A bill in chancery will not lie for the purpose of perpetually
enjoining a judgment upon the ground that there was a false return
in serving process upon one of the defendants. Redress must be
sought in the court which gave the judgment or in an action against
the marshal.
Moreover, the defendant in this case, by his actions, waived all
benefit which he might have derived from the false return, and no
defense was made on the trial at law impeaching the correctness of
the cause of action sued on, and in such a case, resort cannot be
had to equity to supply the omission.
The facts in the case are set forth in the opinion of the
Court.
MR. JUSTICE CATRON delivered the opinion of the Court.
William F. Walker, Samuel M. Puckett, and John Lang filed their
bill against Robbins and others praying a perpetual injunction
against a judgment at law recovered in the Circuit Court of the
Mississippi District, alleging, among other grounds of relief, that
William F. Walker, one of the complainants, was not served with
notice to appear and defend the suit at law.
The deputy marshal returned the original writ, "Executed on
William F. Walker, 6 April, 1840, personally." More than ten years
afterwards, the deposition of the deputy Cook was taken in Texas,
when he testified that his return was false; that he did not notify
Walker, but endorsed the writ executed, intending to execute it
after the endorsement was made, and therefore he let it stand,
although he never did notify Walker.
Assuming the fact to be that Walker was not served with process,
and that the marshal's return is false, can the bill in this event
be maintained? The respondents did no act that can connect them
with the false return; it was the sole act of the marshal, through
his deputy, for which he was responsible to the complainant Walker
for any damages that were sustained by him in consequence of the
false return. This is free from controversy; still the marshal's
responsibility does not settle the question made by the bill, which
is, in general terms, whether a court of equity has jurisdiction to
regulate proceedings, and to afford relief at law, where there has
been abuse, in the various details arising on execution of process,
original,
Page 55 U. S. 585
mesne, and final. If a court of chancery can be called on to
correct one abuse, so it may be to correct another, and in effect
to vacate judgments, where the tribunal rendering the same would
refuse relief, either on motion or on a proceeding by
audita
querela, where this mode of redress is in use.
In cases of false returns affecting the defendant, where the
plaintiff at law is not in fault, redress can only be had in the
court of law where the record was made, and if relief cannot be had
there, the party injured must seek his remedy against the
marshal.
We are of the opinion, however, that the return was not false,
but if it was that Walker waived the want of notice by pleading to
the action. The suit was against Walker, Puckett and Lang. The
latter employed David Shelton as his attorney to defend the suit.
Lang told Shelton to put in pleas for all the defendants who had
been served with process. Upon examination, Shelton found that
process had been served on Walker, Lang, and Puckett, and he put in
a joint plea for them. Afterwards, Shelton, the attorney, met both
Walker and Lang in Jackson, where the court sat, and spoke to them
in each other's presence, about the defense of the case; and a
conversation was held with them, in which they promised Mr. Shelton
that another attorney, William Seiger, should be associated with
him in defending the suit. The questions likely to arise in the
case were stated by Lang and Walker, and they were especially
anxious to know from Shelton whether Mr. Shields, the principal to
the note sued on, would be competent as a witness on their behalf.
The cause was tried at a subsequent term on the issue made by the
plea put in by Shelton, and a verdict and judgment rendered.
No defense was made on the trial at law, impeaching the
consideration of the note sued on, either on the ground that Green
had not delivered the bank notes, as stipulated by him; nor on the
ground that usury entered into the transaction because the notes
were at a discount of from forty to fifty percent Neither was any
proof introduced on the hearing of this chancery suit in the
circuit court, tending to show that Green failed to deliver the
bank notes, although the respondents put the fact in issue; and as
the face of the note imported a consideration, no further evidence
to sustain it was required from the respondents.
They admit that the bank notes were at the rate of discount
stated in the bill, but insisted they were of equal value to
Shields as if they had been at par; and this the bill admits would
have been the case, had Shields received them according to his
agreement with Green; and there being no proof to the contrary,
we
Page 55 U. S. 586
must assume that they were duly received. But whether they were
duly delivered or not is immaterial. The defendants in the suit at
law had an opportunity to make their defense there, and having
failed to make it, cannot be heard in a court of equity. By way of
authority, we need only repeat as the settled rule what was
adjudged in the case of
Creath v.
Sims, 5 How. 204, that whenever a competent defense
shall have existed at law, the party who may have neglected to use
it, will never be permitted to supply the omission and set it up by
bill in chancery.
This Court has never departed from the foregoing rule, nor
allowed the circuit courts to depart from it in cases brought here.
Nor can we do so without violating the sixteenth section of the
Judiciary Act of 1789, in its true sense. Apparent aberrations may
be found, but they are only apparent.
We order that the decree below be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Mississippi, and was argued by counsel. On
consideration whereof, it is now here ordered, adjudged, and
decreed by this Court that the decree of the said circuit court in
this cause be and the same is hereby affirmed with costs.