Lamson v. Bradley

42 Vt. 165

Opinion

The opinion of the court was delivered by

Peck, J.

It is claimed on the part of the plaintiffs that when two or more persons are named in a writ as trustees generally, without being described as co-partners, or as jointly having in their hands or possession goods, effects or credits of the principal defendant, they cannot be properly held chargeable on account of any joint indebtedness or liability to the principal defendant, al though such joint indebtedness is disclosed or pi'oved; but that they can only be held severally for any separate individual debt that each may owe. The trustee writ in question names the two Lamsons as of the firm of E: G. Lamson & Oo. It is conceded that by the statute the default subjected each trustee to a judgment for the full amount of the recovery against the principal defendant. It is urged in support of this audita querela, that as Watson was not described in the trustee writ as one of the firm, or as having in his hands or possession, jointly with the Lamsons, goods, effects or credits of the principal defendant, there should have been one judgment rendered against the two Lamsons for the amount of the judgment against the principal defendant, and a separate judgment against Watson for the same amount. Suppose the*proposition of the plaintiffs’ counsel thus far correct, what is the legal effect ? Does the fact that the judgment is joint against the three trustees, constitute an infirmity which renders the judgment voidable by audita querela ? Each trustee, by the default, being liable for the whole, such joint judgment does not increase the liability of either. Under this joint judgment, a payment by one will operate equally to the discharge of all, the same as if separate judgments had been rendered. If we assume that the judgment should have been several and not joint, yet as each trustee by the default was liable for the same thing and to the same extent, consolidating their liability into one judgment can not prejudice the rights or increase the burden of either. The justice had jurisdiction of the subject matter, the process and the parties. The question whether the judgment should be joint against all, or several against each, was a question within the jurisdiction of the justice to decide. If he'decided erroneously, it is not a cause for vacating the judgment on audita querela ; especially as it works no wrong. A judgment may be erroneous, even to the manifest prejudice of thé party, and yet he have no remedy by audita querela. So that even.upon the view of the plaintiffs’ counsel as to the proper mode of entering the judgment, the most that can be reasonably claimed is that the judgment of the justice is technically erroneous in a harmless matter of form. But mere error in a judgment is rarely, if ever, a ground for audita querela. It is not the office of the writ of audita querela to correct errors in the judgment. The legislature, in prohibiting the reversal of a judgment of a justice of the peace by writ of error, did not intend that the more severe and destructive remedy by audita querela should take its place. For the reasons already stated, this audita querela can not be sustained.

But there is another ground for this conclusion. If any state of facts, which legally could have been proved before the justice, would justify the judgment which he rendered, it is to be pre1 sumed such facts were shown ; and hence the judgment must be taken to be correct in form as well as in substance. This presents a question of considerable practical importance : that is, whether two or more trustees summoned generally without being described as partners, or as having any particular connection with each other, can under any state of facts be made chargeable as trustees on account of a joint indebtedness or liability to the principal debtor ; or for property of the principal debtor in their joint' possession. The negativo of this proposition is maintained by the plaintiffs’ counsel upon the ground that, in order to have the attachment operate upon such joint liability, it must be particularly described as such in the writ. But why should such.be the intendment and effect ? Since the joint liability of all and of any two or more of the alleged trustees is attachable, as well as the several liability of each, the more reasonable conclusion is that the intention of the plaintiff in such case is, and that the effect should be, to attach the joint as well as the several indebtedness, since neither is more particularly mentioned or described than the other. No sufficient reason is suggested, and none occurs to us, why such strictness should be required;. especially when all the joint debtors are before the court as trustees. As to transactions between the principal defendant and the trustees, and the relations of the trustees with each other, the plaintiff can not be supposed to be particularly informed ; and to require of the plaintiff such particularity of description of the effects or credits in the hands of the.trustees, would answer no beneficial purpose, and would often defeat attachments of this kind. Nor does the form of the trustee writ given by the statute seem to require any such particularity. It simply commands the officer to summon the trustees named to appear and make disclosure of the goods, chattels, rights or credits of the principal debtor which they may have in their hands or possession. The plaintiff is not even required to declare against the trustee by alleging that he has any thing in his hands or possession belonging to the principal defendant, as was required by the old form prescribed by the act of 1797, which was in force till the Revised Statutes of 1839 went into operation. Under the present law, as said by Royce, J.,in Park et al. v. Harmon et al., trustees of Williams, 14 Vt., 211, “ the command to the trustee is simply to come into court and malee his disclosure.” The statute does not require the plaintiff to specify what goods, chattels, effects, rights or credits of the debtor he has ; but simply to summon him to appear and disclose whether ho has any, and if so, what. Therefore, when two or more are summoned as trustees according to the statute form, with nothing in the writ added to indicate in which capacity they are required to disclose, whether as to their joint, or their several liability, they are before the court in their joint as well as in their several capacity, and are chargeable for all their indebtedness to the principal debtor, joint as well as several, if all the joint debtors are before the court as trustees. Pettes v. Spalding and trustee, 21 Vt., 66, referred to, is not inconsistent with this conclusion. In that case the trustee usually resided, or spent most of his time, at Chittenango, Madison county, N. Y., where he was engaged as a partner in the firm of Rankin & Co., who carried on business at that place ; the trustee’s family residing in this state at Burlington, the trustee providing for and occasionally visiting them. The debt, which that firm owed the principal debtor, accrued in New York in the course of the business of the firm ; and neither of the other two members of the firm resided in this state. The court decided that under the circumstances, as the other partners were not before the court or named in the writ, nor the debt sought to be attached described as a partnership debt, the service on the trustee did not operate to bind the funds in the hands of the company in New York, belonging to the principal debtor. It is evident from the opinion in that case, that had the other partners resided in this state, and been summoned as trustees, Avhether described as partners or not, the fund would have been holden. This is the construction that Red field, C. J., puts upon that case in Coverly & Co. v. Braynard and trustees, 28 Vt., 738. In Knapp v. Levanway and trustee, 27 Vt., 298, Strong only was summoned as trustee, and the commissioner reported that Strong disclosed he had no effects of the principal debtor in his hands, and the commissioner so found the fact, and that Strong declined to answer before him whether the firm of Strong & Chamberlin, of'which he ivas a member, Avcro indebted to the principal debtor at the commencement of the suit; and declining to answer on the ground that he Avas summoned as trustee individually, and not as a member of any firm. It does not appear that any attempt Avas made in the county court to compel the trustee to disclose as to the indebtedness of the firm of Strong & Chamberlin. The county court decided that the plaintiff could not. recover against the principal debtor, and that, upon the report of the commissioner, the trustee Avas not chargeable. The supreme court reversed the judgment as to the principal parties, and rendered judgment for the plaintiff against the principal debtor. No question was beforo the supremo court as to the trustee’s liability on account of any debt of Strong & Chamberlin to the principal debtor, for there was no proof that there Avas any such indebtedness. The court seems to have affirmed the decision of the county court discharging the trustee, on the ground that it Avas matter of discretion with the county court whether they Avould adjudge a trustee chargeable for refusing to ansAver a question put to him by the plaintiff, and that the supreme court could not revise the decision of the county court in reference to it. Had the plaintiff in that case moved the county court to order the trustee to answer the question, and the court had decided that he was not legally bound to ansAver it, and the plaintiff had excepted to that decision, it Avould have presented the question Avhether the trustee could be chargeable in that case for a partnership debt; but as the case stood, no such question could arise in the supreme court, and no such question appears to have been decided by the court. It is true, Bennett, J., expresses his opinion that the trustee could not be held chargeable under that writ, saying, that “ it has been set- tied in this state that if an individual is summoned as trustee, the trustee process can only operate as an attachment of debts due from him as an individual, and would not reach a debt due from a firm, to the principal debtor, of which he was one of the members.” But he is speaking of cases like the one then before him, and like Pettes v. Spalding and trustee, above referred to, where the other partners or joint debtors were not named in the writ or summoned as trustees, and not of a case like this in which all the debtors are named and summoned. Coverly et al. v. Braynard and trustees, 28 Vt., 738, cited by the plaintiffs’ counsel, decides that the trustees being expressly described in the writ as partners, under the firm of C. Carpenter & Co., the plaintiff had. limited himself to effects and credits in the hands of the trustees as partners. But this can not be construed as a decision that two or more trustees, if summoned generally, can not be holden for a joint debt; as Redfield, C. J., in delivering the opinion- in that case says : “ If different trustees are summoned generally, they are made liable for all their debts to the .principal debttfr, both -joint and several, but not for partnership effects held by other partners, unless such effects are specifically described,” and cites Pettes v. Spalding and trustee already mentioned. “ Other partners” refers to partners other than those named in the writ and summoned as trustees. Under this writ it was- competent for the plaintiff to recover a joint judgment against E. G. Lamson and E. E. Lamson and Watson as trustees, if it appeared that E. G. and E. E. Lamson owed a partnership debt to the principal debtor for which Watson was jointly holden with them. As this might legally be done on proof of the existence of such a debt, it follows that, on default of the trustees, the justice might treat the default as an admission -of a joint indebtedness, as well as an admission of a several indebtedness, and render judgment accordingly against them jointly. But even if, in the absence of proof before the justice of the joint character of the liability of the trustees, the justice should have rendered several iudgments instead of a joint judgment, the result is the same ; as it is a legal intendment that the justice had the evidence necessary to warrant the judgment which he rendered, and the facts upon the merits can not be re-tried on audita querela. Upon both grounds this audita querela must fail.

The judgment of the county court is reversed and judgment for the defendant.