H. & H. O. Anderson v. Wanzer

H. & H. O. Anderson v. Wanzer. Where garnishees are partners, the answer of one, admitting indebtedness, is sufficient to authorize judgment against his co-defendants. When the debt due by the garnishees is not matured, it is not necessary that the order for the stay of execution, should make a part of the judgment. It is stayed by operation of law, and may he quashed, if sued out before the maturity of the debt. ERROR from the circuit court of Claiborne county. John J. Wanzer, the defendant in error, recovered judgment against John G. Hastings, at the November term, 1837, of the Claiborne circuit court, for seven hundred and sixty-one dollars and ninety-four cents. Several others also, sued and recovered judgment against Hastings, for divers amounts, at the same term of the court. Afterwards on the 8th of March, 1838, Wanzer, by his attorney, J. B. Thrasher, suggested to the clerk of the court, that H. & H. 0. Anderson, the plaintiffs in error in this case, were indebted to John G. Hastings, and that Hastings had not visible property upon which a sufficient levy could be made. Garnishment process was then issued to the Andersons, requiring them to come in and answer, on oath, at the next term of the court how much they were indebted to said Hastings. The same steps were taken by the other plaintiffs also, who had obtained judgments against Hastings. During the December term, 1838, of the court, H. 0. Anderson, one of the firm of H. & H. 0. Anderson, appeared and answered in this as well as four other cases, which have been before adverted to, by giving in a written statement in full of the entire transaction, between H. & H. 0. Anderson and John G. Hastings, showing how many notes were transferred or given to Hastings, with their amounts, and when they became due, and which of them had been paid, and which they had received notice of transfer of, and which of them had not been paid, and of which they had received no notice of transfer. There were three which had not been paid, and of which they had not received any notice of transfer. The first for two thousand dollars, the second for one thousand seven hundred and fifty-five dollars and eighty cents, both due January 20, 1840; and the third for three thousand seven hundred and fifty-five dollars and eighty cents, due Febraary 20, 1S40; these three notes amounting in the aggregate to seven thousand five hundred and eleven dollars and sixty cents. Upon this answer the court below entered a judgment final, against H. & H. 0. Anderson, with a “ stay of execution till January, 1840.” The Andersons petitioned for, and obtained a writ of error. The errors assigned, were: 1st. That the court rendered final judgment against both the garnishees upon the answer of one only. 2d. In rendering the judgment without a stay of execution until the maturity of the debt, it not being then due. Tharp, for plaintiff in error. 1st. Judgment final was rendered against both, upon the answer of but one of the partners. This 1 conceive to have been irregular, both by our statute, and according to the principles of the common law. A conditional judgment should have been rendered against H. Anderson, the one who did not answer, and a scire facias ■ run against him, requiring him at the next term of the court, to come in and show cause why judgment should not be made final. But the opposing counsel will no doubt contend, that the answer of one. partner, with regard to a partnership debt, will be good against the firm. I have not been able to find any authority for this; neither do 1 believe there is any in the books. For although it is a general principle of the law of partnership, that one member, by his acts or admissions, with relation to the partnership business, may bind the firm, yet I contend that it does not extend to a .case of this kind. That would be carrying the principle too far. This is not one of the ordinary copartnership transactions, by which one partner can bind the firm. When there are more than one garnishee summoned, they are? I apprehend, nearly always partners ; for if they were not, separate summonses would issue, and there would be separate and distinct proceedings in each case. Now, by a careful perusal o1 the act of 1827, it will be perceived, that the word garnishees, is invariably made use of after the word garnishee, plainly indicating, 1 think, that when two garnishees are summoned, that both must appear and answer. The acts and admissions of one partner in a proceeding against the firm, are usually brought before the court or jury b.y way of evidence, when the other partners will have an opportunity of explaining away, or rebutting or contradicting what their partner has done or said; or, of disaffirming such of his acts as may have been injurious to the firm, and out of the way of the usual copart-nership business. Otherwise an irresponsible and dishonest member of a firm, colluding with the opposite party, might totally ruin his more solvent partners. This might possibly be the case with garnishees; one of them might collude with the plaintiff, under a promise of a division of the spoils, and come in and answer for a large amount, and have a judgment final entered against the firm, thereby depriving the other members of an opportunity of showing cause, under a scire facias, and setting it aside. G-arnishees, from sickness or other, causes, are sometimes unavoidably prevented from attending at the return term of the summons; this might have been the case with H. Anderson. He might, on scire facias have shown that the notes they were garnisheed on had been paid or transferred, and that in fact they owed John G. Hastings nothing. And though it is not now before the court, nor' do I see how it could be brought before it in an application of this nature, yet that was the truth with regard to the largest note, for a short time after the judgment upon H. 0. Anderson’s answer, they received notice that it had been transferred, and they are now threatened with a suit on it. This, 1 think, may very properly be assimilated to the case where one member of a firm is served with process only. In a case of that kind it has been decided by this court, that judgment against all was irregular, and that it must be' reversed. Pitman v. The Planter’s Bank, 1 Howard’s Rep. 527. 2d. The debts garnisheed on not being due, execution was not stayed till they became due. This I conceive to be a sufficient ground upon which to reverse the judgment of the court below. That part of our statute law with regard to the stay of execution, when garnishee’s debt is not due to defendant, and to be found in How. & Hutch, page 554, sec. 25, requires that execution in that case must be stayed tili.it becomes due. It was decided by this court in the case of Berry v. H. & H. O'. Anderson, 2 Howard, 652, that a judgment without an order of stay agreeably to the. statute', was irregular and that it must be reversed. ‘ In this case, according to the answer of H. 0. Anderson, two of the notes amounting to three thousand seven hundred and fifty-five dollars, eighty cents, were not due till the 20th of January, 1840; the other for the same amount was not due till the 20th of February, 1840. The order of stay of execution was, “till January, 1840,” generally. This I contend, according to the proper rules of construction, and according to the common usage and acceptation of the term in this state, meant a stay till the first day of January, 1840, and no longer. It has been a common custom heretofore in Mississippi, to buy and sell, and do business generally on a January’s credit. This was perfectly understood by every body to mean a credit till the first day of January, and not till the fifteenth, twentieth, or thirtieth day of the month. If the order of stay in this case could, by any method of construction, be construed into a stay till a further day of January than the first, then the proceedings of the court below are erroneous for uncertainty. The judgment and proceedings of the court below should be certain and definite, and nothing should be left to be determined by the clerk, on an inspection of any other part of the record or proceedings. Bonta v. Clay, 1 Litt. Rep. 28. According to the judgment and stay in this case, there was nothing to prevent the clerk from issuing an execution at any time after the first day of January, 1840, and in .fact it would have been his duty, if required to do so by the plaintiff, to issue immediately after the first day of January, 1840. So let us put either of those constructions on the order of stay, and the judgment of the court below cannot stand. If the stay till January, 1840, be construed as a stay till the first day of January only, then it is irregular, because the stay expires before the maturity of the garnishee’s debt. If it be construed by any means into a stay till a longer period of time, then in that case, it is erroneous for uncertainty; for it is uncertain whether it be till the second, twentieth, or thirtieth day of the month. Suppose for illustration, that a man was garnisheed in 1838, on a debt due the 20th of December, 1840, and he came in and answered according to this state of facts, and a judgment was taken against him with stay of execution till 1840, generally, — would any one pretend to argue that execution was stayed long enough ? If a stay till January 1840, could be interpreted to mean a stay till the 20th of January, 1840, then with equal propriety, could we urge, that a stay till 1840 meant a stay till the 20th of December, 1840. 3. The answer is not sufficient in law upon which to predicate a judgment. The court will readily perceive., on examining the answer of H. 0. Anderson, the extreme caution with which he makes it. He is aware that he is in a trading community, that the notes are out, and of a negotiable character; that they were given to a merchant who in all probability had transferred them, and that his .firm might be called on twice to pay them. He accordingly makes out a written statement, showing the entire transaction between H. & H. 0. Anderson, and John G. Hastings. By this statement he showed the number of notes, when they became due, and their amounts, which had been transferred to Hastings; and which of them had been paid, and of which they had received the notice of transfer. There were three which had not beed paid, and of which they had received no notice of transfer 3 these he presumed they might still owe John G. Hastings. This answer was regularly subscribed and sworn to in open court, December 1, 1838. This in fact was his true answer, which I think the court will decide to be not sufficiently full to authorize a court to found a judgment upon. And 1 presume the learned counsel in the court below was of the same opinion, for we see him coming “into court "on a subsequent day of the term” according to the language of the record, with PI. 0. Anderson, for the purpose, I suppose, of extracting a more full and complete answer from him. The record sets out, that H. 0. Anderson came into court on a subsequent day of the term and deposed that the firm of H. & H. 0. Anderson were indebted to John G. Hastings in the sum of seven thousand five hundred and eleven dollars and sixty cents, the precise amount of the three notes which had not been paid, according to the first answer, and evidently referring to them. This latter answer, if it can be called one, does not appear to have been made on oath as the statute requires, and I therefore think it will be disregarded by the court, the ingenuity of counsel in obtaining it to the contrary notwithstanding. The whole tenor of the answer, I think, goes clearly to show, that H. 0. Anderson did not intend to say, that they positively and unequivocally owed John G. Hastings seven thousand five hundred and eleven dollars and sixty cents, at the time of the service of the summons, and I feel convinced in my own mind that the court below erred in entering judgment on it, and that this court will so decide. In conclusion, I will say a few words on the construction of the statute, in regard to the attachment process. Courts of justice have invariably decided, I believe, that they must be strictly pursued, and that the slightest deviation from them will vitiate the whole proceedings under them. The attachment process is a summary, extraordinary, and violent remedy, which the ordinary process of law is supposed to be inadequate to reach. The statute should, therefore, be strictly pursued. 1 Pirtle’s Dig. p. 70, 408. This is a peculiarly hard case on the Andersons. They were summoned to appear and answer, and judgment was rendered against them for seven thousand five hundred and eleven dollars and sixty cents; more than thirteen months before their debt became due, their property became bound by the lien, from the date of the judgement for seven thousand five hundred and eleven dollars and sixty cents. (I will here remark, by way of explanation to the court, that there are four other cases precisely similarly situated with this, all growing out of the same answer, and on which judgment was rendered at the same time. The decision in this case will decide, in effect, all the others. They all amount at this time to near eight thousand dollars.) It is of the greatest importance to persons residing in a commercial or trading country, to have the absolute power of disposing of their property, without any obstacle or impediment in the way. This is particularly the case with merchants, who generally have occasion for the free use of all their means. Here, without any default or want of promptitude on their part, we find the property of the Andersons fettered by a heavy judgment for more than a year before the maturity of their liability, encumbering not only all the property they then held, but all that should afterwards come into or pass through their hands. This is truly a very hard case, and it is one in which I am convinced your honors will decide, the strict letter of the statute should have been pursued, and the law in every particular complied with; and if on inspection of the record, and on examination of the law on the subject, you should think this has not been done, your honors, 1 feel assured, will set aside the, judgment of the court below. Thrasher, for defendant in error. The first error assigned in this case, is, that judgment final was rendered against both defendants, as garnishees upon the answer of but one of them. This assignment of error the record proves to be incorrect. The process of garnishment issued against Horace Anderson and Hiram 0. Anderson, merchants and copartners, trading finder the name, style, and firm of H. & H. 0. Anderson, and was returned by the sheriff executed on the 8th of Marclj, 1838. Then follows the appearance of the parties in court. « And now, to wit: on the 1st day of December, 1838, during the November term, 1838, the following answer of the garnishees, H. & H. 0. Anderson by H. 0. Anderson was filed, to witThis entry on the minutes alone, would prove it to be the answer of both. But evidence is not wanting to this point: it purports to be the answer of both, and throughout is framed as a joint answer,' and the language of the record, as well as the presumption of the law, would seem to warrant the conclusion that it was sworn to by both. This, however, is wholly immaterial. A summons or notice of a demand, and proof of a demand, are two distinct things; the indebtedness was sufficiently proved by H. 0. Anderson, according to the well settled rule of law. The answer of one joint partner in the name of both, has ever been deemed sufficient. 2 Hen. & Munf. Rep. 575. 3d vol. Eq, Dig. 10. A plea of non est factum by several, sworn to by one, is sufficient for all. 1 Ala. Rep. p. 67. And where there are several complainants to a bill praying for an injunction, an affidavit by one alone, has been adjudged sufficient, and that a demurrer, that all had not joined in the affidavit wás bad. Cailie’s Cases, p. 3. This disposes of the 1st and 3d assignment of errors. The 2d is, that the debts garnisheed on, not being due at the time of the rendition of judgment, execution was not stayed until they were due. How this could affect the judgment, which is perfect of itself, is hard to conceive. A judgment is one thing, and a stay of execution is another thing; both distinct from each other. If a judgment is perfect, it cannot be destroyed by the premature issue of an execution. Utile per inutile non vitiatur is a sound maxim, and but few legal controversies could ever be brought to a successful termination if it were not. The case referred , to by the counsel for the plaintiff in error, in 2 How. Rep. 652, of Berry v. H. & H. 0. Anderson turned on a different point, to wit: that the judgment of the court was indefinite, and for no specific sum. This objection, say the court in that case, “ is well taken.” The note was not due, and the judgment of the court was entered without a stay of execution. Yet, say the court, “this is' not strictly an error in the judgment itself,” and the court reversed the judgment of Claiborne circuit court in that case, because the judgment was indefinite. ■ If an execution prematurely issues, or is irregular, the universal practice is to quash it, or to enjoin or supersede it; but not to reverse the judgment which is well taken for an irregularity in the order for an execution. It does not appear by the record in the case under consideration, that an execution ever issued. The time when the debt was due has long since past, and even if the parties could have availed themselves of the irregularity in the stay, before the maturity of the debt, yet they cannot do so now; for there can be no remedy without an injury, or the possibility of an injury, and the record shows that no injury at present can accrue for want of a sufficient stay. In the case of Voorhees v. The Bank of the United States, 10 Peters’ Rep. 449, the court say: “ No rule can be more reasonable, than that the person who complains of an injury done him, should avail himself of his legal rights in a reasonable time, or that that time should be-limited by law.” But it is contended by the defendant in error, that it was not an irregularity which could affect the judgment at any period. The execution was staid until January, 1840, during which month, two’thousand dollars out of the seven thousand five hundred and eleven dollars and sixty cents, was due according to the first answer. But an arrangement having taken place between the garnishees and defendant in error, as the record would seem to indicate, afterwards on a subsequent day of the court, and before judgment was rendered, the garnishees came into court, and H. 0. Anderson, for the firm of H. & II. 0. Anderson, deposed that they were indebted to the said John G. Hastings, in the sum of seven thousand five hundred and eleven dollars and fifty cents, which of course was considered as their due, and so stated by the- garnishee on oath in open court, according to the answer, and which was made for both parties, and sworn to by one of them. No stay of execution Avas required by law, and the stay of execution until January, 1840, which Avas entered,on the minutes, Avas either gratuitous, or the result of a private arrangement, which cannot now be taken advantage of under the first answer. But should the judgment be considered irregular, then this court will render the judgment which the court beloAV should have rendered in the first instance, and the statute of jeofail Avould enable the court to remedy any irregularity in the stay of execution. • The first volume of the American Common Law Reports, p. 352, and 371, is full on this point, that a court of error may amend an error apparent on the face of the record if there be any thing to amend by, and that those things which were amendable before writ of error brought are amendable after error brought, and if the inferior court do not amend them, the superior court may. [MAJORITY — Mr. Justice Trotter :] Opinion of the court by Mr. Justice Trotter : The defendant recovered a judgment in the court beloAV against John G. Hastings,-for the sum of seven hundred and sixty-one dollars and ninety-four cents. He then applied for and obtained a garnishment against the plaintiffs in error on á suggestion that they Avere indebted to Hastings, according to the provisions of the act of 1827. Upon the return of the process, H. 0. Anderson, one of the firm of H. & H. 0. Anderson, who were merchants and partners, answered, and stated an indebtedness of his firm to Hastings, in the sum of seven thousand five hundred and eleven dollars and sixty cents, which existed by virtue of three notes, two of which would be due the 20th of January, 1840, and the other on the 20th of February, 1840. Upon this answer the court rendered judgment against the garnishees for the amount of the judgment which Wanzer, the defendant in error, had recovered against Hastings, and ordered execution to be stayed until January, 1840. Two errors have been assigned : 1. That the court rendered final judgment against both the garnishees upon the answer of one only. 2. In rendering the judgment without a stay of the execution until the maturity of the debt, it not being then due. We do not think that either of these objections is sufficient to reverse the judgment. The garnishees being partners, the answer or admission of one was sufficient to bind the other. H. 0. Anderson, as the record shows, answered for himself and partner. They had both been regularly served with the process, and as the purpose of the garnishment was to ascertain whether they were indebted to Hastings, that object was surely as. well obtained by the admission of the fact by one partner as by both. It will not be denied, that in an ordinary suit, against partners, to recover a partnership debt, an acknowledgment of the debt by one of the partners will be received as evidence to bind both, and justify a verdict and judgment against both. This is a principle of the law of partnership too familiar to need authorities to support it. Nor can it be an objection to the judgment, that it is not accompanied by an order of the court to stay execution of it until the maturity of the debt. It is stayed by operation of the statute, until the debt is due. And if it is sued out before that time, it may be arrested, on motion or supercedeas. The act of 1827 does not require the stay of execution to be made a part of the judgment. After authorizing the court to render judgment against the garnishee, the ptatute adds, «but execution shall be stayed, &c. until such garnishee’s debt shall become due,” &c. The judgment must be affirmed.