1. Where a writ of error is taken to this Court by a plaintiff
below, who previously to taking the writ issues execution below and
gets a partial but not a complete satisfaction on his judgment, the
writ will not, in consequence of such execution merely, be
dismissed.
2. Levy of an execution, even if made on personal property
sufficient to satisfy the execution, is not satisfaction of the
judgment, and accordingly, therefore, does not extinguish it if the
levy have been abandoned at the request of the debtor and for his
advantage, as
ex. gr. the better to enable him to find
purchasers for his property.
The United States brought suit at
common law -- "debt
on bond" -- for $20,085.74 against Major Dashiel, a paymaster in
the Army of the United States, and his sureties. Dashiel denied
every part of the demand, but claimed specially a deduction of
$13,000 from the sum sued for on the ground that while traveling in
remote regions of Florida, where he was going with the whole sum in
gold coin to pay the army, he had, without the least want of care
on his part, been robbed of about $16,000, as was proved among
other ways by the fact that a portion of the money, $3,000, easily
identified,
Page 70 U. S. 689
was discovered among negro slaves of the neighborhood and got
back.
The jury under a charge from the court made allowance for the
part of which Major Dashiel alleged that he had been robbed, and
found for the United States for a portion only of the sum claimed,
to-wit, $10,318.22. Judgment was entered accordingly. Not being
satisfied with judgment for this amount, the United States, on the
1st September, 1860, took a writ of error to this Court. Dashiel
had also excepted. On the 15th April, 1860, however -- before the
government had thus taken its writ of error --
it sued out
execution, and, Major Dashiel having waived advertisement,
levied on a large amount of real estate and
on eight
slaves. A portion of the real estate was sold June 5th, 1860,
$5,275 having been got for it. The sale was then adjourned.
The only evidence as to what led to an adjournment of the sale
appeared in a letter from the deputy marshal who superintended it
to the acting marshal, his principal, sent up in the record, which
came up on certiorari for diminution after the writ of error was
taken out. In regard to this, the record, or amended record as it
may be called, after setting out the execution, levy, and return,
thus in substance ran:
"Accompanying said return and enclosed with the execution,
whether as part of the return or explanatory of the same,
as made a part of the record, is the following letter, in words,
to-wit:"
"SAN ANTONIO, TEXAS, June 7, 1860"
"TO W. MASTERSON, ESQ.,"
"Acting United States Marshal, Austin"
"DEAR SIR: Your note of the 4th June came to hand yesterday. You
learned by my note of the 5th that I had adjourned the sale, after
the bids amounted to $5,275,
as directed by
your
note of the 2d. I now act upon your note of the 4th, received
yesterday, and return, as you directed, the execution. I think the
attorney will certainly approve of
your action in staying
the sale on the bids reaching $5,000, and I cannot but think that
he will, upon seeing the
abundance of the levy and
learning that there is
no hindrances thrown in the way of
a forced collection, but
a modest
Page 70 U. S. 690
petition for time the better to enable the defendant to
find purchasers for his property, now in the clasp of the law. The
sympathies of this community for Major Dashiel, where he
has long lived with his family,
all plead for extension of
time, if possible, to the next January Term of the honorable
district court. The interest still accruing, would the United
States be much injured by the extension?"
"Yours, respectfully,"
"S. NEWTON"
Page 70 U. S. 697
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Defendants move to dismiss the case because it appears by the
record, as they allege in the motion, that the judgment in the
court below was in favor of the plaintiffs, and that before suing
out the writ of error, they obtained satisfaction of the judgment
"by execution and sale."
1. Principal defendant had been a paymaster in the Army of the
United States, and the record shows that the suit was commenced
against him and the other defendant, as one of his sureties on the
official bond of the former, given for the faithful discharge of
his duties. Breach of the bond as assigned in the declaration was
that the principal obligor failed to pay over or account for the
sum of twenty thousand and eighty-five dollars and seventy-four
cents of the public moneys entrusted to his keeping, and for which
he and his sureties were jointly and severally liable.
2. Claim of the plaintiffs was for that sum, as shown in the
Treasury transcript, but the defendants in their answer denied the
whole claim, and they also pleaded specially that the principal
obligor was entitled to a credit of thirteen thousand dollars
because, as they alleged, he was robbed, without any negligence or
fault on his part, of that amount of the moneys so entrusted to his
custody, during the period covered by the declaration. Verdict was
for the plaintiffs
Page 70 U. S. 698
for the sum of ten thousand three hundred and eighteen dollars
and twenty-two cents, and on the eighteenth day of January, 1860,
judgment was entered on the verdict. Both parties excepted during
the trial to the rulings and instructions of the court, and the
record shows that their respective exceptions were duly
allowed.
3. Execution was issued on the judgment on the fifteenth day of
April in the same year, and the return of the marshal shows that on
the twenty-eighth day of the same month, he seized certain real
property and slaves sufficient in all to satisfy the judgment.
Formality of an advertisement prior to sale was omitted by the
marshal at the request of the principal defendant, and on the fifth
day of June following, the marshal sold certain parcels of the real
property at public auction, amounting in the whole to the sum of
five thousand two hundred and seventy-five dollars, as appears by
his return. Nearly half the amount of the judgment was in that
manner satisfied, but the clear inference from the return of the
marshal and the accompanying exhibit is that the sale was suspended
and discontinued at the request of the principal defendant and for
his benefit. Request for the postponement of the sale came from
him, and it was granted by the marshal, as stated in the record,
the better to enable the defendant to find purchasers for his
property. Writ of error was sued out by plaintiffs on the first day
of September, 1860, and was duly entered here at the term next
succeeding, and since that time the case has been pending in this
Court.
4. Motion to dismiss is grounded solely upon the alleged fact
that the judgment was satisfied before the writ of error was sued
out and prosecuted. Matters of fact alleged in a motion to dismiss,
if controverted, must be determined by the court. Actual
satisfaction beyond the amount specified in the return of the
marshal cannot be pretended, but the theory is that the levy of the
execution in the manner stated affords conclusive evidence that the
whole amount was paid, and it must be admitted that one or two of
the decided cases referred to appear to give some countenance to
that view of
Page 70 U. S. 699
the law -- that is, they assert the general doctrine that the
levy of an execution on personal property sufficient to satisfy the
execution, operates
per se as an extinguishment of the
judgment. [
Footnote 1] None of
those cases, however, affords any support to the theory that any
such effect will flow from the issuing of an execution and the
levying of the same upon land. On the contrary, the rule is well
settled that in the latter case no such presumption arises, because
the judgment debtor sustains no loss by the mere levy of the
execution and the creditor gains nothing beyond what he already had
by the lien of his judgment. [
Footnote 2] Reason given for the distinction is that the
land in the case supposed remains in the possession of the
defendant, and he continues to receive and enjoy the rents and
profits. [
Footnote 3] Many
qualifications also exist to the general rule as applied to the
levy of an execution upon the goods of the judgment debtor, as
might be illustrated and enforced by numerous decided cases. Where
the goods seized are taken out of the possession of the debtor and
they are sufficient to satisfy the execution, it is doubtless true
that if the marshal or sheriff wastes the goods, or they are lost
or destroyed by the negligence or fault of the officer, or if he
misapplies the proceeds of the sale or retains the goods and does
not return the execution, the debtor is discharged; but if the levy
is overreached by a prior lien or is abandoned at the request of
the debtor or for his benefit or is defeated by his misconduct, the
levy is not a satisfaction of the judgment. [
Footnote 4] Rightly understood, the presumption is
only a
prima facie one in any case, and the whole extent
of the rule is that the judgment is satisfied when the execution
has been so used as to change the title of the goods or in some way
to deprive the debtor of his property. When the property is lost to
the debtor in consequence of the legal
Page 70 U. S. 700
measures which the creditor has pursued, the debt, says Bronson,
C.J., is gone, although the creditor may not have been paid. Under
those circumstances, the creditor must take his remedy against the
officer, and if there be no such remedy, he must bear the loss.
[
Footnote 5]
Tested by these rules and in the light of these authorities, it
is very clear that the theory of fact assumed in the motion cannot
be sustained. Satisfaction of the judgment beyond the amount
specified in the return of the marshal is not only not proved, but
the allegation is disproved by the amended record.
5. Amended record undoubtedly shows that an execution was issued
on the judgment and that the same was partially satisfied before
the writ of error in this case was prosecuted, but the defendants
scarcely venture to contend that a partial satisfaction of the
judgment before the writ of error is sued out is a bar to the writ
of error, or that it can be quashed or dismissed for any such
reason. Doubt may have existed upon that subject in the early
history of the common law, but if so it was entirely removed by the
elaborate judgment of Lord C.J. Willes in the case of
Meriton
v. Stevens, [
Footnote 6]
which is most emphatically endorsed in a well considered opinion of
this Court. Nothing is better settled at the common law, says Mr.
Justice Story in the case of
Boyle v. Zacharie, [
Footnote 7] than the doctrine that a
supersedeas, in order to stay proceedings on an execution, must
come before there is a levy made under the execution, for if it
come afterwards, the sheriff is at liberty to proceed, upon a writ
of
venditioni exponas, to sell the goods.
Form of the supersedeas at common law was
"that if the judgment be not executed before the receipt of the
supersedeas, the sheriff is to stay from executing any process of
execution until the writ of error is determined."
Settled construction of that order was
"that if the execution be begun before a writ of error or
supersedeas is delivered, the
Page 70 U. S. 701
sheriff ought to proceed to complete the execution so far as he
has gone."
Directions in the leading case were accordingly that the sheriff
should proceed to the sale of the goods he had already levied, and
that he should return the money into court to abide the event of
the writ of error. [
Footnote
8]
6. Effect of a writ of error under the twenty-second section of
the Judiciary Act is substantially the same as that of the writ of
error at common law, and the practice and course of proceedings in
the appellate tribunals are the same except so far as they have
been modified by acts of Congress or by the rules and decisions of
this Court. Service of a writ of error, in the practice of this
Court, is the lodging of a copy of the same in the clerk's office
where the record remains. [
Footnote
9] Whenever a defendant sues out a writ of error and he desires
that it may operate as a supersedeas, he is required to do two
things, and if either is omitted, he fails to accomplish his
object: 1, he must serve the writ of error as aforesaid, within ten
days, "Sundays exclusive," after the rendition of the judgment, and
2, he must give bond with sureties to the satisfaction of the
court, for the benefit of the plaintiff, in a sum sufficient to
secure the whole judgment in case it be affirmed. [
Footnote 10] Security for costs only is
required of the defendant when the writ of error sued out by him
does not stay the execution, and he is not compelled, in any case,
to make the writ of error a supersedeas, although it may be sued
out within ten days after the judgment. [
Footnote 11]
Plaintiff also may bring error to reverse his own judgment,
where injustice has been done him, or where it is for a less sum
than he claims, but he, like the defendant, is required to give
bond to answer for costs. [
Footnote 12] Writs of error at common law, whether sued
out by plaintiff or defendant, operated in all cases as a
supersedeas, but it has never been heard in a court of justice
since the decision in the case of
Page 70 U. S. 702
Meriton v. Stevens, that they had any retroactive
effect, or any effect at all, until they were allowed and
served.
Applying these rules to the present case, it is clear that there
was no conflict between the action of the marshal in obtaining
partial satisfaction of the judgment in this case and the pending
writ of error which was subsequently sued out and allowed. Partial
satisfaction of a judgment, whether obtained by a levy or voluntary
payment, is not and never was a bar to a writ of error where it
appeared that the levy was made or the payment was received prior
to the service of the writ, and there is no well considered case
which affords the slightest support to any such proposition.
Subsequent payment, unless in full, would have no greater effect;
but it is unnecessary to examine that point, as no such question is
presented for decision. Where the alleged satisfaction is not in
full, and was obtained prior to the allowance of the writ of error,
the authorities are unanimous that it does not impair the right of
the plaintiff to prosecute the writ, and it is only necessary to
refer to a standard writer upon the subject to show that the rule
as here stated has prevailed in the parent country from a very
early period in the history of her jurisprudence to the present
time. [
Footnote 13]
Substance of the rule as there laid down is that where the
execution is issued before the writ of error is sued out, if the
sheriff has commenced to levy under the execution, he must proceed
to complete what he has begun; but if when notified of the writ of
error he has not commenced to levy, he cannot obey the command of
the execution. [
Footnote 14]
Even the levy of the execution after the supersedeas has commenced
to operate is no bar to the writ of error, but the court, on due
application, will enjoin the proceedings and set the execution
aside, and it has been held that the sheriff and all the parties
acting in the matter, are liable in trespass. [
Footnote 15]
Page 70 U. S. 703
Neither the decisions of the courts, therefore, nor text writers
afford any countenance to the theory that partial satisfaction of
the execution operates as an extinguishment of the judgment or a
release of errors, or that it takes away or impairs the
jurisdiction of this Court. Carefully examined, it will be found
that the cases cited assert no such doctrine, but that every one of
them proceeds upon the ground that where the plaintiff has sued out
execution, enforced his judgment, and obtained full satisfaction,
there is nothing left on which a writ of error can operate.
Import of the argument is that a writ of error lies only on a
final judgment and that the plaintiff, when he accepts full
satisfaction for his judgment, removes the only foundation on which
the writ of error can be allowed. Suffice it to say in answer to
that suggestion that no such question arises in the case, which is
all that it is necessary to say upon that subject at the present
time.
The motion to dismiss is
DENIED.
[
Footnote 1]
Mountney v. Andrews, Croke Eliz. 237;
Clerk v.
Withers, 1 Salkeld 322;
Ladd v. Blunt, 4 Mass. 403;
Ex Parte Lawrence, 4 Cowen 417.
[
Footnote 2]
Shepard v. Rowe, 14 Wendell 260;
Taylor v.
Ranney, 4 Hill 621.
[
Footnote 3]
Reynolds v. Rogers, 5 Ohio, 174.
[
Footnote 4]
Green v. Burke, 23 Wendell 501;
Ostrander v.
Walter, 2 Hill 329;
People v. Hopson, 1 Denio
578.
[
Footnote 5]
Taylor v. Ranney, 4 Hill 621.
[
Footnote 6]
Willes 272.
[
Footnote 7]
31 U. S. 6 Pet.
659.
[
Footnote 8]
Meriton v. Stevens, Willes 282.
[
Footnote 9]
Brooks v.
Norris, 11 How. 204.
[
Footnote 10]
Catlett v.
Brodie, 9 Wheat. 553;
Stafford
v. Union Bank, 16 How. 135.
[
Footnote 11]
1 Stat. at Large 404.
[
Footnote 12]
Johnson v. Jebb, 3 Burrow 1772;
Sarles v.
Hyatt, 1 Cowen 254
[
Footnote 13]
Chitty's Archbold's Practice 558 (ed. 1862).
[
Footnote 14]
2 Williams' Saunders 101, h.;
Perkins v. Woolaston, 1
Salkeld 321;
Milstead v. Coppard, 5 Term 272;
Kennaird
v. Lyall, 7 East 296;
Belshaw v. Marshall, 4
Barnewall & Adolphus 336;
Messiter v. Dinely, 4 Taunt.
280.
[
Footnote 15]
2 Williams' Saunders 101, g.; 3 Bacon's Abridgment Error, H.;
Dudley v. Stokes, 2 W. Blackstone 1183.
MR. JUSTICE GRIER (with whom concurred NELSON and SWAYNE, JJ.),
dissenting:
I think this writ of error ought to be dismissed. The plaintiff
having elected to take execution and satisfy his judgment, has no
longer any judgment upon which the writ can operate. His election
to accept and execute his judgment below is a
retraxit of
his writ of error. Such has been the unanimous decision of every
court of law that has passed on the question. Appeals in chancery
can furnish no precedent for a contrary decision. A decree in
chancery may have a dozen different parts, some of which may stand
good and be executed while others may be litigated on appeal. A
judgment at law is one thing. The plaintiff cannot divide his claim
into parts, and when he obtains judgment for part, accept that part
and prosecute his suit for more. Having a right to elect to pursue
his judgment or his writ of error, he cannot elect to have
both.