Ingraham et al. v. Dawson et al.

The facts in the case are fully stated in the opinion of the Circuit Court, which the reader will find referred to in the opinion of this court, as constituting a part of the statement of this report. It is therefore transcribed from the record, and was as follows:

Opinion of the Circuit Court.

The facts of this case are, that in May, 1841, the Grand Gulf Railroad and Banking Company, of Grand Gulf, Mississippi, recovered two judgments against Moses H. Groves, for the aggregate sum of twenty-two thousand six hundred and thirtyeight and forty-three hundredths dollars, with arrears of interest and costs.

Prior to this event, the bank had suspended specie payments, and in February, 1842, made a general assignment of its effects to the plaintiff, Ingraham, and one Lindsay, (of whom the plaintiff, Read, is the assignee or successor,) to be collected and appropriated-1st, to the expenses of the trust; 2d, to pay off judgment creditors; 3d, to indemnify and save harmless the sureties or guaranties of any engagement for the bank; and 4thly, to make an equal distribution among the remaining creditors.

The trustees accepted their appointment, and in 1842 notified the curator of the debtor, Groves, (H. H. Groves,) that these judgments had been assigned to them.

In the month of June, 1843, the defendant, John R. Marshall, a bill holder of the bills of the Grand Gulf Banking Company, commenced two suits by attachment in the District Court of the parish of Madison, against that corporation, upon the bills of the bank, and recovered a judgment upon the two suits, (which, during their progress, had been consolidated,) for the sum of four thousand three hundred and ninety-five dollars, with arrearages of interest and costs.

The sheriff (among other property) attached the two judgments against Groves by an entry of the fact upon the attachment, and by notice to H. H. Groves, administrator.

The Grand Gulf Banking Company appeared to the said suit, and defended it, and Ingraham and Read intervened, claiming through their assignment the property attached, and "opposing the plaintiff's demand to claim the property attached.

To the intervention Marshall answered, denying the authority of the bank to make an assignment, and averring that the assignments were fraudulent and void, designed to favor a portion of the creditors, and insisted upon the right of the attaching creditor to dispose of the effects seized, notwithstanding the assignment.

Ingraham et al. v. Dawson et al.

A suspensive appeal was taken, immediately after the signature of the judgment, to the Supreme Court of the State, by the bank and the assignees, (intervenors,) and a judgment of affirmance was rendered in that court. This was entered upon the minutes of the District Court for Madison, in November, 1845. In December thereafter, an execution issued to the sheriff, and, in due course of law, these judgments were sold, in April, 1846, at public sale, when Marshall, the plaintiff, became the purchaser. He transferred his title to his codefendants by a public act, in February, 1847.

To a full understanding of the facts and arguments, it is proper to set forth the proceedings in the Circuit Court of Claiborne county, Mississippi, to enforce a forfeiture of the charter of the bank. In September, 1845, a judgment of partial forfeiture was entered, reserving the right to sue, and collect debts, with a view to the settlement of the affairs of the bank; and on the 17th April, 1846, a final judgment in that court, forfeiting the whole charter, was entered.

This was suspended by appeal, and affirmed in the Supreme Court, in 1848, shortly before this suit was commenced.

This suit was commenced to enforce the rights of the assignees, under their assignment, to the judgments rendered against Groves in 1841. The jurisdiction of chancery is asserted as a consequence of the destruction of the legal character of the corporation, and upon the allegations, that the judgment of Marshall was obtained with a full notice of the title of the assignees, and that the parties who claim those judgments have acted fraudulently and collusively in obtaining a title to them through the action of the courts of Louisiana.

The jurisdiction of the court was supported by my predecessor in this court in 1850, in determining the demurrer to the bill.

The case then rests upon the respective titles exhibited in the bill and answers. There is no support for the allegations of fraud or collusion in the evidence. The only questions to be considered are, whether the proceedings upon the attachment of Marshall divest the title of the bank to the judgments in favor of the defendants, and whether the plaintiffs have confirmed that title by their conduct at the sale.

The bank and the intervenors were parties to the proceedings and judgment of the attaching creditor. They appeared for their respective interests in the subject of the suit, and contested the validity of the creditor's claim to his debt and satisfaction from the property. Whatever judgment was rendered in that suit is conclusive upon them.

The judgment entry recites that a jury was empanelled,

Ingraham et al. v. Dawson et al.

the evidence closed, the case argued, the jury retired to deliberate upon their verdict, returned into court with their verdict, which was read, agreed to, and ordered to be recorded.

The verdict is for the plaintiff, against the defendant, for his debt and interest. It proceeds to declare that the intervenors have established no evidence of their claim to the property as set forth in their petition. Thereupon the court gives judg ment, that the plaintiff recover of the defendant his debt and interest, specially setting out the items composing both.

"It is further ordered, that the property, rights, and credits attached be sold, according to law, to satisfy the judgment and cost of suit; and that the plaintiff have a preference and privilege thereon; and that the demand of the intervenors be rejected, with cost of suit."

This, it was said, was "done and signed in open court, this 9th May, 1844, after overruling the motion for a new trial. E. R. MILLSON, Judge.”

It will hardly be contended that this is not a final judgment on the merits, conclusive between the parties. (Keene v. McDonough, 8 La., 187.) The parties who are now before this court, were parties to the record in that suit. The plaintiffs here, were there, claiming to have a better title to the money, due upon the judgments of Groves, than Marshall, the attaching creditor, by virtue of their deed of assignment from the bank. The bank was before the court, affirming the title of their assignees; Groves was before the court as a stockholder; Marshall was before the court, claiming his preference. This preference is declared, the judgments are ordered to be sold, and the claim of the plaintiff is dismissed. It is the title of Marshall and his assigns, under this judgment, that is now impeached, and impeached as inferior to the claim then rejected. All the conditions'required by the code to give force to this judgment, as a res judicata, appear here, (C. C., 22, 65.) But the plaintiff insists that this is not the judgment rendered in the cause. He produces evidence to show that the entry on the minutes contains the words "as in case of nonsuit," after the words of rejection of the intervenors' claim, and with the addition of those words, there is no res judicata.

The authorities of the Code of Practice of the decisions of the Supreme Court are clear, that the minute entry is not a judgment. The Supreme Court will not entertain an appeal from a judgment which has not been transferred to the book of judgments, and signed by the judge; and the courts of original jurisdiction are not authorized to issue an execution upon such an one.

Ingraham et al. v. Dawson et al.

The judgment entries on the minutes do not form res judicata. They cannot be looked to to impeach, vary, or in anywise to affect the judgment, signed by the judge, in any collateral proceedings. (The State v. McDonald, 17 La. R., 485; Ex parte Nichall, 4 Ran., 52; 1 Am., 206; 3 Am., 62.) Considering the records of the District Court of Madison only, there can be no question that the only operative judgment is that I have first described.

The question which arises upon the record of the Supreme Court is one of more difficulty. In the transcript placed before that court, upon the appeal of the intervenors and the bank, the judgments were copied from the minute entry, and the signature of the judge superadded. It appears there, that the claim of the plaintiff (intervenors) was rejected with costs, "as in case of nonsuit," and no mention is made of the refusal of a new trial.

In the Supreme Court, the case was disposed of upon its merits. The court does not notice the objections to the rejection of the evidence of the intervenors, (the deed of assignment,) upon which their title depended, and without which the title of the assignees must necessarily fail, on their intervention in the District Court. The Supreme Court takes no notice of the fact that the assignment was not admitted as evidence upon the trial in the District Court. It treats the assignment as a part of the evidence, and allowed the plea of prescription against the claim of the attaching creditor to impeach it, to be filed in that court. It is difficult to refer the opinion to the case made on the record.

It may be, as is suggested at the bar, that the case was submitted with a knowledge of the condition of the judgment in the District Court, and with a view to a decision on the merits; or that the Supreme Court regarded the words "as in case of nonsuit," added to a judgment, when there had been a trial and verdict, without significance; or that the court, finding there had been a trial, a condemnation of the property attached to be sold, and the preference and privilege of the creditors declared, supposed them sufficient to modify the import of those words, and that it understood the judgment to conclude the parties, at least to the extent of this debt, leaving the rights unimpaired as to other parties. I should have great difficulty with the case, were there no other circumstances to affect it.

The general rule in Louisiana is, no matter what form of action or proceeding, whether by petition, or exception, or intervention, the question may have been presented, if the same question once judicially decided between the same parties be again agitated, it is sufficient to create the presumption resulting from the thing adjudged, and forms a complete bar.

Ingraham et al. v. Dawson et al.

Plecque v. Perrett, 19 Lou., 328. I agree that "the reasons for the judgment" given by the Supreme Court, and spread upon the record, in accordance with the Code of Practice, (art. 909,) are not to be taken as the judgment. But when the import of the judgment is equivocal or ambiguous, the opinion is important in determining the limits of the res judicata. (Plecque v. Perrett, 19 Lou., 328; 5 Am., 200; 3 Am., 202; 6 Ala. R., 141.) But, to determine the value of the title of the respondents, we must not confine our observation to the record of the Supreme Court.

The Code of Practice prohibits the issuing of an execution upon judgments from that court; whether the judgments there be of affirmance or reversal, the execution is devolved upon the court of original jurisdiction. It directs that the judgments shall be recorded in the court of original jurisdiction before they are executed, and the order to record the judgment must be moved for in open court, by the party desirous of execution, and after that an order for execution may be obtained from that court. (Cod. Pr., 615, 617, 618, 619, 623.)

These acts were performed in this case. The record from the Supreme Court consisted of the opinion, such as I have described it, where the merits of the title through the assignment are carefully examined, and pronounced insufficient to defeat the attachment, and concluding with the announcement that "the judgment of the District Court is therefore affirmed with cost," and thereupon an order for execution was made by the District Court.

What was then the condition of the record of the District Court? The original judgment for the attaching creditor against the bank and intervenors, finding a debt, condemning the property attached to be sold, declaring a preference and privilege in favor of the creditor, and rejecting the claim of the assignees, bearing the signature of the judge, was there, and from that an appeal had been allowed.

Then, there was an opinion vindicating that judgment, by a careful examination of the assignment of the bank, and pronouncing its invalidity as against the attaching creditor. Then came the confirmatory order, which the District Court could refer to nothing but the judgment above described, and finally the order of execution.

There was nothing to indicate a variance between the transcript in the Supreme Court and the legal entry of judgment in the District Court. No inquirer could apply the confirmatory order to other than this judgment.

Upon this condition of the record, the execution under which the sale was made was levied, the property appraised and sold.