAW OF JIJDGMBNT& (Cb. 16
I 424. Exempt Property.
In the natare of things, a judgment cannot operate as a lien upon
any property which is by law exempt from seizure and sale on exe-
cution. Under a statute providing that judgments shall be liens on
real estate subject to execution, where the entire property of a resi-
dent householder at the time of the rendition of a judgment is less in
value than the amount allowed by law as exempt from execution, and
so continues, the judgment does not become a lien on his real estate,
and his grantee, takes it free from any lien of the judgment or execu-
tion issued upon it.^**
425. Homeitead Property.
Since land held as a homestead is not liable to levy and sale on
execution, it is not bound by the lien of a judgment against the
owner, except as to the surplus value of the property, if any, over
the amount hmited as a homestead exemption. Hence, while the
land retains this character, the owner will not be deterred from pla-
cing incumbrances upon it, or even alienating it, by the fact that
there are judgments outstanding against him.^*^ But a judgment-
lien against property acquired before the filing of a declaration of
homestead by the debtor and his wife, or before the debtor's mar-
riage, or otherwise before the land acquires the character of a home-
stead, subjects such property to sale under execution; such lien
cannot be divested by any subsequent act of the owners.* •• And if
iBo Dumbould y. Rowley, 113 Ind. 353, 15 N. E. 463; King y. Easton, 135
Ind. a53, 35 N. E. 181.
loTAckley v. Chamberlain, 16 Cal. 181. 76 Am. Dec. 516; McI>onald t.
Badger, 23 Gal. 400, 83 Am. Dec. 123; Sullivan v. Hendrickson, 64 ObL 258;
Monroe v. May, 9 Kan. 466; Gapen v. Stephenson, 17 Kan. 613; Lorimer t.
Marshall, 44 111. App. 645; Farmers' Loan & Trust Co. v. Schwenk. 54 Neb.
r>57, 74 N. W. 1063; Traders* Nat. Bank v. Schorr. 20 Wash. 1, 54 Pac. 513.
72 Am. St. Rep. 17; Lamb v. Shays, 14 Iowa, 567; Wiggins t. Chance, 54
111. 175; Black v. Epperson, 40 Tex. 162; Briggs v. Briggs, 45 Iowa, 318;
Grimes v. Portman, 99 Mo. 229, 12 S. W. 792.
i58KennerIey v. Swartz. 83 Va. 704. 3 S. E. 348; Smith v. Richardff. 2
Idaho, 4G4, 21 Pac. 419, citing Freem. Ex'ns. $$ 249. 249d, 249e; Thoiup.
Homest. & Exemp. § 317; Smyth. Homest. § 'So; Piatt. Mar. Woin, » . .:
Kelly V. Dill, 23 Minn. 435; Bullene v. Hiatt, 12 Kan. 98; Robinson v. Wll-
(G66)
Ch. 16) THB LIBN OF JXJDOMBNTS. § 425
the property loses its character as a homestead, it then becomes sub-
ject to existing and future judgments. Thus, under a law which
enacts that the homestead exemption shall exist ''so long as the same
shall be owned and occupied by the debtor as such homestead/' a
judgment against the owner of land is a lien which remains dormant
while the land is so occupied, but it becomes living and operative as
soon as the homestead occupation is abandoned.**^® In that event, all
existing judgments will attach together as of the date of the aban-
donment, but without regard to their seniority, and priority will be-
long to the creditor who first manifests his diligence by levying on
the property.***^ It is evident that if an abandonment of the home-
stead character of the land precedes the debtor's alienation of it by
such an interval of time that the two acts cannot be considered as
parts of the same transaction, the liens of existing judgments will
attach, and the property will go to the purchaser burdened with such
liens.**^ But a more difficult question arises in case the relinquish-
ment of the homestead consists in the very act of selling it. Accord-
ing to the decisions in some of the states, if the owner of a home-
stead attempts to alienate the land ipso facto he abandons its charac-
ter as a homestead, and at the same instant the liens of existing
judgments against him attach to the property, and the purchaser must
therefore take it charged with such liens.**' This view is based
son, 15 Kan. 505. 22 Am. Rep. 272; Bartholomew y. Hook, 23 Gal. 278; Rix
V. McHenry, 7 Cal. 89; Elston v. Robinson, 21 Iowa, 532.
iB» Kellennan v. Aultman (C. C) 30 Fed. 888. Compare Horbach v. Smiley,.
54 Neb. 217, 74 N. W. 623.
i«o Bliss V. Clark, 39 HI. 596, 89 Am. Dec. 330; McDonald v. Orandall. 43
lU. 231, 92 Am. Dec. 112. But in Virginia, It is said that the lien of a Judg-
ment which attached before the homestead was claimed will have priority,
after the abandonment of the homestead, over a deed of trust or mortgage
executed during the occupancy of the land as a homestead. Blose v. Bear,
87 Va. 177, 12 S. E. 294, 11 L. R. A. 705.
lei Ackley v. Chamberlain, 16 Cal. 181, 76 Am. Dec. 516; Marriner v. Smith,
27 Cal. 649; Green v. Marks, 25 111. 222.
i«2 KeUerman v. Aultman (C. C.) 30 Fed. 888; Eaton v. Ryan, 5 Neb. 47;
State Bank v. Carson, 4 Neb. 498; Moore v. Granger, 30 Ark. 574; Jackson
▼. Allen, 30 Ark. 110; Folsom v. Carli, 5 Minn. 3S5 (Gil. 264), 80 Am. Dec.
420; Tillotson v. Millard. 7 Minn. 513 (GH. 419), 82 Am. Dec. 112; Hoyt v.
Howe. 3 Wis. 752. 62 Am. Dec. 705; Whitworth v. Lyons, 39 Miss. 467. Com-
pare Roberts v. Robinson, 49 Neb. 717, 68 N. W. 1035, 59 Am. St. Rep. 567.
(G67)
§ 425 LAW OF JUD6M8NT& (Cb. 16
S 424. Ezeatpt Property.
In the nature of things, a judgment cannot operate as a lien upon
any property which is by law exempt from seizure and sale on exe-
cution. Under a statute providing that judgments shall be liens on
real estate subject to execution, where the entire property of a resi-
dent householder at the time of the rendition of a judgment is less in
value than the amount allowed by law as exempt from execution, and
so continues, the judgment does not become a lien on his real estate,
and his grantee. takes it free from any lien of the judgment or execu*
tion issued upon it.***
425. Homestead Property*
Since land held as a homestead is not liable to levy and sale on
execution, it is not bound by the lien of a judgment against the
owner, except as to the surplus value of the property, if any, over
the amount limited as a homestead exemption. Hence, while the
land retains this character, the owner will not be deterred from pla-
cing incumbrances upon it, or even alienating it, by the fact that
there are judgments outstanding against him.**^ But a judgment-
lien against property acquired before the filing of a declaration of
homestead by the debtor and his wife, or before the debtor's mar-
riage, or otherwise before the land acquires the character of a home-
stead, subjects such property to sale under execution; such lien
(pannot be divested by any subsequent act of the owners.* •• And if
160 Dumbould y. Rowley, 113 Ind. 353, 15 N. E. 463; King y. Eaaton. X3&
Ind. 353. 35 N. B. 181.
loTAckley v. Chamberlain, 16 Cal. 181, 76 Am. Dec. 616; McDonald t.
Badger, 23 Cal. 400, 83 Am. Dec. 123; SulUvan y. Hendrlckson, 54 Oal. 258:
Monroe y. May, 9 Kan. 466; Gapen y. Stephenson, 17 Kan. 613; Lorimer t.
Marshall, 44 111. App. 645; Farmers* Loan & Trust Co. y. Schwenk, 54 Neb.
057, 74 N. W. 1063; Traders' Nat. Bank v. Schorr, 20 Wash. 1, 54 Pac. 513,
72 Am. St. Rep. 17; Lamb y. Shays, 14 Iowa, 567; Wiggins y. Chance, 54
111. 175; Black y. Epperson, 40 Tex. 162; Briggs y. Briggs, 45 Iowa, 318;
Grimes v. Portman, 99 Mo. 229, 12 S. W. 792.
issKennerley y. Swartz, 83 Va. 704, 3 S. E. 348; Smith y. Richards, 2
Idaho, 404, 21 Pac. 419, citing Freem. Ex'ns, {{ 219, 249d, 240e; Tbomp.
Homest. & Exemp. § 317; Smyth, Homest. $ 35; Piatt, Mar. uoni. > ...
Kelly v. Dill, 23 Minn. 435; Bullene y. Hlatt, 12 Kan. 08; Robinson v. \VU-
(6G6)
Ch. 16) THB LIBN OF JUDGMENTS. § 425
the property loses its character as a homestead, it then becomes sub-
ject to existing and future judgments. Thus, under a law which
enacts that the homestead exemption shall exist ''so long as the same
shall be owned and occupied by the debtor as such homestead," a
judgment against the owner of land is a lien which remains dormant
while the land is so occupied, but it becomes living and operative as
soon as the homestead occupation is abandoned.* °* In that event, all
existing judgments will attach together as of the date of the aban-
donment, but without regard to their seniority, and priority will be-
long to the creditor who first manifests his diligence by levying on
the property.*®® It is evident that if an abandonment of the home-
stead character of the land precedes the debtor's alienation of it by
such an interval of time that the two acts cannot be considered as
parts of the same transaction, the liens of existing judgments will
attach, and the property will go to the purchaser burdened with such
liens.*®* But a more difficult question arises in case the relinquish-
ment of the homestead consists in the very act of selling it. Accord-
ing to the decisions in some of the states, if the owner of a home-
stead attempts to alienate the land ipso facto he abandons its charac-
ter as a homestead, and at the same instant the liens of existing
judgments against him attach to the property, and the purchaser must
therefore take it charged with such liens.*** This view is based
son, 15 Kan. 505, 22 Am. Rep. 272; Bartholomew v. Hook, 23 Gal. 278; Rix
V. McHenry, 7 Cal. 89; Elstoii v. Robinson, 21 Iowa. 532.
i5» Kellerman v. Aultman (C. C) 30 ¥e± 888. Compare Horbach v. Smiley,
54 Neb. 217, 74 N. W. 623.
leo Bliss V. Clark, 39 111. 596, 89 Am. Dec. 330; McDonald v. CrandaH. 43
111. 231, 92 Am. Dec. 112. But In Virginia. It is said that the lien of a judg-
ment which attached before the homestead was claimed will have priority,
after the abandonment of the homestead, over a deed of trust or mortgage
executed during the occupancy of the land as a homestead. Blose v. Bear,
87 Va. 177, 12 S. E. 294, 11 L. R. A. 705.
181 Ackley v. Chamberlain, 16 Cal. 181, 76 Am. Dec. 516; Marrlner v. Smith,
27 Cal. 649; Green v. Marks, 25 111. 222.
162 Kellerman v. Aultman (C. O.) 30 Fed. 888; Eaton v. Ryan, 5 Neb. 47;
State Bank v. Carson, 4 Neb. 498; Moore v. Granger, 30 Ark. 574; Jackson
v. Allen, 30 Ark. 110; Folsom v. Carli, 5 Minn. 335 (Gil. 2W), 80 Am. Dec.
429; Tlllolson v. Millard. 7 Minn. 513 (Gil. 419), 82 Am. Dec. 112; Hoyt v.
Howe, 3 Wis. 752, 62 Am. Dec. 705; Whitworth v. Lyons, 39 Miss. 467. Com-
pare Roberts v. Robinson, 49 Neb. 717, 68 N. W. 1035, 59 Am. St. Rep. 567.
(667)
§ 431 LAW OF JUDGMENTS. (Ch. 16
from G. and the original grantor. Upon this state of facts it was
held that judgments rendered against G. prior in date to such con-
veyance were liens on his interest in the land, but as to those ren-
dered subsequent to that period, H. was entitled to relief by perpet-
ual injunction against them.***
S 431. Partaersldp Prope?|]r.
A judgment against a partnership for a firm debt, entered by con-
fession of all the partners, is a lien upon the partnership real es-
tate.**^ And so also a judgment of a separate creditor against one
of the partners will be a lien on the firm property, although subordi-
nated to all claims against the partnership as such. Where realty
is purchased with partnership funds and held and used for partnership
purposes, though the legal title is in the name of individual partners,
the statutory lien of a judgment of a separate creditor, on such land,
must be postponed to the equity of a firm creditor whose claim ac-
crued during the continuance of the partnership, although subsequent
to the time that such statutory lien attached. Such lien is good only
to the extent of the residuary interest of the partners in the land,
after the satisfaction of all claims against the partnership.* •• Con-
versely, a judgment against the firm is a lien on the separate real
estate of the individual partners.*** But where, upon a hearing be-
fore an auditor appointed to determine the validity of certain claims
against an estate, a judgment obtained against the firm of which
the decedent was a member was filed, it was held that as the record
did not show the names of the individual partners, the judgment
could not be charged upon the individual property of the decedent.***
186 Hollida V. Shoop, 4 Md. 465, 59 Am. Dec. 88.
18T In re Codding (D. C.) 9 Fed. 849.
188 Page y. Thomas, 43 Ohio St. 38, 1 N. E. 79, 54 Am. Rep. 788. And see,
also, Melly v. Wood, 71 Pa. 488, 10 Am. Rep. 719; Hoskfns v. Johnson. 24
Ga. G25.
i80Cummings' Appeal, 25 Pa. 268, 64 Am. Dec. 695; Pitts y. Spotts, 86
Va. 71, 9 S. E. 501. A contrary view is maintained in Stadler t. Allen, 44
Iowa, 198. And see Baldridge t. Eason. 99 Ala. 516, 13 South. 74. IndlTld-
ual creditors of a partner are not entitled to priority of payment out of pro-
ceeds of his indiyidual real estate, as against a Judgment creditor of the
firm, who, by docketing his Judgment, has acquired a prior lien on such real
estate. MacDonald y. MacDonald, 62 Hun, 621, 17 N. Y. Supp. 280l
100 Fox's Appeal (Pa.) 11 AtL 228.
(G72)
Ch. 16) THE LIEN OF JUDGMENTS. § 432
i 432. After-Aaquirod Property.
In most of the states it is held that the lien of a judgment attaches
to and binds land acquired by the debtor after the rendition and dock-
eting of the judgment ; it being either so provided by statute, or by
following the doctrines of the English common law.***. But in two
states — Pennsylvania and Ohio — it has been firmly settled from a
very early day that the lien will not attach to after-acquired lands
unless they are levied on, and consequently the debtor can make
clear title to such lands in the interval, and execution cannot be levied
on lands which the defendant got by purchase after the judgment, if
he aliened them in good faith before levy.*®* And this doctrine has
also been accepted in a few other states.**' By the English common
law the lien attached to subsequently acquired realty without a
levy.*** In Illinois, the rule is that where an execution is issued upon
a judgment within one year from its rendition, the judgment will be-
come a lien upon any real estate the judgment-defendant may acquire
subsequent to its rendition and within seven years, but if no execution
i»i Ridgely v. Gartrell» 3 H. & McH. (Md.) 449; McClung v. Beirne, 10
Leigh (Va.) 3at, 34 Am. Dec. 739; Handly v. Sydenstrlcker, 4 W. Va. 605;
Ralston v. Field, 32 Ga. 453; Harrison v. Roberts, 6 Fla. 711; Moody v. Har-
per, 25 Miss. 484; Jenlsins v. Gowen, 37 Miss. 444; Cayce v. Stovall, 50 Miss.
396; Thulemeyer v. Jones, 37 Tex. 500; Barron v. Tiiompson, 54 Tex. 235;
Franke v. Lone Star Brewing Cto., 17 Tex. Civ. App. 9. 42 S. W. 801; Green-
way V. Cannon, 3 Humph. (Tenn.) 177, 39 Am. Dec. 161; Chapron v. Cassa-
day. 3 Humph. (Tenn.) 661; Davis v. Benton, 2 Sneed (Tenn.) 665; Babcock
V. Jones. 15 Kan. 296; Bank v. Watson, 13 Ark. 74; Ridge v. Prathef, 1
Blackf. (Ind.) 401; Curtis v. Root, 28 lU. 367; Wales v. Bogue. 31 111. 464;
Steele v. Taylor, 1 Minn. 274 (Gil. 210); CJolt v. Du Bois, 7 Neb. 391; Duell
T. Potter. 51 Neb. 241, 70 N. W. 932; Lessert v. Sieberling, 59 Neb. 309, 80
N. W. 900; Leonard v. White Cloud Ferry Co., 11 Neb. 340, 7 N. W. 538.
!•« Colhoun V. Snider, 6 Bin. (Pa.) 135; Bundle v. Ettwein, 2 Yeates (Pa.)
23; Packer's Appeal, 6 Pa. 277; Lea v. Hopkins, 7 Pa. 402; Moorehead v. Mc-
Klnney, 9 Pa. 265; Waters' Appeal, 35 Pa. 523, 78 Am, Dec. 354; Ross* Ap-
peal, 100 Pa. 82: Torrence v. Torrence, 24 Pa. Oo. Ct. R. 408; Roads v.
Symmes, 1 Ohio, 281, 13 Am. Dec. 621; McCormick v. Alexander, 2 Ohio, 65;
Stiles V. Murphy, 4 Ohio, 92.
i»3 Han'lngton v. Sharp, 1 G. Greene (Iowa) 131, 48 Am. Dec. 3(J5. See
H. Herman SawmiU Co. v. Martin, 22 Ky. Law Sep. 651, 68 S. W. 524.
184 4 Kent, Comm. ♦435-6.
1 LAW JUDG.-43 (673)
§ 433 XiAW OP JUDGMENTS. (Ch. 16
is issued thereon within a year, no lien will exist.**' The lien of a
judgment attaches to after-acquired property from the time the title
vests in the debtor, but does not relate back to the date of the judg-
ment. Hence the liens of all judgments in existence when the debtor
acquires the property attach simultaneously and equally.***
§ 433. Eqnitable Estates and Interests.
At common law, and generally in the absence of a statute expressly
giving to it that effect, the lien of a judgment does not extend to an
equitable interest held by the judgment-debtor in the land.**^ For
instance, a judgment is not a lien upon a possible equitable interest
of the debtor in a tract of land, which interest arises out of a mistake
made by the sheriff, in selling the land on execution, as to the quan-
tity contained in the tract.*** In many of the states, statutes have
been enacted changing the common law rule and assimilating legal
and equitable estates for purposes of lien and execution. But in
cases of ambiguity in such acts, or lack of specific reference to equi-
table interests, considerable doubt has been expressed as to the pro-
priety of departing from the ancient rule. Thus in Oregon, although
the statute enacts that a judgment shall be "b, lien on all real prop-
erty of the judgment-debtor not exempt from execution, owned by
him in the county at the time of docketing," yet it is held that a
judgment at law is not a lien upon an equitable title in land.*** On
the other hand, in Maryland, it is considered that a judgment is a
195 Breed v. Gorham, 108 lU. 81.
196 Cayce y. StovaU, 50 Miss. 396. See infra, § 460.
i*T Morsell v. First Nat Bank, 91 U. S. 357, 23 L. Ed. 436; Brandies r.
Coclirane, 112 U. S. 344, 5 Sup. Gt 194, 28 L. Ed. 760; WithneU y. Conrtl&nd
Wagon Co., 25 Fed. 372; Jackson y. Chapin, 5 Cow. (X. Y.) 485; Bogart v.
Perry, 1 Johns. Ch. 52; TruesdeU y. Lehman, 47 N. J. Eq. 218, 20 Atl. 391;
Slpley y. Wass, 49 N. J. Eq. 463, 24 Ati. 233; Dixon v. Dixon. 81 N. C. 323;
Powell y. Knox, 16 Ala. 364; Klrkwood y. Koester, 11 Kan. 471; Baird T.
Kirtland, 8 Ohio, 21; Russell y. Houston, 5 Ind. 180; Jetfriefl y. Sherbam. 21
Ind. 112; Harrington y. Sharp, 1 G. Greene (Iowa) 131, 48 Aul Dec. 365:
Trask y. Green. 9 Mich. 3r)S; Nessler y. Neher, 18 Neb. 649, 26 N. W. 471:
AVoolworth V. Parker, 57 Neb. 417. 77 N. W. 1000; Smith v. Ingles, 2 Or. 43;
Bloomfleld v. Humason, 11 Or. 229, 4 Pac. 332.
i9» Russell y. Houston, 5 Ind. 180. See, a similar case, Terrell t. Prestell,
\j8 Ind. 86.
100 Smith y. Ingles, 2 Or. 43.
(674)
Ch. 16) THE LIEN OF JUDGMENTS. § 438
legal lien upon an equitable estate in lands, and binds them from its
date, on the ground that the statute makes no distinction between
the two species of interests,*^® Under the statutes of Iowa, judg-
ments of superior courts are liens upon all interests of the judg-
ment-debtor in r^al estate, whether legal or equitable, ^nd it is im-
material, as between the parties, whether such interest appears of
record or not.*^* In Pennsylvania the same result is reached, but
without the aid of a statute. The reason is thus stated by the court :
"At common law an equitable estate is not bound by a judgment or
subject to an execution, but the creditor may have relief in chan-
cery. We have no court of chancery, and have therefore, from ne-
cessity, established it as a principle that both judgments and execu-
tions have an immediate operation on equitable estates." *^*
Although at common law, and so far as regards the competence of
the law courts, without the aid of a statute, there is no method of
making a judgment-lien effectual upon a purely equitable estate in
the land held by the debtor, yet it has always been held by the courts
of chancery that, for their purposes, such interests were just as much
bound by the judgment as any legal estate, and could be subjected to
its satisfaction through the processes of equity.*®' "Courts of chan-
cery, in adjusting' the conflicting rights of creditors, following by
analogy the principles of the common law, will, as far as equity and
good conscience permit, regard a judgment as a lien upon the equi-
table real estate of the debtor." *®* In Tennessee a judgment cre-
ates a lien upon equitable estates in land, to be asserted in a court of
chancery, co-extensive with the lien which at law exists upon legal
estates, and which will in like manner attach to after-acquired equita-
ble realty."*
200 McMechen v. Marman, 8 Gill & J. (Md.) 57.
201 Lathrop v. Brown, 23 Iowa, 40; Blain v. Stewart, 2 Iowa, 378.
202Auwerter v. Mathlot, 9 Serg. & B. 402; Carkhuff v. Anderson, 3 Bin.
4; Semple v. Mown, 4 Phlla. 85.
203 Unknown Heirs v. Kimball, 4 Ind. 546, 58 Am. Dec. 638; Lee v. Stone,
5 Gill & J. (Md.) 1, 23 Am. Dec. 589; Haleys v. Williams, 1 Leigh (Va.) 140,
19 Am. Dec. 743; Mlchaux's Adm'r v. Brown, 10 Grat. (Va.) 612; Roach v.
Bennett, 24 Miss. 98.
204 Lee V. Stone, 5 Gill & J. (Md.) 1, 23 Am. Dec. 589.
205 Chapron v. Cassaday, 3 Ilumph. 661. See Weaver v. Smith, 102 Tenn.
47, 50 S. W. 771.
(675)
§ 434 l4AW OF JUDGMENTS. (Ch. 16
I 434. Equity of Bedenptton.
It is generally held that a judgment creates a lien upon an equity
of redemption of real estate from the time it is recorded.**^ And a
judgment-debtor cannot, by conveying his equity of redemption to a
prior mortgagee, cut off the lien of a judgment.*^' So a judgment
obtained against the owner of an equity of redemption in mortgaged
premises, after a decree of foreclosure but before a sale of the prem-
ises by the master, has an equitable lien upon the surplus moneys pro-
duced by the sale under the decree ; but it is otherwise if the judg-
ment was docketed subsequent to the sale.*®* Where, after making
a contract for the sale of land, the vendor assigns his claim for the
purchase-money and conveys the legal title to another as collateral
security for a debt, such conveyance is in legal effect a mortgage,
and the vendor has a right of redemption, or a resulting trust, which
is bound by the lien of a judgment subsequently rendered against
him.*®* But in a case where a court of chancery, upon a creditor's
bill, had ordered the debtor to convey his realty to a receiver ap-
pointed by the court, it was held that a judgment recovered against
the debtor after his conveyance to the receiver did not create a lien
upon the lands. *^® And in general, where a debtor has conveyed an
estate to trustees upon an active trust, so that there remains in him
nothing more than a reversionary equitable interest, and afterwards
a judgment is recovered against him, its lien will not, at common
law, attach to such remaining interest of the debtor. But in equity
the judgment-creditor is not without remedy. For, by filing a bill
for that purpose, he may secure a quasi lien, which will give him an
interest in any surplus which may remain from the estate after dis-
cos Bank y. Morsell, 1 McArthur, 155; Julian y. Beal, 26 Ind. 220, 89 Am.
Dec. 460; Taylor v. ComeUus, 60 Pa. 187; Macauley v. Smith, 132 N. Y. 524.
30 N. R 097. Compare Blair v. diamblin, 39 lU. 526, 80 Am. Dec. 322.
207 Walters v. Defeubaugh, 90 IlL 241.
208 Sweet ▼. Jacocks, 6 Paige, 355, 31 Am. Dec. 252. See SulliTan t. Leckie,
60 Iowa, 326, 14 N. W. 355.
209 Klnports v. Boynton, 120 Pa. 306, 14 Atl. 135. 6 Am. St. Rep. 706.
210 Chautauqua Co. Bank v. White, 6 N. Y. 230, 57 Am. Dec. 442.
(676)
Ch. 16) THE LIEN OF JUDGMENTS. § 434
charging the trusts and which would result to the grantor's benefit,
paramount to that of the latter.^^^ Thus, at common law, a judg-
ment is not a lien upon real estate which, before the judgment was
rendered, had been conveyed to trustees with a power of sale to se-
cure the payment of debts of the grantor described in the deed of
trust.^^* But in many of the states, under the statutes or settled
precedents of the courts, before adverted to, which have changed the
ancient rule in regard to legal liens upon equitable estates, it is now
held that the resulting trust in favor of the grantor in such a trust
deed is property which will be bound by the lien of a subsequent
judgment, and that such lien may be enforced by levy and sale of the
land subject to the incumbrance of the trust deed.'^" After a sale,
however, under the deed of trust, the debtor's right to redeem is
removed from the land and is represented by the surplus in the
hands of the trustee, against which such judgment-lien is continued
and may be enforced in equity."^* But if the judgment-creditor suf-
fers a sale to be made under the deed of trust, without getting out
execution on his judgment or otherwise giving the trustee actual
notice of his claim, and the latter pays over the surplus in his hands,
after satisfying the objects of the trust, to the grantor, the judgment-
creditor cannot recover in an action against the trustee, for the
latter is not bound to search the 'records for possible liens upon the
fund."»
Where the statutes authorize the sale of land for delinquent taxes,
but provide that the owner shall have a limited period within which
to redeem from such sale, his interest in the property, during the
811 Freedman's Savings Co. v. Earle, 110 U. S. 710, 4 Sup. Ct. 226, 28 L.
Ed. 301; Brandies v. Cochrane, 112 U. S. 344, 5 Sup. Ct. 194, 28 L. Ed. 760;
McFerran v. Davis, 70 Ga. 661; Schroeder v. Gurney, 10 Hun, 413; Chau-
tauqua Co. Bank v. White, 6 N. T. 236, 57 Am. Dec. 442.
212 Moreell V. Bank. 91 U. S. 357, 23 L. Ed. 436; Marlow v. Johnson, 31
Miss. 128. See Johnston v. Lemmonds, 109 N. C. 643, 14 S. E. 86.
213 Trimble v. Hunter, 104 N. C. 120, 10 S. E. 291; Hale v. Home, 21 Grat.
(Va.) 112; Pahlman v. Shumway, 24 III. 127; Cook v. Dillon, 9 Iowa, 407,
74 Am. Dec. 354.
21* Cook V. Dillon, 9 Iowa, 407, 74 Am. Dec. 354.
216 Warner v. Veltch, 2 Mo. App. 459; Cook v. Dillon, 9 Iowa, 407, 74 Am.
Dec. 354.
(677)
§ 486 LAW OP JUDGMENTS. (Ch. 16
running of such period, is subject to the lien of judgments rendered
against him.*^*
I 435. Judgment against Tmstee.
A trustee cannot bind land held under the trust by a confession of
judgment. Tlie lien resulting from such judgment will attach to
nothing but the personU interest, if any, which the trustee may
have in the estate.^^^ But a trustee '^wte^ without the knowledge of
his cestui que trust, purchases real estate, takes the tMe m M^ ^wn
name, and pays part of the consideration with trust funds in his
hands and gives his own note and mortgage for the remainder, has
an interest in the land upon which a judgment against him will attach
as a lien.*^*
I 436* Iiand l&eld imdar m Powev* >
If land is held by one under a power of appointment which he
might exercise for his own benefit, it is generally held that he has
such an interest in the estate as will be bound by the lien of a judg-
ment against him.*^* In a case in New York, it appeared that cer-
21 • McNeill V. Garter, 57 Ark. 579, 22 8. W. M; Appeal of Singer (Pa.) 7
Ati. 800; HiU ▼. Gordon, 45 Fed. 276^ It is otherwise where land is abso-
lutely forfeited to the state for nonpayment of taxes. Wiant ▼. Hays, 38
W. Va. 681, 18 S. E. 807, 23 L. R. A. 82.
217 Huntt V. Townshend, 31 Md. 336, 100 Am. Dec. 63.
218 Martin v. Baldwin, 30 Minn. 537, 16 N. W. 449.
210 Brandies v. Cochrane, 112 U. S. 344, 5 Sup. Ct. 194, 28 L. Ed. 760. Id
this case Matthews, J., said: "Prior to the enactment of 1 & 2 Vic. c. 110.
it was settled in England that -at law a Judgment against the party baring
a power of appointment, with the estate vested in him until and In default
of appointment, was defeated by the subsequent execution of the power in
favor of a mortgagee. Doe v. Jones, 10 Barn. & O. 459; Tunstall v. Trappes,
3 Sim. 286, 300. And it was held to be immaterial that the purchaser had
notice of the Judgment; Eaton v. Sanxter, 6 Sim. 517; or that a portion of
the purchase-money was set aside as an indemnity against it. Skeeles v.
Shearly, 8 Sim. 153, s. c. on appeal, 3 Mylne & C. 112. In that case. Sir
John Leach, the vice-chancellor, decided that the effect of the transmlstfion
of the estate by appointment was, .that the appointee takes it In the same
manner as if it had been limited to him by the deed under which the appoint-
or takes in default of appointment, and, consequently, free and disconnected
from any interest which the appointor had in the tenements in default of ap*
pointment; that, as the appointee is in no sense the assignee of the appointor,
(678)
Ch. 16) THB UBN OF JXJDOMBNT8. § ^^7
tain lands were devised to trustees upon certain conditions, and with
a further provision by which the cestui que trust, S., was empowered
and authorized to convey and dispose, by his last will and testament,
of all the said land, or any part thereof, and to limit and appoint
the uses thereof in such manner as he might deem proper. In case
S. should die without having made such will and appointment, then
remainder in fee to his surviving issue. S. during his life conveyed
several portions of the land to different grantees, and died without
surviving issue. It was held that the power originally given to S.
was a general power, of which he might have the exclusive benefit,
and that, having exercised it, his interest in the property was to be
deemed assets, upon which judgments recovered against him were
equitable liens.**^
§ 437. J'ndgmant asain*t Cestui Qna Tnut.
The equitable estate or interest of a cestui que trust in a dry or
passive trust merely, is liable to execution and sale on a judgment
recovered against him.**^ But in this country generally, in the
absence of a statute changing tjje rule of the common law, a judg-
ment is not a lien on the interest or estate of the beneficiary in an
active trust, nor is there any remedy at law to enforce the payment
of a judgment out of such interest or estate.*** The creditor may
indeed obtain relief upon a bill in equity, but the ground of the juris-
diction is not that of a lien or charge arising by virtue of the judg-
ment itself, but of an equity to enforce satisfaction of the judgment
he cannot be affected by JudgmeYits which affect only the estate and inter-
est of the appointor, and, that being so, the circumstance of his having notice
of such Judgments is immaterial. The statute of 1 & 2 Vic. a 110, altered
the law in this respect, by making Judgments an actual charge on the debt-
or's property, where he has, at the time the Judgment is entered up, or at
any time afterward, any disposing power over it, which he might, without
the assent of any other person, exercise for his own benefit; so that it would
continue to bind the property, notwithstanding any appointment 2 Sugd.
Powers (7tb Load. Ed.) 33; Burt Real Prop. (8th Lond. Ed.) 283; Hotham
T. Somerville, 9 Beav. 63."
S20 Tallmadge v. Sill, 21 Barb; 34.
221 Doe dem. McMullen v. Lank, 4 Houst. pel.) 648.
222 Flanagin y. Daws, 2 Houst (Del) 476; Beckett v. Dean, 57 Miss. 232.
(679)
§ 437 LAW OF JUD6MSNT3. (Ch. 16
by means of an equitable execution.**' In an early Virginia case, it
appeared that a deed of marriage settlement vested certain real estate
in a trustee, in trust to pay the wife an annuity out of the profits,
228 Freedman's Sayings & Trust Co. y. Earle, 110 U. S. 710, 4 Snp. Ct. 226.
28 L. Ed. 301. In dellyerlng the opinion of the court in this case, ^latthews,
J., obseryed: "At common law executions upon judgments could not be lev-
ied upon estates merely equitable, because courts of law did not recognise
any such titles and could not deal with them. They could not be levied upon
the estate of the trustee when the Judgment was against the cestui que trust
for tlie same reason; and when the Judgment was against the trustee, if his
le^al estate should be levied on, the execution-creditor could acquire no ben*
eflcial interest, and if the leyy tended injuriously to affect the interest of the
cestui que trust, the latter would be entitled to relief, by injunction or other-
wise, in equity. Lewin, Trusts, 181, 186; 2 Spence, £q. Jur. 39. But as
courts of equity regarded the cestui que trust as the true and benefldal
owner of the estate, to whose uses, according to the terms pf the trust, the
legal title was made subservient, so in its eyes the estate of the cestui que
trust came to be invested with the same incidents and quaUties which in a
court of law belonged to a legal estate, so far as consistent with the preser-
vation and administration of the trust This was by virtue of a principle of
analogy, adopted because courts of equity were unwilling to interfere with
the strict course of the law, except so far as was necessary to execute the
Just intentions of parties, and to prevent the forms of law from being made
the means and instruments of w^rong, injustice, and oppression. Thus equi-
table estates were held to be assignable and could be conveyed or devlAed,
were subject to the rules of descent applicable to legal estates, to the ten-
ancy by the curtesy, though not to dower, by an anomalous exception after-
wards corrected by statute 3 & 4 Will. 4, c. 1(^; and were ordinarily gov-
erned by the rules of law which measure the duration of the enjoyment or
regulate the devolution or transmission of estates; so that, in general, wliat-
ever would be the rule of law, if it were a legal estate, was appUed by the
court of chancery by analogy to a trust estate. 1 Spence, Eq. Jur. o02.
When the object of the bill is to obtain satisfaction of the Judgment by a
sale of the equitable estate, it must be alleg'ed that execution has been issued.
This is not supposed to be necessary wholly on the ground of showing that
the judgment-creditor has exhausted his remedy at law; for, if so, it would
be necessary to show a return of the execution unsatisfied, which, however,
is not essential. Lewin, Trusts, 513. But the execution must be sued out;
for if the estate sought to be subjected is a legal estate, and subject to be
taken In execution, the ground of the Jurisdiction in equity is merely to aid
the le;ral right by removing obstacles in the way of its enforcement at law
(Joiies y. Green, 1 Wall. 330, 17 L.. Ed. 553); and if the estate is equitable
merely, and therefore not subject to be levied on by an execution at law. the
Judgment-creditor is bound, nevertheless, to put himself in the same postti<ui
as if the estate were legal, because the action of tlie court converts the estate.
so as to make it subject to uu execution, as if it were legal. The ground of
(680)
Oh. 16) THB LIBN OF JUDGMENTS. § 438
and, subject to the annuity, in trust for the grantor's son. The
annuitant being yet alive, a creditor of the son recovered judgment
against him and brought a bill in equity to subject the son's equi-
table interest in the estate to the debt. It was held that such equi-
table interest could not be taken in execution at law, but that it was
bound by the judgment in equity, and would be applied to the satis-
faction of the debt; but as the annuitant was yet living and could
not be compelled to take a g^oss sum in. satisfaction of the annuity,
and as the trustee was to hold the subject and pay the annuity out
of the profits, equity ought not to direct an out and out sale of the
debtor's interest subject to the annuity, but ought only to direct the
application of the surplus of profits as they accrue, after paying the
annuity, to the debt.^** In Indiana, judgments are by statute liens
on lands held in trust for the judgment debtor in their chronological
order, and a junior judgment obtains no priority by a decree in
equity subjecting the lands to execution to satisfy it, where the plain-
tiff in the senior iudgment is not a party.* ^*
§ 438. Interest of Vendor nnder Ezeentory Contract.
Where the owner of land executes an agreement for the sale and
conveyance of the same, he continues to be the legal owner so long
as any part of the purchase-money conditioned in the contract re-
mains unpaid, and his interest in the estate (which is the fee, subject
to the equitable right of the vendee) is bound by the lien of a judg-
the Jurlsdletloii, therefore, is not that of a Hen or charge arising by virtue
of the Judgment itself, but of an equity to enforce satisfaction of the Judg-
ment by means of an equitable execution. And this it effects by a sale of
the debtor's interest subject to prior incumbrances, or according to circum-
stances, of the whole estate, for distribution of the proceeds of sale among
all the incumbrancers according to the order in which they may be entitled
to participate. Sharpe v. Earl of Scarborough, 4 Yes. 538. It is to be noted,
therefore, that the proceeding is one instituted by the Judgment-creditor for
his own interest alone, unless he elects to file the bill also for others in a
like situation, with whom he chooses to make common cause; and as no
specific lien arises by virtue of the Judgment and execution alone, the right
to obtain satisfaction out of the specific property sought to be subjected to
sale for that purpose dates from the filing of the bill."
22* Coutts v. Walker, 2 Leigh (A'a.) 268.
22 B Maxwell v. Vaught, 06 Ind. 136.
(081)
§ 438 LAW OF JUDGMENTS. (Ch. 16
ment duly docketed against him after the execution of the agreement,
but before the execution^ a deed ; and on a sale under such judg-
ment, the MkctOFs vendee succeeds to the precise situation of the
original vendor, and becomes entitled to require and receive payment
of the balance of the purchase-money.*** Since, however, the lien
of a judgment attaches only to the real and effective interest of the
debtor, and is subject to all prior rights and equities, it can never
operate to pass any greater or more extensive estate than the debtor
himself could have transferred by his voluntary alienation. Hence,
in the case supposed, the equitable right of the vendee to require a
conveyance upon fulfilling his part of the contract is not cut out or
set aside by the attaching of the judgment-lien. No matter into
whose hands the legal title may pass by sale under execution, the
vendee's claim remains the same. And the execution purchaser's
interest is limited to the amount of purchase-money remaining due,
after payment of which he must convey the legal title.**' In this
divided condition of the title, judgments against vendor and vendee
2s« Minneapolis & St. Lonls R. Go. v. Wilson, 25 Minn. 382; Young v. Dev-
rles, 31 Grat (Ya.) 304; Stewart v. Coder, 11 Pa. 90; Ware v. Jackson, 10
Ga. 452; Gear v. Lockridge, 9 Ind. 92; McMullen v. Wenner, 16 Serg. & R.
(Pa.) 18, 16 Am. Dec. 543; Fasholt v. Reed, 16 Serg. & R. (Pa.) 266; Lefferson
V. DaUas, 20 Ohio St. 68; Fllley v. Duncan, 1 Neb. 134, 93 Am. Dec. 337;
Uhl V. May, 5 Neb. 157; Courtnay v. Parker, 16 Neb. 311, 20 N. W. 120 (8.
c. 21 Neb. 582. 33 N. W. 262); Olander v. Tighe, 43 Neb. 344. 61 N. W. 633;
Wehn v. FaU, 55 Neb. 547, 76 N. W. 13, 70 Am. St. Rep. 397; Goolbangh v.
Roemer, 30 Minn. 424, 15 N. W. 869; WeUs v. Baldwin, 28 Minn. 406, 10 N.
W. 427. Per contra, Woodward v. Dean, 46 Iowa, 499; Hampson v. Edelen.
2 Har. & J. (Md.) 64, 3 Am. Dec. 530; Georgetown v. Smith, 4 Cranch. C. C.
93, Fed. Gas. No. 5,347; Moore t. Byers, 65 N. 0. 240; Money ▼. Dorsey, 7
Smedes & M. 15.
3 27 Filley y. Duncan, 1 Neb. 134. 93 Am. Dec. 337; Moyer y. Hlnman, 17
Barb. 137. "The equitable title of the vendee in a contract for the purchase
of land, made In good faith and for a full and adequate consideration, ia su-
perior to the lien of a Judgment-creditor whose Judgment is recovered with
notice, actual or constructive, of such contract. The Judgment Is a technical
lien upon the land, subject to the contract, because the legal title rests in the
vendor, but to be enforced only against the Interest of the latter to the extent
of the unpaid purchase-money. Upon the fulfillment of the contract by the
parties thereto such lien ceases, and is as effectually cut out as If the deed
had been executed at the date of the contract. The judgment-debt^xr, hav-
ing no lien, cannot afterwards apply to a court of equity to redeem from a
prior mortgage." BerryhlU y. Potter, 42 Minn. 279, 44 N. W. 251.
(682)
Ch. 16) THB LIEN OF JUDGMENTS. § 438
respectively, by their different creditors, bind the right of each in the
land, whether legal or equitable.**® Now it is evident that three
cases may arise, according to the situation of the parties in reference
to the payment of purchase-money at the date of the docketing of the
judgment. For either the whole of the price may have been paid at
that time, or none of it, or a part only. And these three cases, though
presenting somewhat different features, are all govfxaed by tlie same
general principle. In the first place, if the whole of the purchase-
money has been paid by the vendee at the time judgment is entered
Bgamst the vendor, the lien will indeed attach upon the title still
remaining in the latter (until the execution of the deed), but it could
pass no real or beneficial interest in the land. The purchaser at
sheriff's sale under the judgment would acquire nothing but the
naked legal title, which he would hold in trust for the vendee, and
which he must convey upon demand or at the time stipulated in the
agreement.**" Similarly, if, by the agreement, the whole purchase-
money is to be applied to the discharge of judgments prior to the
agreement, and is so applied, a judgment subsequent to the agree-
ment is not binding on the land.**® In the next place, although none
of the purchase-money has been paid, yet the contract of sale will
give the vendee an equitable interest in the estate which is not to be
displaced by a subsequent judgment-lien against the vendor.*** The
purchaser at an execution sale under the judgment would take the
legal title, but he would take it charged with the contract of sale,
and could demand from the vendee no more than the stipulated
price. In the third place, if a part of the purchase-money has been
paid and the purchaser's note given for the balance, the Hen of a
judgment will still attach to the vendor's interest.*** Yet if the note
given for such balance of price is passed away, before maturity, to a
bona fide holder for value without notice, and is duly paid in his
228 Chahoon ▼. HoUenback, 16 Serg. & R. (Pa.) 425, 16 Am. Dec. 587.
22»Manley v. Hunt, 1 Ohio, 257; Lounsbury v. Pnrdy, 11 Barb. (N. Y.)
400; Thomas v. Kennedy, 24 Iowa, 397, 95 Am. Dec. 740. See Brown ▼. Bnt-
ler, 87 Va. 621, 13 S. E. 71.
2«o Foster v. Foust 2 Serg. & R. (Pa.) 11.
231 Hampson v. Edelen, 2 Har. & J. (Md.) 64, 3 Am. Dec. 530; Lane v.
Ludlow, 2 Paine, 591, Fed. Cas. No. 8,052.
28S Bell V. McDuffie, 71 0&. 264.
(083)
§ 439 LAW OF JUD0MBNT8. (ptk. 16
hands (no injunction preventing either of these acts being done), then
the vendor has no longer any interest in the property, and the lien is
gone.^** An exception to the rule is sometimes based upon the fact
of possession in the vendee. Thus it has been held that land in the
possession of a vendee under a valid contract to purchase cannot be
sold as the property of the vendor under judgments which did not
obtain liens until after the contract was made.*** At any rate, it ap-
pears to be well settled that the docketing of the judgment is not
notice of the lien to the purchaser in possession, since, after he has
taken his contract for the purchase, he is not bound to keep the run
of the dockets; and payments subsequently made by him to the
judgment-debtor, pursuant to the contract, without actual notice of
the judgment, are valid as against its lien upon the land.*'* If the
premises are sold at sheriff's sale, on a judgment against the vendor
entered before the date of the contract for a sum exceeding the
amount the vendee was to pay, the latter is entitled to the surplus, in
preference to a creditor of the vendor whose judgment was obtained
after the date of the articles.***
§ 439. Interest of Vendee nnder Ezeentivry ContvAet.
In regard to the interest of the vendee in an executory contract
for the sale of lands, it must be remembered that his estate is equi-
table merely, the legal title remaining in the vendor, and conse-
quently, at common law, it would not be subject to levy and sale on
execution. But, as we have already seen,**^ the common law rule
28S Riddle's Appeal (Pa.) 7 Atl. 232; Logan's Adm'r v, PanniU, 90 Va. 11,
17 S. E. 744. In Moore v. Byers, 65 N. C. 240, It was beld that where a ven-
dor of land receives part of the purchase-money and takes notes for the res-
idue thereof, retaining the title until such notes shall be paid, and after-
ward a Judgment is obtained against him, and he then dies, such judgment
will not be a lien upon the land or the notes in the hands of his executors,
but the notes, when collected, will be assets for the payment of debts.
234 Adickes v. Lowry, 15 S. C. 128; Blwell v. Hitchcock, 41 Kan. 130. 21
Pac. 109. And see Snyder v. Botkin, 37 W. Va. 355, 16 S. B. 591; Hecker
V. Mourer, 8 Pa. Super. Ct. 43.
23 5 Moyer v. Hinman, 13 N. Y. 180; Parks v. Jackson, 11 Wend. (N. T.)
442, 25 Am. Dec. 650.
236 Siter's Appeal, 26 Pa. 178; Grouse's Appeal, 28 Pa. 139.
S37 Supra, S 433.
684)
Ch. 16) THE LIEN OF JVDOMBNT8.' § 439
as to judgment-liens on equitable interests has been modified in many
of the states by statutes. Hence it is held, in several jurisdic-
tions, that where a vendee of land has paid part of the purchase-
money and holds a bond for title, but has not yet received a convey-
ance, he has acquired such an interest in the land as will be bound by
the lien of a judgment against him.*'* Of course an execution-
purchaser of such interest would succeed to the precise situation of
the judgment-debtor, and would be entitled to demand a deed from
the original vendor upon complying with the terms of the original
contract, but would take no higher or greater interest. On the other
hand, in some few of the states, either in pursuance of the common
law doctrine or by express provision of the statutes, it is held that
the interest of a debtor in a contract for the purchase of lands can-
not be sold on an execution against him, but the remedy of the judg-
ment-creditor is by a suit in equity, after his execution at law has
been returned unsatisfied.^'® It is also held that a conveyance with
covenant of title made by a grantor who has a bond tor a deed, and
before he obtains the legal title, vests the legal title in the grantee
eo instante when the grantor obtains it, and there is no space of time
in which the Hen of a judgment obtained against such grantor, after
the conveyance was made, can attach against the land.**®
SB 8 Adams v. Harris, 47 Miss. 144; Foster's Appeal, 3 Pa. 79; Auwerter
v. Mathlot, 9 Serg. & R. (Pa.) 402; Oatlin v. Robinson, 2 Watts (Pa.) 373;
Ralston v. Field, 32 Ga. 453; Harp v. Patapsco Guano CJo., 99 Ga. 752, 27
S. E. 181; McFarland t. Fish, 34 W. Ya. 54S, 12 S. E. 548; Damron y. Smith,
37 W. Va. 580, 16 S. E. 807; Davis v. Vass, 47 W. Va. 811, 35 S. E. 826;
Coombs T. Jordan, 3 Bland Old.) 284, 22 Am. Dec. 236; Jackson y. Parker, 9
Cow. (N. Y.) 73; Russell's Appeal, 15 Pa. 319; Pugh v. Good, 3 Watts & S.
(Pa.) 56, 37 Am. Dec. 534; Waters' Appeal, 35 Pa. 523, 78 Am. Dec. 354; Rand
v. Garner, 75 Iowa, 311, 39 N. W. 515.
23» Ellsworth V. Cuyler, 9 Paige (N. Y.) 418; Boughton v. Bank of Orleans,
2 Barb. Ch. (X. Y.) 458; Cooper v. Cutshall, Smith (Ind.) 128; Gentry v. Alli-
son, 20 Ind. 481; Roddy v. Elam, 12 Rich. Eq. (S. C.) 343. And see Sweeney
V. Pratt, 70 Oonn. 274. 38 Atl. 182, 66 Am. St. Rep. 101; Rosenberger v. Jones,
118 Mo. 559, 24 S. W. 203; Nelson v. Turner, 97 Va. 54, 33 S. E. 390; Mer-
chants' Nat. Bank v. Eustls. 8 Tejc. Civ. App. 350, 28 S. W. 227.
240 Lamprey v. Pike (C. C.) 28 Fed. 30. Compare Van Camp v. Peeren-
boom, 14 Wis. 65.
(685)
§ 439a LAW OF JUDOMENTB. (Gh. 16
I 439a. Sale of Irfuid After Entry of ^ndsmoat.
When the lien of a judgment has once attached to land, it cannot
be divested by any voluntary alienation of the property by the owner
thereof; that is to say, any purchaser from the judgment debtor,
who has actual or constructive notice of the lien of the judgment on
the property, will take the estate charged with the lien.**^ And if
a purchaser has knowledge that a judgment debtor is the real owner
of the land, he will take it subject to the lien of the judgment, al-
though the record title was in a trustee when the judgment was
rendered, and the sale was not fraudulent as to creditors.*** But he
will take the property subject only to the amount called for by the
judgment as recorded, and not subject to an usurious increase under
a subsequent agreement between the creditor and the judgment
debtor.*** Of course the land is charged only with the liens of such
judgments as existed at the time of the purchase. A bona fide sale
of real property for a fair price, with no fraudulent intent, leaves no
rights in the vendor subject to the lien of a judgment subsequently
recovered.*** But where the lien of an existing judgment is specif-
ically excepted from the covenants of warranty in the deed, the pur-
chaser cannot insist that his grantor's chattels shall be exhausted
before the land is sold on execution under the judgment.***
Where the statutes provide that the lien of a judgment shall endure
only for a limited period, or shall expire, or cease to be effective,
after the lapse of a certain number of years, this limitation will enure
to the benefit of a purchaser from the judgment debtor, so that, at
the end of the statutory time, such purchaser's title will be freed
from the lien of the judgment.**' Where a sale of a judgment debt-
241 Lessert v. Sleberling. 59 Neb. 309. 80 N. W. 900; First Nat Bank v.
Hays (Idaho) 61 Tac. 287; Miimich v. Shaffer, 135 Ind. 034, 34 N. £1 967;
Stewart v. Perkins, 110 Mo. 600. 19 S. W. 989.
2*2 Armstrong v. Elliott, 20 Tex. Civ. App. 41. 48 S. W. 605.
2" Bensimer v. Fell, 35 W. Va. 15, 12 S. E. 1078, 29 Am. St. Rep. 774.
244 Appeal of State Line & S. R. Co., 171 Pa. 12. 32 Atl. 1126.
24 6 Wollam V. Brandt, 56 Neb. 527, 76 N. W. 1081.
246 McCaskill v. Graham, 121 N. 0. 190, 28 S. E. 264. In Georgia, a statute
provides that, when any person has purchased real property, in good faitb
and for a valuable consideration, and has been in possession of the same
(GSG)
Ch. 16) THE LIEN OP JUDGMENTS. § 440
or's property is effected by order of court, it is competent for the
court (as to all parties within its jurisdiction and whose claims are
■
before it) to direct that the sale shall be made free from all incum-
brances, and that the existing liens shall be transferred to the fund
arising from the sale.^*^
What has been said of voluntary conveyances in fee by a judgment
debtor applies equally to conveyances by way of mortgage. When
a judgment for money has attached as a lien upon real estate, a mort-
gage thereafter executed will not invest the mortgagee with a lien
superior to that of the judgment.**'
§ 440. Eitates sneoasiiTaly CoiiTayad.
A judgment-creditor cannot enforce his lien against the land of a
subsequent purchaser so long as there are other lands of the debtor
sufficient to satisfy the judgment.**" And where lands subject to the
lien of a- judgment have been sold or incumbered by the owner at
different times to different purchasers, there is no contribution among
the successive purchasers, but the various tracts are liable to the
satisfaction of the judgment in the inverse order of their alienation
or incumbrance, the land last sold being first chargeable. In such
case, the equities between the several purchasers are equal, yet
the first purchaser, having the prior equity, is preferred.**® A judg-
for four years, it shall be discharged from the lien of any judgment against
his grantor. Civ. Code Ga. § 5355. See this statute construed in Hale v.
Robertson, 100 Qa. 168, 27 S. £. 937; Blalock v. Denham, 85 6a. 646, 11 S.
B. 1038.
247 Nelson y. Jenks, 51 Minn. 108, 52 N. W. 1081. Judgments rendered be-
fore a void assignment for the benefit of creditors and the appointment of a
receiver become liens on the lands of the assignor. Younger y. Massey, 41
S. a 50, 19 S. E. 125.
248 Beach v. Reed, 55 Neb. 605, 76 N. W. 22. As to Judgment liens in the
case of a deed absolute in form but intended as a security, see Olnaha Goal,
Coke & Ldme Co. v. Suess, 54 Neb. 379, 74 N. W. 620; Main v. Bos worth, 77
Wis. 660, 40 N. W. 1043; Michael v. Knapp, 4 Tex. Civ. App. 464, 23 S. W.
280.
24» James v. Hubbard. 1 Paige (N. Y.) 228.
280 National Sav. Bank v. Ores well, 100 U. S. 630, 25 L. Ed. 713; Relfe v.
Bibb, 43 Ala. 519; McClung v. Beirne, 10 Leigh (Va.) 394, 34 Am. Dec. 739
<oyeiTuling Beverley v. Brooke, 2 Leigh [Va.] 425); Nailer v. Stanley, 10
Serg. & B. (Pa.) 450, 13 Am. Dec 691; Clowes y. Dickenson, 5 Johns. Ch. (N.
(087)
$441 LAW OF JUDOMBNTS. (Cfa. 16
ment-creditor, having by his conduct waived or lost his right to sub-
ject the land first liable to satisfy his judgment, is not entitled to
subject the lands next liable for the whole amount of his judgment,
but only for the balance after crediting thereon the value of the land
first liable."^
Part IV. Date of the Lien.
§ 441. Coataion Iaw Role.
It was the rule of the common law (and this rule still obtahis in
some of the states) that the judgments of a court of record all relate
back to the first day of tlie term and are considered as rendered on
that day ; and therefore their lien will attach to the debtor's realty
from the beginning of the term, and will override a conveyance or
mortgage made on the second 'or any succeeding day, although
actually prior to the rendition of the judgment.*'^' *'This general
principle of the common law, like many others, is of such remote
antiquity, and so long recognized without dispute, that the reasons
and policy on which it was founded are, in a great degree, left to
conjecture. One reason is assigned arguendo in the case of Wynne
V. Wynne [i Wils. 39] cited at the bar: that all the suitors whose
cases are in such a situation as to entitle them to a judgment on the
first day of the court ought to be in the same situation, and none to
have any advantage over another, and as it is impossible for the
y.) 235; Uodgers v. McCluer's Adm'rs, 4 Grat (Va.) 81. 47 Am. Dec. 715;
KeUy y. Hamblen, 98 Va. 383, 36 S. E. 491; Meek y. Thompson, 99 Tenn.
732, 42 S. W. 685; Bank of Hambnrg v. Howard, 1 Strob. Eq. (8. O.) 173;
James v. Hubbard, 1 Paige (N. Y.) 228; Merrttt v. Ricliey, 97 IndL 236; Day
y. Patterson, 18 Ind. 114; Sidener y. White, 46 Ind. 588; Houston y. Houston,
67 Ind. 276; Jones v. Myrlck's Ex'rs, 8 Grat (Va.) 179.
2 51 Jones V. Myrick's Ex'rs, 8 Grat. (Va.) 179.
s 02 Johnson y. Smith, 2 Burrows^ 967; Bragner y. Langmead, 7 Term B.
20; Waghorne y. Langmead, 1 Bos. & P. 571; Fann y. Atkinson, Will. 427:
Odes y. Woodward, 2 Ld. Raym. 766; Robinson v. Tonge, 3 P. Wms. 397;
Farley v. Lea. 20 N. C. 307, 32 Am. Dec. 680; Foust v. Trice, 53 X. C. 494;
Harding y. Spivey, 30 N. C. 63; Skipwith's Ex'r y. CJunningham, 8 Leigh (Va.)
271, 31 Am. Dec. 642; Colt y. Du Bols, 7 Neb. 391; Mutual Assurance Soc.
y. Stanard, 4 Munf. (Va.) 539; Brockenbrough*8 Ex*x y. Brockenbrousb*s
Adm'r, 31 Grat. (Va.) 580; Hooton v. Will, 1 Dall. 450, 1 L. Ed. 218; Otxa*
goss> V. Bank of Cleveland, 3 McLean, 140, Fed. Gas. No. 13,571.
(iSSS)
/
Ch. 16) THE LIEN QF JUDGMENTS. § 441
court to give judgment in all such cases in one day, the only means
of putting them upon a footing of equality is to refer all given in
the same term to the first day, and give them the same effect as if
they were really so. Another reason may have been to prevent
debtors from withdrawing their property from the effect of judg-
ments against them by alienations made after it was known that in
the course of the term a judgment would pass. Whatever was the
foundation of the rule, it operated uniformly as between different
creditors, and the creditors of and purchasers from the debtor, with-
out any exception, so far as I have been able to discover, until the
case of purchasers was provided for by the statute 29 Car. 2, c. 3, § 14,
which required that the true date of all judgments should be noted on
the margin of the roll, and provided that they should bind, as to pur-
chasers, only from such date. Before that statute, judgments con-
fessed in vacation, under powers of attorney previously given for that
purpose, related to the first day of the preceding term and over-
reached intermediate alienations. To remedy this mischief — of al-
lowing judgments confessed under powers of attorney, when no pre-
vious suit was depending, to overreach intermediate alienations —
was the chief object of the provision of the statute on that subject,
as appears by its preamble. . . . But cases might occur in which
judgments might be rendered during a term which could not by
possibility relate to the first day ; as where it appears that the plain-
tiff's case was not in a condition for a judgment on the first day, if
the court had been prepared to hear it, and some further proceed-
ing was indispensably necessary to mature his case for judgment.
Wynne v. Wynne, i Wils. 42; Swann v. Broome, 3 Burrows, 1596.
. . . These are the only adjudged cases I have met with in which
exceptions have been allowed to the general rule, and they are
founded upon obviously good reasons, that 'might very well apply
to all cases in which it appeared that the plaintiff's case could not be
matured for judgment on the first day of the term." **•
28» CouttB V. Walker, 2 Leigh (Va.) 268.
1 LAW JUDG.-44 (689)
I 442 UiW 09 JUPOMSNTg. (Ch. 16
S 442. Bxoeptiiuis to the Bvle.
The principal exceptions to this rule of the common law have
been already mentioned, in the decision quoted in the preceding sec-
tion, and the authorities are generally in harmony with the conclu-
sions there reached. Thus it is agreed that the rule docs not
apply to a judgment rendered during the term in a case which was
in such a condition that the judgment could not have been given on
the first day of the term.*'* And at a very early day, it was held
that, as between creditors, judgments by confession do not relate to
the preceding term, but take priority according to the times of their
entry.'** In North Carolina it has been adjudged that a rule of
court, that all judgments docketed during the term "shall be deemed
to be docketed on the first day of the term," makes them relate to
the first day even when the judge fails to open court on that day.***
But on the other hand, in Virginia, it is considered that the lien dates
only from the first day on which the court is actually in session.***
So, in Ohio, a mortgage handed in for record on the first day of the
term of court, but before the court actually convened, was held to
prevail against the lien of a judgment recovered at the same term.
The court said: "At •what time, then, does a term of court begin?
It cannot be said that a term of court commences before the judges
authorized to hold court have convened. There can be no term of
court unless there is a court. If judgments attach only as liens from
the beginning of the term of court, they attach from the time on the
first day of the term at which the court was duly organized and
opened." **• As against intervening purchasers, it may be regarded
264 Swann v. Broome, 3 Buitows, 1596; Yates v. Robertson, 80 Va. 475:
Withers v. Carter, 4 Grat* (Va.) 407, 50 Am. Dec. 78.
266 Welsh V. Murray, 4 DaU. 320, 1 L. Ed. 850. And see Hockman v. Hock-
man, 93 Va. 455, 25 S. E. 534, 57 Am. St. Rep. 816.
268 Norwood V. Thorp, 64 N. C. 682.
257 Skipwith's Ex'r v. Cunningham, 8 Leigh, 271, 31 Am. Dec. 642.
SB8 Follett V. HaU, 16 Ohio, 111, 47 Am. Dec. 365; HolUday y. Franklin
Bank, 16 Ohio, 533. The Hen of a judgment creditor, under a Judgment ren-
dered after the service of summons In a foreclosure suit against the debtor.
instituted at the same term of court. Is subject to the decree of foreclosure,
though the judgment^ by force of the statute, haa a retroactlYe effect fiom
(690)
Ch. 16) THE LIBN OF JUDOMVNTS. I 443
as settled that the lien of a subsequent judgment will not attach, jtxs^
tice forbidding that in such a case it should relate back to a time ante-
rior to the conveyance.*** And in at least one state the common law
rule has never been accepted at all. "The uniform, uninterrupted
practice in Pennsylvania for more than a century [that is, a century
prior to 1805] has been to consider the binding eflfect of judgments
upon lands to take place only from the actual entry of the judgments.
Judgments thus entered have never been supposed liable to be
affected bv fictions or relations. This custom has been used and
approved since the first settlement of the province and conduces to
safety and security. As between conflicting judgment-creditors, the
well known rule applied to the truth of the fact as to the entry of the
judgments, 'qui prior est tempore potior est jure,' must govern." ••*
S 443. Present Statutory Rules.
That the rule of the common law, fixing the date of the lien of a
judgment by relation to the first day of the term, has been abolished
in a great majority of the states, and has been much modified in
others, will appear from the following synopsis of the present statutes
on the subject:
In Kansas,*" Nebraska,*®* Ohio,*®* and Wyoming,*** the lien at-
the first day of the term. Appleby v. Mullaney, 7 Ohio N. P. 120. Where a
lery on land Is made after the judgment Is revived, the Hen dates from the
seizure on execution, and not from the time of the revivor. Smith v. Hogg,
52 Ohio St 527, 40 N. E. 406.
»69 Morgan v. Sims, 26 Ga. 283; Pope v. Brandon, 2 Stew. (Ala.) 401, 20
Am. Dec. 49. And see Emporia Mut Loan & Sav. Ass'n v. Watson, 45 Kan.
132, 25 Pac. 686.
260 Welch V. Murray, 4 Yeates, 197.
««i avil Code Kan. § 419; Bowling v. Garrett, .49 Kan. 504, 31 Pac. 135,
33 Am. St. Rep. 377.
2«2 Code Civ. Proc. Neb. § 477; Ocobock v. Baker, 52 Neb. 447, 72 N. W.
582, G6 Am. St. Rep. 519; Ilayden v. Huff. 60 Neb. 625, 83 N. W. 920. A
judgment, not confessed, rendered at a term subsequent to that In which the
action was commenced, is superior to a mortgage or conveyance of the debt-
2«8 Rev. St. Ohio, § 5375; Jeffrey v. Moran, 101 U. S. 285, 25 L. Ed. 785;
Urbana Bank v. Baldwin,. 3 Ohio, 65; National Bank of Columbus v. Ten-
nessee Coal, Iron & R. Co., 62 Ohio St. 564, 57 N. E. 450.
20* Rev. St Wyo. S 3829; Coad v. Cowhick, 9 Wyo. 316, 63 Pac. 584.
(691)
§443 LAW OF JUDOMENTS. (Ch. 16
taches "from the first day of the term at which the judgment is ren-
dered; but judgments by confession and judgments rendered at the
same term during which the action was commenced, shall bind such
lands only from the day on which such judgment was rendered."
In Virginia and West Virginia, the lien attaches "at or after the
date of such judgment, or, if it was rendered in court, at or after the
commencement of the term at which it was so rendered." *••
In seven states and territories (Arkansas, Indiana, Iowa, Missouri,
New Mexico, North Carolina, and Wisconsin), the lien commences
on the day of the "rendition" of the judgment.***
In nine states (Colorado, Dakota, California, Idaho, Montana,
Minnesota, New York, Oregon, and Utah), the lien of a judgment
commences from the date on which it is "docketed." **^
In Alabama and Texas, it begins from the date on which the judg-
ment is "registered." **•
or'8 land, executed after the commencement of the term at which the Judg-
ment Is rendered, though before the actual rendition of the Judgment Hoag-
land V. Green, 54 Neb. 164, 74 N. W. 424; Norfolk State Bank y. Murphy, 40
Neb. 735, 58 N. W. 706, 38 L. R. A. 243. A Judgment revived is a Uen from
the date of the order of revivor. Horbach v. Smiley, 54 Neb. 217, 74 N. W.
623.
20 6 Code Va. 9 3567; New South Building & Loan Ass'n v. Reed, 06 Va.
345, 81 S. E. 514, 70 Am. St. Rep. 858; Yates v. Robertson, 80 Va. 475; Oode
W. Va. p. 863, 9 5; Smith v. Parkersburg Co-Operative Ass'n. 48 W. Va. 232*
37 S. E. 645.
200 Dig. St Ark. 1884, p. 801, 9 3818; Code CivU Proc. Ind. 9 608; 2 Mc-
clain's Code Iowa 1888, p. 1177, 9 4080; Rev. St. Mo. 1880, 9 6012 (this stat-
ute provides that Judgments shall be a lien on lands after their rendition, but
if two or more Judgments are rendered at the same term against the same
person, their lien shall commence on the last day of the term. See Bradley
v. Ueffeman, 156 Mo. 653, 57 S. W. 763; Pullis v. Pullis Bros. Iron Co., 157
Mo. 565, 57 S. W. 1006); Code Civil Proc. N. M. 9 2133; Code N. C. 9 435;
Rev. St. Wis. 1878, 9 2002. See Friar v. Ray, 5 Mo. 511.
20T civU Code Colo. 9 211;' Code CivU Proc. Dak. 9 300; Code CIvH Proc.
Cal. 9 671; Rev. St Idaho 1887, 9 4457; Comp. St Mont 1887, p. 138, 9 907:
Gen. St Minn. 1878, c. 66, 9 277; Code Civil Proc. N. Y. 9 1250; HlM's Ann-
Laws Or. p. 342; 2 Comp. Laws Utah 1888, p. 300, 9 ^14. See Stannis v.
Nicholson, 2 Or. 332.
«08 Act Ala. Feb. 28» 1887, 9 1; Rev. St Tex. art 3150; WiUia v. Smith,
66 Tex. 31, 17 S. W. 247. See Quinn v. Wiswall,. 7 Ala. 615; AU. C. & N.
Co. V. State, 54 Ala. 36; Ex parte Dillard. 68 Ala. 684; Powe v. McLeod. 76
Ala. 418.
(692)
Ch. 16) THE LIEN OP JUDGMENTS. § 444
In Arizona, from the day when the judgment is "recorded and
indexed." "•
In New Jersey, from the date of its "actual entry." *^*
In Florida, the lien commences when the judgment is "entered and
pronounced in any court." ^^^
In Pennsylvania, the lien attaches from the date of entry or revival
of the judgment.*^*
In Georgia and Illinois, judgments rendered at the same term are
all of equal date.*^*
In Maine, New Hampshire, and Vermont a judgment is regarded
as having been rendered on the last day of the term unless it appears
by the record to have been rendered on a different day.*^*
In Maryland, according to the decisions, "a judgment has relation
to the time when it is entered up. It will not affect any bona fide
conveyance made for value before that time, for it only attaches upon
that which is then or afterwards becomes the property of the
debtor."*^' And in Tennessee, also, the lien commences from the
actual date of the judgment and has no relation back to the beginning
of the term.*^*
§ 444. Cases in irhloli Lien relates back*
•
There are certain cases in which, by an exception to the now com-
monly accepted rule, the lien may relate back to a time anterior to
the actual date of the judgment. Thus, in a proceeding in rem by
attachment on land, the lien of the judgment of condemnation is a
specific lien on the property condemned, which relates back to the
time when the attachment was laid, and ripens into a perfect legal
2«» Rev. St. Ariz. § 2252.
2T0 Revision N. J. p. 520, S 2. See Hunt v. Swayze, 55 N. J. Law, 33 25
Ati. 850.
2T1 McClel. Dig. Laws Fla. p. 618, fi 1.
2T2 1 Brightley, Purd. Dig. Pa. p. 946, fi 5.
2T8 Code Ga. 1882, § 3578; Rev. St. 111. 1889, p. 840, § 1. See Morgan v.
Sims, 26 Ga. 283; Ryhlner v. Frank, 106 111. 326.
274 Chase v. Gllman, 15 Me. 64; Goodall v; Harris, 20 N. H. 363; New
Hampshire Strafford Bank v. Cornell, 2 N. H. 324; Bradish v. State, 35 Vt
452; Town of Huntington v. Town of Charlotte, 15 Vt 46.
27 6 Dyson v. Simmons, 48 Md. 207, 215; Anderson v. Tuck, 38 Md. 225.
276 Murfree*s Heirs y. Oarmack, 4 Yerg. 270, 26 Am. Dec. 232.
(693)
§445 LAW OP JUDGMBNT8. (Ch. 16
title in the purchaser under the execution.*^' So, upon the declara-
tion of the forfeiture of a writ of error bond, by a judgment affirming
the judgment below, the lien which springs out of it relates back to
the time of its execution and binds the land of the surety in the
county where the original judgment was rendered from that time.***
Again, "a judgment entered on the day on which the defendant's
land is sold by the sheriff on ^n execution, is a lien on his land at
the time of the sale, although entered at a later hour of the day than
the sale, and is entitled to share in the proceeds." '^^ But on the
other hand, a judgment for damages for detention of dower takes
date, as a Ken, from the time of its entry, and not from the time when
the right to dower accrued. '•• So the lien of a judgment on which
execution is stayed dates not from the rendition of the judgment, but
from the time when execution may be sued out.*** And in gen-
eral, except under the most exceptional circumstances, the lien can-
not be considered as relating back to the time of the accrual of the
cause of action.*'*
Part V. Priority and Precrdrnce of Jddoment-Lirxs.
I 445. Xden is Svbjeot.to Prior Bichta and EqvitftM.
The attaching of a judgment-lien upon land does not disturb the
condition of the title with respect to existing equities, interests, or
other liens. The new Uen must simply take its place in the ranks.
It is subordinate and inferior to conveyances, mortgages, or other
judgment liens, previously made or procured without fraud,*** but
277 Ck)ckey y. Milne's Lessee, 16 Md. 200. In West Virginia, on the rendition
of a judj^ment on an attachment, the lien of t^e attachment is merged in the
judgment, and the priority of the lien is referred back to the first daj of the
term. Smith v. Parkersburg Co-Operative Ass'n. 48 W. Va. 232, 37 S. E. W5.
278 Berry y. Shuler, 25 Tex. Supp. 140; Shane y. Francis, 30 Ind. 92.
279 Smairs Appeal, 24 Pa. 398.
280 Evans y. Evans, 1 Phila. 113.
281 United States Bank v. Winston's Ex'r. 2 Brock. 252, Fed. Cas. Xa 944.
282 White y. K. & D. M. R. Co., 52 Iowa. 97, 2 N. W. 1016; l«ntz y. Lam-
plugh, 12 Pa. 344.
288 Home y. Seisel, 92 Oa. 683, 19 S. E. 709; Martinez y. Lhidsey. 91 Ala.
334, 8 South. 787; Kennard y. Mabry, 78 Tex. 151, 14 & W. 272; Wynne v.
State Nat. Bank, 82 Tex. 378, 17 S. W. 918; Willis y. Heath (Tex.) IS & W.
(694)
Ch. 16) THE LIfiN OF JUDGMENTS. { 445
superior to a conveyance or incumbrance of real property of the
debtor, to which the judgment lien had already attached before such
conveyance or incumbrance was made,*** the last proposition being
subject to the proviso that the judgment will not prevail against a
subsequent sale or lien on the property unless it has been docketed,
filed, registered, or otherwise made a matter of public record, as the
local statute may provide.^®"
The lien of a judgment -is also subject to all the equities which
were held against the land in the hands of the judgment-debtor at
the time the judgment was rendered. And if called upon in a proper
case, the courts of chancery are always ready to protect the rights
of those who hold such equities, as against the legal lien of the judg-
ment, and to confine the efficacy of the latter to the actual interest, or
residuary estate (so to speak) of the debtor, after due recognition is
given to the outstanding equities in their proper order.*** Thus a
801; Anglo-American Land, Mortgage & Agency Go. v. Bush, 84 Iowa, 272, 50
N. W. 1063. As to prior fraudulent or invalid conveyances or mortgages, see
MiUer V. Cox, 88 W. Va. 747, 18 S. E. 960. A. chattel mortgage filed before a
judgment in a justice's court will prevail over an execution issued on such
judgment. Woolner v. Levy. 48 Mo. App. 469. A deed made by an Insane
person not under guardianship is voidable only; it passes title so that a judg-
ment thereafter rendered will not be a specific lien on the property conveyed
until the conveyance is actually avoided. French Lumbering Co. v. Theriault,
107 Wis. 627, 83 N. W. 927, 51 L. R. A. 910, 81 Am. St. Rep. 856.
i84 Weil V. Casey, 125 N. O. 356. 34 S. B. 506, 74 Am. St Rep. 644; Gulley v.
Thurston, 112 N. C. 192, 17 S. E. 13. Where land is omitted from a mortgage
by mistake, the lien of a judgment subsequently filed against the mortgagor
is subject to the equity of the mortgagee. Chadron Building & Loan Ass'n
V. Hamilton, 45 Neb. 869, 63 N. W. 808. That one buys land for a full price,
in good faith, and without notice, is of no avail against the Hen of a prior
judgment. Gates v. Munday, 127 N. C. 439, 37 S. E. 457.
««» See Sweetland v. Buell, 164 N. Y. 541, 58 N. B. 663, 79 Am. St. Rep. 676;
McKenna v. Van Blarcom, 109 Wis. 271, 85 N. W. 322, 83 Am. St. Rep. 893.
2«« Finch V. Earl of Wlnchelsea. 1 P. Wms. 277; Pierce v. Brown, 7 Wall.
205, 19 L. Ed. 134; Sweet v. Jacocks, 6 Paige (N. Y.) 355, 31 Am. Dec. 252;
Buchan v. Sumner, 2 Barb. Ch. (N. Y.) 165, 47 Am. Dec. 305; BUs v. Tousley.
1 Paige (N. Y.) 280; Coombs v. Jordan, 3 Bland (Md.) 284, 22 Am. Dec. 236;
Floyd V. Harding, 28 Grat fV'a.) 401; Walke v. Moody, 65 N. C. 599; Coster's
Ex'rs V. Bank of Georgia, 24 Ala. 37, 64; Larthet v. Hogan, 1 La. Ann. 330;
Blankenship v. Douglas, 26 Tex. 225. 82 Am. Dec. 608; Frazer v. Thatcher, 49
Tex. 26; Wharton v. Wilson, 60 Ind. 591; Foltz v. Wert, 103 Ind. 401, 2 N. E.
950; Wells v. Benton, 108 Ind. 585, 8 N. E. 4M; Goodell v. Blumer, 41 Wis.
436.
(695)
S" 446 LAW OF JUDGMENTS. (Ch. 16
lien by contract upon real property, prior in time to the judgment, is
paramount to the judgment-lien, though the judgment-creditor has
no notice or knowledge of such prior lien by contract, and a purchaser
at execution-sale under the judgment, with notice, actual or construc-
tive, acquires no greater interest than the judgment-debtor had.**^
In a case where a person who had contracted for the purchase of land
obtained a deed for the same from the vendor under an agreement
that it should not be used until the balance of the purchase-money
then due was paid, it was held that this was a valid delivery of the
deed to pass the legal title to the land to the vendee subject to the
vendor's equitable Hen for the unpaid purchase-money, and that
such balance of price must be paid in preference to a judgment against
the vendee which was a lien upon his estate in the land.*'* A spe-
cific equitable lien upon land is entitled to a preference over a sub-
sequent legal lien by judgment. But an equitable lien created to
secure an antecedent indebtedness (for example, an agreement by a
debtor to execute a mortgage to his creditor) is not entitled to a pref-
erence over a lien by judgment where both attach upon the land at
the same time.*** Nor are judgment-creditors protected against
287 Dos well V. Adler, 2S Ark. 83.
288 Arnold v. Patrick, 6 Paige (N. Y.) 310. In a later case In the same atate
It was said: 'The question as to the extent to which a secret equitable, add
unrecorded lien of a vendor, for unpaid purchase-money of lands sold and
conveyed by him, exists as against a judgment-creditor after the lien is re-
corded, or other parties tlian the vendee, must depend upon the facts and cir-
cumstances of the particular case. Such lien cannot exist generally against
purchasers in good faith, under a conveyance of the legal estate, without no-
tice, when the purchase-money has been paid. The general rule stated ap-
plies more particularly to cases where it is sought to enforce an equitable Uen
for the purchase-money, which has never been put on record as against sab-
sequent mortgagees or purchasers in good faith and for a valuable conaldera-
tion. In such a case it Is too clear to admit of any question that the rights of
the person claiming such equitable lien should yield, by reason of his neglect,
to the claims of subsequent incumbrancers or purchasers, and it may well be
asserted that a prior claimant for the purchase-money, under such circum-
stances, has, by his silence and neglect, yielded his right" Spring v. Short
90 N. Y. 538. See Tallman v. Farley, 1 Barb. 280. In Valentine v. Seles, 79
Md. 187, 28 Atl. 892, it is held that an unrecorded contract for the sale of
land, made in good faith for a valuable consideration, takes precedence of
the general lien of a subsequent Judgment
i89 Dwight V. Newell, 3 N. Y. 185.
(696)
Cb. 16) THE LIEN OF JUDGMENTS. § 446
trusts of which they have no notice, or allowed in equity to hold
against the cestui que trust.^*® An opinion counter to the general
rule has sometimes been expressed in Pennsylvania. In a case in
that state it appeared that A. advanced money to B. and took his
judgment therefor, on the faith of an entry of satisfaction of a prior
judgment ; but upon the application of the equitable assignee of the
prior judgment, the court struck off the entry of satisfaction. In
the distribution of the proceeds of a sheriff's sale of B.'s real estate,
it was held that A. was entitled to be paid in full, before the prior
judgment could participate in the distribution; for A. was not re-
quired to look into equities to which he was not a party and of which
he had no knowledge.^®*
S 446. Am uf^adnrnt Prior Unreoorded ConTeyanoe.
In many of the states there are statutes which make a deed or
mortgage invalid, as against subsequent bona fide purchasers and
creditors, unless it is duly recorded. And where the law stands thus,
it is generally held that the lien of a judgment is to be preferred to a
conveyance executed before the rendition of the judgment but not
recorded until afterwards, provided that the judgment-creditor has no
actual notice of the existence of such prior conveyance.*** "As a
2»o Shryock v. Waggoner, 28 Pa. 430.
2»i Hamer's Appeal, 94 Pa. 489.
2»2 United States v. Devereux, 32 a 0. A. 564, 90 Fed. 182; Lash v. Har-
dick, 5 Dill. 505, Fed. Cas. No. 8,097; Hunt v. Swayze, 55 N. J. Law, 33, 25
AtL 850; McClure v. Thistle's Ex'rs, 2 Grat (Va.) 182; Young v. Devries, 31
Grat. (Va.) 304; Robinson v. Commercial & Farmers* Bank (Va.) 17 S. E. 730;
Blakemore v. Wise, 95 Va. 269, 28 S. E. 332, 64 Am. St. Rep. 781; Price v.
Wall's Ex'r. 97 Va. 334^ 33 S. K 509, 75 Am. St Rep. 788; Anderson v. Nagle,
12 W. Va. 98; Andrews v. Mathews, 59 Ga. 466; Motley v. Jones> 98 Ala. 443«
13 South. 782; Mississippi Valley Oo. y. Chicago, St L. & N. O. R. Co., 58 Miss.
^6; Cavanaugh v. Peterson, 47 Tex. 198; Firebaugh v. Ward, 51 Tex. 400;
Russell Y. Nan, 2 Tex. Civ. App. 60, 23 S. W. 901; Hawkins v. Files, 51 Ark.
417, 11 S. W. 681; Cleveland v. Shannon (Ark.) 12 S. W. 497; May ham v.
Coombs, 14 Ohio, 428; Guiteau v. Wisely, 47 111. 433; Smith v. Willard, 174
111. 638. 51 N. B. 835, 66 Am. St Rep. 313; Vause v. Templeton, 87 lU. App.
455; Reed v. Austin's Heirs, 9 Mo. 722, 45 Am. Dec. 336; Frothingham v.
Stacker, 11 Mo. 77; Belcher v. Curtis, 119 Mich. 1, 77 N. W. 310, 75 Am. St
Rep. 376; Dutton v. McReynolds, 31 Minn. 66, 16 N. W. 468; Hall v. Sauntry,
72 Minn. 420, 75 N. W. 720, 71 Am. St Rep. 497; Lewis v. Atherton. 5 Okl.
(697)
§ 446 L4W OF JtTDOMBNTS. (Ch. 16
general proposition," says the court in Texas, "a judgment lien only
attaches to the actual interest of the debtor in the land ; but on ac-
count of our registration laws, ordinarily, if the judgment-lien at-
taches before the creditor has notice of the existence of the unre-
corded deed, then such deed is subordinated to the lien, and subse-
quent notice of the existence of the deed would work no change in
the rights of the parties." *•• But this applies only to a creditor
who is not informed as to the prior deed or mortgage. If, at the time
of docketing the judgment, he has notice of the unrecorded convey-
ance, the judgment lien will take second place.*** And this notice
may very well be constructive, or inferred from circumstances.
Whatever is sufficient to charge a purchaser with notice is sufficient
to charge a judgment creditor.*** Thus, an unrecorded deed will
take precedence over a subsequent judgment against the grantor,
where the grantee was in actual, open, and notorious possession un-
der the deed, and especially where he has given a purchase-money
mortgage for part of the price, and the same is duly recorded,***
But the mere fact that the land, being unimproved, is inclosed, and
is advertised as being for sale, by signs posted on the property, is not
sufficient to put the judgment creditor on inquiry.**^ If the latter
had no notice of the unrecorded deed at the time the judgment was
rendered or placed on the docket, his rights are not affected by the
fact that he acquires knowledge of such deed at the time he sells the
90, 47 Pac. 1070. This rule does not apply (in lUinols) to bolden of Judg-
ments on claims allowed against the estate of a decedent, such jndinnenta not
being liens on lands left by the latter. Noe v. Montray, 170 111. 168, 48 N. E.
71)0. And a statute placing judgment creditors on the same footing with bona
dde purchasers, as against unrecorded conveyances, does not give them pri-
ority over a resulting trust which cannot be made a matter of record. School
District No. 10 v. Peterson, 74 Minn. 122, 76 N. W. 1126, 73 Am. St Rep. 337.
298 Calvert v. Roche, 59 Tex. 463.
a»4 Lamberton v. Merchants* Nat. Bank, 24 Minn. 281; StovaU ▼. Odell, 10
Tex. av. App. 169, 30 S. W. 60; Bamett v. Squyres (Tex. Civ. App.) 52 a W.
612. Compare Winston v. Hodges, 102 Ala. 304, 15 South. 528.
a»B H. C. Tack Co. v. Ayers, 56 N. J. Eq. 56, 38 Atl. 194.
S90 Adam v. Tolman, 180 111. 61, 54 N. E. 174. And see PoweU v. Allred, 11
Ala. 318; Northwestern Land Co. v. Dewey, 58 Minn. 359. 59 N. W. 1086:
Gardom v. Chester, 60 N. J. Eq. 238, 46 Atl. 602. Compare Hill v. Gordon (C.
a) 45 Fed. 276.
2»7 Clark V. Butts, 73 Minn. 467, 76 N. W. 263.
(698)
CRl. 16) THE LIBN OF JUDOMBNT8. § 446
land under an execution on his judgment.**' And although, as
stated, an unrecorded deed will take precedence as against a judg-
ment creditor, if, before the recovery of his judgment, he has actual
notice of the conveyance by the debtor, yet the assignee of such judg-
ment, who buys without notice that his assignor had notice before
the rendition of the judgment of the unrecorded conveyance, is not
affected by the notice to his assignor.**' And so, while a mortgage
imperfectly recorded is ineffectual as a lien against subsequent judg-
ment-creditors, yet if there be a second mortgage, between the first
and the judgments in point of time, to which the proceeds of the
mortgaged premises when sold would be paid, and this mortgagee
had actual notice of the first mortgage when he took his own, the
first mortgage is good as to him, and therefore is entitled to have the
money appropriated to it.*®*
But in a number of states the statutes are such that a deed or mort-
gage is valid without being recorded. And in these jurisdictions the
courts adhere to the rule that a judgment is a lien only upon the
actual interest of the debtor, and consequently that the judgment ac-
quires no lien at all if the land has been previously conveyed away,
although the deed is not recorded, or that its lien is subordinated to
that of a prior unrecorded mortgage.**^ But if there be a sale made
under such subsequent judgment to a third person, for value paid and
without notice, the rights of such purchaser will take priority over
those of the grantee in an unrecorded deed or mortgage.***
8»8 Smith v. WlUard, 174 111. 538, 51 N. B. 835, 66 Am. St Rep. 313; Rus-
sell V. NaU, 2 Tex. Civ. App. 60, 23 S. W. 901.
a»» Dnke v. Clark, 58 Miss. 465.
soo Manufacturers* & Mechanics' Bank v. Bank of Pennsylvania, 7 Watts
& S. (Pa.) 335, 42 Am. Dec. 240.
801 Sparks v. State Bank, 7 Blackf. (Ind.) 469; Schroeder v. Gumey, 73 N.
•Y. 430; Mellon's Appeal, 32 Pa. 121; Larimer's Appeal, 22 Pa. 41; Norton v.
Williams, 9 Iowa, 528; Bell v. Evans, 10 Iowa, 353; Wllcoxson v. Miller, 49
Cal. 193; Hampton v. Levy, 1 McCord Eq. (S. 0.) 107; Farley v. McAlister, 39
Tex. 602; Smith v. Savage, 3 Kan. App. 556, 43 Pac. 847; StanhUber v. Graves,
97 Wis. 515, 73 N. W. 48; Dawson v. McCarty, 21 Wash. 314. 57 Pac. 816, 75
Am. St. Kep. 841. For the rule in Georgia, see BaUey v. Bailey, 93 Ga. 768,
21 S. Bl 77; Donovan v. Simmons, 96 Ga. 340, 22 S. E. 966; Lytic v. Black,
107 Ga. 386, 33 S. E. 414.
808 Evans v. McGlasson, 18 Iowa, 150; Paine's Lessee y. Mooreland, 15
Ohio, 435, 45 Am. Dec. 585.
(G99)
I 447 LAW OF JUDGMENTS. (Ch. 16
I 447. Preoedenoe of PnroluMo-lKoney VortcAS^*
A mortgage or trust-deed given to secure the balance of purchase-
money on a tract of land, executed simultaneously with the convey-
ance of the legal title and duly recorded, has priority of lien over
judgments obtained against the purchaser anterior to the convey-
ance.'*** In such case, the purchaser acquires only a temporary sei-
sin, and not such an interest in the land as becomes subject to the
Uen of a judgment against him in preference to the mortgage, as
the deed and the mortgage are but parts of the same transaction.***
And where the purchaser, at the same time he receives the convey-
ance, executes a mortgage to a third person, who advances the pur-
chase-money for him, such mortgage is entitled to the same prefer-
ence over a prior judgment as it would have had if it had been exe-
cuted to the vendor himself.*®* Thus if A. executes a deed of land
to B., and B. mortgages it to C, and also conveys it back to A., the
two deeds and mortgage being executed as parts of one transaction
solely to enable B. to procure a loan from C, no lien of a judgment
held by D. against B. at the time thereof can attach to B.'s interest,
and no execution afterward issued can be levied thereon.**** But
where a judgment debtor acquires title to land after the judgment
has been obtained, and immediately executes a mortgage thereof to a
third person to secure him against some distinct debt or liability, and
not to secure the purchase-money of the land, the judgment will be
the elder lien.**^
308 Oake*B Appeal, 23 Pa. 186, 62 Am. Dec. 328; Parsons v. Hoyt 24 Iowa,
154; Scott v. Warren, 21 Ga. 408; Straus v. Bodeker's Bx'x, 86 Va. 543. 10
S. E. 570; Gowardln v. Anderson, 78 Va. 88; Summers v. Dame, 31 Grat
(Va.) 791; Clark v. Munroe, 14 Mass. 351; Clark y. Butler, 32 N. J. Bq. C64;
Curtis y. Root, 20 111. 53; Courson y. Walker, &4 Ga. 175, 21 S. K 287. Com-
pare Roane y. Baker (111.) 2 N. E. 501.
804 Gowardln y. Anderson, 78 Va. 88.
806 Haywood y. Nooney. 3 Barb. (N. Y.) 643; Ctowardin t. Anderson, 78 Va-
8S; Clark y. Munroe, 14 Mass. 351; Kaiser y. Lembeck, 55 Iowa, 244, 7 N. W.
519.
806 Ransom y. Sargent, 22 Kan. 516.
807 Root V. Curtis, 38 lU. 192; Weil y. Casey, 125 N. C. 356, 34 S. E. 506, 74
Am. St. Rep. 044.
(700)
Ch. 16) THB LIBN OF JUDGMBNTS. {448
I 448. Priority of OorommeBt Olaims.
It is provided, by section 346 of the Revised Statutes of the United
States, that "whenever any person indebted to the United States is
insolvent . . . the debts due the United States shall be first
satisfied," and this priority is declared to extend to cases in which
an act of bankruptcy is committed. Section 5101 provides that in
the order for a dividend in a bankruptcy proceeding, after paying cer-
tain costs and expenses, "debts due the United States shall have prior-
ity." ••* It may now be regarded as settled that the priority of the
United States, given by these statutes, "does not overrule any liens
upon the debtor's property which existed before the event occurred
which gives the statutory priority ; that is, before the insolvency." •••
It is competent for the legislature of a state to enact that taxes
assessed against real property shall constitute a paramount lien or
claim upon the same, and shall take precedence of all other liens,
however created, whether by mortgage, judgment, or otherwise.
When such a law is in force (as is the case in several of the states),
the lien of a judgment against the owner will be subordinated and
postponed to the statutory lien of taxes on the property, even though
the judgment was recovered before the levy or assessment of the
taxes; and a valid and completed sale for the taxes will divest the
lien of the judgment, leaving to the creditor only the right to come
upon the surplus, if any, or to redeem from the tax sale.'^*
In some states, it is held that a judgment obtained against one in
his lifetime has the preference over a debt or specialty passed to the
»08 And see Bankr. Act 1898, § 64. par. "b," cl. 5.
909 United States v. Lewis, 13 N. B. R. 38, Fed. Cas. No. 15,595; Cottrell T.
Plerson (C. 0.) 12 Fed. 805; Hoppock v. Shober, 69 N. 0. 153; Conard v. At-
lantic Ins. Co.. 1 Pet. 438, 7 L. Ed. 189; Brent v. Bank of Washington, 10
Pet. 59C, 9 L. Ed. 547. In so. far as the early case of Thelusson v. Smith, 2
Wheat. 396, 4 L. Ed. 271, may have asserted a different doctrine, It must be
regarded as overruled by the later decisions above cited.
810 See Black. Tax Titles, §§ laj, 18(J, 426; First Nat Bank v. Hendricks,
134 Ind. 361, 33 N. E. 110; Eaton's Appeal, 83 Pa. 152; Jenkins v. Newman,
122 Ind. 99. 23 N. E. 683; Dunlap v. Gallatin Co., 15 111. 7; Keating v. Craig,
73 Mo. 507; Hardenbergh v. Converse, 31 N. J. Eq. 500; Staunton v. Harris,
9 HeUk. (Tenn.) 579.
(701)
§ 449 LAW OP JUPaMBHTs. (Ch. 16
state after such judgment, in the settlement of the estate of the
decedent.'^*
I 449. PHority hj I>«t« ef Batry.
By reference to a preceding section it will be seen that in at least
seventeen states and territories, by the statutes, the lien of a judg-
ment commences from the day when it is docketed or registered or
the date of its actual entry. And it is a general rule that, as between
all judgment liens entered at different times, that which was first
docketed has the preference.*** And on similar principles, where
several judgment creditors resort to equity to subject an equitable in-
terest of their debtor in land to the satisfaction of their judgments,
they will be entitled to satisfaction according to the priority of their
judgments in point of time.*** As between a judgment at law and a
decree in equity, where the law requires both to be enrolled; the
same rule obtains ; and where a decree is obtained prior to a judg-
ment against the same defendant, but the judgment is enrolled before
the decree, the judgment takes the precedence.*** As between a
judgment in another county and a mortgage, priority of lien is deter-
•11 HoUlngsworth v. Patten's Adm'x, 3 Har. & McH. (Md.) 125.
SIS Johnson v. Mitchell, 17 Ga. 593; Pliryear t. Taylor, 12 Qrat (Ya.) 401;
Stewart v. Wheeling & L. E. Ry. Co., 53 Ohio St 151. 41 N. £. 247, 29 L. R. A.
438; Hagadorn v. Hart, 62 Uun, ^, 16 N. Y. Supp. 625; Max Meadows Land
& Imp. Cto. V. McGavock, 98 Va. 411, 36 S. B. 490; Osborne v. Hill, 91 Ga. 137,
16 S. E. 965. Under a statute providing tliat entries on the Judgment docket
"shaU be so made that one shall follow the other in the order of time in which
the said judgments shall have been rendered," priority of position on the page
of the docket prima facie implies priority of date. In re Kann's Elstate, 171
Pa. 262, 32 Atl. 1095. But a judgment which, on Its face. Is prior in date to
another judgment, anterior in position on the Judgment docket, will have pri>
ority over such Judgment In distribution. Buhl v. Wagner, 22 Pa. Co. Ct. R.
608; In re Kann*s Estate, supra. Where two Judgments are erroneously dock-
eted and indexed, the one first Altered has priority. In re Shaver, 18 Pa. Co.
Ct. R. 202.
In Illinois, where the statute provides that '^there shall be no priority of the
lien of one Judgment over that of another rendered at the same term of court
or on the same day in vacation,'* it is held that executions on Judgments con-
fessed on different days in vacation are entitled to priorities. Coe ▼. Hallam,
173 111. 401, 50 N. E. 1072.
818 Haleys v. Williams, 1 I^gh (Va.) 140, 19 Am. Dec 743.
81* ISIcKee V. Gaylc, 40 Miss. 676.
(702)
Cb. 16} THB UBN OP JT70GMBNTS. | 449
mined by priority of registration in the county where the land is sit-
uated.**" A judgment for a firm debt has no priority over a judg-
ment previously obtained against the several members of the firm
on their individual liabilities^ and the purchaser at a sale under execu-
tion to enforce the latter judgment takes a good title as against the
purchaser at a sale under the former.'^* So the lien of a judgment
rendered pending a petition for divorce, and before the rendition of a
decree for alimony, is superior to that of the decree, where the peti-
tion does not allege a claim to any specific tract of land, or pray for
alimony by way of annuity upon the husband's real estate gener-
ally.'^' It should also be remarked that the lien of a judgment de-
pends upon the condition of the record at the time of its entry, and
cannot be affected by a subsequent revival of an earlier judgment
giving such senior judgment creditor rights which did not exist at
the time of the entry of the junior judgment.* *•
The same rule which applies as between two judgments also gov-
erns the case of a conflict between a judgment and a conveyance,
where the laws require the latter to be registered.*^' Thus, accord-
ing to a late case, under a statute providing that judgments shall be
entered by the clerk on the judgment docket of the court, and, if
docketed within ten days from the end of the term, shall be a lien on
the debtor's real estate from the beginning of the term, a deed exe-
»i» Firebaugh v. Ward, 51 Tex. 409.
sit Davis V. Delaware & H. Oanal Co., 109 N. Y. 47, 15 N. B. 873, 4 Am. St
Rep. 418. The law is the same also in the converse case; subsequent Judg-
ments against the Individual members of the firm are postponed to a prior
judgment against the firm. Stevens v. Bank of Central New York, 31 Barb.
(N. Y.) 290.
817 Hamlin's Lessee v. Bevans, 7 Ohio, 161, pt 1, 28 Am. Dec. 625.
»i8 Young v. Young, 20 Pa. CJo. Ct. R. 45. But the equitable right of a
judgment creditor, whose judgment is recovered after an entry of satisfaction
entitling him to priority over a senior judgment creditor, which satisfaction
is set aside, can be enforced only where the property of the debtor is more
than sufficient to pay intermediate judgments between his and that of the
senior judgment creditor. McGune v. McCune, 164 Pa. 611, 30 Atl. 577.
818 Under Code N. C. I 435, which makes a docketed judgment a lien on
"all the land" of the debtor in the county where It is docketed, from the date
of the docketing, the lien of a judgment has priority over the Hens of mort-
gages on the homestead executed subsequently to the docketing of such judg-
ment Vanstory y. Thornton, 112 N. C. 106, 17 S. B. 566, 34 Am. St. Rep. 483.
(703)
§450 LAW OF JUDGMENTS. (Ch. 16
cuted in November is superior to a judgment rendered in the pre-
ceding August and docketed in the following July.**® And where a
judgment is a prior lien to a mortgage, a purchaser under the judg-
ment will stand in the place of the judgment-creditor and take preced-
ence of the mortgage, although his title under the sheriff's sale be
defective.*** It remains to notice certain exceptional cases wherein
a departure from the foregoing rule has been sanctioned. These are
mostly governed by considerations of justice and equity. Thus,
where monev is made under several executions issued on different
judgments, that issuing upon the elder judgment is not entitled to
priority of satisfaction if it has been delayed or suspended in fraud of
the rights of other creditors.*** So where, upon promissory notes
given for the purchase-money of land and secured by an express lien
or equitable mortgage in the deed of conveyance, several judgments
are rendered, in favor of two different holders of such notes, against
the maker, each of the judgments is entitled to share in the proceeds
of the land, even though one may have been recovered and enrolled
before the other.*** In a case in West Virginia, where two judg-
ments had been recovered, one in 1868 and the other in 1869, and the
one last recovered was docketed in 1870, while the one first obtained
was docketed in 1871, but both were docketed before a Contract in
writing 01 deed to a purchaser for valuable consideration without no-
tice was recorded, it was held that the judgment first recovered,
though last docketed, had priority.***
% 450. Two Jndsments entered the BAine Day*
The rule obtaining in a majority of the states is that, as between
judgments entered of record on the same day, there is no priority,
for the law cannot in this case regard fractional parts of a day; hence
all such judgments create equal liens, and the issuing of an execution
on any one of them does not affect the others, but, the land of the
defendant being sold, a pro rata distribution of the proceeds must
820 Holman v. MUler, 103 N. a 118, 9 S. E. 429.
»»i Wait's ExY v. Savage (N. J.) 15 Atl. 225.
SS2 Grand Gulf Bank v. Henderson, 5 How. (MiB8.) 292L
828 Aaron v. Warner, 62 Miss. 370.
824 Anderson v. Nagle, 12 W. Va. 98.
(704)
Ch. 16) THE LIEN OF JUDOMBNTa § 450
be made in satisfaction of the judgments.*'* In North Carolina,
however (and in a few sporadic cases elsewhere), it is held that where
several judgments are docketed on the same day, the court will in-
quire into the fractional part of a day, in order to ascertain which
was the first entered and give it the preference.'*' In New York,
the statute requires the clerk of the court to docket a judgment by
entering upon the docket book certain particulars, including "the
day, hour, and minute when the judgment roll was filed, and the
day, hour, and minute when the judgment was docketed in his
office." **^ And judgments entered the same day will take rank ac-
cording to the exact time when they were placed upon the docket.
In some other states, the doctrine is that where two judgments in
favor of different plaintiflfs against the same defendant are filed and
docketed on the same day, neither has the preference as a lien ; but
if one of the creditors first takes out an execution and delivers it to
the sheriff before the other creditor takes out his execution, and the
lands of the debtor are taken and sold, a priority will be gained by
the vigilant creditor, and his execution must be first satisfied.'*** In
Mississippi, the question of the priority of the rendition of two judg-
ments in the same court is to be determined by the minutes of the
court, and it is not admissible to show by evidence aliunde that the
one last entered was in fact first rendered.***
825 Claason's Appeal, 22 Pa. S59; Metzler v. Kilgore, 3 Pen. & W. (Pa.) 245,
23 Am. Dec. 76; Ladley v. Crelghton, 70 Pa. 400; Mechanics* Bank v. Gor-
man, 8 Watts & S. (Pa.) 304; Clawson v. Elchbaum, 2 Grant, Gas. (Pa.) 130;
Emerlek v. Garwood, 1 Browne (Pa.) 20; RockhlU v. Hanna, 4 McLean, 554,
Fed. Gas. No. 11,060; McLean v. Rockey, 3 McLean, 235, Fed. Gas. No. 8,801;
Bruce v. Vogel, 38 Mo. 100; Janney's Bx'r v. Stephen's Adm*r, 2 Pat. & H. 11;
Burney v. Boyett, 1 How. (Miss.) 30.
32« Bates V. Hinsdale, 65 N. G. 423; Lemon v. Staats* Heirs, 1 Gow. (N. Y.)
502; Blggam v. Merrltt, Walk. (Miss.) 430, 12 Am. Dec. 576.
*27 Oode Giv. Proc. § 1246. A similar rule prevails In Alabama. See Ger-
man Security Bank v. Gampbell, 90 Ala. 249, 12 South. 436, 42 Am. St. Rep. 55.
»2» Lippencott v. Wilson, 40 Iowa, 425; Tilford v. Burnham, 7 Dana, 109;
Gay y. Rainey, 80 HI. 221, 31 Am. Rep. 76; Kesterson v. Tate, 04 Iowa, 665,
63 N. W. 850, 58 Am. St. Rep. 410.
«a» Johnson v. Edde, 58 Miss. 664; Herron v. Walker, 60 Miss. 707, 12 South.
259.
1 LAW JUDQ.-45 (705)
§ 451 I«4W OF JUDQllBNTa. (Ch. 16
S 451. Jndemeiit mad ConTeyanee entered ilie Baine Day*
The doctrine has sometimes been expressed that a judgment en-
tered on a given day, no matter at what hour, is a lien during the
whole of that day, and therefore has preference over a mortgage or
other conveyance recorded at any hour of the same day.*'* But this
view is generally rejected, as too refined and artificial, although, in
some states, a distinction is still made between a deed and a mort-
gage, as to their respective rank as against a judgment docketed on
the same day. It may now be regarded as well settled that, in a con-
test between a vendee of the land and a judgment-creditor whose
judgment was docketed on the same day with the conveyance, the
fractions of the day must be taken into consideration, the precise
time of each ascertained, and the rule applied "first in order first in
right." '"^ In the language of Chief Justice Gibson of Pennsylvania,
"the argument that a judgment, whose date in contemplation of law
covers the whole day, is necessarily anterior to a conveyance at an
intermediate point of the same day, is too subtle to be solid. The
conclusion attempted would not be borne out by the most fanciful
eflfect of the legal fiction ; for it might be possible to deliver a con-
veyance so exactly at the stroke of twelve as to leave no room for an
intervening lapse of ahy appreciable portion of time. But justice is
not to be dispensed on principles so artificial where it can be avoided.
When judgments bear the same date, they must necessarily come in
together ; but between a judgment and a conveyance, actual priority
must be shown like any other fact." ••* The last statement in the
foregoing quotation, — that the precise time of entry of the judgment
may be shown by less than record proof, — though reasonable and
well calculated to promote justice, is not everywhere accepted. In
at least one state, the courts refuse to hear evidence outside the rcc-
880 HolUngs worth v. Thompson, 5 Har. (Del.) 432. See Beyer's festate. 51
Pa. 432, 91 Am. Dec. 129.
881 Clawson v. Elchbaum, 2 Grant, Cas. (Pa.) 130; Mechanics* Bank ▼. Gor-
man. 8 Watts & S. (Pa.) 301; Small's Appeal, 24 Pa. 398; Ladley v. Crelghton.
•70 Pa. 490; Murfree's Heirs v. Carmack. 4 Yerg. (Tenn.) 270, 26 Am. Dec. 232.
832 Mechanics' Bank y. Gorman, 8 Watts & S. 304; Hoppock*8 Ex*n v. Bam-
fley, 28 N. J. Eq. 413.
(706)
1
Ch. 16) THB USN OF JUDOMSNTS. | 452
i
ord, on the question of the actual priority of the judgment and the
deed, and award the precedence to the lien of the former unless it
actually appears of record to have been subsequent to the convey-
ance.'** In a contest of this sort, it is held, the lien of the judgment
takes efTect from its rendition by the judge, and not from the time of
signing the minutes of the court."*
In a contest for priority between a mortgagee of the land and a
judgment-creditor whose judgment was docketed on the same day
with the mortgage, it seems reasonable to accord to the former the
same rights and privileges that are granted to a purchaser. And in
Tennessee this is the accepted doctrine. The hour of entry may be
inquired into, and actual priority will give legal precedence.*** But
in Pennsylvania the rule is otherwise. Evidence is not admissible
of the hour at which the judgment was rendered; if the judgment-
lien and the mortgage-lien are created on the same day, they are
entitled to equality of distribution.*** "The fractional division of a
day cannot be noticed in determining the time when the lien of a
judgment attached. If it could be, there is nothing on the record of
this judgment to show whether it was entered at an earlier or a later v
moment than the mortgage. The rule in such cases is to treat the
two liens as commencing simultaneously, and if the land of the
debtor is not sufficient to pay both, the loss must be divided in equal
proportions." **^
S 452. Judsmeiit BiTen to aeevre Future AdTaneea.
Though a judgment confessed to secure future advances to be
made to the borrower himself will, in equity, be postponed to a sub-
sequent bona fide judgment for a subsisting debt, except for such
advances as had been made before the second judgment was obtain-
388 Murfree v. Garmack, 4 Yerg. (Tenn.) 270, 26 Am. Dec. 232; Berry v.
Clements^ 9 Humph. (Tenn.) 312.
834 Clark T. Duke. 59 Miss. 575.
885 Murfree v. Oaruiack, 4 Yerg. (Tenn.) 270, 28 Am. Dec. 232; Berry v.
Clements* 9 Humph. (Tenn.) 312.
88« Clawson v. Elchbaum, 2 Grant, Cas. (Pa.) 130; Claason's Appeal, 22 Pa.
359; Hendrick8on*s Appeal, 2i Pa. 363. And see Goetzinger y. Rosenfeld, 16
Wash. 392, 47 Pac. 882, 38 L. R. A. 257.
887 Hendrickson's Appeal, 24 Pa. 363.
(707)
§ 463 LAW OF JUDQMENT& (Ch. 16
ed, yet a jtidgnient confessed to secure existing debts which the
plaintiff agrees to pay or assume, to the amount of the judgment,
does not come within that category, and is vaUd from the date,
against subsequent liens, although at the date of the confession no
debt is specified except one due to the plaintiff himself.*** A judg-
ment entered on a bond conditioned that the obligor will pay to the
obligee the sum of all notes, checks, drafts, and obligations which
B. has incurred or may hereafter incur to a certain bank, is a lien
for future advances as against intervening incumbrances only from
the date of such future advances.***
S 453. Prior Undooketed Jndsment*
As we have already shown, a judgment does not attach as a lien
upon real estate until it is duly entered of record. Hence a prior
undocketed judgment will be postponed to a subsequent conveyance
or incumbrance effected in good faith and put on record.*** And
if, before the purchase of real estate, the purchaser, having received
information that a transcript of a judgment against the owner has
been filed, goes to the proper officers, and in good faith causes an
examination of the records to be made, and they disclose the fact
that there is no judgment-lien, he is justified in acting upon the
belief that there is none.**^ But if a judgment is actually recorded,
the fact that a party is ignorant of it is due to his own negligence,
against the consequences of which a court of equity cannot reHeve
him by interfering with the rights of others who are without fault,***
»»« Walker v. Arthur, 9 Rich. Eq. (S. C.) 397.
»«» Kerr's Appeal, 92 Pa. 236.
8*0 Corley v. Renz (Tex. Civ. App.) 24 S. W. 935; Dotterer v. Harden, 8S
Ga. 145. 13 S. E. 971.
s«i Bell y. Davis, 75 Ind. 314. It has even been held that actual notice by
a purchaser of land of ain undocketed judgment does not render the judgment
a lien on the land, as against him. Glasscock v. Stringer (Tex. Civ. App.) 32
S. W. 920; Sklower v. Abbott, 19 Mont. 228. 47 Pac. 901.
•*2 Bunn y. Lindsay, 95 Mo. 250, 7 S. W. 473, 6 Am. St Rep. 48.
(708
Cb. 16) THE LIEN OF JUDGMENTS. § 455
S 454. As aKainst Snbseqnent Dower RlcHt*
Where the lien of a judgment has attached to land, and the owner
afterward marries, the lien is not thereby divested or postponed to
the wife's inchoate right of dower created by the marriage.**' But if
the lien attaches subsequent to the marriage, it will be subordinate
to the wife's right of dower.***
9 465. Priority by Superior DiUsoAoe*
In cases where several judgments have an exact equality of lien, it
will sometimes happen that one of the creditors, by his superior
activity and diligence^ will put himself in a position to claim a pref-
erence over the other, and such claim is always recognized and
enforced. This is the case, in some states, where two judgments are
entered on the same day, but one creditor sues out execution while
the other remains inactive.**"^ And this claim, founded on superior
vigilance, will sometimes even result in elevating a junior judgment
above the rights of the elder lien. Thus, where plaintiff and defend-
ant were judgment-creditors of the same party, and sought to enforce
their judgments against a piece of land which had been fraudulently
conveyed away by the judgment-debtor, it was held that, the plain-
tiff having taken the first steps to uncover the property fraudulently
conveyed, his rights were superior to those of the defendant, although
the latter held the senior judgment.*** On similar principles, an
»«» Brown v. Williams. 3; Me. 403; Sandford v. McLean. 8 Paige (N. Y.) 117,
23 Am. Dec. 773; Lane y. Gover, 3 Har. & McH. (Md.) 394; Queen Anne's Oo.
V. Pratt, 10 Md. 5; Davidson v. Frew, 14 N. C. 3, 22 Am. Dec. 708; Hodges v.
MeCabe, 10 N. C. 78; Blsland v. Hewett, 11 Smedes & M. (Miss.) 104; Bobbins
T. Bobbins, 8 Blackf. (Ind.) 174; Elceman v. Finch, 79 Ind. 511.
3** Gould V. Luckett, 47 Miss. 96, 116.
«*8 Supra, § 450.
«*« Boyle V. Maroney, 73 Iowa, 70. 35 N. W. 145, 5 Am. St Bep. 657; Brldg-
man v. MeKIssick, 15 Iowa, 260; Howland r. Knox, 59 Iowa, 46, 12 N. W.
777; Lyon v. Bobbins, 46 111. 276; Armlngton v. Bau, 100 Pa. 165; Haak's
Appeal, 100 Pa. 59. But a very vigorous dissent from this opnion has been
expressed in a recent case in Minnesota. Jackson y. Holbrook, 36 Minn. 494,
32 N. W. 852, 1 Am." St. Rep. 683. And see Wilkinson v. Paddock, 125 N. Y.
748, 27 N. E. 407; Ma tula v. Lane, 22 Tex. Civ. App. 391, 55 S. W. 504.
(709)
§ 456 LAW OP JUDGMENTS. (Ch. 16
attachment is a valid charge upon land from the moment it is levied,
so that a sale on execution relates back to that event for the purpose
of defeating all intervening incumbrances, as a judgment recovered
between the levy of the attachment and the judgment in the attach-
ment suit.**^ So again, if a judgment-creditor delivers his execution
to the sheriff merely for the purpose of protection against other cred-
itors and with no bona fide intention of making the money, and directs
the sheriff not to levy, or not to sell, until he receives further orders,
such acts will postpone the lien of his judgment to that of junior
creditors who proceed in good faith to a levy and sale.***
% 456. Priority by Prior Ifory.
There are some cases in which a junior judgment may acquire the
precedence by virtue of superior diligence in making a levy. Thus,
under the laws of some of the states, where a judgment-creditor
allows more than one year to elapse after his judgment has become
a lien on real estate, before he takes out and levies an execution,
his lien becomes subsequent and inferior to the liens of other judg-
ment-creditors.*** In this connection we must call attention to an
extremely interesting and peculiar question — called the "triangular
question" — which arises where there is a judgment not levied within
a year, a junior judgment levied within the year, and thus acquiring
a preference as against the senior judgment, and an intervening
mortgage executed and recorded prior to the rendition of the second
judgment. Under these circumstances it is held that the senior
judgment must be first paid, and then the mortgage, and the junior
347 Lackey v. Selbert, 23 Mo. 85; Langdon v. Raiford, 20 Ala. 532. Com-
pare Llchton V. McDougald, 5 Ga. 176.
»*8 Field V. Llverman, 17 Mo. 218; Patton v. Hayter. 15 Ala. 18; Andrus t.
Burke (N. J. Ch.) 48 Atl. 228.
34 9 Lamme v. Schilling, 25 Knn. 92. And see Excelsior Manurg Co. v.
Boyle. 46 Kan. 202, 26 Pac. 408; Klsterson v. Tate, 94 Iowa. 665. 63 N. W,
350, 58 Am. St. Rep. 419. Under the laws of Ohio regulating the lien of Judg-
ments, a Judgment levied within a year from its rendition, opon a part of the
lands of the Judgment debtor, Is not a lien upon the lands not levied upon, as
against a subsequent Judgment rendered more than a year after the first and
levied upon such lands within a year from its rendition. Pence y. Oochran
(D. C.) 6 Fed. 269; Bish v. Bums, 7 Ohio Cir. Ct R- 285.
(710)
Ch. 16) THS LIBN OF JT7DOMBNTS. §456
judgment must be postponed to both. The difficulties of the ques-
tion, and its solution, are thus presented by the supreme court of
Ohio : "If it be attempted to settle the question on the principle of
superiority^ it runs in a circle and produces no result. If the junior
judgment takes it from the senior judgment, then the mortgage
would take it from the junior judgment, and the senior judgment
from the mortgage, and thus perpetually without a conclusion. If
it be attempted to reason it out by interposing intervening liens, it
results in a triangle of equal equities, without any circumstance to
determine in favor of either. If it be said that the intervening mort-
gage should protect the senior judgment, because it was superior
to the junior judgment and inferior to the senior, so it might, with
equ^l reason, be said that the senior judgment should check the
mortgage in favor of the junior judgment, or that the junior judg-
ment should protect the mortgage from the senior judgment. The
court therefore felt the necessity of establishing a rule, and that
which was considered least objectionable was adopted, to wit, that
each should have precedence according to age. This, too, has some
show of reason in the fact that the lien of the senior judgment ex-
tended to the whole estate mortgaged, and the mortgagee took sub-
ject to such lien, and would hold only as to the balance of the estate
after satisfying the senior judgment, and the lien of the junior judg-
ment attached only to the balance left, if any, after satisfying the mort-
gage out of the balance left by the senior judgment. Or, in other
words, the junior judgment attached only to the equity of redemption
in that portion of the interest covered by the mortgage, after satis-
fying the lien of the senior judgment." •** Where there are two ex-
ecutions against the same defendant, the lien of the executions, as be-
tween the execution-creditors, attaches from the levy, and not from
the time at which they went into the hands of the officer.* '^^
8B0 Holliday y. Franklin Bank, 16 Ohio, 535; Brazee v. Lancaster Bank, 14
Ohio, 318; Fitch v. Mendenhall, 17 Ohio, 578.
sfti Field y. Milbum, 0 Mo. 492.
(711)
§ 459 LAW OF JUDGMENTS. (Gh. 16
S 467. Poatpaiiemeiit by Stay of EzeevtUiflu
It IS held that an extension of time for payment or stay of execution
on real estate to a time short of the statutory period of limitation
of a judgment-lien may be made without prejudice to the creditor,
and does not postpone the judgment to other and junior judg-
ments."^* But on the other hand, a mortgage for a valuable con-
sideration made pending a stay of execution by order of the plaintiff,
will take precedence of the judgment.'"*
S 468. Poatponemeiit by Failure to B«tIt6.
In those jurisdictions where a judgment, in order that its lien may
continue, must be periodically revived, the lien of a judgment not
revived within the statutory time will be superseded by the lien
of younger judgments in full original life or which have been duly
revived.*"* And the same consequence will result although the rec-
ord shows that the elder judgment was for purchase-money.*"
% 469. Bale under Junior Jndsment*
It is the settled rule in at least two states, that the lien of the
senior judgment is divested by a sale under the junior judgment
and execution, and the remedy of the senior creditor is to claim
enough of the fund to satisfy his judgment.*** And so, under a
statute which provides that judgments shall take precedence in the
order in which executions shall be taken out and levied, in a case
SB2 Marshall v. Moore, 36 HI. 321.
8B8 Sanford v. Ogden, 34 Ala. 118.
8B4 Pennsylvania Agricultural & Manurg Bank v. Crevor, 2 Rawie (Pa.) 224;
MiUer T. Miller, 147 Pa. 545, 548, 23 AU. 841; Kamlnsky v. Trantham, 45 &
C. 393, 23 S. E. 132; Colson v. Kennedy, 88 Ga. 174. 14 S. E. 119; Brady v.
Creditors, 43 La. Ann. 165, 9 South. 59; Davlsson v. Mackay, 22 Or. 1&47. 29
Pac. 791; Smith v. Schwartz, 21 Utah, 126. 60 Pac. 305.
8 55 Ruth's Appeal, 54 Pa. 173.
856 Harrison v. McHenry, 9 Ga. 164, 52 Am. Dec. 435; Dowdell v. Neal. 10
Ga. 14S; Sanders v. McAfee, 42 Ga. 255; Tarver v. Ellison. 57 Ga. 54; Jones
v. Wright, 60 Ga. 364; Blohme v. Lynch, 26 S. C. 300, 2 S. B. 136; Matthews
v. Nance, 49 S. 0. 389, 27 S. E. 408.
(712)
Ch. 16) THB LIEN OF JUDGMENTS § 460
where the first lien was a judgment on which no levy had been made,
and the second lien was a mortgage, and the third a judgment under
which a levy and sale took place, it was held that the lien of the elder
judgment was destroyed, and in an action to foreclose the mortgage,
it was considered to be free from the lien of the first judgment,
and, being prior to the second judgment, it was free from that lien
also.*'^ But the general rule undoubtedly is, that a sale under the
junior judgment docs not divest the lien of the elder judgment ; the
property passes subject to such elder lien; the junior creditor is
entitled to all the money made at his sale, but afterwards, at any
time within the statutory period, the senior creditor may take the
appropriate steps to enforce his lien."* And it is even held that
where both judgments, the elder and the junior, are the property of
the same person, he may proceed to levy and sell under the younger
lien without any prejudice to his right afterwards to enforce the
other, or without disturbing or destroying its lien, provided his con-
duct is free from, any imputation of deceit or unfairness towards the
purchaser. •••
S 460. Order of Priority on Aftor-Aequired Iiaiidfl,
If several judgments are rendered and entered against the same
defendant at different times, and he afterwards acquires the legal
title to real estate, the liens of the several judgments attach together
upon the property at the same instant ; all stand upon the same foot-
ing, and the oldest judgment has no priority.**® This general rule
SB7 Lambertville Nat Bank v. Boss (N. J.) 13 Atl. 18. Compare HoUiday v.
Franklin Bank, 16 Ohio, 535; supra, § 456.
858 Commercial Bank v. Yazoo Co., 6 How. (Miss.) 530, 38 Am. Dec. 447;
Rankin v. Scott. 12 Wheat. 177, 6 L. Ed. 592; Llttiefleld v. Nichols, 42 Cal.
372; Shotwell v. Murray, 1 Johns. Ch. (N. Y.) 512; Bruce v. Vogel, 38 Mo.
100; Lathrop v. Brown, 23 Iowa, 40; Hiestand v. Williamson, 128 Pa. 122,
18 Atl. 427; Paddack v. Staley, 18 Colo. App. 363, 58 Pac. 363.
85» Shotwell V. Murray, 1 Johns. Ch. (N. Y.) 512.
800 In re Hazard's Estate, 141 N. Y. 586. 36 N. E. 739; Moore r. Jordan. 117
N. 0. 86, 23 S. E. 259, 42 L. B. A. 209, 53 Am. St. Rep. 576; Belknap v. Greene.
56 S. C. 119. 34 S. E. 26; Moody v. Harper, 25 Miss. 484; Cayce v. Stovall, 50
Miss. 396; Willis v. Downes (Tex. Civ. App.) 46 S. W. 920; Matula v. Lane, 22
Tex. ClY. App. 391. 55 S. W. 504; Relfe v. McComb, 2 Head (Tenn.) 558, 75
Am. Dec. 748; Davis v. Benton, 2 Sneed (Tenn.) 665; Michaels v. Boyd, Smith
(713)
§ 461 LAW OF JUDOM1BNT8. (Ch. IS
is accepted in all the states, so far as we have been able to discorver»
except Oregon. In that state, judgment-liens attach to after-ac-
quired property in the order of the dates of the docketinf^ of the
judgments.*'* In another state, where personal property of the
defendant in execution is brought into the county after executions
of different judgment-creditors have come to the sheriff's hands
against such defendant, the eldest judgment creditor who has pre-
served his lien will have the prior right.*** It has also been thought
that, where a statute requires an executor to pay judgments docketed
against the deceased, according to their priority, a creditor whose
judgment was first docketed will be entitled to priority of payment,
though the property sought to be applied was acquired by the judg-
ment debtor after all the judgments had been docketed.* •• Again,
where a debtor has made a fraudulent and simulated sale of prop-
erty, and afterwards several judgments are recovered against him,
and the property is then returned to him, the liens of the judgments
will rank according to their several dates of recordation.*** So also,
where land has been appropriated for a right of way, a prior judg-
ment creditor of the owner of the land has a lien on the money
awarded superior to that of an assignee of the judgment of award.***
•Part VI. Duration of the Lteh,
§ 461. GeB«VAl B«Im«
In the statutes of every state there is fixed a limitation of the
period during which a judgment shall continue to be a lien upon real
estate. Sometimes this period is set absolutely at ten years ; **•
(Ind.) 100; Ware v. Purdy (Iowa) 60 N. W. 520; KIsteraon v. Tate. M Iowa,
665, 63 N. W. 350. 68 Am. St. Rep. 419; Ware v. Delahaye, 05 Iowa, 667, 64
N. W. 640.
»«i Creighton v. Leeds, 9 Or. 215.
862 Wood V. Gary, 5 Ala. 43.
808 In re Foster's Estate, 8 Misc. Rep. 344, 29 N. T. Supp. 316.
86* Schwabacher v. Lelbrook, 48 La. Ann. 821, 19 South. 758.
806 Yakima Water, Light & Power Co. v. Hathaway. 18 Wash. 377. 61 Pac.
471.
800 A sale may be made under the Judgment on the tenth anniversary of
the day on which it was rendered, or, if the ten years expire on a Sunday*
(7U)
Ch. 16) THB LIBN OF JUDGMENTS. § 461
sometimes the Hen runs for five years, with the privilege of renewal
for an equal period, and successive revivals after that;'*^ and in
some jurisdictions the statutory time may vary from the types here
cited. Occasionally we meet with a statute which makes the life
of the lien depend upon the issuing of execution, or which makes a
distinction, as to its continuance, founded on the character of the
person against whom it is set up, whether he be the debtor, a pur-
chaser, or a subsequent incumbrancer. Thus, in Nebraska, the lien
of a judgment continues for five years after the rendition of the
judgment, and as against all persons except bona fide judgment-
creditors, for five years after the issuance of execution.*** A judg-
then on the following day. Spencer v. Hang, 45 Minn. 231, 47 N. W. 7W.
Bnt the issuance of an execution and the making of a levy within the 10
years wiU not be effectual to continue the Hen of the Judgment to the time
of sale, where the sale does not take place until after the expiration of the
10 years; and the purchaser at such sale will take subject to liens placed
on the land since the rendition of the Judgment. Wells v. Bower, 126 Ind.
115. 25 N. E. 603, 22 Am. St. Rep. 570; Albee V. Curtis. 77 Iowa, 644, 42
N. W. 508; Lakin v. C. H. McCormick & Bro., 81 Iowa, 545, 46 N. W. 1061.
So In South Dakota, where the statute makes a Judgment Hen continue for
ten years from the time of its docketing, and provides for an action to
enforce the lien on real estate, if such an action is commenced and brought
to issue within the ten years, but not reached for trial until after the expira-
tion thereof, the lien is lost. Ruth v. Wells. 13 S. D. 482. 83 N. W. 568.
««7 See Wetmore v. Wetmore, 155 Pa. 507, 26 Atl. 694. The statute in
South Carolina provides that a Judgment shall be a lien on real estate for
10 years from the date of Its entry, but the plaintiff may, within three years
**after its active energy has expired, revive the Judgment, with like liens
as in the original for a like period." It is held that a Judgment revived
within the three years has a continuous lien from the date of Its entry, and
Its priority is preserved as against all liens which existed against the Judg-
ment debtor during the period of its original active energy. Vemer v.
Bookman, 53 S. C. 308, 31 S. E. 283, 69 Am. St. Rep. 870; Woodward v.
Woodward, 39 S. C. 259, 17 S. E. 638, 39 Am. St. Rep. 716. Under the present
statute in Arkansas, Judgment liens continue in force only for three years
unless renewed. Acts Ark. 1891, No. 50, $ 2, p. 92.
3«8 Reynolds v. Cobb, 15 Neb. 378, 19 N. W. 502; Flagg v. Flagg, 39 Neb.
229, 58 N. W. 109; Cotton v. First Nat. Bank, 51 Neb. 751, 71 N. W. 711;
Dillon V. Chicago, K. & N. R. Co., 58 Neb. 472, 78 N. W. 927. See Pasour
V. Rhyne, 82 N. O. 149; Pipkin v. Adams, 114 N. C. 201, 19 S. E. 105;
McCarty v. Ball, 82 Va. 872, 1 S. E. 189; Benbow v. Boyer, 89 Iowa, 494,
56 N. W. 544. The statute in New York, which provides that execution
may be had upon real estate after the 10 years by filing a notice, subscribed
(715)
§ 462 LAW OF JUDGMENTS. (Ch. 16
ment, however, does not lose its lien upon real estate by the suffering
of an execution, issued thereon, to lie dormant in the sheriff's hands.
The doctrine on the subject of dormant executions does not apply
to real estate, the lien upon which depends upon the docketing of the
judgment, and not upon the execution or levy. And such lien does
not become dormant until the expiration of the full statutory limita-
tion.**® In cases where the judgment must be periodically revived,
it is held that the question, whether the lien has been kept alive and
remains in force, must be determined by an inspection of the record ;
if the record does not show its existence, the lien is lost.*^* The lien
of a judgment in favor of the state is never lost by lapse of time.*^*
\ 462. Dormant Jndsment Aeta*
In several of the states there are statutes which prescribe that, after
the lapse of a certain time, the lien of a judgment shall be lost, unless,
within that time, steps have been taken to enforce it, such as the levy
of an execution on property of the defendant.*'* These statutes are
by the sheriff, describing the Judgment, the execution, and the property
levied upon, does not extend the original lien of the judgment Floyd v.
Clark, 16 Daly, 528, 17 N. Y. Supp. 848. But a judgment for foreclosure
and sale of mortgaged premises may be enforced even after 20 years or
more from Its entry. Wing v. De La Rlonda, 125 N. Y. 678, 25 N. B. 1061.
s«» Mulr V. Leltch, 7 Barb. 341. The statute of Ihnltatlons begins to mn
on a judgment by default from the entry of the judgment, and not from the
entry of the default Edwards v. Hellings, 103 Cal. 204, 37 Pac. 218.
•70 Duffey V. Houtz, 106 Pa. 96.
»7i Comm. V. Baldwin, 1 Watts (Pa.) 54, 26 Am. Dec. 83.
ST 2 In Georgia, the Oode, \ 2914, provides that no domestic Judgment shall
be enforced after the expiration of seven years from the time of Its ren<ll-
tion, where no execution has been issued on it or where execution has
been issued and seven years have expired from the time of the last entry
on the execution made by an officer authorized to execute and return the
same. See Smith v. Williams, 89 Ga. 9. 15 S. E. 130, 32 Am. St Rep. 6i:
Formby v. Shackleford, 94 Ga. 670, 21 S. £. 711. An entry on an execution
signed by a person as "Former Sheriff" does not satisfy the statute, as an
ex-sheriff is not authorized to execute and return executions. Orr t. Mor-
row, 91 Ga. 148, 17 S. E. 287. Nor wiU the judgment be saved by an entry
on the execution docket, made by the clerk without being thereto requested
by the judgment creditor, that on a certain day the execution was handed
by him to the sheriff. Daniel v. Hayncs, 91 Ga. 123, 16 S. R 649. In Texas,
the law provides that a judgment whereon execution has not issued within
(716)
Ch. 16) THE LIEN OF JUDGMENTS. § 462
called "dormant judgment acts," and unless their terms are com-
plied with, the lien of a judgment will expire and give place to junior
liens.*^* They are not merely statutes of limitations, and a judgment
will not be saved from dormancy by the mere fact that partial pay-
ments are made and receipted for within the limited time,*** nor by
the payment of the costs of the action to the clerk and his entry of
ihe fact upon the execution.*" An officer's indorsement on the writ
that he had received directions from the plaintiff's attorney to collect
it is not sufficient to keep the judgment alive,'** nor can that object
be accompHshed by making upon the execution a nunc pro tunc
entry of a levy alleged to have been made before the judgment be-
came dormant.*** In Tennessee, where the statute requires an ex-
ecution to be taken out and the land sold within twelve months, the
lien is not saved by the levy of an execution and the filing of a cred-
itor's bill, nor by a stipulation contained in the judgment that ex-
ecution shall not issue for a certain time after its rendition.*** On
the other hand, an execution regularly issued within the limited time
will stop the running of the statute against the judgment, though
it was issued for that sole purpose and without any expectation of
collecting the money,*** as, where the execution is levied on defend-
ant's homestead, and a claim of exemption is successfully inter-
12 months after its rendition may be revived within 10 years after its date,
and not thereafter. It is not necessary that an execution should issue every
12 months, in order to keep alive a Judgment on which an execution had
been taken out within the first year after its rendition. Oentral Ck)al Oo.
V. Southern Nat Bank, 12 Tex. Civ. App. 334, 34 S. W. 383; Davis v. Beall,
21 Tex. Civ. App. 183, 50 S. W. 1086. See Mundine v. Brown (Tex. Civ. App.)
23 S. W. 90; Adams v. Crosby, 84 Tex. 80, 19 S. W. 355.
»78 Thomas v. Van Meter, 164 111. 304, 45 N. E. 405; Horbach v. Smiley.
54 Neb. 217, 74 N. W. 623; Smith v. Hogg, 52 Ohio St. 527, 40 N. B. 406;
Thompson v. Hubbard, 3 Kan. App. 714, 44 Pac. 1095.
»74 Stanley v. McWhorter, 78 Ga. 37, 1 S. E. J260; Lewis v. Smith, 99 Ga.
603, 27 S. E. 162; Blue v. Collins, 109 Ga. 341, 34 S. E. 598; Nelson Y. GiU,
66 Ga. 536.
876 Lewis V. Smith, 99 Ga. 603, 27 S. E. 162.
«7« Hanks v. Pearce, 96 Ga. 159, 22 S. E. 676.
«T7 Lewis V. Smith, 99 Ga. 603, 27 S. E. 162.
«78 Gardenhire v. King. 97 Tenn. 585, 37 S. W. 54a
S7» Murphy y. Klein, 71 Miss. 908, 15 South. 658.
(717)
§ 468 LAW OF JUDGMENTS. C^^h. 16
posed.**® A decree in equity which merely prescribes tha perfonn-
arice of a duty is not within either the letter or the spirit of these
acts,**^ but the filing of an equitable petition, for the purpose of en-
forcing the collection of a judgment, is sufficient to prevent the run-
ning of the dormancy statute, as against such judgment, so long as
the equitable action is pending.*** An order by a justice of the peace
for the sale of property attached in a suit before him is an "execu-
tion," within the meaning of these statutes.*** And since the usual
method of enforcing the payment of a judgment against a municipal
corporation is by the writ of mandamus, issued to enforce the levy
and collection of taxes for that purpose, this writ is to be considered
the equivalent of a writ of execution, within the meaning and pur-
pose of the statutes relating to the dormancy of judgments, when
the question concerns a judgment against a municipality .*** When a
judgment has become dormant by the laws of the state where it was
rendered, and has not been revived or renewed, it cannot be fastened
as a lien upon lands of the judgment debtor in another state.***
S 463. IiesifllatlT^ Abridsateiit of ike Tlai#,
It is a familiar principle of constitutional law that a statute, retro-
active in its operation, which merely changes the remedy provided
for the enforcement of an existing right, cannot be said to impair the
obligation of contracts, if a substantive and eflfective remedy is still
left to the creditor. And it is an equally well known rule that a stat-
ute of limitations, applying retroactively to existing rights or rem-
edies and abridging the period of time allowed for their enforcement,
is not invalid in such application, if a reasonable length of time is
left for the assertion of such rights, or the prosecution of such rem-
edies, before the bar of the statute cuts them off. Now, using these
two admitted rules as premises, it is easy to deduce the conclusion
•
880 McClarln v. Anderson. 104 Ala. 201. 16 South. 639. Comimre Wuest
V. James. 51 Ohio St. 230, 36 N. E. 832.
881 Butler V. James, 33 Ga. 148.
882 Conley v. Buck, 100 Ga. 187, 28 S. E. 97.
888 Webber v. Harshbarger, 5 Kan. App. 185. 47 Pac. 166.
884 Deiiipsey v. Township of Oswego. 2 C. O. A. 110. 51 Fed. 97.
886 Clznpman v. Chapman, 48 Kan. G3l>, 29 Tac. 1071.
(718)
Ch..l6) THB LIEN OF JUDGMENTS. § 464
that a statute shortening the time during which, by earlier laws, the
lien of a judgment was to continue, is not open to any constitutional
objection, in its application to judgments whose lien had attached
before the act was passed, if a reasonable time (though less than the
original period) is still allowed to the judgment-creditor in which to
enforce his Ken. And so the authorities hold.^*' But the case is
diflferent if the statute is made to apply to a case in which the whole
of the new period of limitation had run before the passage of the act,
so that the lien would be instantly cut off. Thus, where a statute
had provided that a final judgment should be a lien for ten years, and
that the creditor might have an additional three years within which
to revive it, and a later act repealed the proviso allowing the addi-
•
tional three years, it was held that the latter act was unconstitutional,
as interfering with vested rights, when applied to a judgment the lien
of which had expired before its passage, but the additional three
years for reviving which had not then expired.*'^
f 464. Idea of Transferred Judcment.
The length of time during which the lien of a judgment transferred
from one county to another shall continue depends entirely upon the
construction of the local statute. In Pennsylvania such lien contin-
ues for five years from the entry of the judgment in the county to
which it is transferred.'** But on the other hand, in Indiana, under
a statute declaring that the lien of a judgment shall continue for ten
years after the rendition thereof, and another statute, providing that
when a transcript of a judgment from another county is filed, the
judgment set forth in the transcript shall be a lien on property within
the county to the same extent as judgments of the local court, from
the time of filing the transcript, it is held that the lien of a judgment,
a transcript of which is filed in another county, is in force for ten
886 Henry v. Henry, 31 S. 0. 1, 0 S. E. 726; McOormlck v. Alexander, 2
Ohio, 65; supra, § 399.
«87 King V. Belcher, 30 S. C. 381, 9 S. E. 359; Merchants' Bank of Danville
V. Ballon, 98 Va. 112, 32 S. E. 481, 44 L. R. A. 806, 81 Am. SL Rep. 715;
Palmer v. Laberee, 23 Wash. 409, 63 Pac. 216.
S88 KnausB* Appeal* 49 Pa. 419.
(719)
§ 466 LAW OP JUDGMENTS. (Ch, 16
years after its rendition, and not ten years from the time of filing the
transcript.***
* § 465. Ezteaiion of Idea by Asreement of Pftitlet.
It has been held that where a judgment is rendered in pursuance
of a written agreement of the parties, entered of record, that the judg-
ment shall be rendered collectible and payable nine years from its
date, the ten years during which such judgment will remain a lien on
the real estate of the defendant will not commence to run until the
expiration of the nine years.*** In the case cited the law of Indiana
is thus stated : The lien of judgments upon real estate is regulated
by statute, and the general rule is that the lien continues for ten years
from the rendition of the judgment and no longer ; but there are four
exceptions, the statute excluding from the computation of time (i)
the time during which the party is restrained by an appeal from pro-
ceeding, (2) the time during which the plaintiff is restrained by an
injunction, (3) the time the plaintiff may be prevented from proceed-
ing by the death of the defendant, and (4) the time the plaintiff may
be prevented from enforcing the judgment by an agreement of the
parties entered of record. But it must be considered very doubtful
whether any such exception as that last mentioned would be admit-
ted in other states, unless specifically provided for by the statute.***
As between the parties a judgment may be kept alive, although once
paid, for the purpose of securing another loan ; but as against sub-
sequent lien-creditors, a mortgage or judgment once paid cannot be
kept alive.***
§ 466. SurrlTal agalnot Jiidsnomt-]>obtor.
The lien of a judgment expires, at the end of the statutory period,
only as against subsequent purchasers or incumbrancers, but it still
continues, the judgment being unsatisfied, against the judgmcnt-
880 Brown y. WuskofT, 118 Ind. 569, 19 N. E. 463. See a later deciakm In
the same case In 21 N. E. 243.
890 Applegate v. Edwards, 45 Ind. 329. And see Patterson ▼. BazltJ* 33 &
C. 354, 11 S. E. 1065.
801 Savings & Trust Co. v. Bear VaUey Irr. Co., 89 Fed. 82.
302 Peirce v. Black, 105 Pa, 342.
(720)
Ch. 16) THB LIEN OF JUDGMENTS. § 466
debtor himself.*'* Hence if one suffers his property to be sold on
execution issued on a judgment after its lien has expired by limita-
tion, he cannot afterwards, in a collateral proceeding, call in ques-
tion the validity of the sale.'** . So in a case where the real estate of
a debtor was sold by the sheriff, and the proceeds applied to the pay-
ment of all judgments which had been either entered or revived
within five years, and they were all thereby discharged, and there was
a surplus, and there were two judgments the liens of which had ex-
pired, in consequence of their not being revived, it was held that the
surplus belonged to the holders of those two judgments. For al-
though, as to creditors whose judgment-liens were in force, these
unrevived judgments had undoubtedly ceased to be liens, yet, as be-
tween them and the judgment-debtor, the liens continued notwith-
standing their non-revival within the statutory time.*** Inasmuch
as the statutes ordinarily provide that the lien shall expire, after a
certain time, as against "bona fide purchasers and subsequent incum-
brancers," some attention to these terms becomes necessary. As to
the former, it is held that if a purchaser collusively contrives with the
judgment-debtor to deprive the creditor of Ijis lien upon the lands
purchased, knowing that the judgment is unpaid, or if he purchases
under circumstances indicating an intention to deprive the creditor
of the means of collecting his judgment, such purchaser will not be
protected as a bona fide purchaser of the land, discharged of the lien
of such judgment, although he pays the full value of the estate.***
As to the term "subsequent incumbrancers" in these statutes, it is
held to apply to creditors of a grantee of the judgment-debtor, where
the conveyance was made within the statutory period, and the debts
were contracted after the grantee's investiture with the legal title.**^
»•» McCahan v. Elliott, 103 Pa. 034; Fetterman v. Murphy, 4 Watts (Pa.)
424, 28 Am. Dec. 729; Aurand's Appeal, 34 Pa. 151; Bank of North America
T. Fitzslmons, 3 Bin. (Pa.) 342; Benslmer v. Fell, 35 W. Va. 15, 12 S. E.
1078, 29 Am. St. Rep. 774.
»»* Hhids V. Scott, 11 Pa. 19, 51 Am. Dec. 50C; Tufts v. Tufts, 18 Wend.
(X. Y.) 621; Yeager v. Davis, 112 Ind. 230, 13 N. E. 707.
»•» Brown's Appeal, 91 Pa. 485. Compare Nutt v. Cuming, 22 App. Dlv. 92,
47 N. Y. Supp. 800; Floyd v. Clark, 16 Daly, 528. 17 N. Y. Supp. 848.
890 Pettlt V. Shepherd, 5 Paige (N. Y.) 493, 28 Am. Dec. 437.
»0T Grldley v. Watson, 53 lU. 186.
1 LAW JUDG.-46 (721)
S 468 LAW OP JUDOMBNT8. (Ch. 16
f 467. Beath of Judcmemt-Bebtor.
In most of the states, the lien of a judgment on real estate is
not destroyed by the death of the judgment debtor, but continues in
force for the same length of time as if he had remained in life.***
But in Pennsylvania, a statute provides that a judgment against a
decedent at the time of his death "shall not continue a lien on the
real estate of such decedent as against a bona fide purchaser, mort-
gagee, or other judgment creditor of such decedent, or of his heirs
or devisees." This, however, does not limit the lien as against the
heirs and devisees of the judgment debtor; as to such persons, the
land will continue to be bound by the lien of the judgment for five
years after the death of the decedent.**' In New York, the statutes
give to docketed judgments a lien on land for ten years, and provide
that a judgment lien, if existing at the death of the judgment debtor,
shall "continue for three years and six months thereafter, notwith-
standing the previous expiration of ten years from the filing of the
judgment roll." This is not an abridgment of the life of the lien,
and it will not be limited to three years and a half from the debtor's
death, if the original ten years would not expire within that time.***
§ 468. Remedies of Creditor after Ezpiration of Idea*
It is well settled that the lien of a judgment cannot be enforced
in equity after the right to enforce the judgment at law has ceased
to exist.*** But if the judgment creditor, during the life of the judg-
ment, files his bill in equity against the judgment debtor and an-
3»8 Morton y. Adams, 124 Gal. 229, 56 Pac. 1038, 71 Am. St. Rep. 53: Barrett
V. Furnish, 21 Or. 17, 26 Pae. 861; Ensleu v. Wheeler, 1)8 Ala. 200. 13 South.
473; Lewis v. Smith, 90 6a. 603, 27 S. E. 162; Rltchey v. Burlcke*8 Adm*re.
21 Ky. Law Rep. 1120. 54 S. W. 173; McAfee v. Reynolds and.) 28 N. K 423.
18 L. R. A. 211. 30 Am. St. Rep. 194.
«»» See Puellhart v. Blood, 7 Pa. Dlst. R. 575; Bleseeker ▼. Cobb, 13 Pa.
Super. Ct. 56; Konigmaker v. Bro^vn, 14 Pa. 269; Nicholas v. Phelps, 15 Pa.
.36; Shearer v. Brhiley, 76 Pa. 300; Baxter T. Allen, 77 Pa. 468; Stevenson ▼.
Black (Pa.) 1 Atl. 312.
400 In re Holmes. 59 Hun, 369. 13 X. Y. Supp. 100, affirmed 131 N. Y. 80, 29
K. E. 1003.
«oi Smith y. Meredith, 30 Md. 429; Hutcheson ▼• Grubbs, 80 Ya. 251.
(722)
Cb. 16) THB LIBN OF JUDOMBNTS. § 46fi
Other, to subject property to the payment of his judgment, he does
not lose his lien on such property if he allows his judgment to become
darmant (or if the general lien of the judgment expires by statutory
Emitaricm) bcioire the entry of a final decree in the equity suit.*®*
But if the creditor has lost his lien by his failure to take the proper
steps to enforce it in due season, he cannot change the result by
the mere act of issuing an execution.*®* But it is not necessary that
a judgment should be revived in order to maintain its li^n on money
in the sheriff's hands.*®*
Part VII. Suspension and Dischargb of Judgment Liens.
§ 469. General PHneiples.
Inasmuch as the lien of a judgment does not merely bind the
debtor's estate by his own consent or sufferance, but attaches by force
of law in consequence of the rendition of the judgment against him,
it follows that he cannot relieve his land from its burden by any act
short of satisfying the judgment, nor can he, without a release from
the judgment-creditor, change, limit, or impair the lien or prejudice
the rights of its holder. The act of the debtor, therefore, in selling,
. conveying, mortgaging, or leasing the land, or his abandonment or
repudiation of the title, or attornm'ent to a third person (if he really
had an interest subject to the judgment), cannot affect or destroy the
lien of the judgment when once it has attached.*®' Thus a voluntary
assignment for the benefit of creditors does not affect liens on the
land assigned created by existing judgments against the assignor.*®®
Nor, after such an assignment, does the failure of a creditor to sue
402 City of ancinnati v. Hafer, 49 Ohio St 60, 30 N. B. 197; Davidson v.
Burke, 143 111. 139, 32 N. B. 514, 38 Am. St. Rep. 367.
4o» Roe V. Swart 5 Oow. (N. Y.) 294.
*04 Commonwealth v. Gleim, 3 Pen. & W. (Pa.) 417.
*05 MoiTls V. Mo watt. 2 Paige (N. Y.) 586, 22 Am. Dec. 661; Decker v. Gil-
bert SO Ind. 107; Brooker v. Sprague, 99 Ind. 169; Rodgers v. McCluer, 4
Grat. (Va.) 81, 47 Am. Dec. 715; Agricultural Bank y. Pallen, 8 Smedes & M.
(Miss.) 357, 47 Am. Dec. 92; Tinney v. Wolston, 41 IlL 215; Bdmunds v.
Smith. 52 N. J. Eq. 212, 27 Atl. 827.
406 Shaeffer*8 Appeal, 101 Pa. 45.
(723)
I 170 LAW or JUDOMBNTS. (C9l. 16
out and levy execution* impair the lien of his judgment.**^ But in
one state it has been held that although a judgment is by law a lien
upon the land of tThe defendant, yet he may after the judgment con-
vey good title, if he has at all times afterwards a sufficient amount
of property, subject to and within reach of an execution, to satisfy
the judgment.*^*
§ 470. Svspeasioa of Idea by InJiuietioB*
An injunction against the enforcement of a judgment at law, if
not perpetual, does not destroy the lien of the judgment, but merely
suspends it until the dissolution of the injunction, after which the
lien will revive and continue for the full statutory period.*** Whether
this statutory period is to be computed exclusive of the time during
which the lien was so suspended, is not clear upon the authorities,
and must be determined by the language of -the local statute. In
one state the law expressly excepts from the computation of the
period for which the lien continues in life "the time during which
the plaintiff is restrained by an injunction." *** But in another
state, for want of a similar saving clause in the statute, the courts
have been forced to conclude that if the lien ran out during the
pendency of such an injunction, it was finally lost, and could not be
revived, upon the dissolution of the injunction, at least as against a
bona fide purchaser from the judgment-debtor.*** But here con-
siderations of equity must intervene, and it becomes important to
inquire at whose instance the injunction was issued. For instance, in
a case where the creditor was prevented from enforcing his execu-
tion until after the time prescribed by the statute, in consequence of
an injunction granted on the application of a mortgagee of the proi>-
erty, the lien of whose mortgage was, at the issuance of the injunc-
\ion, secondary to that of the judgment, and the injunction i^^as sub-
sequently dissolved, upon the failure of the mortgagee to establish
*0T Scott V. Dunn, 26 Ohio St. 63.
«08 Howse T. Judson, 1 Fla. 133.
409 Smith y. Everly, 4 How. {Miss.) 178; L^nn ▼. Gridley, Walk. (Mls8^
548, 12 Am. Dec. 591; supra, § 395.
410 Applcgate v. Edwards, 45 Ind. 329.
411 Tucker ▼. Shade, 25 Ohio St 856b
(724)
Ch, 16) THB LIEN OF JUDOMBin?8. § 472
his claim to protection, it was held that he could not take advantage
of the fact that . the lien of the judgment was lo>st, and that be was
not entitled to hold the property discharged of the lieii of the judg-
ment.*^* In Alabama a judgment-lien is discharged by an injunc-
tion issued upon the execution of a bond with sureties by the judg-
ment-debtor, if the bond provides the plaintiff with another security
for the payment of his judgment.*^*
§ 471. Stay of Pvooeedlnsi,
In general, the lien of a judgment is not destroyed by an agree-
ment of the parties to stay execution for a specilfied period.*^* And
a stay of proceedings by order of court, pending a motion for a new
trial, or by appeal with stay-bond, merely suspends the running of
the statutory time during which a judgment is a lien on real estate,
but it does not postpone its beginning until after the stay has
ceased.*^'
§ 472. Openins or Vaoatlng Judgment*
Opening a default judgment merely to let the defendant in to a
defense does hot destroy its lien ; the lien continues for the statutory
period.* ^' But vacating a judgment effectually obliterates it for all
purposes; and of course the lien is thereby cancelled, leaving the
judgment-debtor free to sell or incumber the property anew. But
judgments which have been vacated are sometimes restored, and
thereby the lien of the judgment re-attaches. A party whose judg-
ment has been illegally vacated will not be deprived of his lien if he
ultimately procures the reversal of the order which set it aside, unless
the equities of bona fide purchasers or incumbrancers have intervened.
And further, the lien is restored to the exact position it occupied at
412 Work V. Harper, 31 Miss. 107, 66 Am. Dec. 549.
418 Bartlett v. Gayle, 6 Ala. 305, 41 Am. Dec. 52.
414 Brewster v. Clamfit, 33 Ark. 72; Love v. Harper, 4 Hnmph. (Tenn.) 113;
Ayers v. Waul, 44 Tex. 549.
415 Barroilhet v. Hathaway, 31 Cal. 395. 89 Am. Dec. 193; Isler v. Brown,
66 X. C. 556; Mercantile Trust Co. v. St. Louis & S. F. Ry. Co., 69 Fed. 193;
Hobbs T. Simmonds, 61 Conn. 235, 23 Atl. 962.
416 Cope's Appeal, 96 Pa. 294. See Smith v. De Lanty, 11 Wash. 386, 39
Pac. 638. Compare Crane v. Richardson, 73 Miss. 254, 18 South. 542.
(725)
§ 474 LAW OF JUDGMENTS. (Ch. 16
the time the judgment was vacated. That is, it continues to take
precedence of any liens which were junior to it at that date, unless
the holders of such junior liens have acquired new rights, by proceed-
ings under their several judgments, of which they cannot justly be
deprived.* ^^
f 473. Appeal or Brror,
It is generally held that the lien of a judgment is not discharged
by an appeal being taken, but merely suspended; nor is the judg-
ment on appeal a discharge of the lien of the judgment below.***
"Even if there be a new judgment [e. g., of affirmance on appeal] »
this does not necessarily destroy the lien which the law has given,
for it is competent for the law to keep the lien in existence, although
a new judgment be predicated on the first." *^* And where a decree is
reversed in part and affirmed as to the residue, the reversal in part
does not destroy the lien of so much of the decree as is unreversed.***
I 474. Banknaptey.
The lien of a judgment-creditor who fails to prove his debt is not
displaced by the subsequent bankruptcy of the debtor. And where
a judgment-debtor is declared a bankrupt, has his homestead set
apart, procures his discharge, and afterwards disposes of the prop-
erty set apart as a homestead, it at once becomes subject to execu-
tion under the prior judgment. "Liens are not destroyed but pre-
served by the bankrupt act." ***
41T King y. Harris, 34 N. Y. 330; Id., 30 Barb. 471; Smith v. De Lanty, 11
Wash. 386, 39 Pae. 638.
^is Hardee v. Stovall, 1 Oa. 02; Montgomery v. McGlmpsey, 7 Smedes & M.
(Miss.) 557; Ourtis v. Root, 28 III. 367; Moore v. Rittenhouse, 15 Ohio St. 310;
Dewey y. Latson, 6 Cal. 130; Leonard's Appeal, 94 Pa. 180; Gottlieb y. Thatch-
er, 151 U. S. 271, 14 Sup. Ct 319, 38 Ii. Ed. 157; Rock Island Nat Bank y.
Thompson, 173 111. 593, 50 N. E. 1089, 64 Am. St Rep. 137; Schafer y. Bnck, 76
111. App. 464. Compare Campbell y. Spence, 4 Ala. 543, 39 Am. Dec. 301:
Wronkow y. Oakley, 133 N. Y 505, 31 N. E. 521, 16 L. R A. 209, 28 Am. St
Rep. 661; Gmner v. Westln, 66 Tex. 209, 18 S. W. 512; Rubinsky y. Patrick,
2 Pa. Dist. R. 695.
«i» Planters' Bank y. Calyit 3 Smedes & M. (Miss.) 143, 41 Am. Dec. 616.
<*o Thomson's Adm'r y. Chapman's Adm'r, 83 Va. 215, 2 S. E. 273.
*2i Jackson v. Allen, 30 Ark. 110; McCance v. Taylor, 10 Grat (Va.) 58a
But see Bankr. Act 1898, { 67.
(726)
Ch. 16) THE LIEN OF JUDGMBNT& {476
i 475« Appofntmemt of BeoolT«iw
It is held that the lien of a judgment on the real estate of a cor-
poration is not lost or aflfected by the subsequent appointment of a
receiver to settle the business of such corporation ; nor is the judg-
ment-plaintiff thereby prevented from proceeding by execution, levy,
and sale of such property to make his debt; *^* though of course he
must apply to the court appointing the receiver for leave to levy on
the property in the latter's hands. And the lien of a judgment will
not be continued beyond the statutory period by the mere fact that,
during such period, all the judgment debtor's property is in the hands
of a receiver, under the control of a court having jurisdiction ; and
if, during this period, the judgment creditor does not ask permission
of the court appointing the receiver to levy his execution, he loses
his lien by his own neglect.***
f 476. Taking Befendamt on Caplai.
At common law, "the writ of capias ad satisfaciendum is an execu-
tion of the highest nature, inasmuch as it deprives a man of his lib-
erty till he makes the satisfaction awarded; and therefore, when a
man is once taken in execution upon this writ, no other process can
be sued out against his lands or goods." *** Hence the lien of the
judgment is destroyed by an execution against the debtor's person.
It may, however, revive, in the few cases in which the creditor, fail-
ing to obtain satisfaction by this means, is permitted to resort to
other remedies ; but not as against intervening rights. "If the plain-
tiff be remitted to other remedies by a discharge of his debtor by act
of law, or by an escape, it will not operate to restore his lien on the
debtor's property, which he has elected to waive or abandon, as
against creditors who have obtained a precedence during such sus-
pension." **• Where a judgment is recovered against several, and a
«S3 Southern Bank v. Ohio Ins. Co., 22 Ind. 181; Central Coal & Coke Cto. y.
Southern Nat. Bank, 12 Tex. Civ. App. 334, 34 S. W. 383.
*2» Savings & Trust Co. v. Bear Valley Irr. Co. (C. 0.) 89 Fed. 32. Compare
Semple v. Eubanks, 13 Tex. Civ. App. 418, 35 S. W. 500.
434 3 Bl. Comm. 414.
4S0 BockhiU v. Hanna, 15 How. 180, 14 L. Ed. 656.
(727)
§ 478 LAW OF JUDOMENTa. (Cb. 16
capias served on one of them, who executes a forthcoming bond,
which is forfeited, this does not extinguish the lien of the judgment
upon the land of the others.***
§ 477. Payment.
•
The Hen of a judgment is discharged by payment of the judg-
ment.**^ But a tender of the amount of the judgment, if not ac-
cepted, does not extinguish its lien.*** An attorney's lien upon a
judgment affects only his client's interests, and not the right of the
opposite party to discharge the judgment with depreciated funds.***
But although a judgment lien or obligation may be exting^uished at
law by the payment of the debt, yet, for the benefit of a surety who
has paid it, the lien in equity continues in full force.*** But after it
is thus discharged, it is said that the lien cannot be restored by any
subsequent agreement between the parties ; *** although, in some
jurisdictions, it appears that it may be kept alive for the purpose of
securing further advances.**'
S 478. CaaoellAtioa or Entry of 8ntlBfaoti«»a*
A judgment creditor who enters satisfaction of his judgment, or
causes an execution to be returned satisfied, authorizes others to
treat the property of the debtor as released from the lien incident to
the judgment.*** And so a judgment, when cancelled by order of
*2« Leake v. Ferguson, 2 Grat (Va.) 419.
«27 Banks v. Evans, 10 Smedes & M. (Miss.) 35, 48 Am. Dec. 734. But where
a judgment is given to secure the payment of an accommodation note, the
renewal of the note at maturity does not constitute payment, so as to dis-
charge the lien of the judgment Laucks v. Michael, 154 Pa. 355, 26 Atl. 314.
A Judgment plaintiff in lawful possession of lands on which his judgment is
a lien has not the right to apply the rents and profits therefrom to the satis-
faction of his judgment as against the owner, who is not a judgment de-
fendant Boggs y. Douglass, 105 Iowa, 344, 75 N. W. 185.
*28 People V. Beebe, 1 Barb. (N. Y.) 379; Law v. Jackson, 9 Cow. (N. T.) Wl.
*a» NeU V. Staten, 7 Helsk. (Tenn.) 290.
«3o German- American Sav. Bank y. Fritz, 68 Wis. 390, 32 N. W. 123.
*ai De La Vergne v. Evertson, 1 Paige (N. Y.) 181, 19 Am. Dec. 411.
*82 Peirce v. Black, 105 Pa. 342.
«38 Page y. Benson, 22 111. 484; Branch Bank v. Ford, 13 Ala. 431. Bat a
senior Judgment creditor, who erroneously enters satisfaction of his Judg-
CSh. 16) THK LIEN OF JUDOMBNT8. § 481
the court, ceases to be a lien on real estate owned by the debtor dtir-
ing the life of the judgment.*** On the same principle, where the
defendant executed his notes for the amount of the judgment ren-
dered against him, which was subsequently cancelled, it was held that
the judgment ceased to exist, and there was no longer a lien upon
the defendant's real estate, when no fraud was imputable in obtain-
ing the cancellation.***
§ 479. Salo of the IiuicL
A sale of land under an execution extinguishes the lien of the judg-
ment on the land sold.*'*
§ 480. Acquisition of Title by Judcneat-Creditor.
Since a judgment is a general lien upon all the debtor's real estate,
it does not merge when the judgment-creditor acquires title to a par-
ticular portion of such lands, but may, in ordinary cases, be enforced
against the remaining lands.*' ^ In case the creditor should become
the owner of the only piece of land belonging to the debtor, there
would probably be a merger of the lien, but no loss of the right to
satisfy the judgment by levy upon personalty. But the precise ques-
tion does not appear to have come before the courts.
§ 481. Releaie of Lien*
A release by a judgment creditor, at the instance of the debtor, of
one of several tracts of land bound by a judgment, will not operate
as a release of the others.*** It is said that a release of a judgment-
lien may be by parol, but the proof thereof must be clear, satisfactory,
ment. Is stiU entitled to priority, on such satisfaction being set aside, as
against subsequent Judgment creditors, whose Judgments were recovered pri-
or to the entry of satisfaction, and who have in no way been misled by such
entry. McCune v. McOune, 164 Pa. 611, 30 Atl. 577.
4«4 Worthington v. Nelson, 75 Iowa, 648, 36 N. \V. 911.
*«» Polk Co. V. Nelson (Iowa) 43 N. W. 80.
48« People V. Easton, 2 Wend. 297.
*8T Caley v. Morgan, 114 Ind. 350, 16 N. B. 790. And see Sellers t. Floyd,
24 Colo. 484, 52 Pac. 674; In re Voorhles, 46 S. O. 114. 24 S. E. 170.
*38 Wolfe V. Gardner, 4 Har. (Del.) 338.
(729)
§ 481 LA.W OF JUDOMBNTS. (Cb. 16
and conclusive.^** There may also be a species of rdease in equity
or by estoppel. Thus, where lands subject to the incumbrance of a
judgment are conveyed with covenants of warranty to a purchaser
for full value, the grantee and his successors in interest occupy a
position similar to that of sureties for the judgment-debtor and are
entitled to the same equities ; and a release by the judgment-creditor,
without their consent and with knowledge of their rights, of any se-
curity to which, in equit)% they would be entitled on payment of the
judgment, discharges the lien of the judgment.**** In a case in New
York, it appeared that the agent of the judgment-creditor was pres-
ent at a sale, by the debtor to a third person, of certain lands on
which the judgment was a lien, drew the conveyance, and was in-
formed of the sale, and the debtor soon afterward delivered to such
agent, as security for the judgment-debt, the notes given in payment
for the land conveyed. It was held that the receipt of these notes by
the agent of the creditor, with knowledge of their consideration, al-
though it did not affect the creditor's lien upon the lot as security for
the judgment in case it should not be otherwise satisfied, imposed on
him, in equity, a duty to apply the proceeds of the notes in reduction
of the judgment.**^
*»• Dalby v. Cronkhite, 22 Iowa, 222.
**o Barnes v. Mott. 64 N. Y. 397. 21 Am. Rep. 625.
4«i Ingalls V. Morgan, 10 N. Y. 178. So, where the owner of a judgment
which was a lien on personal property, and on real property subject to an
attachment, sold the personal property, but made no attempt to enforce his
claim against the realty, and two years thereafter the debtor conveyed it to
the attaching creditor in payment of his daim, which was more than the
value of the land; and the grantee thereafter, with the judgment creditor's
knowledge, paid the taxes thereon, claiming to own it, for a period of eight
years, it was held that the judgment creditor had abandoned his lien. CaU
V. Oozart (Tenn.) 48 S. W. 312. But judgment creditors, by bringing suits in
equity to have fraudulent transfers of land set aside, and by having receivers
appointed therein, not of the real estate of the judgment debtors, but of the
pei-sonal property and the rents and profits of the real estate only, do not
thereby waive their legal liens on the lands, or on the surplus fund arisins
from the sale of the land under a mortgage thereon. Wilkinson v. Paddock,
126 N. Y. 748, 27 N. B. 407.
(730)
Ch. 17) BSYIVAL OF JUDQMBNTi. i 482
REVIVAL OF JUDGMBNTS.
§ 482. BevlTal by Motion or Suit
482a. Revival by Scire Facias.
4«3. Venue of the Action.
484. Right to sue out Scire Facias
485. Time of Issuing the Writ
486. Pleadings.
487. Service of Writ
488. Parties Plaintiff.
489. Parties Defendant.
490. Same; Judgment against Decedent
491. Same; Joint Defendants.
492. Terre-Tenants.
498. Defenses.
494. Same; Payment Release, Set-Off,
495. Same; Discharge in Banlcruptcy.
496. Same; Invalidity of Original Judgment
497. Same; CcUateral Agreements.
498. Judgment on Scire Facias.
499. Practice In Pennsylvania.
§ 482. ReTiTal by Motion or Suit.
In several of the states, when a judgment has become dormant,
or has lost its lien by the expiration of the statutory period of lim-
itation, it may be revived, for purposes of lien and execution, by a
formal suit or action brought for that purpose, having all the char-
acteristics of a plenary proceeding.^ In South Carolina, the proper
proceeding to revive a judgment is to issue a summons to renew ex-
ecution, although an order giving permission to issue execution on
a judgment will revive it.* In California, the statute provides that
"in all cases other than for the recovery of money, the judgment
may be enforced or carried into execution after the lapse of five
years from the date of its entry, by leave of the court, upon motion
1 Ingraham v. Champion, 84 Wis. 235, 54 N. W. 398; Haupt v. Burton, 21
Mont 572, 55 Pac. 110, 69 Am. St. Rep. 698.
aLawton v. Perry, 40 S. C. 255, 18 S. E. 861; Ex parte Graham, 54 S. C.
163, j^ S. K 67.
(731)
§ .482a .LAW OF JUDGMENTS. (Ch. 17
or by judgment for that purpose." • But a judgment which has be-
come barred by statute cannot be revived by a parol promise to pay
it.* Nor will supplementary proceedings on a judgment be effectual
to keep it alive or take the place of an action to revive it." In some
jurisdictions, it is necessary for the personal representatives of a
deceased judgment creditor to revive it, in order to be able to enforce
it as against the judgment debtor ; and whether this should be done
by a formal action, or may be eflfected merely on motion, will depend
upon the local statute.*
f 482a. ReTlval by Soire Faoiai.
The statutes of several of the states provide that a judgment shall
cease to be a lien on real estate at the expiration of a certain period
of time (usually five or ten years), but also provide that, within that
period, the judgment may be revived by a proceeding by scire facias,
with the effect of continuing its lien for another like period. When
used for this purpose, the writ requires the defendant to show cause
why the judgment should not be revived and its lien continued.*
The purpose of a proceeding by scire facias to revive a personal
judgment is not to raise the issue of the validity of the original judg-
ment, but to give the debtor an opportunity to show, if he can, that
it has been paid, satisfied, or released, and, if he cannot, to avoid the
statute of limitations against it, and to give the creditor a new right
of enforcement from the date of the judgment of revival. Such a
proceeding is not a substitute for an action of debt on the judgment,
but one which may be maintained concurrently with such action, and
without regard to its pendency.*
» Code OIv. Proc. Cal. § 685. See Cortez v. Superior Court, 86 OaL 274, 24
Pac. 1011. 21 Am. St Rep. 37.
* Ludwlg V. Huck, 45 lU. App. 651.
5 Merchants' Nat. Bank v. Bralthwaite. 7 N. D. 358. 75 N. W. 244, 66 Am.
St. Rep. 653.
• See Daisy Roller MUls v. Ward. 6 N. D. 317. 70 N. W. 271; Reynolds v.
Crook. 95 Ala. 570, 11 South. 412; Alford v. Hoag. 8 Kan. App. 141. 54 Pac
1105; Selders v. Boyle, 5 Kan. App. 451, 49 Pac. 320.
7 Wonderly v. •Lafayette County (C. Q) 74 Fed. 702; City Building & Loan
Ass'n V. Xickey, 21 Pa. Co. Ct. R. 226.
8 Lafayette County v. Wonderly, 34 a C. A. 360, 92 Fed. 31X An acUon
(732)
Ch. 17) REVIVAL OP JUDGMENTS. § 482a
In this sense, the proceeding by scire facias, while it partakes in
some measure of the characteristics of an independent action at law
(as, in requiring service of a writ and a plea by the defendant), yet
is not regarded as a new suit. In contemplation of law it is merely
a continuation of the action which resulted in the judgment now
sought to be revived, and as dependent upon the liability already
created by that judgment.® Each successive writ of scire facias to
revive a judgment, or to recover damages for the breach of the con-
dition of a bond on which the judgment has been rendered, must be
founded upon the judgment which immediately preceded it; for a
recovery upon a writ of scire facias is a bar to any subsequent recov-
ery upon the original judgment.*** It must be observed that this
writ, as a remedy for the revival or enforcement of a judgment, is
not universally applicable in the United States. In some jurisdictions,
where the only form of action authorized by law is the "civil action,"
the writ of scire facias is unknown in practice.**
brought on a Judgment by regular summons and complaint, wherein a money
Judgment alone is prayed for, is not In the nature of a scire facias. Lawton
v. Perry, 40 S. C. 255, 18 S. E. 861.
• Hatch V. Eustls, 1 Gall. 100, Fed. Oas. No. 6,207; Fitzhugh v. Blake, 2
Cranch, C. C. 37, Fed. Cas. No. 4,»i0; Adams v. Rowe, 11 Me. 89, 25 Am.
Dec. 266; State Treasurer v. Foster, 7 Vt. 52; Ctomstock v. Holbrook, 16
Gray (Mass.) Ill; Gray v. Thrasher, 104 Mass. 373; Eldred v. Hazlett*s
Adm'r, 38 Pa. 16; Irwin v. Nixon's Heirs, 11 Pa. 419, 51 Am. Dec. 559;
Kirkland v. Krebs, 34 Md. 93; Ingram v. Belk, 2 Strob. (S. C.) 207. 47 Am.
Dec. 591; Funderburk y. Smith, 74 Ga. 515; Brown y. Harley, 2 Fla. 159;
Perkins y. Hume, 10 Tex. 50; Masterson y. C?undlff, 58 Tex. 472; Carter v.
Carriger*s Adm'rs, 3 Yerg. (Tenn.) 411, 24 Am. Dec. 585; Blackwell y. State,
3 Ark. 320; Wolf y. Pounsford, 4 Ohio, 397; Challenor v. Nlles, 78 111. 78;
Denegre v. Haun, 13 Iowa, 240; Eaton y. Hasty, 6 Neb. 419, 29 Am. Rep.
365; Bankers' Life Ins. Co. y. Bobbins, 59 Neb. 170, 80 N. W. 484; Long y.
Thormond, 83 Mo. App. 227. But a scire facias to reyive a Judgment on
which no execution issued in a year and a day may be regarded as a suit
on the Judgment, so far as concerns the plaintiffs right to discontinue as to
parties not served. Hanson v. Jacks, 22 Ala. 549.
10 CoUingwood y. Carson, 2 Watts & S. (Pa.) 220; Custer v. Detterer, 8
WaUs & S. (Pa.) 28.
11 Humiston y. Smith, 21 Oal. 129.
(733)
§ 4&& KAir Om IVDQMMHTSL. C^« 17
I 483. Venue of the Aetioa.
It is a settled rule that a scire facias to revive a judgment can
issue only from the court in which the record remains of the judg-
ment to be revived.^* Thus, proceedings to revive a judgment
against the heirs of the defendant, so as to have execution against
lands inherited by them, must be^ brought in the court where the
judgment was rendered, and an independent suit therefor in another
county, where a transcript had been filed to obtain a lien, cannot be
maintained where the lands have been sold without fraud.** Where
the defendant resides out of the county, service must be perfected
by sending out process to the county where he is to be found, di-
rected to the sheriff of that county, whose duty it then becomes to
serve and return the process.** Where a judgment has been ob-
tained before a justice of the peace, and a transcript taken and filed
in the court of common pleas, a scire facias to revive the judgment
must be issued by the common pleas and not by the justice.** This
writ cannot be brought in a court of chancery to enforce or revive a
12 Vallance v. Sawyer. 4 Me. 62; State v. Brown, 41 Me. 535; State v.
Kinne, 39 N. H. 129; Carlton v. Young, 1 Aikens (Vt.) 332; Gibflon T. Davis,
22 Vt. 374; Osgood v. Thurston, 23 Pick. (Mass.) 110; In re Dougherty's Es-
tate, 9 Watts & S. (Pa.) 189. 42 Am. Dee. 326; Boylan v. Anderson, 3 N. J.
Law, 529; Tindall v. Carson, 16 N. J. Law, 94; Conner v. Nelf, 2 Ind. App.
364, 27 N. R 645; City Nat. Bank v. Swink (Tex. Civ. App.) 49 S. W. 130;
Grimke's Ex'rs v. Mayrant, 2 Breyard (S. C.) 202; Dickinson v. Alllaon, 10
Ga. 557; Funderburk v. Smith, 74 Ga. 515; Chapman y. Nelson, 31 La. Ann.
341; Masterson v. Cundlflf, 58 Tex. 472; Schmidtke v. Miller, 71 Tex. 103, 8
S. W. 638; C^allenor v. Niles, 78 111. 78; CSarnes v. Crandall, 4, Iowa. 151;
Wilson v. Tlernan, 3 Mo. 577.
i« Thompson v. Parker, 83 Ind. 96. Compare Kendig v. North, 7 Drf. Ca
R. (Pa.) 574.
1* Dickinson v. Allison, 10 Ga. 557.
IB Brannan v. Kelley, 8 Serg. & R. (Pa.) 479; Smith v. Wehrly, 157 Pa. 407.
27 Atl. 700. An action to revive a judgment may be brought in the trial
court on a judgment of the supreme court rendered in favor of plaintiff on
reversal of a judgment in favor of del^endant in an action on a money de-
mand, though the judgment of the supreme court was never certified to the
trial court, nor entered in its minutes, as, in such case, the judgment of the
supreme court wiil be considered as the judgment of the trial court Carotb-
ers v. Lange (Tex. Civ. App.) 55 S. W. 580.
(734)
Ch. 17) REVIVAL OF JUDOMBNTS. § 484
decree, unless there be a statute authorizing executions to issue upoa
decrees in equity.**
I 484. Bislit to Mmm mt WtAm FaDlars.
At common law, a party was not entitled to maintain a scire facias
to have execution of a judgment where there was no change of
parties, and the writ was available only in cases where the time for
issuing execution was past.*^ But according to the modern deci-
sions, an action of debt, or a scire facias, may be brought on a judg-
ment after an execution has issued, and it is not a valid objection to
such a proceeding that, at the time of its commencement, the plain-
tiff could have proceeded by execution.** And where a party unnec-
essarily sues out a scire facias, when he might have an immediate
execution, the writ should not be quashed for that reason, but ex-
ecution should not issue until he obtains judgment under the writ.**
Complete satisfaction of the judgment will alone suffice to prevent
its revival in this manner.** Thus a subsisting levy on land is no
bar to a scire facias on the judgment to continue its lien or to sub-
stitute a representative of either party.** So a conditional appropria-
tion by an auditor to a judgment-creditor in the distribution of pro-
ceeds of the debtor's real estate, will not prevent the reviving of the
judgment for the whole amount, where no money has been actually
received upon it, and the conditions attached to the appropriation have
!• Jeffreys y. Yarborough, 16 N. O. 510; Cartis v. Hawn, 14 Ohio, 185; Lo-
gan V. Cloyd, 1 A. K. Marsh. (Ky.) 201.
IT Harmon v. Dedrlck, 3 Barb. (N. Y.) 192.
!• Stewart v. Peterson's Ex'rs, 63 Pa. 230; Stille v. Wood, 1 N. J. Law, 118;
Rogers v. Hollings worth, 95 Tenn. 357, 32 S. W. 197. The right to a manda-
mus for the enforcement of a' judgment is equivalent to the right to issue an
execution thereon for the pnrposes of an application to revive the Judgment
on scire facias. Wonderly v. Lafayette Oounty (C. C.) 74 Fed. 702.
i» I^mbeon v. Moffett, 61 Md. 426.
30 A Judgment which has been paid and extinguished by the owner of land
on which it was a lien cannot be afterwards revived to cut out other liens.
Henry & Ooatsworth Co. v. Halter, 58 Neb. 685, 79 N. W. 616. A judgment
which has become barred by the statute of limitations cannot be revived by
scire facias. Browne & Manzanares Co. v. Chavez, 9 N. M. 316, 54 Pac. 234.
SI Trapnall v. Richardson, 13 Ark. 543, 58 Am. Dec. 338.
(735)
§485 LAW OF JUDGMENTS. (Cb. 17
not been fulfilled.** So a scire facias may be issued to revive a
judgment which has been removed by a writ of error sued out with-
out bail and still pending; for a writ of error without bail is not a
supersedeas.*' . But the writ cannot be used to revive a judgment on
which no execution could ever have issued.**
I 486. Time of Iwrains tbe Writ.
Where the statute provides that no judgment shall continue a lien
on realty for a longer period than five years (or ten years) from the
day of entry or revivor, unless a writ of scire facias to revive it be
sued out within that period, the limitation of the time of bringing
the writ begins to run from the rendition of the judgment.*' But
in such case the day of entry of the judgment is to be excluded in the
computation of the period within which it must be revived.** And
where the last day of the pferiod thus computed falls on Sunday, a
writ of scire facias issued on the Monday following is in time to pre-
serve the lien.*^ And if the process of scire facias to revive issues a
S3 Masser v. Dewart, 46 Pa. 534.
*3 Boyer v. Rees, 4 Watts (Pa.) 201.
24 Turner y. Dupree*8 Adm'r, 19 Ala. 198; Horton v. aark, 40 Ga. 412.
But In Missouri, the statutes having provided for the reyival of Judgments by
scire facias, without making any exceptions, the courts cannot except a Judg-
ment from their operation on the ground that It is not a lien on property, or
because no execution could issue thereon. Lafayette County v. Wonderly, 34
C. 0. A. 360, 92 B"ed. 313.
SB Scott V. Seelye, 39 La« Ann. 749, 2 South. 809; Ayre v. Burke, 82 Va.
338, 4 S. E. 618; Browne & Manzanares Co. v. Chavez, 9 N. M. 316, 54 Pac.
234. The general law as to the limitation of actions does not apply to the
proceeding to revive dormant Judgments. Bankers' Life Ins. Co. v. Bobbins,
59 Neb. 170, 80 N. W. 484. As to retrospective operation of statutes limiting
the time within which scire facias may be brought to revive Judgments, see
Wrightman v. Boone County, 31 C. C. A. 570, 88 Fed. 435. As to the effect
of nonresldence or personal disabilities of the parties in susp^idlng the run-
ning of the statute of limitations, see Bartol v. Eckert, 50 Ohio St 31, 83 K.
E. 291. Where a judgment has been already revived on scire facias, the peri-
od of limitation begins to run from the date of the revival instead of the date
of the original Judgment. Kratz v. Preston, 52 Mo. App. 251.
2e Green's Appeal, 6 Watts & S. (Pa.) 327; Lutz's Appeal, 124 Pa. 273» 16
Atl. 858.
ST Lutz's Appeal, 124 Pa. 273, 16 AU. 85a
(73G)
€h. 17) RBVIVAL OP JUDGMENTS. § 4S6
single day within the time, it saves the bar ; •* and the terre-tenant
may be connected with this process, though not named in it, by an
alias, which latter may issue any time within five years.** In some
states, the life of a judgment-lien is continued for a certain period
after the death of the debtor, without reference to the time that may
have elapsed since its entry or last revival, provided it had not then
become dormant. But elsewhere it is held that if more than five
years of the whole period (ten years) have elapsed during the life of
the debtor, then the creditor has only the remainder of the ten years
in which to revive the judgment against the personal represent-
atives.^* In Pennsylvania a judgement may be revived against terre-
tenants at any time within the period of five years, notwithstanding
there may have been an intermediate revival by scire facias without
notice to them."^ But an alias scire facias, issued after five terms
ffom the former, is not sufficient to preserve the lien of a judgment
which had expired in the interval.'* In the same state is was for-
merly held that where there was a stay of execution, the five years
within which the judgment must be revived, did not begin to run
until the expiration of the stay.** But this was afterwards changed
by a statute.**
S 486. Pleadiass.
The writ of scire facias to revive a judgment is not merely a form
of summons or citation to the defendant ; it also serves the purpose
of a declaration, to which the defendant may plead or demur, as to
any other declaration. And as the proceeding is not original, but a
K The Issuance of a writ of scire facias to revive a Judgment suspends the
running of the statute of limitations against it for the purposes of the pro-
ceeding, and the fact that the Judgment would have become ineffective for
any purpose, by limitation, before the hearing, had the proceeding not been
commenced, Is no defense to a revival. Lafayette Oounty v. Wonderly, 34 C.
C. A. 360, 92 Fed. 313; Fitzpa trick v. Leake, 47 La. Ann. 1648, 18 South. 649.
28 Llchty V. Hochstetler, 91 Pa. 444; Porter v. Hitchcock, 98 Pa. 625; Sll-
verthom v. TovT-nsend, 37 Pa. 263.
80 Handy v. Smith's Adm'r, 30 W. Va. 105, 8 S. E. 604.
81 Fursht V. Overdeer, 3 Watts & S. 470.
fi« Allen V. Liggett, 81 Pa. 486. See Stewart v. Justices of St. Clair County
Court (C. C.) 47 Fed. 482.
»s Pennock v. Hart, 8 Serg. & R. 369.
»4 Act Pa. March 26, 1827.
1 LAW JUDG.-47 (737)
S 486 LAW OF JUDGMENTS. (Ch. 17
continuation of the former action, the plaintiff is not required to file
a new declaration or rule the defendant to plead.* • Where a legal
title to have execution of the original judgment is not set out in the
writ, judgment may be arrested as for want of a cause of action.**
A scire facias to revive a judgment must therefore follow the original
judgment in amount, date, and parties; otherwise it is defective un-
der a plea of nul tiel record.*'^ But it is sufficient if the writ con-
tains such recitals as will point to the judgment intended to be re-
vived with such certainty that the defendant must know what judg-
ment is meant.** It is not nec.essary to aver that execution was not
issued within a year and a day; that the judgment remains unpaid
and unsatisfied is a sufficient allegation.** So a writ of scire facias,
in reciting a judgment on a prior scire facias, need not redtc the
amount for which such judgment was obtained; such a recital is in
no respect uncertain, informal, or insufficient, when the writ recites
the judgment on the prior scire facias as it would be set out in the
full and formal record of that judgment.^^ So a scire facias against
the heir, on a judgment recovered against the ancestor, need not
aver ineffectual proceedings against the personal representatives;
ss Blake v. Dodemead, 2 Strange, 775; Governor and Company of Bank of
Scotland v. Fenwick, 1 Ezch. 792; Nunn v. Glazton, 3 Exch. T12; Nesbit v.
Manro, 11 GUI & J. (Md.) 261; Bowie v. Neale, 41 Md. 124; Blah v. WUliar, 50
Md. 382; McVeigh v. Bank of Old Dominion, 76 Ya. 267; Brown ▼. Harley, 2
Fla. 159; Hopkins v. Howard, 12 Tex. 7; State v. Robinson, 8 Yerg. (Tenn.)
370; Oalhouu v. Adams, 43 Ark. 238; Farris v. People, 58 111. 26; Mercbants*
Mnt Ins. Co. t. Hill, 17 Mo. App. 590.
«• McKinney y. Mehaffey, 7 Watts & S. (Pa.) 276.
87 Richter v. Cumroings, 60 Pa. 441; Wolf v. Pounsford, 4 Ohio, 397; War-
field Y. Brewer, 4 Gill (Md.) 265.
s 8 Ward v. Prather*8 Adm'r, 1 J. J. Marsh. (Ky.) 4; Davidson r. Hunter.
22 Utah, 117, 61 Pac. 55C. Though the scire facias must correctly recite the
original judgment, irregularities not misleading will not avoid it; and where
defendant has suffered a default thereon, and execution has issued, no mere
Junior creditor can object. Landon v. Brown, 160 Pa. 538, 28 Atl. 921.
89 Albin V. People, 46 m. 372. But if the statement accompanying the scire
facias shows on its face that the Judgment is more than 20 years old. and
avers merely that no part of the debt has been paid, It does not rebut the
presumption of payment of the Judgment Hummel v. Lilly, 188 Pa. 463, 41
Atl. 613, 68 Am. St Rep. 879. Compare National Sav. Bank t. Welcker. 21
X>. C. 324.
40 Brown v. Chesapeake & O. Canal Co. (C. (X) 4 Fed* 770.
(738)
Ch. 17) REVIVAL OP JUDGMENTS, § 487
but if no such proceedings have been had, such defense must be set
up by plea.*^ But on the other hand, a writ of scire facias to
enforce a judgment rendered against a trustee is insufficient if it be
only alleged therein that the plaintiff recovered a judgment against
the defendant as trustee. It should appear for what the trustee was
made chargeable.** A substantial variance between the recitals in
the writ of scire facias and the judgment to be revived would break
the continuity of the lien; but if the objection be formal and tech-
nical only, it will not affect the lien of the original.**
S 487. Serrlee of Writ.
At common law, the rule is that two returns of nihil to a writ of
scire facias are equivalent to a return of scire feci ; that is, the court
thereupon acquires jurisdiction of the defendant and may proceed
to award execution on the original judgment.** But here an im-
portant distinction is recognized, viz., that if execution is awarded
upon a return of scire feci, the defendant is concluded by the judg-
ment ; but when it is awarded upon two returns of nihil, the defend-
ant may afterwards present his defense by audita querela, or upon
motion to the court, and may have the full benefit thereof.**' And
the revival of a judgment by scire facias for purposes of execution,
on two returns of nihil, operates merely to keep in force the local
lien, and does not stop the running of the statute of limitation in
another state, where the defendant resides, nor support a new action
against the defendant in another state.** The common-law rule is
*i Bogers y. Denham's Heirs. 2 Grat. (Va.) 200.
42 Gibson v. Davis. 22 Vt. 374.
*8 In re Dougherty's Estate, 9 Watts & S. (Pa.) 180, 42 Am. Dec. 326.
** Randal v. Wale, Cro. Jac. 59; Barret v. Cleydon, 2 Dyer, 168; Bromley
V. Littleton, Yel. 112; Andrews v. Harper, 8 Mod. 227; Warder v. Tainter,
4 Watts (Pa.) 270; Chambers v. Carson, 2 Whart (Pa.) 9; Oumming v. Eden's
Devisees & Terre-Tenants, 1 Cow. (N. Y.) 70; Woodforlt v. Bromfield, 5 N.
C. 187; Ingram v. Belk, 2 Strob. (S. C.) 207, 47 Am. Dec. 591; Barrow v.
BaJley, 5 Fla. 9; Dunlevy v. Ross, Wright (Ohio) 287; Sans v. People, 3 Gil-
man aw.) 327; Choate v. People, 19 111. 63; Brown v. Wygant, 163 U. S. 618,
16 Sup. Ct 1150, 41 L. Ed. 284; Kratz v. Preston, 52 Mo. App. 251.
4 5 Barrow v. Bailey, 5 Fla. 9; Kratz v. Preston, 52 Mo. App. 251; Jones
V. George, 80 Md. 294, 30 Atl. 635.
40 Owens v. McCloskey, 161 U. S. 642, 16 Sup. Ct. 693, 40 L. Ed. 837; Betts
(739)
§ 488 ULW OF JUDOMBNTS. (Cb. 17
still adhered to in some of the states. Thus, in Massachusetts, if
the law prescribes no particular form of notice to be given to a
defendant beyond the jurisdiction of the court, it is for the court to
cause such notice to be given to him as shall be reasonable and
enable him to appear and defend his rights.*^ But in some other
states it is held that the writ of scire facias must be served personally.**
And where there is a terre-tenant of the land, he must also be served
with process; although, if he appears and confesses judgment on
the scire facias, he thereby waives the objection that he was not
served.** In Pennsylvania, it is held that service is good when made
on, the defendant, who remains in the possession of his real estate^
although he has made an assignment for the benefit of his creditors.^^
But where the judgment to be revived is against two defendants
jointly, the scire facias must be served on both; if served on only
one of the joint debtors, it cannot afterwards be amended so as to
include both, so as to save the bar of the statute.'^
I 48& Parties Plaintiff.
The plaintiff in a scire facias will ordinarily be the same person
who was i^aintifT in the original judgment, and in such case his
capacity to sue out the writ will be governed by the same rules which
determine the capacity of persons to maintain other species of ac-
tions. Thus, a married woman may bring a scire facias to continue
y. Johnson, 68 Vt 549, 85 Atl. 489; Robb v. Anderson, 43 Dl. App. 575: Rice
y. Moore, 48 Kan. 590, 30 Pac. 10, 16 L. R. A. 198, 30 Am. St Rep. 318; Hep-
ler y. Davis, 32 Neb. 556, 49 N. W. 458, 13 L. R. A. 565, 29 Am. St Rep. 457.
But in Louisiana, when the defendant resides in another state, the court may
appoint a curator ad hoc, upon whom service can be made, and thereupon
a Jud^nnent may be rendered binding on the defendant; a suit to revive a
judgment being considered one quasi in rem. Bertron t. Stewart, 43 La.
Ann. 1171, 10 South. 295.
47 Comstoclc V. Holbrook, 16 Gray, 111.
*8 Feeter v. McCombs, 1 Wend. (N. Y.) 19; Rice v. Talmadge, 20 Vt 378;
Betts V. Johnson, 68 Vt 549, 35 Atl. 489; Mendenhall v. Robinson, 56 Kan.
633, 44 Pac. 610. See PhiUips v. Wait 106 Ga. 580, 32 S. E. 842.
*9 Dickerson's Appeal, 7 Pa. 255; White v. Harden, 154 Pa. 387, 26 AtL
312.
CO In re Dohner's Assignees, 1 Pa. lOL
61 Lyon V. Ford, 20 D. C. 530.
(740)
Ch. 17) REVIVAL O^ JUDGMENTS. § 489
the lien of a judgment against her husband, the judgment having
been entered in her favor before they were married.'* When the
writ is used to revive a judgment in favor of an intestate, it should be
issued in the name of his administrator;* but if issued in the name
of the intestate, it may be amended by substituting that of the admin-
istrator.*'" Where the judgment creditor has become a bankrupt,
the right to procure a revival of the judgment devolves upon his
trustee in bankruptcy.** Where the judgment has passed by as-
signment to a third person, the determination of the proper plain-
tiff in an action to revive it will depend upon the statutory rules in
the particular jurisdiction. If the law requires all suits to be brought
in the name of "the real party in interest," the scire facias should
be sued out in the name of the assignee. If, however, such a provi-
sion does not exist, a suit to revive a judgment is properly brought
in the name of the original plaintiff, even though the judgment may
have become the property of a third person.'*
S 489. Partiea Defemdamt*
The general rule is that "all the parties to the original judgment
must be parties to the proceedings to renew or revive that judg-
ment." *• It is also a rule that all persons must be joined who have
B2 Kinkade v. Cunningham, 118 Pa. 501, 12 Atl. 410.
ft 3 Challenor v. Niles. 78 111. 78.
»* See Brown v. Wygant, 163 U. S. 618, 16 Sup. Ct 1159, 41 L. Ed. 284.
»» See Marbury v. Pace, 30 La. Ann. 1330; McRoberts v. Lyon, 79 Mich.
25, 44 N. W. 160; Wells v. Graham, 39 W. Va. 605, 20 S. E. 576; Haupt v.
Burton. 21 Mont 572, 65 Pac. 110. 69 Am. St Rep. 698; Bludworth v. Poole,
21 Tex. Oiv. App. 551, 53 S. W. 717. Where schre facias Is brought upon a
Judgment which has been assigned to third persons in unequal portions, sep-
arate judgments of revival may be entered thereon In favor of the several
assignees for the amounts respectively due to them. In re Ernst's Estate,
164 Pa. 87, 30 Atl. 371. But one who obtains a Judgment against a garnishee,
based on the latter*s indebtedness to the principal debtor on another Judg-
ment, cannot of his own volition, and without attempting to levy execution on
the Judgment recovered in the garnishment proceedings, substitute himself
as use plaintiff in the Judgment which his debtor holds against the garnishee,
and issue process for its revival and collection. Wherry v. Wherry, 179 Pa.
84, 36 Atl. 165.
B6 Funderburk v. Smith, 74 Ga. 515. See Messmore v. Williamson, 189 Pa.
78, 41 AtL 1110.
(741)
§ 490 LAW OF JUDGMENTS. (Ch. 17
a substantial interest in the land to be bound by the lien. But the
failure to make a naked trustee, who has no beneficial interest in
the land, a party to a writ* issued for the revival of the judgment, wii
not destroy the hold of the judgment on a cestui que trust who is
duly joined.'^ In a recent case in the United States circuit court
for the western district of Tennessee, the question was on a scire
facias to revive a judgment against the old corporation of the city of
Memphis. It appeared that the legislature had abolished the char-
ter of that city and organized the same inhabitants and territory into
a municipal corporation by another name, and the supreme court
of the state had construed the legislation as creating a successor
to the old corporation liable for its debts. It was therefore adjudged
that scire facias was the proper remedy to revive a judgment ex-
isting against the old corporation at the time of the repeal of the
charter, against the new corporation ; and the fact that the assets of
the extinct municipality were undergoing administration in a court
of equity under regulations prescribed by the legislature did not de-
feat the plaintiff's right to a revivor, nor the fact that there was no
property liable to execution in the hands of the new corporation.'*
A number of judgments against the same person may be consol-
idated and revived in one amicable action of scire facias, although
one of them is also against another defendant, and, when so revived,
the continuity of the liens is preserved.'*
S 490. Same; Judgment Acalnst Deeedemt.
Scire facias is the proper remedy to revive a judgment against an
ancestor so as to compel the heirs at law to satisfy it out of lands
inherited by them.** But as to the proper persons to be made de-
fendants to a revival of this sort, there is the greatest diversity of
practice in the different states. In some jurisdictions the rule obtains
eT Bowers v. Harner, 3 Phila. (Pa.) 146. A Judgment against a former
husband cannot be revived, after his death, against his wife and her second
husband, over the latter's objection, merely because he is the husband of
decedent's wife. WesseU v. Gross (Tenn. Ch. App.) 57 S. W. 372,
68 Grahtland v. City of Memphis, 12 Fed. 287.
e» Yeager's Appeal, 129 Pa. 268, 18 Atl. 137.
•0 Commercial Bank v. Kendall, 21 Miss. 278.
(742)
Ch. 17) RBVJVAL OP JUDGMENTS. § 490
that it is not necessary to make the executors or administrators of
a deceased defendant parties to the writ, the subject-matter in dis-
pute being beyond their province, but that the heirs and terre-ten-
ants must be joined.** In Pennsylvania, and some other states, on
the other hand, it i^ established law that where a judgment has been
obtained against a man in his lifetime, it may be revived after his
death, for the purpose of lien and execution, by a scire facias issued
against his personal representatives alone, and in such case it is
unnecessary to bring in the widow and heirs by a writ against them.'*
And conversely it is held, in the same state, that under these cir-
cumstances, if the writ be sued only against the heirs in possession
of the inheritance, it is erroneous; the executor or administrator
must be made a party to it.''* In Indiana, it is said that the adminis-
•
trator and heirs of a decedent are properly joined as defendants
in a proceeding to revive a judgment against him.'* In Maryland,
where the original defendant in a judgment is dead, and scire facias
is issued to revive the judgment as against his land, it must be is-
sued against the terre-tenant and also the personal representatives."
It is to be remarked that a scire facias against the heirs and terre-
tenants of the judgment debtor will not reach property never owned
by such debtor, but inherited by his children after his death from a
third person.**
•1 Tessler v. Wyse, 3 Bland (Md.) 40; Walden v. Craig, 14 Pet 147, 10 L.
Bd. 393; Stewart v. Gibson, 71 Mo. App. 232. A Judgmwit of revivor of a
Judgment against an intestate imposes no personal liability on the heirs,
though they are necessary parties defendant to the action. Stewart v.
Glhson, supra.
«i Middleton's Ex'rs v. Middleton, 106 Pa. 252; Grover y. Boon, 124 Pa.
399, 16 Aa. 885; McMiUan v. Red, 4 Watts & S. 237; United States v.
Houston (D. 0.) 48 Fed. 207; Hauck v. Gundaker, 21 Pa. Oo. Ot R. 12;
Cheraw & G. R. Co. v. Marshall, 40 S. C. 59, 18 S. E. 247. See Colenburg
V. Venter, 173 Pa. 113, 33 Atl. 1046; CaUahan v. Fahey, 10 Pa. Co. Ct B. 488;
In re Davey's Estate, 9 Pa. Co. Ct. R. 125.
•» Brown v. Webb, 1 Watts, 411.
•* Graves y. Skeels, 6 Ind. 107.
«» Tiers v. Codd, 87 Md. 447, 39 Atl. 1044.
•• Adams y. Stake, 67 Md. 447» 10 AtL 444.
(743)
§ 492 ULW OF JUDOMBNTS. (Ch. 17
I 491. Same; Joint Defeadaate.
In case the judgment sought to be revived was rendered against
two or more joint defendants, it is a practically universal rule that
the scire facias must follow the judgment, and all the original de-
fendants must be made defendants to the writ, if living; if one has
died, the writ must be against the survivors jointly with the heirs
and terre-tenants of the decedent (or his personal representative in
proper cases) ; and it is irregular to take proceedings against the sur-
viving defendants alone, or against the representatives of the dece-
dent without joining the survivors.*^ Hence, where a plaintiff for
any sufficient cause desires to revive a judgment against one or more
q{ several defendants without joining all, his remedy is by an action
of debt on the judgment; it cannot be done by scire facias.** So
where a writ to revive a judgment against several is not served on
one of them, the plaintiff cannot discontinue the proceeding as to
him and revive the judgment against the others.**
S 492. Terre-Teiiaiits.
A terre-tenant, in the sense in which the term is used in connection
with the subject-matter now under consideration, is one who has
an estate in the land, coupled with the actual possession, which he
derived mediately or immediately from the judgment-debtor while
the land was bound by the lien. And the rule is, that on a scire facias
•7 Sainsbnry v. Pringle, 10 Bam. & C. 751; Fowler v. Rickerby, 9 Dowl.
682; Panton v. Hall, 2 Salk. 598; Rex v. Chapman, 3 Anst 811; Grenell v.
Sharp, 4 Whart. (Pa.) 344; Commonwealth v. Mateer, 16 Serg. & R. (Pa.) 416;
Dowling y. McGregor, 91 Pa. 410; McAfee v. Patterson. 2 Smedes & M. (Min.)
593; Henderson v. Vanhook, 24 Tex. 358; Bolinger v. Fowler, 14 Ark. 27;
Calloway's Heirs y. Eubank, 4 J. J. Marsh. (Ky.) 280: Qray*s Adm'r y. Mc-
DoweU, 5 T. B. Mon. (Ky.) 501; Murray's Adm'r v. Baker, 5 B. Men. (Ky..»
172; Huey's Adm'r y. Redden's Hehrs, 3 Dana (Ky.) 488; Mitchell's Heirs y.
Smith's Heirs, 1 Utt. (Ky.) 243;Hallowell y. Brown, 8 Houst (Del) 500, 32
Atl. 392; Rowland y. Harris (Tex. Ciy. App.) 34 S. W. 295.
«8 Carson y. Moore, 23 Tex. 450. But compare Patterson t. Walton. 119
N. C. 500, 26 S. E. 43; National Exchange Bank y. Preston, 97 Va. 222, 33
S. E. 546.
09 Greer v. State Bank, 10 Ark. 455; Coleman y. Ed%rards, 2 Bibb (Ky.> 505.
Compare Hanson y. Jacks, 22 Ala. 549.
(744)
Gh. 17) REVIVAL OF JUDQMBNTS. § 492
to revive the Ben of a judgment on land which is in the possession
of a terre-tenant, it is essential that the terre-tenant be made a party
to the proceeding. ■'^ In Pennsylvania, however, under the wording
of the statute, it has been decided that the issuing of a scire facias
within five years after the judgment was rendered continues the lien
on lands that had been conveyed by the defendant, although tip
m
service of the writ is actually made on the terre-tenant."'^ In the
same state the statutes provide two modes of reviving a judgment,
(i) by agreement between the parties and terre-tenants, (2) by a
writ of scire facias. And it is held that a revival by agreement with
the judgment-debtor alone does not continue the lien, as against the
terre-tenants, after the expiration of the statutory period.^* But,
on the other hand, an amicable revival of the judgment by the terre-
tenant, by an agreement to which the defendant is not a party, will
continue the lien of the judgment on the land.^* And if the writ is
served upon the terre-tenant, it matters not that judgment is not
formally entered against him on the scire facias.''*
As to who are to be considered terre-tenants, the authorities are
in the main harmonious, the' definition g^ven at the beginning of this
section exhibiting the substantial result of the various rulings. And
first, the party must have a substantial interest or estate in the land.
Thus, a mere occupant, holding in the character of a yearly lessee of
TO Lusk V. Davidson, Z Pen. & W. (Pa.) 229; McOray ▼. Clark, 82 Pa. 457;
Ix>ng V. MiUer, 158 Pa. 573, 28 Atl. 233; Suter v. Findley, 5 Fa. Super. Gt.
103; Morton's Ex'rs v. Croghan's Terre^enants, 20 Johns. (N. Y.) 106; Von
Pnhl V. Rucker, 6 Iowa, 187. In Pennsylvania, under the act of April 16,
1840, the terre-tenant is not entitted to notice of the revival of a Judgment
as between the original parties, unless he has, at the time of such revival,
recorded his deed or taken such possession of the land as amounts to con-
structive notice to the judgment creditor. Buck's Appeal, 100 Pa. 109.
Ti Mcinweiser v. Hains, 110 Pa. 468, 2 Atl. 431.
Ti Baum V. Custer (Pa.) 13 Atl. 771; Armstrong's Appeal, 5 Watts & S. (Pa.)
■352. But the lien of a judgment on a farm which defendant owned and lived
on when judgment was- entered is continued by a revival of the judgment
by an amicable scire facias, signed by defendant alone, the record title and
the possession remaining the same, notwithstanding a secret conveyance by
defendant to his wife. Lyon v. Cleveland, 170 Pa. 611, 33 Atl. 143, 30 L.
R. A. 400, 50 Am. St. Rep. 782.
78 Sames's Appeal, 26 Pa. 184; Landon v. Brown, IGO Pa. 538, 28 Atl. 921.
T4 Day v. Willy, 3 Brewst. 43; Duncan v. Flynn, 9 Pa. Co. Ct. R. 321.
(745)
§ 492 LAW OF- JUDGMENTS. (Ch. 17
the defendant, need not be made a party to the writ.*' So an as-
signee for the benefit of creditors is not a purchaser; he is a mere
volunteer standing in the place of the assignor, and, as a general
rule, has no rights against the lien-creditors of the assignor which
the latter did not himself have.^* Secondly, the person to be bound as
terre-tenant must derive his title from the judgment debtor. "Where
a party is in possession holding title adverse to that of the defend-
ant, or paramount to his, such party is not a terre-tenant within the
meaning of the law, because his rights are in no manner affected by
the judgment. If he has a good title, the judgment does not bind
his land, nor can a sale under the execution affect his interest. One
who purchased the lands at a tax sale, and went into possession, is
not a terre-tenant. If the sale was valid, the purchaser held a title
paramount to the judgment, and not to be affected by the proceed-
ing^ under the execution. If the sale was invalid, then- the pur-
chaser was in possession without title under the judgment-debtor^
and not as his terre-tenant." ^^ In the third place, the person des-
ignated as terre-tenant must have obtained his title from the judg-
ment-debtor during the time when the land was bound by the lien of
the judgment. A purchaser after the lien has expired is not a terre-
tenant and is not bound by the judgment on the scire facias.'^ The
T5 CUppInger v. Milier, 1 Pen. & W. 64.
70 Kepler v. Erie Dime Savings & Loan Co., 101 Pa. 002. Similarly, as-
signees in banlcruptcy are not terre-tenants who must have notice of the
revival of a judgment. In re Huddell (a C.) 47 Fed. 207.
T7 Polli V. Pendleton. 31 Md. 118.
70 Dengler r, Kiehner, 13 Pa. 38, 53 Am. Dec. 441. In this case Gihson*
G. J., said: "A Judgment-creditor has a rTght to call on a terre-tenant of
land, purchased by him from the debtor while it was bound by the Judgment,
to show why the debt ought not to be levied on it; and the terre-tenant
having slept his time, being warned, is concluded as to everything he might
have made matter of defense to the scire facias. But the creditor must at
least have laid a prima facie case; he must show that he whom he calls a
terre-tenant actually stood in the relation of one, else there will not have been
such privity between them as would estop the lattei^by the Judgment. But
who is a terre-tenant? Not every one who happens to be in possession of the
land. There can be no terre-tenant who is not a purchaser 'of the estate,
mediately or immediately, from the debtor, whUe it was bound by the Judg>
meut; and when he has taken a title thus bound, he must show how the lien
of it has been discharged, whether by payment, release, or efQux of time.
These are matters of defense which may be precluded. True, we have a
(746)
Ch. 17) REVIVAL OP JUDGMENTS. § 493
failure of a judgment-creditor to preserve his lien, by neglecting to
give the terre-tenant notice of a scire facias to revive, will not dis-
charge the liability of a surety on the bond upon which the judg-
ment was entered J*
On the general principle of res judicata (which applies equally to
proceedings by scire facias as to any other action or suit), and on the
further ground that this method of reviving a judgment is merely a
supplementary step in the original action, the defendant is absolutely
precluded from going behind the judgment and offering in defense to
the scire facias any matter which existed before the rendition of the
•original judgment and might have been presented in the former pro-
ceeding.*® In no case and under no circumstances can the merits of
statute which directs notice to be given to occupants, but only to let the
lessee of a terre-tenant in to a defense, which his landlord may have neg-
lected to make, for bis protection. The facts of this case are, that the estate
had been bound by the Judgment, but that the lien of it had expired when the
ancestor of the plaintiffs purchased It It had ceased to be a judgment of
greater effect against the land than it was against the debtor's chattels, and
the purchaser's title was paramount to it. He was not a terrertenant or the
lessee of a terre-tenant, and as he had not a day in court, the judgment,
being inter alios, was not an estoppel. The case is clearly within the prin-
ciple of Mitchell V. Hamilton [8 Pa. 496], and is ruled by It."
TO Kindt's Appeal, 102 Pa. 441.
«o Aliens v. Andrews, Cro. Ellz. 283; Cook v. Jones, Cowp. 727; Thomas v.
Williams, 3 Dowl. P. C. 655; Baylis y. Hay ward, 4 Adol. & E. 256; Dickson v.
Wilkinson, 3 How. 57, 11 L. Ed. 491; United States v. Thompson, Gilp. 614,
Fed. Gas. No. 16,487; Smith v. Eaton, 36 Me. 298, 58 Am. Dec. 746; Spring-
field Card Manuf g Co. v. West, 1 Cush. (Mass.) 388; Thayer v. Tyler, 10 Gray
(Mass.) 164-; Sigourney v, Stockwell, 4 Mete. (Mass.) 518; Stephens v. Howe,
127 Mass. 164; Bobbins v. Bacon, 1 Root (Oonn.) 548; Bradford v. Bradford,
5 Conn. 127; McFarland v. Itwin, 8 Johns. (N. Y.) 77; Cardesa v. Humes, 5
Serg. & R. (Pa.) 65; Davidson v. Thornton, 7 Pa. 128; Carr v. Townsend's
Bx'rs, 63 Pa. 202; Weaver v. Wible, 72 Pa. 409; Pittsburgh, C. & St L.
Ry. Co. V. Marshall, 85 Pa. 187; Wurzberger v. Carroll, 8 Kulp (Pa.) 266;
Mulligan y. Devlin, 12 Pa. Co. Ct. R. 465; Loeber v. Moore, 20 D. 0. 1; Wil-
lett V. Otterback, Id. 324; Kemp v. Cook, 6 Md. 305; May v. State Bank, 2
Rob. (Va.) 56, 40 Am. Dec. 726; Ferebee v. Doxey, 28 N. C. 448; Koon v.
Ivey, 8 Rich. 37; Camp v. Baker, 40 Ga. 148; Miller v. Shackelford, 16 Ala.
95; Betancourt v. Eberlin, 71 Ala. 461; Mathews v. Mosby, 13 Smedes & M.
(Miss.) 422; Anderson v. Williams, 2 Cushm. (Miss.) 684; Pollard v. Eckford,
(747)
§ 493 LAW OP JUDGMENTS. (Ch. 17
the original judgment be inquired into by the defendant on a writ to
revive it. As a rule, therefore, the only allowable pleas to a scire
facias upon a judgment are (i) nul tiel record (under which the
defendant may deny the existence of the original judgment or allege
that it is entirely void), and (2) payment, including release, satisfac-
tion, or discharge of the original judgment.*^ Thus the objection
that a bond and warrant were usurious cannot be taken to a scire
facias on the judgment confessed on the warrant.®* Nor can the
invalidity of the consideration for the contract on which the judg-
ment was rendered be shown in defense,*' nor the coverture or other
disability of one of the parties,®* nor is it permissible to set up in
defense that the judgment sought to be revived was obtained by
fraud,** or that there was fraud in the negotiation of the note on
which the judgment was given, before suit was begun on it.** Again,
the pendency of an -action of debt on a judgment concurrently with
a proceeding by scire facias for its revival is not a defense to the lat-
ter proceeding, nor is a judgment for the plaintiff in the former
action before the hearing on the writ.*^ A general denial of each
and every allegation of the writ not admitted in the answer is not a
form of defense permitted in scire facias to revive a judgment.**
But of course the statute of limitations is a good defense to the scire
facias, though it must be specially pleaded,** and also the defend-
ant may show that his position with reference to the judgment is that
50 Miss. C31; Baxter r. Dear, 24 Tex. 17, 76 Am. Dec 89; City Nat Bank
V. Swink (Tex. Civ. App.) 49 S. W. 130; Nestlerode v. Foster, 8 Ohio ar.
Ot. R. 70; Bell v. Williams, 4 Sneed (Tenn.) 196; Love t. Allison, 2 Tenn. Ch.
Ill; Vredenburgh v. Snyder, 6 Iowa, 39; Watkins T. State, 7 Mo. 334; BUej's
Adm*r v. McCord's Adm'r, 24 Mo. 265.
81 Blackburn v. Beall, 21 Md. 208; Dowling ▼. McGregor, 91 Pa. 410; Me-
Cracken v. Swartz, 5 Or. 62.
8« Lysle V. Williams, 15 Serg. & R. 135; Blckel ▼. Cleaver, 13 Pa. Co. Ct B.
314.
83 Mulligan v. Devlin, 2 Pa. Dist B. 685.
84 Lauer v. Ketner, 162 Pa. 265. 29 AU. 908» 42 Am. St. Bep. 838.
sBBnmo v. Oviatt, 48 La. Ann. 471, 19 Soutli. 464.
86 Siipplee V. Halfmann. 161 Pa. 33, 28 Atl. 941.
87 Lafayette County v. Wonderly. 34 C. C. A. 360. 92 Fed. 313.
88 Wonderly v. Lafayette County (C. C.) 77 Fed. 605.
«» Jones V. George, 80 Md. 294, 30 Atl. 635.
(748)
Ch. 17) REVIVAL OF JUDOMBNTS. § 494
of a surety only.*® Where the charter of a corporation makes the
stockholders personally liable for all debts except loans, and a
judgment is obtained against the corporation and a scire facias sued
out against the stockholders to charge them personally, there are
no defenses open to them except, first, that they are not stockholders,
or, second, that the debt on which the judgment was founded was
for a loan.*^
But there may be exceptional cases in which the general rule
would not be strictly enforced. Thus, if the defendant dies after
verdict and before judgment, and his administrator becomes a party
to the suit and judgment passes against him, and execution is issued
and returned unsatisfied, then, on scire facias against the adminis-
trator, he may well plead no assets oi^ insolvency, for he had no time
to make such plea in the original suit.*' And indeed, in one state,
it is held that a defendant may set up any grounds he has in opposi-
tion to a motion to revive a judgment and to have execution.*'
§ 404. Same; Payment, Release, Set-Off*
As we have already stated, payment, satisfaction, or release of the
original judgment is one of the defenses available in an action by scire
facias to revive it.** It is also permissible for the defendant to avail
himself, in such a proceeding, by proper allegations, of the presump-
tion of payment which arises from the lapse of a great period of time
since the rendition of the judgment without payments on it or steps
taken to enforce it.** And it is said that he may plead both payment
•0 Neetlerode v. Foster. 8 Ohio Clr. Ct. R. 70.
•1 Wilson V. Stockholders of Pittsburgh & Youghiogheny Goal Oo., 43 Pa. 424.
•a Hatch v. Eustis, 1 Gall. 160, Fed. Gas. No. 6,207. And see Oolwell v.
Rockwell, 100 Pa. 133.
»» McLeod V. Williams, 122 N. G. 451, 30 S. E. 129.
»4Hayden v. Slaughter, 43 La. Ann. 385, 8 South. 919; Smith y. Goray, 196
Pa. 602, 46 Atl. 855. If the defendant fails to appear and set up a defense
of part payment, the question of payment is res Judicata. Babb v. Sullivan,
43 S. G. 436, 21 S. E. 277. The plea (or affidavit of defense) must allege
payment of the Judgment sought to be revived; if It alleges payment of the
original debt, it is not sufficient. Nealon v. Mc>!eal, 3 Lack. Jur. (Pa.) 117.
95Steltzer v. Steltzer, 10 Pa. Super. Gt. 310; Wlttstruck v. Temple, 58
Neb. 16, 78 N. W. 456. Where the Judgment is more than 20 years old, it
will not be revived, the presumption being that it has been paid. Green y.
(749)
§ 495 LAW OF JUDOMBNTS. (Ch. 17
and presumption of payment.** Accord and satisfaction is also a
proper plea to a scire facias to revive a judg^ent.*^ But evidence
is not admissible of payment anterior to the rendition of the original
judgment. •■ And so, where a separate judgment has been rendered
against one obligor on a joint and several obligation, and scire facias
is issued to revive the judgment, the defendant cannot avail himself
of a release given to his co-obligor subsequent to the original judg-
ment.** Set-off or counterclaim is in no case available as a de-
fense.^®* A terre-tenant, but no one else, may |:Jead that the land is
discharged from the lien of the original judgment.**^
§ 495. Saaiei DisoharKo ia Bankniptoy.
A discharge in bankruptcy is also a good defense to a scire facias
to revive a judgment, provided the defendant was so discharged after
the rendition of the original judgment ; if before, he ought to have
pleaded it in the principal suit.*®* But where a judgment entered
before the institution of bankruptcy proceedings is revived by scire
facias, after the discharge of the bankrupt, upon the land subject to
its lien when entered, and so restricted that it can only be enforced
on such real estate (and against the proceeds thereof in the hands of
a trustee for sale), the defendant is fully protected, and any execu-
tion issued on the judgment would be restrained accordingly.**' In
the case of a scire facias to revive a judgment of revival, a plea that
Plattsburg, 13 Pa. Co. Gt. R. 335. In Nebraska, the lapse of 14 yeiirs after
the entry of a judgment and before a proceeding to revive is instituted, with-
out the issuance of an execution, raises the presumption of payment, whlcli,
however, is not conclusive. WittstruOlc v. Temple, supra.
00 De Ford v. Green, 1 Marv. (Del.) 316, 40 Atl. 1120.
97 McCullough V. Franklin Goal Co., 21 Md. 256.
»8 McVcagh V. Little, 7 Pa. 279; Trader v. Lawrence, 182 Pa. 233, 37 AtL
812.
09 United States v. Thompson, Gilp. 614. Fed. Cas. No. 16.487.
100 Jenkins v. Anderson (Pa.) 11 Atl. 558; Anderson v. Gage, Dud. (S. C)
319.
101 Sllverthom v. Townsend, 37 Pa. 263.
102 Spring Run Coal Co. v. Tosier, 102 Pa. 342; Stewart v. Colwell, 24 Pa.
67; Duncan v. Hargrove, 22 Ala. 150; In re Wesson (D. C.) 4 Hughes, ri9o
S8 Fed. 855.
loa Walters v. Oyster iPa.) 1 Atl. 430.
(750)
1. 17) RBVIVAL OF JUDGMENTS. § 496
e defendant was discharged as a bankrupt at a time which was
ter the original judgment but before the judgment of revival, comes
o late and is inadmissible.^®*
I 496. Same; InTalldity of Orlsliud Jndsment*
Under a plea of nul tiel record to a scire facias to revive a judg-
ent, the defendant may take advantage of any facts (as total want
jurisdiction) which make the original judgment absolutely void;
It if the judgment be not absolutely void, the defendant cannot,
ider this plea, object to mere errors or irregularities.^®" Thus, th«
ilure to file a complaint in a suit commenced by attachment, al-
ough an irregularity for which, on appeal, a judgment by default
Duld be reversed, is no defense to a scire facias to revive the judg-
ent recovered in that suit.^®' So the defendant is estopped to make
e defense that the judgment was rendered against him by default
I insufHcient service, where he has pleaded the same judgment in
ir, on a plea of former recovery, in a subsequent action on the same
;mand.^®^ The defendant can indeed move to set aside the original
dgment because surreptitiously obtained, or the judgment will be
)ened if given on default in ignorance of the party's rights, or upon
e showing of a defense which arose afterwards ; but otherwise he
n only object by showing that the judgment has been paid or never
:isted.^®" But judgments which are absolute nullities cannot be
vived. They cannot be continued in existence when they never had
ly life."*
104 Stewart v. Colwell, 24 Pa. 67.
105 Campbeirs Appeal, 118 Pa. 128, 12 Atl. 299; Haner's Appeal. 6 Watts & j
(Pa.) 473; Davidson v. Thornton, 7 Pa. 128; Tripp v. Potter, 33 N. C. 121; '
L'Fadden v. Lockhart, 7 Tex. 573; Anthony v. Humphries, 9 Ark. 176; Bell
Williams, 4 Sneed (Tenn.) 196; Haynes v. Aultman, Miller & Co., 36 Neb. !
7, 54 N. W. 511; Loeber v. Moore, 20 D. C. 1; Harper v. Cunningham, 8
)p. D. 0. 430; Ulmer v. Frankland (Tex. Civ. App.) 27 S. W. 766. ;
106 Betancourt v. Eberlin, 71 Ala. 461. j
107 Kennedy v. Bambrick, 20 Mo. App. 630.
108 Weber v. Detwiller (Pa.) 8 Atl. 910.
109 In re Board of Administrators, 37 La, Ann. 916; Enewold v. Olsen, 39
?b. 59. 57 N. W. 765, 22 L. R. A. 573, 42 Am. St Rep. 557; Wittstruck v.
imple, 58 Neb. 16, 78 N. W. 456.
(751)
f 498 LAW OF JUDGMENTS. (CSl. 17
S 497. Sune;. €)oll»te««l
It IS no defense to the revival of a judgment that the plaintiff had
agreed not to issue execution.*^'* And so a verbal assurance by a
grantor that a clause in the deed, reserving the lien of a judgment
owned by him, should never be enforced, in whole or in part, against
the grantee, one of the heirs of the defendant in the judgment, on
the ground of which the deed was accepted, is a purely voluntary
contract, and void in a scire facias for revival against the grantee as
an heir.^^^ But on the other hand, under the plea of payment, the
defendant may give in evidence that when he executed the bond and
warrant upon which the judgment was confessed, the plaintiff prom-
ised to cancel it upon an event which has occurred since the judg-
ment.*** So an agreement entered into prior to the date of a judg-
ment, as to the mode of its discharge, but which was not to be exe-
cuted until afterwards, and all payments made in pursuance of such
agreement, are admissible in evidence in support of the plea of pay-
ment and satisfaction.**' Also, the terre-tenant may offer evidence
of a coUatersrf agreement between the original parties, the effect of
which is not to impair the judgment but to restrict its lien."*
§ 498. J«48»eat on Solve Faotas.
According to the practice obtaining in a majority of the states,
and founded on the view that this species of proceeding is not a new
suit but a continuation of the original action, it is error for the court
to proceed to render a new judgment, on a scire facias to revive;
the proper entry is that the plaintiff have execution of the judg-
ment mentioned in the writ and his costs.*** It is, however, held
"0 Ladd V. The Church. 6 Phila. (Pa.) 591.
111 Codding v. Wood, 112 Pa. 371, 3 Atl. 455.
112 Hartzell v. Reiss, 1 Bin. (Pa.) 288. See Smith y. Smith, 135 Pa. 48. 21
Atl. 168.
118 Downey v. Forrester, 35 Md. 117.
11* Sankey v. Reed, 12 Pa. 95.
116 Denegre v. Haun, 33 Iowa, 240; Hamphreya v. Lnndj, 87 Mo. S20;
Ilanly y. Adams, 15 Ark. 232; Chimp y. Gainer, 8 Tex. 372; Mnrmj'B Adm*r
y. Baker, 5 B. Mon. (Ky.) 172; Sogers y. HoUlngsworth, 96 Tenn. 967, 82
(752)
. 17) REVIVAL OP JUDOMBNTS. § 498
some jurisdictions that the judgment on scire facias must recite
I original judgment with such particularity as to identify it, and
it any substantial variance will break the' continuity of the lien.^^*
id in some states, the judgment on this writ should declare the
ount presently due, by liquidating the amount of principal and
rrued interest on the original judgment, and, if the new judgment
0 bear interest, it should specify the date from which such interest
:o begin.**^
[n Vermont, the law requires that the court shall give judgment
the plaintiff for the amount of the original judgment with in-
est, and costs on the scire facias ; and this requires a new judg-
nt which merges the original judgment, and is the judgment to
described in the execution.^*® But in those states where the en-
on a scir£ facias is but a reiteration of the former judgment, and
: an independent sentence, it follows that if the original judgment
reversed, a judgment on a scire facias to revive it will likewise
119
■
\n order that a judgment be revived, made in a proceeding there-
, in which all proper parties are before the court, is conclusive
the question of the right to revive, as against any objection based
X, 197. See Marx v. Sanders. 08 Ala. 500, 11 South. 764. A judgment for
possession of land may be revived the same as a Judgment in a personal
ion, and the judgment as revived should be that plaintiff have execution,
1 be given the possession as against defendants and their successors,
apt V. Burton, 21 Mont. 572, 55 Pac. 110, 69 Am. St. Rep. G98. Ajudg-
Lit purporting to revive the execution issued on a judgment sought to be
ived is amendable so as to make it recite that the judgment itself is re-
ed. Phillips V. Wait. 106 Ga, 848. 32 S. E. 647.
i« See Worman*8 Appeal, 110 Pa. 25, 20 Atl. 415; Zeiders* Appeal. 137 Pa.
. 20 Atl. 805. In a proceeding to revive a judgment by scire facias, a
*?ment awarding an execution in favor of different parties, for a different
J than that recited in the writ, will be set aside. Zumbro v. Stump. 38
Va. 325, 18 S. E. 443.
17 Kistler V. Mosser, 140 Pa. 367, 21 Atl. 357. See Bludworth v. Poole.
Tex. Civ. App. 551, 63 S. W. 717. In Missouri, the judgment in proceed-
s by scire facias to revive should simply declare that the judgment re-
ed is still in force for the amount remaining unpaid thereon; and a find-
of the aggregate amount of principal and interest due at the date of
Ivor will be treated as surplusage. Sappington v. Lenz, 53 Mo. App. 44.
18 Slayton v. Smille. 66 Vt. 197. 28 Atl. 871.
10 Mills V. Conner, 1 Blackf. (Ind.) 7; Eldred v. Hazlett. 38 Pa. 16.
1 LAW JUDG.— 48 (753)
§ 49f9 LAW OF judombntbl (Ch- 17
on a condition of facts existing prior to that time which could then
have been made; and such matters are res judicata on application
for a subsequent revival. ^*^
8 499. Praotioe Im PenasylTUilm.
In the state of Pennsylvania the practice is different from that
described in the preceding section: "A judgment regularly revived
by scire facias," says the supreme court of that state, "is not void
even if the original judgment was void. A scire facias here is a
substitute for an action of debt elsewhere; the judgment on it is
quod recuperet, instead of a bare award of execution; it therefore
warrants the awarding of the execution. The last judgment cannot
be considered invalid, although it was entered on a scire facias issued
on a previous judgment that was void. The new judgment, being
regular on its face and voidable only, has a sufficient vitality to sup-
port the sale." **^ A revival of judgment by amicable scire facias, to
be valid, and to be notice to subsequent purchasers or subsequent
judgment-creditors, must be docketed ; it is not sufficient that it be
filed among the papers of the original judgment and noted upon the
docket entry of such judgment.^**
120 Witherspoon v. T witty, 43 S. 0. 348, 21 a B. 256.
121 Duff V. Wyncoop. 74 Pa. 300; Buehler*8 Heirs v. Bnfflngton. 43 Pa. 278;
CustQr V. Detterer, 3 Watts & S. 28. But a judgment so rerlved in Pennsyl-
vania, without service or appearance, has no binding force as against a de-
fendant who resides in another state. Owens t. McCloskey, 161 U. S. 642,
16 Sup. Ct 693, 40 L. Ed. 837.
122 McCleary's Appeal. 1 Watts & S. (Pa.) 299.
(754)
[End of Yolumb L]
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