Laighton v. Lord

29 N.H. 237

• Court: Superior Court of New Hampshire
• Decided: December 15, 1854
• Status: Published

Opinion

Woods, J.

This was an application to the court of common pleas of this county, for the correction of an alleged error in its records. It is alleged that it is an error effected by the fraud of the defendant, injuriously affecting the rights of the petitioner. We need not stop to inquire, in this case, whether if there be such error in the record as the petitioner alleges^ it is a case requiring the favorable exercise of the discretion of the common pleas, in order to protect his rights, or whether he may not safely be left to pursue his remedies by an impeachment of the judgment of Lord v. Kinnear, collaterally, it being a judgment to which the plaintiff is not a party. There is a motion by the defendant as well as by the petitioner, for an amendment, if the justice of the case demands it. The exercise of the discretion of the court, in making a proper amendment, is invoked by both parties. No doubt exists of the power of the court, to amend its own records, where an error has arisen from the omission or misprision of an officer of the court, and it has been decided that it is indifferent whether that officer be the clerk or an attorney of the court. Close v. Gillespy 3 Johns. 526.

Aside from all technical questions, wé propose looking into the facts of this case, to learn whether it is one calling upon the common pleas to interpose an exercise of its power in the correction of the record, for the advancement of the ends of justice in the case in question. There would seem to be no doubt that the defendant, Lord, had a just claim against Kinnear for a greater amount than that for which judgment was finally taken, and that he brought an action for the recovery thereof, intending to cover his whole claim; but that through some mistake or misapprehension at the time, as to its amount, the counts in his declaration were insufficient to, embrace the whole of it, and the ad damnum stated in the writ was not equal to it in amount.

At the term of the court when the action was entered, upon discovery of these facts, and to enable Lord to obtain a proper and valid judgment against Kinnear for the whole amount due him, Lord and Kinnear entered into an agreement for an amendment of the writ and declaration, by the increase of the ad damnum from $2,000 to the sum of $2,900, and by inserting a count in the writ for $1,500, for money had and received, instead of $700, as it stood originally in the declaration.

According to the admissions in the written agreement, amendments were drawn in conformity with the agreement of the parties. The finding of the commissioner, in the report sent up to us, shows only that amendments were drawn which were signed by Lord and Kinnear. And it is apparent that the writings thus signed were only agreements for amendments, but not amendments in fact. And the letter of the clerk shows that there was no amendment, in fact, made, of the ad damnum, enlarging it, and so does the copy of the original writ filed in the ease. We learn from the case, therefore, that the only amendment in fact made was that by the insertion of the new count for money had and received in the declaration. But if it be proper to take the . admissions of counsel in argument, instead of the facts reported in the case to be true, we think it will not vary the result.

As between the parties to the judgment, it cannot be doubted that it was both competent and proper to make all the agreements and amendments stated and found by the case. An enlargement of the cause of action set forth in the declaration, or of the ad damnum in the writ, would constitute no vice or error in the record, of which either party to the record and the agreements could in any event avail himself. But Laighton, the party who complains of the alleged wrong of Lord, and asks the aid of the court, was no party to the agreements of Lord and Kinnear. And the agreements and amendments had the effect, if carried out, to enlarge the claims of Lord, embraced in his suit, by the introduction of a new cause of action into it, for which he had no right of recovery, as his action originally stood in court. And it was intended to cover claims accidentally, but nevertheless, in fact, omitted to be inserted in the suit at its commencement. The goods and estate of Kinnear were attached in the action of Lord against him, and also, subsequently, in another action in favor of the petitioner against Kinnear, and subject to Lord’s prior attachment. This order of attachment gave to Lord a priority of right over Laighton to the goods attached, to the amount of the damages justly due him, upon the claims embraced in his writ and the costs of the action, and no more. Moreover, as against Laighton and any other subsequent attaching creditor, he had a further right to make any amendment not inconsistent with his original cause of action, and not changing or enlarging it.

But Lord had no right to change or enlarge his grounds of action, to the prejudice of subsequent attaching creditors. This is well settled. Any such amendment to the prejudice of the rights of such creditors, will operate to dissolve the attachment of the prior creditor as against them, and in that way furnish the remedy for the wrong done. So also it will discharge bail. Bean v. Parker & a., 17 Mass. Rep. 591. In Willis v. Crooker, 1 Pick. 204, 5,6, it is said by the court that “ after an attachment or holding to bail, the plaintiff cannot alter his writ to the injury of a subsequently attaching creditor or bail. The subsequently attaching creditor has a vested right to the excess beyond the amount of the judgment to be rendered upon the writ of the first attaching creditor, as it was when served. So bail are not to be made liable for a greater sum than was included in the writ, at the time when they entered into the bail bond.” And we find the doctrine there stated to be in accordance with the well settled rule upon this subject. Adams Bank v. Anthony, 18 Pick. 238.

But an amendment changing the form of the action or substituting or adding a new count, will not discharge bail, nor the bailee of goods attached, from his responsibility, provided the action be still for the same demand. Miller v. Clark & a., 8 Pick. 412; Ball v. Clafflin, 5 Pick. 303; Wright v. Brownell, 3 Vermont Rep. 435. The obligation of bail and receipters is to be regarded as entered into with a full understanding of the existence of the right, on the part of plaintiffs, to amend, and of the power and duty of the court to allow the exercise of that right in all proper cases. And it is clear that neither bail nor bailees of property attached nor subsequent attaching creditors have any right, in law or justice, to complain, when the amendment made does not, in fact, prejudice their rights by increasing the responsibility of bail or receipters, or tend to diminish the surplus property to which such subsequent attaching creditor may be entitled, according to the conditions of the action, at the time of the service of the writ.

In Seely v. Brown, 14 Pick. 177, it was decided that an amendment of a declaration embracing a new demand will not discharge bail, provided the judgment in the action be rendered only on the demand originally embraced in it. In that action the exact ground upon which the defendant rested his defence was, that the amendment allowed by the court introduced into the declaration a new and additional ground of action. The court there say : “ Now if the amendment might embrace a new demand, yet, as judgment was rendered on the original demand only, the bail are not liable but to that extent, and cannot, therefore, be injured by the amendment. To hold the bail discharged, under these circumstances, •would be going quite too far, and beyond any of the decisions cited by the defendant’s counsel, which have gone far enough in limiting the privilege of amendment, and ought not to be extended.” It was further remarked that, “ in Hill v. Hunnewell, 1 Pick. 192, it was decided that in an action where an attachment had been made, and that action and all demands had been referred to arbitration, and judgment had been thereon recovered, the mere fact of entering into such a reference dissolved the attachment, and that it would likewise discharge bail, for otherwise subsequently attaching creditors and bail might be injured; but if it had been shown, in that ease, that no new demand had been admitted by the referees, then the subsequent attaching creditors could not have been injured, and the reason of the decision would have failed, and the plaintiff would have been allowed, in that case, to show that no new demand had been proved before the referees, nor allowed by them.” This latter view is confirmed by note (2) of the reporter, appended to the report of the case of Willis v. Crooker, before cited, where it is said that the burden of proof lay on the plaintiff to show that nothing was added to the amount of the judgment in consequence of adding the new counts.

The cause having come up a second time for consideration, the court said “ that they were satisfied with the correctness of their former opinion ; that it was intimated by the defendant’s counsel, at the former argument, that something had been added to the amount of the judgment, in consequence of filing the new counts; but that whether the fact appeared or not was immaterial, as the burden of proof lay on the other party.” We regard the doctrine laid down in the case of Seely v. Brown, and the reporter’s note above referred to, as being in strict accordance with the principles of the well settled decisions upon this subject, and as carrying them out only to their legitimate results. The ground upon which bail is discharged, or an attachment is dissolved, as against a subsequent attaching creditor, by reason of any alteration or amendment of theprocess, is the injury resulting to the vested rights of such parties. And it is but just that when an amendment is made, the burden of proof should be thrown upon the party making it, to show that no such injury has resulted from it. And it is equally just and reasonable that, after final judgment, the plaintiff should be allowed to show that the judgment embraces nothing more and no greater amount than he was entitled to recover against the defendant, at the time of the service of the process, and with the aid of such amendments as by law he was entitled to make.

A proper application of these principles will determine whether the amendments made in the present case dissolved the attachment made in the service of the plaintiff’s writ. In the place and stead of the original second count, which was a count for money had and received, for $700, was substituted a count for $1500, for money had and received. This general count for $700 was designed, originally, to cover all the claims of Lord against Kinnear, which were of a character proper to be given in evidence, under such a count. These claims, it is to be inferred from the case, were found to be of a greater amount than $700, and for that cause the amendment was made. This general mode of declaring is so generally in use, and has been for such length of time recognized as legitimate in practice, that it is now quite too late to take exception to it. And it is the right of the plaintiff to give in evidence, under the various general counts, all such claims as he may possess at the time, which are proper, and which were intended to be embraced therein, to the extent of the claim made by the counts. And all receipted and bail must be understood as assuming responsibilities with reference to this state of the law, and the rights of subsequent attaching creditors must be subject to this right of prior attaching creditor. It appears, in the present case, that it was the design of Lord to embrace under the counts in his declaration the whole amount of Kinnear’s indebtedness to him at the date of the suit, but by mistake he failed to declare for enough. Lord finally took judgment for an amount less than the whole amount originally claimed in the declaration. And it appears manifest that he did not take judgment for any more or other demands than were originally embraced by his declaration. The simple fact of the making of the amendments, then, would not defeat the plaintiff’s right to the goods attached, according to the doctrine of the cases cited. But we understand the petitioner’s complaint to go further, and to allege that Lord caused a judgment to be entered up in his favor, for a larger amount than the whole sum embraced originally in his declaration, and that he afterwards fraudulently and unjustifiably altered the judgment by reducing it to a smaller sum. That a memorandum was made upon the back of the writ, of an amount of debt for which the plaintiff purposed taking judgment, is quite probable, as well as that a like memorandum was entered upon the waste docket of the term at which the action was entered, and the judgment was finally taken. Execution was also issued, embracing a like amount of debt, and the same was placed in the hands of the offi-' cer who served the writ, for the purpose of being levied and satisfied out of the property attached. The officer, however, refused to levy the execution, for the reason that it required him to levy to a greater amount than the sum he was ordered in the original writ to attach, to secure the amount sought to be recovered thereon. The attorney of the petitioner also directed the officer to forbear levying the execution of Lord v. Kinnear on the property attached, and agreed that Laighton should indemify him for so doing, and placed in his hands the execution of Laighton v. Kinnear. While this state of things existed, the clerk of the court who had issued the execution of Lord v. Kinnear, wrote the attorney of Lord, informing him that the execution then in the hands of the officer, in favor of Lord, had issued improvidently, and directing its return; and informing him that Lord could not have judgment for more than the ad damnum in his writ. And the writ shows the ad damnum never to have been altered or amended, in point of fact.

In this state of the case, the execution was taken from Towle, the officer, and returned to the clerk, and the clerk thereupon made out and issued an execution for a sum corresponding with the amount of damages and costs for which judgment was finally entered. It is to be remembered, also, that the action of Lord v. Kinnear was not answered to, but was defaulted. In that state of the case, the plaintiff;’ was not obliged to enter up a judgment for any sum beyond what it was fit and proper, and for his interest to do. In short, he had a right to pursue such a course, in taking judgment, as was found to be in conformity, and consistent with, and not detrimental to the rights of the defendant; and notwithstanding the mere fact of the amendment made, enlarging his right to a judgment as against the defendant in the action, he was, nevertheless, in no wise bound to take judgment for a larger sum than he was originally entitled to, as against the defendant in the action ; and, we think, not as against the petitioner and subsequent attaching creditors. Under the amendment, he might or might not take a larger judgment, as against the defendant; and, as against him or the petitioner, he was not compelled so to do, by reason of the amendments alone. If in a defaulted action a party through accident, or mistake, or some misapprehension as to his rights, may have filed his papers and obtained a judgment, and at any time before the attachment may be dissolved by lapse of time, may have discovered the error, we are of the opinion that the same may be corrected in conformity with his rights, and the justice of the case, and judgment be entered accordingly. The matter is in the hands of the plaintiff, and so long as he does no injustice to the defendant, and nothing inconsistent with his rights, he may direct its disposition. He is not to be compelled to jeopardize his entire rights by an omission to correct a manifest error with reference to the amount of the judgment entered through mistake or misapprehension, in a case where no one is injured by such correction. No judgment debtor, who has been defaulted, could properly complain that a judgment once entered up for too large a sum, upon which execution had been issued, but not satisfied, should be reduced to the sum for which the plaintiff was entitled to judgment, and the entry thereof corrected accordingly, and a new execution issued thereon. No court would regard such an alteration of the record as being ‘of a character to require its interposition, for the purpose of its correction, by an order for an amendment enlarging the sum to the amount of the judgment, as it was originally erroneously entered. Nor is the claim of a subsequent attaching creditor for a similar amendment or alteration founded in any greater equity, or of a higher character than when made by the debtor himself.

Upon the facts of this case, we are of the opinion that the alteration of the record was entirely proper, and justified by the circumstances attending it. Here is no evidence that warrants the conclusion that the record as originally made up, so far as the same was done, was accompanied with any intent, on the part of Lord, to defraud Laighton.

All the papers that were filed in the case, were placed in the hands of the counsel for Laighton, for his and his client’s inspection and approval, and as no objection was stated on the return of the papers, but the counsel of Lord was told he might take out his execution, it might well be inferred that no objection was discovered, or none was intended to be insisted upon. And when we consider that afterwards, when it was found that Laighton did object to the enlargement of Lord’s claim, by way of the amendment made, the only alternative left for Lord was to restore his claim to its original amount, and take judgment and issue execution therefor, or jeopardize his entire debt, we think the course pursued by him was justifiable. It is entirely probable, that if the objection had been made upon the return of the papers to Lord’s counsel, which was finally stated to the officer, that the judgment would have been entered originally for the sum only to which he had a right, as against Laighton. And we are fully of the opinion that neither justice, law, nor the strict rights of the parties re-' quire that we should hold him forever barred of the right to enter up a judgment for that sum, by the mere fact that a judgment had been entered up for too large a sum, under the circumstances of this case. And if, as we think, the judgment was properly entered finally, according to the strict right of Lord, it is plain that there would be no propriety in an order of the court of common pleas directing such an amendment of the record as the petitioner desires.

In this view of the case, we need not determine a question which might otherwise very properly be considered, namely; whether the common pleas can be properly called upon to correct the record of a judgment between Lord and Kinnear, upon a petition to which Kinnear is in no wise made a party, and that, too, where, as between the parties litigant, it may well be questioned whether the judgment may not be impeached, collaterally, and every objection taken to it, of which the proper evidence might show the existence.

We are all clearly of the opinion that the prayer of the petition in this case must be denied, and the

Petition be dismissed.