McCollum v. Eager - 43 U.S. 61 (1844)


U.S. Supreme Court

McCollum v. Eager, 43 U.S. 2 How. 61 61 (1844)

McCollum v. Eager

43 U.S. (2 How.) 61

Syllabus

In the Circuit Court of the United States for Louisiana, where a party seeks relief which is mainly appropriate to a chancery jurisdiction, chancery practice must be followed.

A writ of error is not the appropriate mode of bringing up, for review, a decree in chancery. It should be brought up by an appeal.

An appeal will lie only from a final decree; and not from one dissolving an injunction, where the bill itself is not dismissed.

The case was this:

On 27 July, 1838, Charles Bishop executed the following promissory note:

"Donaldsonville, 27 July, 1838"

"In all the month of May next, 1839, I promise to pay H. Williams and A. F. Rightor or order, the sum of five thousand dollars, value received."

"[Signed] CHARLES BISHOP"

Which note was endorsed to Eager, a citizen of Kentucky, by Williams and Rightor, waiving the necessity of a demand of payment on the maker and of protest for nonpayment and also of notice to themselves as the endorsers, of the nonpayment of the note.

On 17 August, 1838, John Hagan Sr., of New Orleans, conveyed to Williams and Bishop, six tracts of land for $50,000, payable in one, two, and three years, with interest, the notes for which were dated on 1 August, 1838, and endorsed by Rightor. It was made a condition of sale that, if any one of the notes should not be punctually paid, the whole of the lands should revert to Hagan.

On 26 February, 1839, Bishop sold out all his interest in the above purchase to Williams, Rightor, and Andrew McCollum.

On 3 August, 1839, the first note given by Williams and Bishop to Hagan, for $16,666.66, was protested for nonpayment.

On 18 November, 1839, Eager brought suit by filing a petition in the circuit court of the United States against Williams and Rightor as endorsers upon Bishop's note.

Page 43 U. S. 62

On 7 January, 1840, judgment was entered in favor of Eager for the amount of the note, with interest from 1 June, 1839. In March, 1840, a fi. fa. was issued, and in April levied upon one of the tracts of land above mentioned, together with some personal property.

On 16 April, 1840, Hagan filed, in the Second District Court of the State of Louisiana, a petition in the nature of a bill to foreclose a mortgage, reciting that the first note of $16,666.66, given for the purchase of the six tracts of land, remained unpaid and praying a sale of the whole of the tracts, to pay that and the other two notes of the same amount. A judgment or decree upon this petition was entered by consent, with a stay of execution until 1 January, 1841.

On 22 August, 1840, the execution in favor of Eager, which had been lying over for want of bidders, was finally carried out by a peremptory sale of the property which had been levied upon, on a credit of twelve months, when John McCollum (the plaintiff in error) became the purchaser for the sum of $5,442.41 and gave his bond with five sureties for that amount to Jenison Eager.

On 6 January, 1841, the stay of execution upon Hagan's judgment or decree having expired, an execution was issued upon it, and Hagan repurchased the six tracts of land.

On 24 July, 1841, John McCollum gave a power of attorney to B. W. Lawes to act for him in everything relating to the twelve months' bond which he had given to Eager.

On 23 August, 1841, execution was issued upon this bond against McCollum and his sureties; the writ directed the money to be made out of the personal estate, except slaves, but if sufficient personal estate, exclusive of slaves, could not be found in the district, then out of the real estate and slaves of McCollum and his sureties.

In September, 1841, Andrew McCollum, claiming to be the owner of an undivided third part of the property which had been sold by Bishop to Williams, Rightor, and himself as above stated, filed a petition in the Second District Court of Louisiana against John McCollum, averring that John was in possession of the whole of the property and praying that he might be compelled to deliver up one-third of it and pay damages for its detention.

On 20 September, 1841, Rightor intervened in the

Page 43 U. S. 63

said suit, and claimed that the marshal's sale to John McCollum might be set aside for irregularity.

On 22 September, 1841, B. W. Lawes, in virtue of the power which had been given to him by John McCollum, filed a petition in the circuit court of the United States, in the nature of a bill in equity, stating that McCollum had given his bond for the property purchased at the marshal's sale; that an execution had been issued upon it; that the sale was null and void; that Hagan had evicted McCollum; that the formalities required by law were not observed by the marshal; that Rightor had intervened and sought to annul the sale; that the consideration of the bond had utterly failed, and praying for an injunction to stop the marshal from proceeding further upon it.

On 1 October, 1841, an injunction was issued in conformity with the prayer of the petition.

On 14 February, 1842, the circuit court, Judge McKinley being absent, decreed that the injunction should be dissolved with 20 percent damages, 10 percent interest, and $300 amount of fees of counsel employed by the plaintiff.

From this decision a writ of error was sued out and the case brought up, in this way, to this Court.

Coxe moved to dismiss the case upon two grounds, viz.,

1. That the decree was not final, and

2. That the case was brought up in an improper manner.



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