Gunn v. Plant

APPEAL from the Circuit Court of the United States for the Southern District of Georgia.

This is a bill in equity, filed Jan. 12, 1872, by I. C. Plant & Son, against Joseph E. Murray, trustee in bankruptcy of James H. Woolfolk, bankrupt, and Daniel F. Gunn, guardian, to restrain Murray, the trustee, from applying money in his hands arising from the sale of certain lands of the bankrupt to the payment of a judgment in favor of Gunn, and asking that a debt in their favor, secured by a mortgage upon the lands sold, and for which they had obtained a decree of foreclosure and sale at the October Term, 1869, of the Jones County Superior Court, be paid in preference. The bill also asks, that, if the judgment of Gunn is found to be valid, and a lien upon the property superior to their mortgage, he may be compelled to exhaust other lands bound for the payment of the judgment before resorting to the fund.

The bill, after stating the mortgage to the complainants, bearing date Dec. 7, 1868, and the sale of the property by the trustee, proceeds as follows:--

'And your orators state that the said Daniel F. Gunn, guardian, claims that the moneys. . . should be applied toward the payment of a judgment obtained by him at the November Term, 1866, of the Superior Court of Bibb County, in said State, for the principal sum of $11,212.38, against Thomas J. Woolfolk and James H. Woolfolk, as principals, and John W. Woolfolk, as surety. Your orators further state that said judgment in favor of said Gunn, guardian, was entered on what purports to be a verdict rendered by a jury at the term of the court at which said judgment was entered as aforesaid, but which alleged verdict was not entered on the minutes of that court at the said term, as your orators are advised and believe; nor was the same entered on the minutes of the court at all until the April Term, 1871, of said court, when it was ordered to be entered, nunc pro tunc, on the minutes thereof, to which order a bill of exceptions was filed, and is now pending in the Supreme Court of the State.'

And among the interrogatories which the defendants were required to answer was one as follows:--

'Whether the judgment of said Gunn, guardian as aforesaid, was not entered on what purports to be a verdict which was not entered on the minutes of the court until the April Term, 1871, thereof, and whether a bill of exceptions is not now pending for allowing it to be then entered on the minutes.'

The answer of Gunn states that, 'at the November Term, 1866, a verdict was regularly rendered, by a jury empanelled and sworn in the case o the original declaration filed therein, and signed by the foreman of the jury, in favor of said Gunn, guardian, against said defendants as aforesaid, for the sum aforesaid, and which verdict was regularly returned into court, and filed in the clerk's office at said term, and entered upon the judge's docket, in the handwriting of the then presiding judge, and, at the same term, a judgment was regularly entered on said verdict; but, afterwards, by omission of the clerk, respondent admits the same was not entered on the minutes of the court, and respondent avers the validity of the verdict was perfect; and respondent admits that, at a subsequent term, to wit, the April Term, 1871, said omission having been discovered, the presiding judge, on motion, ordered said verdict to be entered on the minutes nunc pro tunc, and which was accordingly done.'

And again, in answer to the interrogatory, he admitted that the judgment 'was entered on a verdict, which verdict was not entered on the minutes of the court until the April Term, 1871, thereof.'

Murray, in his answer, says the facts in relation to the judgment are correctly stated in the bill.

The 'transcript of the record from Bibb Superior Court' shows a judgment at the November Term, 1866, as follows:--

'Principal, $11,212 38/100; interest to

'Whereupon, it is considered by the court that the plaintiff do recover of defendants, Thomas J. Woolfolk, James H. Woolfolk, and John W. Woolfolk, the sum of eleven thousand two hundred and twelve (11,212) dollars and thirty-eight cents, for principal debt, and _____ dollars and _____ cents, for interest to _____, and the sum of _____ dollars and _____ cents, for costs in this behalf expended, and the defendant be in mercy.

'Judgment signed this twenty-first day of November, 1866.

'N. H. BASS, Plaintiff's Attorney.'

Upon this judgment an execution was issued, Nov. 28, 1866, upon which are indorsed payments, Dec. 7, 1868, $600; Jan. 20, 1869, $2,200; Feb. 1, 1869, $2,400; Fed. 15, 1869, $1,500.

At the April Term, 1877, the following entries appear upon the minutes:--

'DANIEL F. GUNN

v.

THOS. J. WOOLFOLK, JAMES H. WOOLFOLK, JOHN W. WOOLFOLK, Security.

Complaint in Bibb Superior Court, May Term, 1866, and verdict to November Term, 1866.

'It appearing to the court that the plaintiff failed to enter his judgment for the interest, as contemplated by the verdict, it is, therefore, ordered, upon motion of plaintiff's counsel, that plaintiff have leave to amend said judgment, so far as the interest is concerned, nunc pro tunc.

'JEMISON & NISBET, Plaintiff's Attorneys.'

'DANIEL F. GUNN

v.

THOS. J. WOOLFOLK, JAMES H. WOOLFOLK, JOHN W. WOOLFOLK, Security.}

Complaint in Bibb Superior Court, May Term, 1866, and verdict to November Term, 1866.

'It appearing to the court, from the entry upon the benchdocket, and from the original papers of file in the above-stated case, that a verdict was rendered by the jury at the November Term, 1866, of this court, and that the clerk of this court failed to enter said verdict upon the minutes of the court, upon motion of counsel for plaintiff, it is ordered that said verdict be entered nunc pro tunc.

'HUNTER, JEMISON, & NISBET, 'Plaintiff's Attorneys.'

May 1, 1871, the defendants in the judgment moved the court to set aside the ''fi. fa., 'and the judgment on which it claims to be founded, because the same, or either of the same, is not founded on any legal verdict, or other legal authority, because said fi. fa.'' and judgment are without legal authority, and cannot be found on the minutes of the court.' In support of this motion, they filed a paper, in which they stated 'that no verdict was ever rendered in the cause, and deny that the entry on the declaration in said case of what purported to be a verdict was in fact the verdict of any jury duly rendered in said case.' These objections were overruled, and the following entry then made on the minutes:

'Whereupon, it is considered by the court that plaintiff do recover of the defendants, T. J. Woolfolk, J. H. Woolfolk, and J. W. Woolfolk, security, in addition to the sum of $11,212 principal, interest on said sum of $11,212.38, from the fourteenth day of April, eighteen hundred and sixty (A.D. 1860), until paid. This judgment for interest to take effect now for then.

'JEMISON & NISBET, Plaintiff's Attorneys.'

After the filing of the bill in this case, the Supreme Court, March 12, 1872, entered the following judgment upon the bill of exceptions:--

'THOMAS J. WOOLFOLK et al., Plaintiffs in Error,

v.

DANIEL F. GUNN, Defendant in Error.

'This case came before the court upon a transcript of the record from the Superior Court of Bibb County, and, after argument had, it is considered and adjudged by the court that the judgment of the court below be affirmed, provided that the defendant in error shall, upon entering the remitter in his case upon the minutes of the Superior Court, as the judgment thereof, file thereon an agreement that nothing in the judgment allowing these amendments shall interfere with the rights of the security hereafter to plead any release or discharge of himself which the law may impose, growing out of any damages coming to him from the failure of the plaintiff in the suit to have his verdict entered at the proper time.'

Pursuant to this order, Gunn filed the required agreement, and judgment was entered upon the minutes of the Superior Court accordingly.

The Circuit Court having given a decree directing the payment of the mortgage of Plant & Son, in preference to the judgment in favor of Gunn, and ordering that the balance of the fund in the hands of the trustee be distributed by the court in bankruptcy according to the legal priorities of the creditors, Gunn brought the case here by appeal.

Mr. Thomas M. Norwood for the appellant.

Mr. Clifford Anderson, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.