Johnson v. Thaxter

73 Mass. 242

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1856
• Status: Published

Opinion

Thomas, J.

1. The general rule is, that an erroneous domestic judgment can be avoided only by a writ of error. But the rule does not apply to third parties, to whom the judgment is prejudicial, and who, not being privy in estate, cannot maintain a writ of error. Such parties may impeach the judgment by plea and proof. Not being able to reverse, they may avoid it. Downs v. Fuller, 2 Met. 135. Leonard v. Bryant, 11 Met. 370, and 2 Cush. 32.

2. Can the assignee of an insolvent debtor bring a writ of error to reverse a judgment against his insolvent ? By force oi the assignment, the assignee stands in the place of the debtor, as to all property and rights of property belonging to the debtor, and may claim such property and enforce such rights, in the same manner and to the same extent that the debtor himself might have done at the time of the first publication of notice of the issuing of the warrant. The St. of 1838, c. 163, § 5, declares that such assignment shall vest in the assignees all the property, both real and personal, which the debtor could by any means have lawfully sold, assigned or conveyed, or which might have been taken in execution on a judgment against him, and all his rights of action for any goods or estate, real or personal; and that the assignees shall have the like remedy to recover all the said estate in their own names, as the debtor might have had, if no such assignment had-been made.

The demandant could therefore as assignee bring his writ of error. That is his only remedy. He cannot avoid by plea and proof. Demandant nonsuit,