Grant v. Lathrop

23 N.H. 67

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Eastman, J.

The facts of this case have required a longer statement than that of ordinary transfers, and the questions presented, have been argued at some length and with ability. But we think the decision of the case- lies within a narrow compass.

In October, 1842, the property of Beck and Bellows, to the amount of several thousand dollars, was attached, by order of his creditors, twenty in number or more, by the defendant, as deputy sheriff. Jenness, Gage & Co. were the first in the order of the attachments, and the plaintiffs’ testate the seventh. Peck and Bellows afterwards went into bankruptcy and the assignee claimed the property. In order to test his rights, it became necessary to obtain the decision of the supreme court of the United States, as to the effect of the attachments. The actions had all been entered in the common plea? and were regularly pending there in July, 1845, when the agreements were entered into; the actions having been continued at the previous March term. The first agreement provided, that steps should be taken, by having a judgment entered in the common pleas and superior court, to carry the Jenness action to the supreme court of the United States ; that the other actions should be continued in the common pleas, without costs to either party, till the Jenness one should be decided, and should abide that decision; that no execution should be issued in the Jenness action on the common pleas judgment, but that the property should be sold by the defendant and assignee, and the money deposited in the banks of Keene; and after the decision, if in favor of the creditors, that the money should be applied in satisfaction of the judgments.

The Jenness action was accordingly carried to the supreme court of the United States, and a decision had in favor of the attaching creditors. Judgments were then entered for the creditors, and the defendant applied the money in the order of the attachments.

Now the ground of the plaintiffs’ claim is this: that a judgment having been entered in the common pleas, as of March term, 1845, in the Jenness action, and no execution issued thereon within thirty days thereafter, the attachment of Jenness was lost; and that a portion of the money subsequently applied to the payment of that claim should have been applied to the satisfaction of the plaintiffs.

Were we to be governed by the record alone, the position of the plaintiffs would bo entirely correct, for the record shows the judgment to have been entered at the March term, 1845, and no execution issued, and the judgment satisfied in 1849. From this it would appear, that the attachment of Jenness and company, was dissolved, and as a necessary consequence the rights of the subsequent attaching creditors advanced.

But a writ of error was issued to the common pleas by this court and it is argued that the execution was thereby superseded. This is a matter of statute regulation in the courts of the United States, and, with certain limitations, a writ of error operates as a supersedeas of execution. But we do not think any such rule has ever prevailed in this State. By our statute, execution cannot issue until the expiration of twenty-four hours after judgment rendered. Rev. Stat., chap. 198, § 1. But we have no provision like that contained in the statutes of the United States. In New-York an execution may be taken out immediately on judgment being perfected, subject to being defeated by a writ of error, filed in four days thereafter. 7 Cowen’s Rep., 490; 1 Cowen, 15. And a writ of error within the four days supersedes the execution. The People v. Judges of N. Y. Com. Pleas, 1 Wendell’s Rep., 81. But this will not be the case where more than four days have elapsed, from the time of perfecting the judgment, unless there has been an order staying the proceedings. 7 Cowen, 418. From this it would seem that were a writ of error to issue within the twenty-four hours after judgment rendered, it might supersede the execution, but not afterwards. This court, or a judge thereof in vacation, may grant an injunction, on a proper case made, to stay the collection of an execution, either before or after the issuing of a writ of error. And the court where the judgment is, may make an order suspending the issuing of the execution. But a writ of error cannot of itself operate as a stay of execution, unlesg possibly where it issues within the twenty-four hours after judgment.

It is not however our intention to examine this point any further, as our decision does not rest upon it. It is the agreement of the parties that in our judgment is to control the case. No exception is taken to the sale of the property. That is provided for in both agreements. Nor does any doubt exist that the money was properly applied, according to the terms of the first agreement. The plaintiffs admit thus much in their argument. But inasmuch as they were not parties to the first agreement, the question arises whether, by the terms of the second agreement, to which they were parties, the defendant was authorized to apply the money in the manner in which he did.

Although parol evidence cannot be received to contradict a written contract, yet there is no principle which qorohibits a court from availing itself of all the surrounding circumstances attending a transaction, that may aid them in construing the meaning of an agreement entered into. The agreements, in this case, were in fact executed in July, 1845. The object in view was to ascertain as expeditiously and economically as possible what the decision of the supreme court of the United States would be in regard to the matter. These plantiffs’ were interested to know the decision as well as others; and these agreements were entered into for that purpose. The thirty days within which execution should issue after rendition of judgment had actually passed when the agreements were signed; and it is not to be supposed that it could then have been contemplated, by any one of the parties, that the subsequent attaching creditors were to step in and occupy the .position of Jenness, Gage & Co. Nor is it to be credited, that Jenness, Gage & Co., would be so magnanimous as to carry the question to the supreme court of the United States, for the sake of having it decided, when such a course, let the decision be what it might, must result in the loss of their debt. Before arriving at any such conclusion, we should require the fact to be shewn by unmistakable language. But we think that by a fair construction of the second agreement the defendant was justified in applying the money as he did. The agreement provides, in substance, that the actions shall be continued without costs to either party until the final decision of the Jenness action, “ and shall abide and follow the event of that action,” that the property attached in the suits specified in the first agreement may be sold, “ but without prejudice to the rights of these parties to have the avails applied upon the executions they may obtain in these suits.” The only doubt, as to the meaning of the agreement, consists in the proper construction to be given to the last phrase; and when we take that in connection with the whole transaction, we think there can be very little doubt in regard to that. It must be understood to refer to the sale of the goods, and to mean that the parties did not intend to change their rights, by virtue of the sale, but should have the same claim upon the money that they would have had upon the goods if not sold; that the executions should be satisfied in the order of the attachments made.

The partes to the second agreement were, in good faith, as much bound to have their actions abide by, and be subsequent to, that of Jenness, Gage & Co., who prosecuted their suit in the supreme court for the benefit of all concerned, as were the parties to the first agreement; and we find nothing in the second agreement which requires a different result. The additional provision that the actions might be entered neither party, might perhaps be an inducement with some, to sign the second agreement rather than the first.

We might go into an examination of other matters suggested in the argument; but it is unnecessary. The point decided goes to the foundation of the action.

Judgment on the verdict.