Clements v. Berry/Dissent Catron

Mr. Justice CATRON.

By rule of court made when only one term was held in the year for the Districts of Tennessee, the United States Circuit Court adopted a rule requiring a copy of the declaration to be sent out with the writ, in all cases of suits on written agreements for the payment of money, where the plaintiff desires to obtain judgment at the return term. If a copy of this declaration is served with the writ on the defendant thirty days before the court commences, then the defendant is required to plead before the first day of the term; and if he fails to do so, it is the duty of the clerk to enter judgment by default at his office. This fact he reports to the court in all cases. And then such further time is given for making up the pleadings as may be deemed proper by the court itself; thus extending the time usually three days. But at March term, 1848, only two additional days to plead were allowed.

This office judgment has no force in itself, further than to speed the final judgment. It stands over, like other causes, triable on an issue. When it is reached on the docket in due course, a jury inquires of damages; or if the sum be certain, then a regular and binding judgment is entered of record by the court.

An execution is uniformly awarded in terms by the final judgment, and to which the execution on its face refers, by a brief recital.

To this award of execution the fieri facias relates, and binds personal property of the defendant.

The United States courts are governed by the State laws creating a lien; and the State laws are settled by uniform adjudications that the lien attaches by a final judgment and award of execution. From that time defendant's property is in custody of the law. Johnson v. Ball, 1 Yerger, 292.

In this case there is no allegation of fraud. The debtor transferred his property to a trustee honestly and fairly, according to the face of this record. By the law of Tennessee, the deed of trust took effect the moment it was delivered to the register to be recorded. It was his duty by express law to indorse on the deed the exact time of delivery. After that, all liens were cut off. This was done before the judgment was rendered. It matters not whether defendant parted with his property on the day the judgment was rendered, or on a subsequent day, as he was divested of it the moment the trustee delivered the deed to be recorded. If it was otherwise, and the execution related to a judgment by default (which might remain unconfirmed for months), all executions or final judgments, where a default had been entered, would bind from the first day of the term, and overreach sales made by retail dealers to an alarming extent; a doctrine unknown and altogether inadmissible in the State of Tennessee, or elsewhere, so far as I know.

The Supreme Court of Tennessee (to revise whose decision this writ of error is prosecuted) laid down the law correctly, as I think, in its opinion in this cause, and I am of opinion that the judgment ought to be affirmed. And I am instructed to say for my brother Nelson, who heard the cause, but is now absent, that this is his opinion also.