Wakelee v. Davis

37 F. 280, 1889 U.S. App. LEXIS 2692

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: January 21, 1889
• Status: Published

Opinion

Coxe, J.,

(after stating the facts as above.) To the opinion expressed at the argument hut little need be added, as I am unable to see, after reading the elaborate briefs presented, that the status of the cause is materially altered. It will be seen that the action is upon a judgment, pure and simple,—a judgment obtained upon promissory notes in a common-law court of California. No injunction or accounting or discovery is asked. The complainant does not seek a specific performance, or to set aside the discharge, or any of the proceedings in bankruptcy, upon the ground of fraud, accident or mistake. None of the elements of equitable cognizance are here present. The demand is precisely what it would be were the action at law, namely, for 822,809, with interest and costs. Assuming that no defense is interposed, and that a decree could bo entered in such an action, it would be for this sum only, and execution would issue immediately to collect it.

It appears from the bill that the defendant has obtained a discharge in bankruptcy; and at one time, and while the petition for the discharge was pending, his counsel in open court, took the position that the judgment “still stood of record and was of full force,” and therefore that Wakelee was not in a position to oppose, the discharge. Although the counsel for Wakelee, apparently, contended for the contrary of this proposition, its soundness so impressed itself upon the court that Wakelee’s proof of debt was canceled, and his specifications in opposition to the discharge were dismissed. It would seem, although she does not say so in the bill, that the complainant is apprehensive lest the mind of the defendant may have .undergone a change upon this subject. It is quite evident that she believes that he intends to attack the judgment because the summons was not personally served, and that he expects to rely on his discharge as a defense. She seeks, therefore, to anticipate these objections by alleging that the defendant is estopped from raising them because of the proceedings in the bankruptcy court. An action upon an outlawed promissory note is not an equitable action, because the defendant has promised not to plead the statute of limitations. An action upon a common-law judgment is not a chancery action, because the defendant is not in a position to attack it or plead a discharge in bankrupty as a defense. It is generally the cause of action, and not the defense, which determines the character of the suit; and it is not easy to see why the situation is altered by allegations ancillary to and in aid of the principal cause of action. It is unnecessary now to decide whether the occurrences in the bankruptcy court do or do not amount to an estoppel, for the reason that, even if they do, the bill does not state a cause of action in equity. For aught that appears, the defendant may now entertain the same view of the law that his counsel successfully maintained in 1876. He may still think that the judgment is of binding force. Since then he has made no sign. No suit at law has been commenced against him. He has instituted no attack on the complainant’s judgment. He has interposed no defense; he has not even threatened so to do. He may not attack the judgment or rely upon his discharge. He may plead payment, want of title, or other defenses. He may not answer at all. I am unable to discover any theory upon which the complainant can invoke the aid of a court of equity upon the bill in its present form. The action is an action at law. It is no more a chancery suit than it was in California. Its character is not changed by anything alleged in the bill. The demurrer is allowed. The complainant, if she is so advised, may amend within 20 days.