Goldsmith v. Stetson & Co.

¶1We do not think the complainants make a case for an injunction of this entire cause, on the ground of fraud in obtaining the judgment. In fact, we think that much was in effect settled when the case was formerly here, on appeal from the order dissolving the injunction. We then employed the following language: “The matters relied on for an injunction oí the luhole of it, if available any where, were in their nature available at law. It is not established that the complainants were prevented from availing themselves of those matters, at law, by fraud, accident, or the act of the. opposite party, unmixed with fraud or negligence on their part. Ignorance, which was avoidable by reasonable diligence, can not form any part of a complainant’s title to relief in equity.” True, we spoke of the responsive-matter of the answers; but we went further. We, in effect, declared the bill to be insufficient for this purpose. See Stetson & Co. v. Goldsmith, 31 Ala. 649. With what we then said we are satisfied, and hold that, so far as the complainants seek relief on the ground of alleged fraud in obtaining the judgment, the bill must fail.

¶2[1.] It is fully established that Goldsmith, the plaintiff in the judgment sought to be enjoined, was insolvent when he obtained that judgment. The right of Stetson & Co. to set off their judgment against Goldsmith’s, is unquestioned, provided that judgment is a valid and subsisting demand.— Railroad Company v. Rhodes, 8 Ala. 206; Wray v. Furniss, 27 Ala. 471; Carroll v. Malone, 28 Ala. 521; Henderson v. McVay, 32 Ala. 471.

¶3[2.] The judgment of M. S. Stetson & Co. v. Goldsmith, although the suit was commenced by attachment which was void, is nevertheless valid, because the defendant appeared *190in court, and thus waived the irregularity of the constructive service. The judgment entry is in the following language : “This day came the parties, by their attorneys; and the defendant saying nothing in bar of the plaintiffs’ action,” &c. This is a regular judgment nil didt, and cures the want of service. — Hobson v. Emanuel, 8 Porter, 442; Gilbert v. Lane, 3 Porter, 67 ; Catlin v. Gilders, 3 Ala. 536; Puckett v. Pope, ib. 552.

¶4The objection to this judgment is, that it is not subsisting, except for a small balance, by reason of certain proceedings had in the city court at the instance of Stetson & Oo. The suit of Stetson & Oo. v. Goldsmith was commenced by attachment, issued by the clerk of the city court of Mobile. The attachment was void, for want of authority in the officer issuing it. — Stevenson v. O’Hara, 27 Ala. 362; Matthews v. Sands, 29 Ala. 136; Flash v. Paull, ib. 141. Under this attachment, goods of Goldsmith were levied on, which were afterwards sold, under the order of the court, as perishable, and the proceeds placed in the hands of the clerk of the court. After the judgment was rendered in the cause, a motion was made in the city court, that the clerk be required' to pay over the money realized from the sale of the goods, on the judgment recovered; but.no order was ever made on that motion, and the motion itself was afterwards abandoned. Subsequently, the judgment which this suit seeks to enjoin, was rendered in the trespass suit by Goldsmith v. Stetson & Co., the cause of action being the illegal seizure and sale of Goldsmith’s goods under the void attachment ; and that' judgment was affirmed against Stetson & Co. and their surety on the appeal bond.- Stetson & Co. then moved in the city court, against the clerk, that he be required to pay over said money to them, on the alleged ground that the proceeds of the goods had become their property, by reason of the recovery in trespass against them. The court refused to grant the order as asked, but made an order, “that, the said Lewis” [the clerk] “pay to the said M. S. Stetson & Co., plaintiffs in said suit, the said .sum of money, on their giving a receipt for the money on account of the said execution” [judgment]. So far as we *191are advised, tbis order stands on tbe. records of tbe city court, and tbe money still remains in tbe bands of Lewis, tbe clerk, tbe plaintiffs declining to receive it on tbe terms imposed.

¶5[8.] It is very obvious that tbe money bad not become tbe property of Stetson & Co., by force of tbe' judgment against tbem in tbe trespass suit. It is only satisfaction of sucb judgment, that vests tbe title of tbe property in tbe trespasser. — Blann v. Crocheron, 19 Ala. 647 ; Spivey v. Morris, 18 Ala. 254; White v. Martin, 1 Porter, 117.

¶6[4.] Tbe attachment in tbe case of Stetson & Co. v. Goldsmith being void, and tbe levy and sale of tbe property a trespass, it follows, that tbe money in tbe bands of. tbe clerk was not subject to tbe order of tbe city court. Mr. Lewis held it only as an individual bailee, and tbe city court correctly ruled that no order could be made for its payment to Stetson & Co., on their motion as made. They, Stetson & Co., bad perfected no right to tbe money by paying tbe judgment against tbem ; and Goldsmith bad manifested no election to waive tbe tort and proceed for tbe money. Goldsmith could have claimed tbe money as bis own, but no creditor of bis could exercise tbis right for him. — See Lewis v. Dubose, 29 Ala. 220. Tbe absence of authority in tbe clerk to issue tbe attachment, deprived tbe judgment of all lien upon tbe money ; and tbe city court should, without qualification, have overruled tbe motion of Stetson & Co. Tbe order made, not in response to any request of tbe plaintiff, related to a subject-matter not within tbe jurisdiction of the court, and was void. — See Wightman v. Karsner, 20 Ala. 446. Tbis distinguishes it from tbe principle settled in tbe case of Langdon v. Raiford, (20 Ala. 532,) and renders it wholly unimportant whether tbe order stands on tbe records, or is vacated.

¶7Erom what we have said above it results, that tbe judgment of Stetson & Co. v. Goldsmith is valid and subsisting, and tbe chancellor did not err in ordering it to be set off against so much of tbe judgment of Goldsmith against tbem.

¶8Tbe only other question in tbis cause relates to tbe rent, which was claimed by tbe landlord, and which was paid out *192of the proceeds of the goods, under tbe order of the court. We think the chancellor’s decree in this particular must be reversed, for the following reasons: The seizure of the goods by the sheriff, under the void attachment, was but a trespass, and section 2460 of the Code sheds no light on the question. The landlord had no general lien on the goods for unpaid rent — only a claim to be paid “ the rent due, or to fall due during the current year,” as a condition, on which the sheriff was authorized to levy lawful process. Having no special lien under the particular facts of this case, .and there being no proceedings under the act “the more effectually to secure the collection of rents in the city of. Mobile,” approved January 20, 1840, (Municipal Laws, 351,) we must deal with this question as if the proceeds of the goods had been in the hands of one, who had seized and sold them without semblance of authority: a naked trespasser. As we have shown above, the city court had no authority to make any order touching the disposition or distribution of the funds. The complainants being tortious holders, and, under the circumstances, voluntary payors of the debt of the defendant; and that payment being made with funds which were not their own, and will not be theirs until the judgment in trespass is satisfied, it follows that, neither at the time when they filed their bill, nor even now, can they claim the ownership of the funds with which the payment was made, nor that the payment gives them any claim against Goldsmith.

¶9For the single error above pointed out, the decree of the chancellor is reversed, and the cause remanded.