author:
Chief Justice Dunn:
     Judge Miller,

text:
    HEZEKIAH H. GEAR, appellant, vs. THOMAS J. PARISH, appellee,

      &maifioma fame of the Iowa Dii- ) triet Court.

    An answer in chancery, directly denyingthe matters charged in the bill, as within the knowledge of the defendant, will prevail against the bill, unless the answer is contradicted by two witnesses, or by one witness and corroborating circumstances.
    If the defendant sets up new matterin his answer, not in response to any of the chargesin the bill, it must be supported by testimony all unde, or it cannot avail him in his defence.
    If the defendant discredits bis own answer by contradictory, unreasonable, or irrcconoileable statements, or by statements contradicted by written instruments on the same point, or by positive denials of charges of which he could have no personal knowledge, then the testimony of one disinterested witness will sustain the bill against the answer.
    Parish filed a bill in chancery against Gear in the Iowa District Court, alledgiñg — .
    That in Aprils 1836, Gear called 'on him for a settlement of his account, and produced his books, which showed an indebtedness on the part of Parish of $3,700 00, and it was agreed that Parish should secure this sum by a mortgage on sundry tracts of land in Iowa county, payable in four months. After this was agreed upon, Gear stated that there were some other demands for brick and freights that were not taken into the account, which amounted to about $300 00, making in the whole about $4,000 00, which would be the full sum of Parish’s indebtedness. By agreement of the parties, a bond and mortgage were executed by Parish to secure the sum of $4,200 00, which Gear admitted would coverall contingencies, payable in four months. When the mortgage became due, William S. Hamilton paid for Parish the amount thereof, and $84 00 for interest, making in all $4,284 00, and took Goar’s receipt; and that since that period no dealings whatever have been bad between the partios.
    After this, in October, 1837, Gear sent to Parish an additional demand of $1562 38, as a balance of accounts, for which he demanded payment, and on which he brought suit in the Iowa District Court, still holding said bond and mortgage and refusing either to deliver them up or release the property, although they had been fully paid and discharged, Parish always denied the justness of the additional claim or balance demanded of him, but having sold a part of the land included in the mortgage to which he was anxious to make a good title, (having received part of the purchase money,) which he could not do while Gear held an outstanding mortgage that he would not release, and being pressed, he finally consented to confess judgment for the amount of the claim in suit, which he did, with the express agreement with Gear’s attorney that the bond and mortgage should be given up, and all mistakes in the account corrected, and a stay of execution on the judgment was agreed upon and entered.
    After the stay had expired, Gear pressed Parish with an execution and was about to sell his property, and still held the bond and mortgage as a security for the judgment and refused to deliver them up.
    The bill charged that the judgment was fraudulently obtained; that it vyas unjust; that the sum was included in the mortgage which had been paid; and prayed for a perpetual injunction against the judgment, and a decree that the bond and mortgage should be delivered up and cancelled.
    The answer of Gear, admits the execution of the mortgage, the payment of the money by Hamilton and his receipt, but denies a settlement of accounts or that the mortgage was for the whole debt due him at the time, and states that Parish then owed him about $5,700 00. He states that the mortgage was given to secure the sum of $4,200 00, and such other sums as Parish owed him,* that the mortgage was not acknowledged or recorded, and that the mortgage and bond wore mislaid and could not be found: admits that the money ($4,200 00) was paid to him by Hamilton, 1st August, 1830, but denies that said sum was paid or received as payment of the mortgage, and states that, on the contrary, there was still due from Parish over $1500 00: denies that lie refused to deliver up tho mortgage: admits that J. P. Hoge, his attorney, called on Parish for tho balance due of $1502 38, and that Parish confessed judgment for that sum, but denies that the judgment was obtained by any fraud of cither Hoge or himself: is informed and believes that Hugo agreed with Parish that the mortgage should be delivered up, and cancelled, and he has been ready and willing that it should be done, but told Hoge that he thought the mortgage ought not to bo given up until the money was paid: denies that the agreement with Hoge was the consideration that induced Parish to confess tho judgment, but says that the only inducement was because the debt was just.
    Ho states tbat on or about the 1st of February, 1839, he agreed to execute a deed of release for the mortgaged premises to Parish, and thereupon Parish’s attorney drew a deed which he executed, and about the same time Parish paid him $250 00: denies all fraud, &c., generally.
    The mortgage mentioned in the bill and answer, and the bond, were produced by Gear on the trial in the District Court: the bond was for $5000, conditioned for the payment of $4200, which was the amount of tho mortgage. The mortgage was to secure that sum alone, and nothing further, and was acknowledged before and certified by a notary public, but not recorded.
    The only depositions taken in the cause, and read upon the trial, wore those of William S. Hamilton and John Turney. The deposition of Hamilton proved: Tbat in the spring of the year 1836, he was present at the closing up of the business of complainant and defendant, which was done at his suggestion, at which time Gear presented to Parish his book, showing Parish’s indebtedness to be about $3,700, but Gear alledged that there were other charges for freight on furnace irons, brick, and perhaps some other small matters, and the parties agreed that the witness should draw a mortgage to secure the debt, Gear stating that the addition of $300 would cover all claims against Parish not mentioned in the books. Tho mortgage was drawn and executed by Parish to Goar for the sum of $4,200, which was considered by all partios as sufficient to cover all claims from Parish by Gear. On the 1st August, 1830, witness paid to Gear, for Parish, $4,284 and asked Goar for the mortgage, which he declined giving up, stating that the sum paid did not cover the account of Parish. At the time when the mortgage was given, it was supposed that it would cover the whole amount due from Parish to Gear, but it was agreed that the balance that might be found to be due from either party should be adjusted.
    The deposition of Turney proved: That after Gear had sued Parish, he, Parish, consulted the witness upon the expediency of confessing judgment, and expressed great anxiety to get his property unencumbered for the purpose of making good conveyances: That ho, the witness, had a conversation with J. P. Hoge, attorney for Goar, in which said Hoge pledged himself that the mortgage should be given up, and cancelled, and any error in the accounts between the parties should be corrected. That the sole object of Parish in confessing judgment was to get the mortgage returned, and upon the promises of Hoge he advised Parish to confess judgment.
    The District Court decreed a perpetual injunction of the judgment at law, from which decree Gear appealed to this court.
    Mosns M. Strong, for appellant:
    From the facts in this case, the District Court ought not to have gone further than to cancel the mortgage; and the injunction against the judgment at law ought to have been dissolved. The answer of the defendant denies all the equity of the bill. According to all rules of chancery practice, the answer cannot be defeated unless it is contradicted by two witnesses, or by one witness and strong corroborating circumstances. There is no part of the bill to which more than one witness testifies, and there are no corroborating circumstances to make the testimouy preponderate over the answer. The statements in the answer as to the settlement of the accounts and execution of the mortgage are not even contradicted by one witness, and the answer on this point must prevail.
    The defendant is called upon by the complainant to answer under oath. The complainant makes him his witness in the cause; and although he may, as in. other cases, prove by other witnesses, that the facts are different from what the defendant has stated them to be, yet he cannot discredit his testimony, because he is his witness.
    The withholding the mortgage by Gear, (and that is sufficiently explained in the answer,) could be no sufficient cause for enjoining the judgment. It had never been recorded, and was no lien upon the land, and could not produce any of the difficulties which Parish seemed to fear.
    • The complainant has not shown himself entitled to any relief as to the judgment; but if the court can, upon the facts of the case, inteifere with that judgment, the most that it can do will be to vacate it, and permit the parties again to litigate their rights in a court of law, and this will be stretching the matter to the utmost verge of authority.
    Burnett, for appellee:
    Too much consequence seems tobe given to the answer of a defendant in chancery. Although, as a general principle, the rule is admitted as it has been stated, yet it is not without exceptions. If the defendant states in his answer any matters that are not. in response to the bill, it cannot avail him, but must be supported by testimony ali unde. If the defendant makes contradictory or unreasonable statements; or answers positively in relation to facts not within his own knowledge, and of which he could not possibly know with certainty; or if his statements are contradicted by written documents that cannot be doubted; the court will consider these circumstances as detracting from the weight of the ap-swer; and the court may, if the facts warrant it, consider the answer as discredited entirely in the case. This principle is fully established in the following cases: Hart vs. Teneyck and others, 2 John. Chy. Rep. 62, and the authorities collected in note (a) at page 90. MAche.ll vs. Maussin, 3 Monroe, 185. Whitington vs. Roberts, 4 do. 173. Young vs. Hopkins and others, 6 do. 18; Paynes vs. Coles and others, 1 Mu'nford, 373. In applying the principle to this case, it will be found that the appellant has in his answer denied positively the circumstances and reasons, and the conditions for confessing the judgment, as charged in the bill, when he could not possibly know any thing about it except from information He states that the mortgage was never acknowledged or recorded, and yet the document itself, which had always been in his possession, shows that it was acknowledged and certified at the time when it was executed. That part of the answer in relation to the execution of the mortgage is so unreasonable in itself, and so contrary to the course of business with all merchants of any discretion or prudence, that it is out of the pale of belief. He does not deny any of the material allegations of the bill upon that subject, except those in relation to the purposes for which the mortgage was given and the amount of the account, which he says was at that time about $5,700, and that the mortgage was given to secure the sum of $4,200, and such other sums as Parish owed him. Tho mortgage and bond both show for themselves that $4,200 is all that could be collected upon them, and that they were given for nothing else. The facts in the transaction that cannot be doubted show, that, at the time, Parish' was willing to give a mortgage for tho whole sum which he justly owed, and that in this spirit the mortgage was raised from $3,700 to $4,200. What discreet business man is there, who, under such circumstances, seeking security for his debts, when he had an opportunity of getting it, would leave out so large'an amount as fifteen hundred dollars and upwards? There is none, and the statement is too unreasonable to obtain belief. I think then that the court will disregard the answer entirely, and consider tho case upon the bill and evidence alone; and under such circumstances, the fact of the bill being sworn to is entitled to some weight.

    It is said that the mortgage, not being recorded, was no lien on the land, and that the failure or refusal to cancel it, was no disadvantage to Parish. Although not recorded, it was acknowledged and certified, and could he placed upon record any minute, as much to the prejudice of Parish as if it had been recorded in the first instance'.
    The materialallegations of the bill are sufficiently supported by the depositions and documentary evidence; and an important circumstance in the ease, which the court will not overlook is, in all this contest, Gear has never produced his books, or attempted to show, in any way whatever, how or why, this enormous excess was not taken into the account when the mortgage was given, nor stated his account to show that the whole sum claimed was justly due.*
    Mr. Dunn presented a written argument in the case, which was handed to the court. Not having seen it since, and taking no notes of it at the timo, it cannot be given here. — [Rev.
   Opinion of the Court by

Chief Justice Dunn:

This is an appeal from a decree of (he District Court of Iowa bounty, sitting as a court of chancery.

A bill of complaint was exhibited in said court by the appellee, Parish, against the appellant, Gear, setting up that the said Gear, by his attorney, had fraudulently obtained, on the law side of said Court, a confession of judgment against him on false promises and representations, for the sum of $ 1,562 58, on an account, or the balance ufan account, which had been settled with, and decure'd to, said Gear, by a bond and mortgage executed to him by Parish in April, 1836, more than a year before the confession, and that he has had no dealings with Gear since, and calls on him to answer if he has; which mortgage was discharged and paid off by Parish to Gear about four months after date, being the lime the money secured by said mortgage became due, when said Gear, on demand,refused to give up said mortgage, jas he should have done.

That in October, 1837, to obtain said confession, Joseph P. Hoge, said attorney for Gear, promised said Parish,'if he would confess judgment for the said $1,562 58, the balance of the account claimed, that Gear would immediately surrender the mortgage to be cancelled; and that owing to the peculiar situation of him, the said Parish, at the time, in relation to some of the mortgaged lands, he having sold the same, received a part of the purchase money, and being bound to make conveyance, did consent to confess judgment as aforesaid, not admitting that any balance was due Gear, hut influenced solely by the great desire he had to' secure that to which in law and equity he was justly entitled, the surrender to him' of the mortgage, that he might convey, as he was' bound to do, by good and sufficient deeds or conveyances. That said Gear falsely, fraudulently, and improperly refused to deliver up said mortgage In pursuance of said promise so by his attorney made, and insisted on by Parish in good faith; and said bill concludes with a prayer for an injunction against said judgment at law, and that,- upon the final hearing, the said court of chancery may decree a perpetual injunction against said judgment at law, or decree to said Gear so much as upon proper proof may be justly due to him, or such other relief as to equity may appertain. On this hill injunction was awarded by the Chancellor.

The defendant, Gear, in his answer, denies that their full accounts were settled in 1836, and a mortgage given to secure $4,200 only, as the entire amount due him at the time, and ab ledges that it was not only given to secure said four thousand two hundred dollars, but such other sum as might be due from Parish to him. and that ho has found since said mortgage was given, that said Parish owed him 05,700. That the mortgage was given, but never acknowledged and recorded; that tho 04,200 wcie paid to him by Parish’s agent, which ¡to applied to tho credit of Parish’s account. Ho denies that said 04,200 was received in full satisfaction of said mortgage or of the debt due by Parish to him, but that títere was a balance thou due of more than 01,500. He admits that his attorney, Jos. P. Hoge Esq. called on Parish in October, 1837, for a balance of 01,582 58, and that Parish confessed judgment for that sum at tho time set forth; but denies that it was in any wise obtained by fraud, either on his part or on the part of his attorney, Jos. P. Ilogo, Esq. but was tho freo and voluntary act of Parish. Ho admits that he is informed and believes that his attorney consented that said mortgage should bo surrendered up to be cancelled, and avers that he has ever been ready and willing, although he told his said attorney that he did not think the mortgage should be surrendered until tho debt was paid, and that he has never since been able to find said mortgage, lie denies that the agreement with his said attorney, Hoge, was the consideration that induced Parish to confess judgment, but insists that it was because he believed the debt to be an honest debt, and that a stay of execution for six months was agreed.

The defendant then set up new matter, not responsive to any of the charges in tho bill.

Upon this bill and answer and replication, tho mortgage and bond of Parish to pay the $4200, receipt of payment by Parish, and flie depositions of Turney and Hamilton, taken on the part of complainant, Parish, this cause came on to be heard in tho District Court of Iowa, sitting as a court of chancery, and upon hearing, the court decreed a perpetual injunction against the judgment at law in favor of said Gear against said Parish.

It becomes tho duty of this court to review the cause, and affirm or reverse the decree of the District Court.

The principle so long recognized in equity proceedings, that fraud in the procurement will taint, cancel, and destroy, the obligatory effect of all parol contracts, deeds, and even judgments, is too well established to admit of discussion upon the soundness of the doctrino at this day. The primary object of thecomplainant’s bill in this cause is, to avoid the effect of the judgment at law against him, by showing fraud in its procurement. A court of equity is the only placo where he can be relieved. There is not, apparent on tho record of the confession of the judgment at law, any error in law; if there were, confession takes away error. The door of tho courts of law is barred against him, on account of the rigid and unrelaxing rules which govern in cases at law. The. charge of fraud in this case gives jurisdiction to the court of equity, and when parties are properly in this court, it may decree finally on all the matters connected with the subject matter of the fraud charged. This, then, presents the relief prayed for secondly, the surrender and cancellation of the mortgage, and Gear’s right to recover for a balance on an account settled and closed by the bond and'mortgage. We must test the truth of the allegations of complainant’s bill by the evidence in the case, and this consists of the defendant’s answer to the matters charged in the bill, as of his pwn knowledge, the written instruments filed in the cause, and the depositions taken and read below. The defendant’s direct answer, as of his own knowledge, is proper evidence, and must be weighed and considered, unless contradicted by two witnesses, or-one with corroborating circumstances. If a defendant sets up new matter, not in answer to any of the charges in the bill, it must be supported by testimony ali unde, or it cannot avail him in his defence, but may prejudice, from the appearance it boars, of an attempt to equivocate, by leading off from the gist of the matters ho should answer. If it appears from the answer of a defendant, that he discredits his answer by contradictory, unreasonable, irrecon-cileablo statements, or by statements contradicted by written in-* strnments on the same point, or by positive denials of charges of which he could have no personal knowledge, then the testimony of one disinterested witness would preponderate over the weight of testimony contained in his answer, and against the answer. These principles are recognized in Mitchell vs. Maussin, 3 Monroe, 185. Whitington vs. Roberts, 4 Monroe, 173. Young vs. Hopkins and others, 6 Monroe, 18. Paynes vs. Coles and others, 1 Munford, 373. Hart vs. Teneyck and others, 1 John. Chy. Rep. 62, and authorities referred to in note (a) page 90. Under these rules, a majority of this court have considered the defendant’s answer herein, which is all the evidence in his favor in this cause, and have opposed thereto tho depositions of Turney and Hamilton, disinterested witnesses, and the mortgage and bond re-/ ferrcd to, placed on the files with the papers in this cause by defendant on the hearing, and receipt of payment, and arc of opinion that the charges of the complainant, in his bill, are sustained by proofs preponderating over the answer of the defendant, which does appear to us to be discredited upon its face in part, and by written instruments in other respects, leaving the complainant’s charges unimpaired, undenied, and supported by testimony. The defendant, as the whole matter was before the court of-equity, had ample time and opportunity to introduce proofs to sustain the justness of his account, and show that the items claimed were omitted by mistake or otherwise, on the settlement of 1836, when the bond and mortgage were given to secure the payment of the matters o^ account tiren claimed and stated to bo due to defendant by complainant; but ho slept and introduced no testimony whatever. Therefore, on a review of the whole cause, we are of opinion that the decree of the District Court of Iowa, sitting as a court of chancery, herein be affirmed with costs.

Judge Miller,

dissenting from the opinion of the court, delivered the following separate opinion:

When I cannot agree with my brethren, I feel it incumbent upon me, particularly in cases so important as this, to give my reasons l’or my dissent.

Itseems from the evidence that there had been running accounts between these parties, for some time, and that Parish became indebted to Gear for various matters, including liabilities to a large amount. In May, 1836, the parties, according to the deposition of William S. Hamilton, met to close up their business, and a mortgage was given by Parish to Gear for four thousand two hundred dollars, the amount then supposed to be claimed and due. The witness states that at the time the mortgage was given, it was supposed that the amount specified in the mortgage would cover the debr, but that the balance, whatever it might be, whether in Parish or Gear’s favor, was to be settled as just and correct. From the tenor of the deposition, I understand the mortgage to have been given as a security fot whatever might be due. The witness says that Gear’s books were there, but from the facts respecting the manner in which the sum was stated, and the understanding respecting whatever balance there might be, it requires no stretch of imagination to perceive that there may have been liabilities on other transactions not recollected at the time, The mortgage was payable in four months, and was paid when clue, and Parish received, and produced on the trial, his receipt for the four thousand two hundred dollars. The mortgage was never recorded, but was kept by Gear, who resides in Illinois. It does not appear that the paper was ever in Wisconsin, until it was produced at the trial, by Gear, for cancellation; and ho avers that he would have given it over to Paris!), but that he could not find it. In October, 1837, the claim of Gear against Parish was put into the hands of Mr. Hoge, a lawyer of Galena, for collection. This claim, deducting the credit of the mortgage, and the amount of four thousand two hundred dollars paid thereon, left a balance of upwards of fifteen hundred dolíais duo to Gear, to which he swears in his bill; for the recoven' of which suit was instituted in the District Court of Iowa county, against Parish, and after consulting counsel, he voluntarily confessed judgment thereon for the balance claimed. The defendant rested satisfied with this judgment against him until September following, when he filed his bill for an injunction of it, alledging fraud. He alledges that he gave the judgment for the purpose of procuring, from Gear, the mortgage, and that Mr. Hoge promised to have the mortgage surrendered to him. The only proof of this is proof of the declarations or acknowledgments of Mr. Hoge that he did say so, and this is proved by the counsel of Parish, whom he had consulted before he confessed the judgment. If there was any thing in this, it was competent to have Mr. Hoge testify; he was a competent witness, and his declarations were not the best evidence. But there is nothing in it to found a decree upon to enjoin this judgment. For before the judgment was confessed, the whole account was presented to Parish, on which he consulted counsel; he then came into court, and acknowledged it to be correct by his confession of judgment. Why should Parish confess a judgment for upwards of fifteen hundred dollars, and thereby create a hen on his lands, for the purpose of getting into bis possession a mortgage that was never recorded, and merely in tl;e possession of a man in Illinois, and for which he held a full and entire release and discharge? It is too preposterous to admit of serious consideration. And if there is any fraud proven in obtaining this judgment, on the part of Gear or Hoge, I cannot see it.

All the pointed allegations in the bill are fully and positively denied by the defendant, Gear, and all the testimony in the case was the deposition of Hamilton relating to the settlement, and the deposition of Turney, who was the attorney of Parish, and consulted by him before he confessed the judgment, who proves what Parish said to him, and the above acknowledgment of Hoge. This was not evidence under any circumstances, and should not be considered. If such testimony were allowed, a client and his attorney can make as much evidence as may be necessary to gain any cause. In addition to this, what took place between client and counsel respecting a cause, as in this case, should not be received as evidence; Graham’s Practice, 39. Mr. Hoge could have been examined, and consequently, his acknowledgment was not, in the first place, the best evidence. But it was as to the surrender of the mortgage only, not as to the legality or honesty of the consideration of the judgment. But there is nothing in this, as at the trial the mortgage was in court to be cancelled, and the defendant had a receipt in full for its amount.

Even if Hamilton’s testimony was conclusive, and left no doubt or uncertainty as to the real balance between the parties, there is but the testimony of one witness to the transaction, which is not sufficient, unless accompanied with strong corroborating circumstances; 9 Crancb, 153. The corroborating circumstances relied upon are the bond and mortgage, and these cannot be used as a substitute for another witness, when the balance, by agreement, was to be afterwards settled, and for that balance a judgment was confessed upon consultation and professional advice. In the case of the Marine Insurance Company vs. Hodgson, 7 Cranch, 322, which'was a bill to enjoin a judgment on the ground of a misrepresentation of the age and tonnage of the vessel, whereby the undew writers were induced to agree to a high valuation, and thereby defrauded, Marshall C. J. says, without attempting 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 lie might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence of himself or agent, will justify an appeal to a court cf chancery. A defence cannot be set up in equity, which has been fully and fairly tried at law, although it may be the opinion of that court that the defence ought to have been sustained at law. The equity of the applicant must be free from doubt. And the court there decided, that as' the party was not prevented from making his defence at law, by any act of the plaintiff, or by any positive rule which disabled him from doing so, a clear case was not made out for the interposition of a court of chancery, and the injunction was denied. Such should have been the decision in-this case, for that was stronger than this. Here the mortgage was given under an understanding that whatever balance should appear on either side should be afterwards settled5. the settlement, too, whatever it was, was only proven by one witness, the mortgage was paid and receipted, and never recorded, the balance af-terwards presented and demanded, and sued for, when it was probably filed with the declaration, and after consultation with counsel, a judgment was confessed for it, which remained nearly one year before any application was made to disturb it, and then on a pretence of the non-surrender of the paid mortgage, which was in court at th e trial for cancellation. The party could have had all these matters investigated at law, he was not prevented in any way, and then the accounts between the parties could have been fully settled. This, in my opinion, does not present any such case as requires the extraordinary decree of a perpetual injunction.

Moses M. Strong, for appellant.

Burnett and Dunn, for 'appellee.

If the court was fully satisfied that the accounts should be examined, possibly the judgment might have been opened, or an issue directed, to try and investigate the same. Such a practice has been pursued; 2 W. C. C. R. 433. 14 Sergt. & Rawle, 137. Relief might be obtained in a proper case on a writ of error corean nobis; 1 Rawle, 323. This is the most the party could ask, and it is very doubtful whether, under all circumstances, the court should even go thus far, but certainly no farther.


source: Caselaw Access Project

author: Judge Irvin:

license: Public Domain

text:
    BRATON BUSHEE, plaintiff in error, vs. JOHN WRIGHT, defendant in error,

    > Error to Grant county. y
    In actions against several defendants, where a declaration is used as the first process, a'copv of the declaration must be personally served on all of the defendants before a default can bn entered agauist any; and it is error to take a default against one before all are personally served.
    Wright brought an action of assumpsit against Cyrus Harperaticl Braton Bushee in the Grant District Court, founded on the following writing:
    “Van Bureic, December 6,1837.
    “County of Grant, Territory of Wisconsin:
    Articles of agreement made and entered into between John Wright, of the county aforesaid, of the first part, and Cyrus Harper and Braton Bushee, party of the second part. The said John Wright has this day sold to Cyrus Harper and Braton Bushee, onc-third of a certain mineral lot known by the name of the Wright & Hudson lot; and all his mineral that is on the ground, for the consideration of eight hundred dollars in hand and two hundred more, provided it comes out, as soon as the mineral is raised.
    (Signed) JOHN WRIGHT,
    CYRUS HARPER,
    BRATON BUSHEE.”
    The suit was brought to recover the §200, claimed to be duo by proviso. The declaration contained two counts; in one of which it was averred that the $200 was to he paid when §1000 worth of mineral should be raised on the ground, and averring that that quantity had been raised; the other averring that it was to be paid when $200 worth should be raised, and averring that amount to have been raised.
    The suit was commenced by declaration as the first process, which was duly served on Bushee, and returned, not found, as to Harper. Bushee was defaulted in the clerk’s office for want of a plea, and no discontinuance as to Harper was entered at any time. At the September term, 1840, being the first term after the commencement of the suit, Bushee, by his counsel, conceiving the default to be irregular, made a motion to have it set aside, but did Hot pay the costs. The cause was not reached on the calender for trial at that teruq and the motion was not disposed of until after the petit jury was discharged, when it was overruled by the court. Bushee theii offered to file an affidavit of merits, pay the costs, and plead the general issue, and moved on those grounds to set aside the default, which motion was .also overruled; and, on motion of Wright, the default was made absolute and a writofin-quiry awarded, when the cause was continued until the next term. At the March term, 1841, Bushee filed an affidavit of merits and of reasons in excuse for not pleading before the default was entered, and again moved to set aside the default, which motion was also overruled. At the same term, the venue was changed, upon his application, to Iowa county. At the September term,' 1841, of the Iowa District Court, the writ of inquiry was executed, upon the execution of which, the plaintiff below offered to read aS evidence the depositions of three witnesses, each of which testified that the meaning of the agreement sued on, as understood among miners, was tó pay the $200 as soon as the first $200 worth of mineral came out of the ground. The defendant objected to these depositions, but the court overruled the objection and permitted the depositions to be read. The defendant below offered in evidence two depositions, taken in the presence of the adverse party, who cross-examined the witnesses, proving that Wright had not the interest in the ground that was specified in the agreement, and one of them testified that Wright had admitted that he was not to be paid the $200, until $1000 worth of mineral should come out of the ground. The plaintiff objected to these depositions on the ground that the facts proven wont to defeat the plaintiff’s right of action, and on the ground of informal-ities in taking and certifying them, and the court sustained the objection and rejected the depositions, upon which the court decided — “ That by the default the defendant had confessed the plaintiff’s right of action as declared and averred in his declaration, and that the jury were not permitted to inquire into any matters that would tend to defeat the plaintiff’s right of action.” After the verdict, Bushee moved for a new trial and in arrest of judgment, both of which motions were overruled by the court and final judgment rendered against him. Exceptions were taken to the various decisions of the court in the progress of the cause, and this writ or error is prosecuted to reverse the judgment of the court below.
    The plaintiff in error assigned the following errors in the proceedings of the District Court:
    1. The default taken and entered in the clerk’s office in vacation, was erroneous.
    2. The court erred in overruling the motions to set aside the ■default made at the September term, 1840, of the Grant District Court.
    3. The court erred in ordering tho default of the defendant to be entered, and in awarding a writ of inquiry of damages at the September term, 1840, of the Grant District Court.
    4. The court erred in overruling the motion to set aside the default made at the March term, 1840, of tho Grant District Court.
    5. The District Court of Iowa county erred in permitting the evidence offered on the part of the plaintiff below, to be read in evidence to tho jury.
    6. The court erred in rejecting the evidence offered by the defendant below, and in deciding that by the default the defendant had confessed tho plaintiff’s right of action as declared and averred in his declaration, and that the jury wore not permitted to inquire into any matters that would tend to defeat the plaintiff’s right of .action.
    7. 8. 9. Tho court erred in overruling tho motion for a new trial, in arrest of judgment, and in entering judgment against the defendant below.
    Burkett, for pl’tffin error:
    Tho default taken in this caso in the clerk’s office was irregular. At common law, a plaintiff cannot proceed against one of several joint contracting parties, until all are brought before the court in some way. By the statute of the Territory, before ho can so proceed, lie must discontinue as to the defendants not found, and amend his declaration. Revised Slat. 207, 208, sec. 67, 68. Where the declaration is the first process, all the defendants must he personally served. Revised Sut.201,soc. 16. This default, then, was irregularly taken, and ought to bavo been sot aside upon bare motion. 1 Peino & Duer’s Practice, 625.
    If the default was regular, still it ought to have boon set aside upon an affidavit of merits, pleading issuably, and payment of costs, where a trial has not been lost, 1 Tidd’s Prac. (11 Ed.) 567; 1 Paine & Duer, 621, 622; Davenport vs. Ferris, 6 John. Rep. 131; Talmaiige vs. Stockholm, and another, 14 John. Rep. 321; 2 Strange, 975; 4 Burr. 1996. The provision of our statute (page 209) gives the defendant the right to set aside the default within a limited time, even when regularly taken, upon payment of costs, without any affidavit of merits. It was decided below, that this took from the court all discretion upon the subject. This is not warranted by fair construction. At common law, the court was bound to exercise a sound discretion upon the circumstances, and if the defendant made a proper case in due time, the court was bound to sot aside the default, otherwise it might refuse.— The statute is cumulative, and not in derogation of the common law. By it, a right is secured to the defendant which he had not before, of sotting aside a default without an affidavit of merits, or any exercise of the discretion of the court.
    The court below erred, as we think, in permitting witnesses who were not present at the making' of the contract, to testify as to the meaning of the agreement. A written instrument must explain itself unless it becomes ambiguous in its application, by extrinsic facts; and in such case, it can only be explained by the testimony of persons acquainted with the original contract between the parties, and who can testify as to their intention tpd meaning in making the contract. 2 Starkie, 544, ’5, ’6, ’7, ’8, ’9.
    It is also conceived that the District Court erred in its decision upon rejecting the evidence offered by the defendant below. Although it is admitted to bo law, that where a default is regular, the defendant cannot defeat the recovery entirely, yet he has a right to show by competent testimony before the jury of inquest, any matter that will reduce the plaintiff’s damages, even to a nominal sum. 1 Paine & Duer, 634, 635, and the authorities, there cited.
    Durr, for def’t in error:
    At common law, a default may be taken against one of several defendants; so it may by our statute; trad joint defendants may plead separately. The service of the declaration was sufficient to bring Bushee into court, the same as any other process. It was. duly served on him, and the default was regularly taken against him for his own neglect to plead, and it could only be set aside in She manner and in the time pointed out in the statute. The mo-lion that was made to set it aside upon an affidaritof merits would have been sufficient at common law, but under the statute, it could not be sustained after the jury was discharged. The statute controls the court and leaves it no discretion upon the subject.
    As a general principle, oral testimony cannot be received to explain written instruments; yet in particular cases such testimony is admissible. To explain words which are used in relation to particular customs, arts, professions, or business, and which, to those unacquainted with their application would be unintelligible, parol testimony may be received. Roscoe on Ev. 10, 11.
    The depositions of the defendant were properly rejected by the court below. There was no notice given, nor were they certified according to law; and although the plaintiff attended and cross-examined the witnesses, that does not dispense with the positive requisitions of the statute, which require that notice shall be given or waived in writing. Besides, the matter of the depositions was inadmissible in the case as it stood under default, as it went to defeat the plaintiff’s right of action.
   Opinion of the Court, by

Judge Irvin:

This case was commenced by declaration in the District Court of Grant county, by John Wright, the defendant in error, against Braton Bushee, the plaintiff in error, and Cyrus Harper, and after-wards, on a change of venue, it was taken to the county of Iowa. Process seems to have been served on but one of the defendants, and as to the other, returned not found. By “ an act concerning proceedings in courts of record,” a declaration may be the first process, and if a copy of it, together with the rule that the defendant plead within twenty days after service of the same, be served personally on said defendant, and he should fail to plead, a default is to be entered against him. In this case, Bushee, the only one of the defendants served with process, did not so plead, and a default was entered against him, to take off which, he appeared and made a motion at the next District Court, which motion was overruled. The principal question, and certainly the first in the cause is, did the court err in so deciding? By the sixteenth section of said act it is provided, that “upon due proof of the service of a declaration personally on all the defendants in. the cause, their appearance shall be entered by the clerk of the court, and their default may be entered for not pleading, and the same proceedings may be had against them in all respects as if they had appeared.” From the reading of the law, all must be personally served with process. In the State of Now York, there was a statute with similar provisions,' and the court (see 7 Wendell, 517, and 9 Wendell, 433,) held, “ that in a suit commenced by declaration against several defendants, the plaintiff could not proceed until all the defendants were served with the declaration.” The court is of opinion, that when declaration'is the first process, and there be more than one defendant, process must be served personally on all, and that it is error to take a default when only a part of the defendants are served with process. The default taken in this case, being taken without authority of law, should have been set aside, and the District Court erred in overruling the motion made to that effect.

Burnett and Moses M. Strong, for pl’tff iri error.

Dunn, for def’t in error.

From the uncertainty in the assignment of the error, (the only one remaining undisposed of by the point already noticed,) the court does not deem it necessary to decide any thing in relation to it, particularly as it relates to matters about which the authorities are numerous. It is the opinion of the court, that for the error noticed, the judgment of the District Court be reversed with costs, and that the same be so certified, that such other and further proceedings may be had therein asjto lawhnay?appertain.


text:
    IN BANKRUPTCY,
    AUGUST 29th, 1842:
    Before Judges Irvin and Miller.
    In the matter of JOHN A. McKISSON,
    ) „ , 7 , l 1/2 °anJcrupl-

    Note. — From the above decision, it would seem to follow, that mere possession and improvements on the public lands, are not subject to sale under execution; that a judgment at law is no lien upon them; and that a mort-. gage upon them would not vest any right of foreclosure in the mortgagee. —[Rep.
   It seems objections were made to the bankrupt’s discharge on the ground, that he had'not scheduled and given up to the assignee, for the benefit of his creditors, certain improvements on the public lands of the United States. Upon this question, the Court said:

The Court does not conceive the improvements on the public lands, as mentioned in the assignee’s report herein, to be such an interest as can be passed to, or vested in, the assignee for the benefit of the creditors of the bankrupt.


text:
    UNITED STATES, vs. BENJAMIN SALTER.

      ) > Error to Iowa county. )

    Where a defendant has been tried upon an indictment or information, and a verdict of acquittal has been rendered, no writ of error lies at the instance of the prosecution, to reverse the judgment.
    If a court quashes an indictment or arrests a judgment illegally, a writ of error may be prosecuted insuch case, at the instance of the prosecution, to reverse the decision.
   Salter was indicted by the grand jury of Iowa county for forgery, and upon the trial the District Attorney offered certain evidence in support of the prosecution whjch was rejected by the court, to which decision exceptions were taken. A verdict of acquittal was rendered by the juiy, and the District Attorney sued out this writ to correct the errors of the court below, in rejecting the evidence offered by the prosecution on the trial of the ■case.

The cause came up for argument at the July term, 1842; when 'the question was suggested by the court, whether a writ of error could be sustained at the instance of the prosecution after a verdict of acquittal had been rendered? The matter was submitted to the court, who took the same under advisement until the present term, when Judge Míllek delivered the following opinion of the Court, dismissing the writ.

The defendant was indicted in the District Court of Iowa county for forgery. At the trial the District Attorney offered to give certain facts in evidence, for the purpose of making out the case, which were rejected by the court. The defendant was acquitted and discharged. A writ of error was sued out by the District Attorney, and this decision of the court assigned for error.

The first question to be settled is, should this court take cognizance of this case?

The practice of revising cases by appeal and writs of error, on the part of the prosecution, upon various decisions of the inferior court, upon matters of law, is quite common, but not after a verdict of not guilty. In the case of The Commonwealth vs. McKisson and others, 8 Sergt. & Rawle, 420, the defendants were indicted for a conspiracy to cheat. On motion of the defendants, the indictment was quashed, upon which the Commonwealth sued out a writ of error, and the supreme court reversed the decision, and directed that the record be remitted to the court below with orders to proceed in the indictment. In the case of The Commonwealth vs. Taylor, 5 Binney, 277, it appears that the defendant had been convicted, and the court arrested the judgment on the ground that the offence charged was not indictable; and the record was brought to the supreme court by writ of error, where the judgment was reversed, and the record was remitted to the quarter sessions, that they might proceed to give judgment against the defendant. The same practice is pursued in New York, but in a more formal and technical manner. In the case of The People vs. Stone, 9 Wend. 182, the indictment, on the motion of the defendant, had been quashed, and at a subsequent session of the court, the District Attorney, for the purpose of enabling him to remove the case to the supreme court by writ of error, was permitted to make a record, stating judgment to have been rendered for the defendant as on demurrer to the indictment. The supreme court allowed this proceeding, as no writ of error can be brought in that State on an order quashing an indictment. In the case of The People vs. the Onondaga C. P. 2 Wend. 631, it was held to be a pioper course to be pursued in a criminal case, where the court below had arrested the judgment. The powers and jurisdiction of the court are not determined, either by an order arresting the judgment or quashing the indictment. A writ of error, sued out on the part of the prosecution, upon the judgments and. decisions of the court upon questions of practice, can be sustained; except where the defendant has been acquitted by a verdict, or convicted, and no motion in arrest of judgment made and sustained. It is right that it should bo so, for a court might illegally quash an indictment or arrest a judgment when the public would otherwise have no redress. The usual course is, after the indictment against the defendant has been quashed, to prefer a new and more regular one; 1 Chit. Crim. Law, 250,260; Bacon’s Abrg’t, Indictment, K.; Comyn’s Digest, Indictment, H. And if the judgment is ultimately arrested, all the proceedings will be set aside; but it will be no bar to a subsequent indictment, which tho prosecutor may immediately prefer; 1 Chitty’s Crim. Law, 542; Com. Dig. Indictment, N.; 4 Black. Com. 375. For the defendant’s life or liberty has never been in actual jeopardy, and the ends of public justice have not been satisfied, either in his conviction or acquittal.

In 4 Black. Com. 351, we find it laid down; that there hath yet been no instance of granting a new trial, where the prisoner was acquitted upon the first. If tho jury, therefore, find the prisoner not guilty, he is then forever quit and discharged; except he be appealed of felony within the time limited by law. And upon ouch acquittal or discharge for want of prosecution, he shall be immediately set at largo. Also, in 2 Hawkins’ P. C. 442. In 1 Chitty’s Crim. Law, 535, it is stated, that a now trial cannot, in general, be granted on the part of the prosecution, after the defendant has been acquitted, oven though the verdict appears tobe against evidence. No new trial can be granted where the defendant has been acquitted, although the acquittal was founded upon the misdirection of the judge; 6 East. 315; 4 Maule & Selwyn, 337; 1 Chit. Rep. 352; 2 Tidd’s Prac. 942; 1 Starkie’s N. P. 516; 1 Wilson, 298; 12 Mod. 9. The same doctrine is stated in 6 Bacon’s Abrg’t, title, Trial, 9, page 675, 676. If the defendant, in an indictment or information, have boon acquitted, the court will not grant a new trial, notwithstanding the verdict were contrary to evidence. But it seems to be the better opinion, that when the verdict was obtained by fraud of the defendant, or in consequence of irregularities of his proceedings, as by keeping back the prosecutor’s witnesses, or neglecting to give due notice of trial, a new trial will bo granted; 1 Chit. Crim. Law, 536. The same doctrine seems to have been quoted favorably by the supreme court of Massachusetts, in the case of The Commonwealth vs. Green, 17 Mass. Rep. 526. in the case of The People vs. Mather, 4 Wendell, 262, the supreme court of New York says; that in criminal casos, where tho defendant has once been acquitted, the reluctance to grant new trials has over been very great. It is a conceded rule of law, not to grant a new trial in such cases because tho verdict has been against evidence. Whether a new trial can be granted where there has been acquittal, without infringing the rights of the defendant, even where the court has misdirected the jury, is now an unsettled question.” But in the case of The People vs. Comstock, 8 Wendell, 549; where the defendant had been acquitted, a new trial was moved for on the ground of the misdirection of the jury by the presiding judge, the English doctrine was approved, and the motion denied.

It is a maxim of the law, that no one shall be tried twice for the same offence; or his life or person brought again into jeopardy, where there has once been an acquittal. And the same rule holds throughout, in all cases upon penal statutes, and upon all indictments and informations for misdemeanors, as well as felonies.— The State vs. Wright, 2 South Car. Rep. 517; The State vs. DeHart, 2 Halst. N. J. Rep. 172; Overseers of the Poor vs. Lunt, 15 Wendell, 565. The prohibition in the Constitution of the U. States, “ nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb,” is an old maxim of the common law, which means, that no person shall be tried a second time for the same offence, after a trial by a regular and competent jury, upon a good indictment, whether there be a verdict of acquittal or conviction; United States vs. Gilbert, 2 Sumner’s C. C. Rep. 19. But this rule is now settled throughout the United States, that the courts can grant a new trial, at the instance of the defendant, in capital as well as in other cases.

It seems, that in a case where a new trial could be of no benefit to the party, it will not be granted; Duncan vs. Dubois, 3 J. C. 135. The same rule is applicable where a reversal of the judgment is sought upon a writ of error. Now apply this principle to this case. If the prosecution should prevail in this writ, and reverse this cause for the alledged error, it would end there; for tho court could not award a vonirie facias de novo. We could not, on reversal, order our judgment to be certified to the District Court, with directions to have the defendant apprehended and put a second time on his trial. This would be a violation of every principle of criminal justice. If this practice were tolerated, the court would be required to sign a bill of exceptions, at the instance of a prosecutor, who might be urged to it for purposes of revenge, when the court, in order to afford him the full benefit of ■his exceptions, would have to retain (he defendant, either in custody or under bail, notwithstanding he had been acquitted by the verdict of a jury.

A writ of error is not a continuation of the suit below, because it may be sued out by a new attorney, without obtaining a rule for a change of attorney; 7 T. R. 337; 2 John. Rep. 287; 19 Wendell, 152; and in many respects it is considered as a new action; 2 Tidd’sPrac. 1196; which we have shown is not allowable in criminal cases. On page 376 of the Statutes, is an act to provide for appeals, new trials, and exceptions in criminal cases; hut it is exclusively for the benefit of the defendant upon conviction. And by the seventh section of the act, notwithstanding the judge who tried the cause has allowed and signed a bill of exceptions at the instance of the defendant, vet, if it should clearly appear to him that such exceptions are frivolous, immaterial, or only intended for delay, he may enter judgment and award sentence, in such manner as lie may deem reasonable. Should, then, this court, after reflecting upon the objects and policy of this statute, and the principles and practice above stated, allow or sustain a writ of error, in the absence of all statutory provisions, at the instance of the prosecution, after a verdict of not guilty had been finally pronounced and the defendant discharged ? Certainly not» The writ must be quashed.

William R. Smith, District Attorney.

F. J. Dunn, for def’t in error.


author: Judge Miller

text:
    DAVID B. HILL, pl'ff in error, vs. EDWARD BLOOMER, def't in error,

      ) > Error to Dane county. )
    A writ of error will not lie to reverse an interlocutory judgment. Tho judgment must bo final, leaving nothing to be done in the cause, before it oan’bo brought into the supreme court for reversal.
    Hill brought an action of replevin against Bloomer, in the Dane District Court. On the motion of Bloomer, the Court quashed the writ, and rendered a judgment for damages in favor of the defendant, and awarded a writ of inquiry which has not been yet executed. Hill sued out a writ of error to reverse the judgment of the District Court; and at the present term, Bloomer, by his counsel, moved the court to dismiss the writ because no final judgment had been rendered in the case.
    Dunn, fordef’t in error, and in support of the motion:
    The record in this case shows that no final judgment has been given. A judgment for damages was given upon quashing the writ, and a writ of inquiry awarded which has not been executed. The judgment is only interlocutory, and a writ of error will not be in such cases. This is the rule of law in till cases, and the Organic Act only authorizes the writ of error where the judgment is final.
    ARNOLD, contra:
    This is not an ordinary interlocutory judgment given in the progress of the cause, but one that affectually concludes the rights of the parties as to the subject matter of the suit, and for this purpose it is final; see Stat. Wis. 275, sec. 30, upon which the judgment was rendered. The judgment is final as to the rights of the parties in respect of the property replevied, and the damages are only accessory to the judgment. In such a case a writ of error will lie to reverse the judgment before the writ of inquiry is executed; 9 Viner’s Abridgt. 5C5; Graham’s Prac. 933.
    Moses M. Strong, in reply:
    The judgment to which a writ of error will lie, must be a judgment, that not only concludes the rights of the parties, but one that is so perfect in itself that it can be carried into effect without any further action of the court. The authorities that have been read, go no farther than this. They relate principally to the action of ejectment. Under our own statute in relation to that action, the principle would apply. The judgment, in ejectment would be complete as to the recovery of the land; the damages would have to be gained by a continuation of the proceedings and filing a new declaration.
    By an act of the Legislature passed at the last session, this court is authorized in case of affirmance of judgment, to enter up the proper judgment here and award execution. In this case, if the judgment should be affirmed, there is nothing on which the court could award execution, for the sum to be recovered is not ascertained.
   Judge Miller

delivered the opinion of the Court, quashing the ■ Writ:

In the District Court, David Hill was plaintiff and Edward Bloomer defendant, in an action of replevin. On motion of the defendant, the writ was quashed, and the court ordered, that the plaintiff take nothing by his writ, and that the defendant recover of the plaintiff his costs, and further, on motion of defendant, the court awarded a writ of inquiry, to assess the value of the property replevied and the damages for the detention thereof. A writ of inquiry was issued but is not yol executed. To reverse these orders of the District Court, a writ of error was sued out, which the defendant has moved this court to quash, for the reason that there is no final judgment or decision of the said District Court.

By the organic law of the Territory, writs of error, bills of exceptions, and appeals in chancery causes, shall be allowed in all cases, from the final decisions of the District Courts to the Supreme Court, under such regulations as may be prescribed by law. The only question to be determined is, whether there is a final decision, or judgment in this cause in the District Court? By section thirty of the act concerning replevin, page 275 of the statutes, if the property specified in the writ has been delivered to the plaintiff, and the'defendant recover judgment by discontinuance, or non-suit, such judgment shall be, that the defendant have return of the goods and chattels replevied, unless he shall elect to waive such return pursuant to any of the provisions contained in said statute. Now, by considering the order quashing the writ, equivalent to a judgment by discontinuance or non-suit, with a judgment that the defendant have return of the goods and chattels replevied, the cause would be finally decided between the parties in the District Court; the rights of the parties would be concluded, and the plaintiff would be entitled to his writ of error. But by the thirty-second section of the same act, the defendant, whenever he shall be entitled to a return of the property replevied, instead of taking judgment for such return as above provided, may take judgment for the value of the property replevied, in which case, such value shall be ascertained by the jury on the trial, or by a writ of inquiry, as the case may require. The defendant elected to take judgment for the value of the property replevied, and there not having been a jury empannelled in the cause, a writ of inquiry was awarded to assess the same. The plaintiff having received the property into his possession from the sheriff on the writ, the mere order of the court quashing the writ, or awarding a writ of inquiry, does not disturb the possession, or subject the plaintiff- to the payment of damages and costs. The writ of in'quiry must be executed and confirmed, and judgment entered on the same for the amount found by the jury, before the plaintiff can be affected. This may never be done; and until it is done, the plaintiff’s possession of the property is as perfect as if the writ had not been quashed. It is apparent, that this court cannot take cognizance of cases, in judgment, or proceedings merely interlocutory; but the decision of the District Court must be final, and of which a record can be made, and which shall decide the right of property; Yates vs. The People, 6 John. Rep. 401. The English practice referred to in the argument, is not applicable here. There a man may have a writ of error before all parts of the cause are decided, as on demurrer, or before a writ of inquiry of damages is executed; 1 Roll’s Ab. 751. A writ of error will there lie on a fine and recovery, though the word judgment, or any thing in the form of the judgment, is not to be found in the proceedings, 1 Roll’s Ab. 747. In New York, a writ of error will not lie until a final determination of all the issues joined on the court below, unless from the record it is apparent itself, that the judgment rendered in the court below, disposes of the whole matter; Pete vs. McCrew, 21 Wendell, 667. In Pennsylvania, a writ of error lies in all cases, in which a court of record has given a final judgment; Commonwealth vs. The Judges, 3 Binney, 273. Hence, a writ of error does not lie upon an interlocutory judgment given for the plaintiff upon a demurrer in an action sounding in damages; Logan vs. Jennings, 4 Watts, 355. Nor does it lie upon a judgment quod computelin account render; Butler vs. Zeigler, 1 Penn. Rep, 135. In the case of The Life and Fire Insurance Company of New York vs. Adams, 9 Peters, 602, Chief Justice Marshall remarks: “That the Supreme Court, in the exercise of its ordinary appellate jurisdiction, can ta.ke cognizance of no case, until a final judgment or decree shall have been made in the inferior court. Though the merits of the case may have been substantially decided, while any thing, though merely formal, remains to be done, this court cannot pass upon the subject. If, from any intermediate stage in the proceedings, an appeal rnight.be taken to the Supremo Court, the appeal might be repeated to the great oppression of the parties.” From the tenor of these decisions in the Supreme Courts of the United States and in the states of New York and Pennsylvania, we cannot consider the judgment entered by the District Court of Dane county, a final judgment in the cause. — ■ The value of the property is to be ascertained by a jury, which is a matter of substance, and much more essential than mere matter of form, as required by the Supreme Court of the United States. And the execution of the writ of inquiry, is quite as essential to the final disposition of the cause, as the report of auditors on the judgment oi'quod computel in Pennsylvania. If the District Court has erred, or shall hereafter err in any of the subsequent proceedings yet to be had in the cause, this court will correct the errors, upon a writ of error sued out at the proper time.

Aenoid and Catlin, forpPffin error.

Dunn and Moses M. Strong, for def’t in error.

This writ of error must be quashed.


author: Judge Lmrr

text:
    CHARLES C. WELDEN & others, pl’tffs in error, vs. THOMAS C. LEGATE, def't in error.

      Error to Iowa county.

    A writ of error will not lie to reverse the decisions of the District Courts in chancery causes; the only remedy for the party aggrieved, is by appeal.
    A bill in chancery was filed by Legate against Walden and others in the Iowa District Court. The defendants were non-residents, and upon taking the ordinary rules, and publishing notice, the bill was taken pro confesso for want of an answer, and a final decree rendered in favor of Legate. The defendants below sued out a writ of error to reverse the decisions of the District Court; and at this term the defendant in error, by his counsel, moved the court to quash the writ, because no writ of error lies in chancery proceedings.
    Dunn, for def’t in error, and in support of the motion:
    Errors in chancery proceedings can only be corrected on appeal. The organic law provides for writs of error to judgments at law, and appeals in chancery causes. The statute of the Territory (see Stat, Wis, 275) allows an appeal, and regulates the man-nerof taking it. Where the statute provides a particular remedy^ and points out the mode of pursuing it, by necessary implication it prohibits any other, and where an appeal is provided for, the writ of error is prohibited.
    Eastman, contra:
    Decrees in chancery, when the whole case is spread upon the record, arc as much the subject of a writ of error as a judgment at law. The statute of the Territory is cumulative, and provides for superseding the decree, but it does not ertclude the writ of error,which is a common law remedy to correct the errors on the record. The object of the appeal is to remove the testimony in the cause into the Supreme Court, in ortjer that the merits of the case may be reviewed, and if the court below erred, either upon the facts or the law, that such error may be corrected. In some of the States, under similar statutes, the practice is to review chancery causes either on appeal or writ of error; 3 Binney, 27G. At Common law a writ of error would not lie upon a subpena in chancery, because the court of chancery is not a court of record; but wherever the proceedings are of record, as in tho potty bag office or in partition, error will lie; 9 Viner’s Ab. 474; Harrison’s Digest, -1006. Our courts of chancery are courts of record, and therefore a writ of error will lio to review their proceedings.
    The acts of Congress allow of appeals in chancery causes, to tho Supreme Court of the United States, and yet we find that court frequently reviewing cases brought up by writ of error. The same practice prevails, under similar laws, in Kentucky and Ohio.
    Thus it appears, that where the proceedings in chancery are spread upon the record, as with us, writs of error and appeals are concurrent remedies.
    Dunn, in reply:
    In all the cases referred to, where chancery causes have been brought up by writ of error, it has been by statutory authority. The acts of Congress sanctioned the practice of the Supreme Court, and the laws of Ohio and Kentucky authorize the concurrent remedies to be used.
    It is a well settled principle, that wherever a statute gives the right of appeal, a writ of error will not lie unless expressly authorized by the statute. Jarvis vs. Blanchard, 6 Mass. Rep. 4j Savage vs. Gulliver, 4 do. 174.
   Judge Lmrr

delivered the opinion of the Court, quashing the writ: .

Tin's case carne up on error to the District Court of Iowa coun* ty, sitting as a court of chancery, and is here met by a motion on the part of the defendant in error, “ to quash the writ of error liere^ in1 and dismiss the proceedings from this court for the following reasons: 1. Wo writ of error lies in a chancery cause from the District Courts to tho Supreme Court of Wisconsin Territory, but an appeal alone lies.”

In support and resistance of this motion, many authorities have been referred to. Is it truj, that a writ of error does not lie from this court to the District Courts in chancery causes? For, if that be true in law, then the writ was improvidently awarded, and would have to be quashed.

By the 9th sec. of tho act establishing the Territorial government of Wisconsin, the judicial power of the Territory is vested in a supreme court, district courts, probate courts, and injustices of the peace.” “And the said supreme and district courts, respectively, shall possess chancery as weil as common law jurisdic*tion.” “And writs of error, bilis of exceptions, and appeals in chancery causes, shall be allowed in all causes, from the final decisions of tho said district coutts to the supreme court, under such regulations as may be prescribed by law, but in no case removed to the supreme court,shall a trial by jury be allowed in said court.” So far, therefore, as this act of Congress, commonly called the organic law (and which is to us as a constitution,) is concerned, it is very plain, that the mode provided for taking cases in chancery from tho District Courts to the Supreme Court, is by appeal, and in no other way.

The Legislature of the Territory, as will be seen on page 295 of the Statutes of Wisconsin, sec. 101, has prescribed the regulations, as they were required by the organic law to do, in which it is provided, that “ when any person, being complainant or defendant, shall think himself aggrieved by ills decree or final order of a district court sitting as a court of chancery, such person may enter an appeal within thirty days to tho supreme court, from such decree or final order, on giving bond with good security, in such sumjas the judge of the district court shall order, conditioned to pay, satisfy and perform tho decree or final order of the supreme court, and all costs, in case die decree or final order of the district court shall be affirmed; and if the decree or final order of the district court shall be confirmed, the supreme court may award such dam»" ages against the appellant as they may think proper, not exceed1 ing twenty-five per cent, on the amount of the money, or othei? subject matter of such decree.” Thus it will be perceived, that the legislature, in prescribing the regulations for an appeal, have made them peculiar, differing altogether from the regulations prescribed for taking up by writ of error, its appropriate and undisputed subjects. Parsons, C. J. in 4 Mass. Rep. page 178, in disposing of a similar question, says, in speaking of an appeal, it is less expensive and more convenient than a writ of error, and further relief may be granted on an appeal than can be on a writ of error. On an appeal, the cause of error may be removed by amendment; mistakes in fact on the merits, maybe corrected; neither of which can be done on error; and at the same time, an erroneous judgment below may be amended by the court having appellate jurisdiction. The statute in giving an appeal, has, in our opinion, taken away, by reasonable implication, the remedy by error, unless in cases where the aggrieved party, without any laches on his part could not avail himself of an appeal. But if it appears on the record that the plaintiff in error might have appealed, the court will, ex officio, quash the writ; or the court will quash it on a plea of abatement, disclosing the plaintiff’s remedy by appeal. In this case, it appears on the record, that the plaintiff in error might have sought his remedy by an appeal to the common pleas, lie cannot come to this court per saltum, but he ought to have appealed, and if dissatisfied with the judgment of the common pleas, he might then have sued out his writ of error.”

In the examination of the case at bar, it not only appears that the plaintiffs in error might have appealed by the provisions of the statute, but that they did pray an appeal from the District Court, which was granted to them, and why they abandoned that clear and undisputed remedy, for one so questionable, this court cannot even conjecture.

Parsons, C. J. in 6 Mass. Rep. page 5, reiterates the same opinion. See also, 2 Wheat. Rep. 132.

It would be difficult to conceive upon what ground, under the peculiar statutory provisions as contained in the organic law and the act of the legislature of the Territory, the idea of bringing the cause here on writ of error rested, unless it was supposed, that there was something in the very nature of a writ of error which bid defiance to, and rode down all legislative provisions; but in-astnuch as we cannot recognize in it any such quality, but on the contrary, declare it as fully a subject of legislation as appeal is, we must hold it equally liable to legislation. The statutes, as we have already 'seen, provide an appeal, and an appeal only, as the proper remedy for the party aggrieved, and to which we must hold the plaintiffs in error as the only proper remedy. It is therefore considered, that the writ of error was improvidently sued out, and that the same be quashed.

Eastitaw, for plaintiffs in error.

Duns, for defendant in error.