Aron v. Chaffe, Powell & West
Aron v. Chaffe, Powell & West
Opinion of the Court
delivered the opinion of the court.
The decree in the case of W. B. Moore & Go. v. L. T. Basket was offered, not as evidence of the facts upon which it was founded, but to show the fact of indebtedness by Basket to Chaffe, Powell & West. For this purpose .it was competent, but was only prima facie evidence. “Where a judgment is introduced to prove the truth of the facts on which it is based, the whole record must be introduced” (George’s Miss. Digest, p. 229, §123); but where it is offered simply to show “the fact of its own rendition, and -the legal consequences which result from that fact” (Freeman on Judgments, §§ 416, 418), it is not necessary to offer the whole record (George’s Digest,' p. 229, § 124). Mr. Freeman says (§ 418): “The better opinion is that such judgment is prima facie evidence against the grantee of the fact of his grantor’s indebtedness. Whenever a judgment creditor is proceeding against a third person, and it becomes necessary to show that the judgment debtor was indebted to him, the judgment is at least prima facie evidence of. that fact. ” This is the doctrine announced in Bergman v. Hutcheson, 60 Miss., 872. The appellant was at liberty to overthrow, if he could, the prima facie showing of indebtedness. The bill, however, it may be remarked, did not proceed
So far as exhibit A to the bill in Moore & Co. v. Basket is concerned, offered by appellant to show, as an admission against appellees, that Basket did not owe appellees by their own showing in that suit, notwithstanding the decree, even if the agreement of counsel at page 45 of the record has the meaning contended for by appellant, and if the exhibit A shows that Basket did not owe appellees, and if, consequently, appellees were not purchasers for value, yet it clearly appears that appellant owed Basket on his notes more than the amount of the decree in this case against appellant.
As to the $200, we are not prepared to overturn the finding of the chancellor on the conflicting testimony on this question of fact.
But we think it was clearly error to have dissolved the injunction and awarded damages. The bill was primarily one to marshal the securities and compel appellees to exhaust all others before pursuing appellants on the notes in controversy. The injunction prayed was merely in aid; it prayed, however, not only that the action at law be stayed till the final'adjudication of the suits begun by the creditors’ bill and this bill, but also that, “if said Chaffe, Powell & West should not be able to collect their total debt from said Basket by said chancery suit, then that they be required to subject other collaterals held by them as security for the same - debt against which there is no offset, ’ ’ etc. If appellees desired to proceed to judgment at law on the notes (under the rule announced in Hill v. Billingsly, 53 Miss., 111), they should have moved to dissolve or modify the injunction accordingly. They did not do that; and, as the decree in this case settles the rights of the parties, the injunction should have been retained.
By some curious inadvertence, a decree was also rendered against S. J. Stein, in no way connected with the record. In
Reversed, and decree here.
Reference
- Full Case Name
- Albert Aron v. Chaffe, Powell & West
- Cited By
- 2 cases
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- Published
- Syllabus
- 1. EVIDENCE. Judgment. Admissibility as to third person. Even in a controversy with a third person, a judgment creditor may introduce his judgment, not as evidence of the facts on which it is founded, but to show the indebtedness of his debtor, as to which the judgment is prima facie evidence. Bergman v. Hutcheson, 60 Miss., 873. 3. Same. Judgment Record, luhen %tnnecessivry. When a judgment is introduced in evidence merely to show the fact of its rendition and the indebtedness, it is not necessary to produce the entire record. 3. Injunction. Marshaling securities. Dissoiution. Damages. Complainant gave his notes to one who transferred them as collateral security to defendants, and afterwards failed and made an assignment. Defendants filed a creditors’ bill attacking- the assignment, and also sued complainant on the notes, whereupon he enjoined the action, praying for a marshaling- of securities, and that defendants be recjuired to exhaust their remedy by the creditors’ bill and on other collaterals held by them before pursuing him on said notes, in order that he might establish an off-set against the insolvent payee. Held, that, although it appeared, on final hearing, that he was justly indebted on said notes more than the amount decreed in favor of defendants, yet it was error to dissolve the injunction and award damages. 4. Injunction. Marshaling. Injunction ‘primarily in aid of. In such case, the injunction being- primarily merely in aid of the , right to marshal securities, complainant was entitled to have the action at law stayed until the termination of the creditor’s suit, and then, if defendants should not thereby collect their debt, to compel them to first exhaust other collaterals. 5. Samis. Injunction. Dissolution. Practice. If the defendants desired to proceed to judgment at law on the notes, under the rule announced in Sill v. Billingsly, 53 Miss., Ill, they should have moved to dissolve or modify the injunction accordingly. Failing- in this, it was too late at the hearing, in a decree settling all the rights of the parties, to insist on a general dissolution with damages.