Dawson v. Daniel

7 F. Cas. 213, 2 Flip. 301

• Court: U.S. Circuit Court for the District of Western Tennessee
• Decided: November 15, 1878
• Status: Published

Opinion

HAMMOND, District Judge.

This is a motion to set aside a judgment by default taken last term but continued over by this motion till now. Judgments by default will not be set aside, unless the defendant can show that he was guilty of no negligence in suffering the judgment and has a meritorious defense. Otherwise, the process of the court requiring parties to appear and answer suit goes for naught, and the court is the victim of the caprices of parties. Freem. Judgm. §§ 102, 10S, 541; Memphis & O. R. Co. v. Dowd, 9 Heist. 179; Chester v. Apperson, 4 Heist. 639.

The judgments of other states are conclusive when sued on here, and this court cannot look to the merits for any purpose, not even where it may have been on an illegal contract Hunt v. Lyle, 8 Yerg. 142; Freem. Judgm. §§ 433, 573, 576; Earthman v. Jones, 2 Yerg. 484.

The only merits insisted on here is that a writ of error has been prosecuted in New York to the judgment, and it is said, Dawson being insolvent, this court will exercise a discretion and stay further proceedings to await the result of the writ of error.

It is conceded that the writ of error, as taken, does not supersede execution, but it is insisted this court has discretion, notwithstanding, to stay proceedings. If bail bond had been given in New York the judgment there would have been superseded. Code N. Y. 1871, §§ 335, 348.

In England, a suit upon a judgment was not favored for the reason that it was vexatious, inasmuch as the plaintiff could have his execution on the original judgment. Entwistle v. Shepherd, 2 Term R. 78. Yet, the right of suit was undeniable, and this notwithstanding a writ of error was pending. 7 Vin. Abr. 351, 352; 20 Vin. Abr. 67; 110 E. C. L. 11. It is obvious the rule of disfavor to such suits in England does not apply to suits on foreign judgments or to suits from other states in this country. Where a writ of error has been sued out and bail bond given, it operates as a supersedeas in England, as it does here and in New York. In those cases only, so far as I can find, did the court ever stay proceedings in a suit upon the judgment, where bail had been put in and ii. fa. was stayed. It was in the discretion of the court to do this or not, and it was generally controlled by the fact, whether the writ of error was for delay or not. If it was a litigated case, the court looked with disfavor on the second suit. If it ivas a writ of error for delay merely, the court would favor the second suit and not stay proceedings. The rule to stay proceedings could not be had till bail was put in, which shows conclusively that the proceedings would not be stayed, unless the execution had been superseded and the plaintiff was protected against delay by bond. 3 Bac. Abr. 356 ; 9 Bac. Abr. 284; Meriton v. Stevens, Willes, 277; Entwistle v. Shepherd, 2 Term R. 78; Christie v. Richardson, 3 Term R. 78; Pool v. Charnock, Id. 79; Benwell v. Blank, Id. 643; Smith v. Shepherd, 5 Term R. 9; Bicknell v. Langstaff, 6 Term R. 455. The American rule is the same, and it is a just rule; it is the logical result of the requirement that we shall treat the judgments of another state as conclusive. But if the plaintiff can get no execution there, by reason of a supersedeas, the court here may well be asked to stay proceedings, unless it appears to have been a useless and vexatious appeal or writ of error, in which case the stay might be refused. Taylor v. Shew, 39 Cal. 536, and other cases cited; Freem. Judgm. §§ 433, 576, 602; Suydam v. Hoyt, 1 Dutch. [25 N. J. Law] 232.

Motion denied.