Groshon v. Thomas

20 Md. 234, 1863 Md. LEXIS 45

Opinion

Bartol, J.,

delivered the opinion of this Court:

The appellee recovered a judgment in the Superior Court of Baltimore City, on the 14th day of September 1858, against McPherson and Thomas, and having caused fieri facias thereon to he issued to the sheriff of Baltimore City, which was duly returned “nulla tona,” thereupon sued out a writ of attachment, by way of execution, directed to the sheriff of Frederick County, which on the 17th day of November 1858, was laid in the hands of the appellant Groshon, who was summoned as garnishee of McPherson and Thomas. On the return of the attachment, the garnishee appeared by counsel, who interposed a claim and plea, alleging that the rights and credits attached in the hands of Groshon, were not the rights and credits of McPherson and Thomas, but were the rights and credits of Bradley T, Johnson who claimed the same as belonging to him.

Afterwards the garnishee being required by the Court to answer tho writ of attachment pleaded nulla hona^ upon which issue was joined, and verdict and judgment of condemnation was rendered against the garnishee.

In the course of the trial eleven hills of exception wer# taken by the appellant, all of which have been fully argued in this Court, (except the eighth, which was abandoned.) In disposing of this appeal however, it will not be necessary for this-Court to pass upon all the exceptions seriatim as they are presented. Several of them were taken to the refusal of the Court to allow parol testimony to he given of facts evidenced hy written papers. But inasmuch as the written papers were afterwards produced during the trial, and are embodied in subsequent bills of exception, it is not material to decide whether the parol evidence offered in the 1st, 2nd, 3rd and 4th bills of exception was or was not properly rejected. Nor is it necessary to express any opinion upon the question presented by the 5th bill of exceptions as the evidence therein contained, to the rejection of which that exception was taken, was afterwards introduced.

The sixth exception was taken to the exclusion of the testimony of John H. T. McPherson, on the ground of incompetency by reason oí interest, he being one of the defendants in the attachment. In arguing this exception two questions have been presented, first, whether the witness was competent; and second, whether conceding him to be incompetent, the objection had not been waived; on the first of these questions it is unnecessary to express any opinion, because it is clear that in this case the objection to the competency of the witness was not made in time. He had been sworn and his testimony offered in the first four bills of exception, without any objection to his competency, the plaintiff contenting himself with making objection to the testimony offered on other grounds, but stating in the very words of the exception that the witness was “competent.” The authorities are clear and explicit in declaring that such objection must be made, as soon as the disqualification appears. Dent vs. Hancock, 5 Gill, 120, 127. Baugher’s Ex’rs vs. Duphon, et al., 9 Gill, 325. Andre vs. Bodman, 13 Md. Rep., 241. 1 Greenlf’s Ev., secs. 421, 422. We think, therefore, there was error in the ruling of the Circnit Court in the sixth exception.

The main question, however, which underlies the whole case, and upon the decision of which its determination depends, is presented in the 9th, 10th and 11th bills of exception. This question is the operation and effect of the judgment offered in evidence by the appellee, which is relied on by him as conclusive to establish,, the indebtedness of Groshon to McPherson and Thomas at the time the attachment was laid; and as sufficient to exclude all testimony offered by the appellant, either oral or in writing, to show that any other person except the plaintiff, in the record, in whose favor that judgment was rendered, was entitled to claim the fund due thereon. In order to understand how this question arises, wo shall advert to the facts as disclosed at the trial.

To maintain the issue on the part of the plaintiffs below, evidence was given that the garnishee bad admitted after the service of the attachment, that he had been indebted to McPherson and Thomas in the sum of 87090, for which he had executed and delivered his several promissory notes; that part of the notes to the amount of 03700, had been assigned by McPherson and Thomas to Ur. Tyler, and that the remainder of said notes to the amount of 03300 went to McPherson and Thomas, and wore, be believed, the notes now claimed by Mr. Johnson, and that it was one or two of the last mentioned notes which were in controversy in this cause. The plaintiff also gave in evidence the papers and docket entries In a suit instituted in the Circuit Court of Frederick County, by McPherson and Thomas against George S. Groshon; the suit was instituted on the 5th day of February 1858, upon two promissory notes, caca dated the 26th of May 1857, one for 0300 at four months, and the other for 01000 at eight months, and the judgment thereon rendered on the 19th of October 1858, in favor of McPherson and Thomas, and was afterwards, on the 12th of February 1859, entered by order of the plaintiffs’ attor ney, for the use of Bradley T. Johnson; and for the amount of that judgment as of the rights and credits of McPherson and Thomas in the hands of Groshon, the plaintiff in this case sought and obtained a judgment of condemnation.

The garnishee to show that the two notes upon which the suit had been brought and judgment recovered against Groshon, were not the property, rights and credits of McPherson and Thomas, but really belonged to Bradley T. Johnson, offered in evidence a written agreement made between McPherson and Thomas and Johnson, on the 5th day of September 1857, wherein it is recited, that Johnson then held and had held since the 27th day of May 1857, those notes as assignee thereof, to indemnify himself and other creditors for payments and suretyship on account of the firm of McPherson and Thomas, and for other uses and purposes declared in the agreement; and also offered to prove by a competent witness, “that the notes set forth in the eighth bill of exceptions and upon which the judgment set forth in said bill of exceptions was passed and rendered, had been passed by endorsement in blank in the proper hand writing of the said firm of McPherson and Thomas, and by them delivered over to Bradley T, Johnson in the month of June 1857, for a valuable consideration, and for the purposes declared in the memorandum of agreement, set forth in the eighth bill of exception; that said endorsements clearly appear upon the back of said notes though crossed out with pen and ink; that such erasure was without the knowledge of said firm; that said firm had no claim to or property in said notes or either of them from June 1857 to the present time, and that the same always continued in the possession of the said Bradley T. Johnson, and they never claimed title or property in or to the said judgment rendered thereon as aforesaid; and that the contract made between the said Johnson and the said McPherson and Thomas in June 1857, and which is further evidenced by the memorandum aforesaid, remained and continued unchanged and unim paired between the said parties to the present date, no other arrangement having been made between the said McPherson and Thomas, and the said Johnson at any time subsequent to June 1857.” This testimony was objected to and excluded by the Circuit Court.

It has been contended by the appellee, in the argument, that this evidence, on the part of the appellants, was altogether-inadmissible for the purpose stated. That the judgment rendered on the 19th day of October 1858, is absolutely conclusive to establish the indebtedness of the garnishee (who was the defendant therein) to McPherson and Thomas, who were the plaintiffs on the record, and that no evidence can be received to impeach or contradict the same, and in support of this view two grounds are taken: 1st, that Groshon is estopped by the judgment from denying his debt to McPherson and Thomas thereby established; and 2nd, because the judgment being rendered by a Court of competent jurisdiction imports absolute verity, and cannot be contradicted or impeached by evidence aliunde.

In Powles vs. Dilley, 9 Gill, 241, and in Ranoul vs. Griffle, 3 Md. Rep., 54, the general principle is recognized “that a judgment of a Court of competent jurisdiction, when coming incidently in question or offered as evidence of title in any Court, is conclusive upon the question decided, and cannot be impeached on the ground of informality in the proceedings, or error or mistake of the Court, in the matter which has been adjudicated.” In the language of Lord Golee, (1 Inst., 260 a.) “The rolls being the records or memorials of the judges of the Courts of record, import in them such incontrollable credit and verity, as they admit no averment, plea or process to the contrary.” The question here is, whether the evidence offered is inadmissible under the rule first stated, as tending to impeach or contradict a fact which is conclusively established by the record. If so, it must be either because Groshon being a party to that judgment is thereby estopped from sitting up the fact he is attempting to prove; or, because the fact in question is finally and conclusively established by the record, and cannot be brought into question.

1st. There is no estoppel in the case: estoppels are mutual and cannot be insisted on by any one who is not himself bound thereby. (See 1 Greenlf’s Ev., secs. 524, 528.) Here the appellee was not a party to the record offered in evidence, and not being concluded by it himself, cannot rely upon it as a technical' estoppel upon the appellant.

2nd. Is the fact sought to be proved conclusively established by the record ? The particular fact in issue before the jury was, to whom did the money for which the judgment was recovered, actually belong at the time the attachment was laid, or who was beneficially entitled thereto. How is this fact conclusively established by the record, or how is it any inqieachment of the record to offer proof of this distinct collateral fact, not contradicting, but entirely consistent with, the judgment? The defendant could not deny the debt as established by the judgment, and in a proceeding at law on the judgment, as between himself and McPherson and Thomas, he would be estopped from denying their legal right to enforce its payment. But that is not inconsistent with the allegation now made in this case, where the judgment is introduced collaterally as evidence that some other person claiming under McPherson and Thomas, by assignment made either before or after the judgment, is beneficially entitled to claim the money. As we have said, this is a distinct collateral fact consistent with the judgment. Let us test this by the case before us: The payees of a promissory note bring an action thereon, against the drawer, there being no endorsement on the note showing that any other person is legally entitled to it; or the endorsement being erased, the defendant confessed judgment thereon. It afterwards appears that by a contract or assignment made between the plaintiffs and a third person, who is not a party to the record, that the equitable or beneficial right to the money secured by the note is in such third person. There is nothing either in reason or In law to preclude such third person from establishing the fact of the assignment. It is entirely consistent with the judgment, and may be shewn by proof, in the same manner as payment or satisfaction of the payment may be proved.

(Decided Oct. 30th, 1863.)

The rights of cestuÁs que trust, claiming the beneficial title to judgments, have been often recognized and protected in Courts of law.

See Green vs. Johnson, 3 G. & J., 393. Owings & Piet vs, Law, 5 G. & J., 145. Wallis, et al. vs. Dilley, et al., 7 Md. Rep., 250. Shriner vs. Lamborn, use of Smith, 12 Md. Rep., 175.

It follows from what has been said, that in the opinion of this Court, the evidence offered by the appellant in the ninth bill of exceptions ought to have been admitted, and that the Circuit Court erred in giving to the jury the instruction contained in the IQlh bill of exception.

The record of the judgment did not preclude tbe appellant from showing by competent evidence, that the money due thereon in fact belonged to some other person than the plaintiffs named in the record, claiming under them by assignment.

That question ought to have been submitted to the jury upon the evidence, and to that end it would he proper to grant tbe instruction asked for by the appellant in the 11th bill of exception.

Judgment reversed, and procedendo atoarded.