Opinion
01-01-1822
Edmonds v. Green
Briggs, for the appellant, Tucker, for the appellee,
[Syllabus Material]
Judgment affirmed.
SYLLABUS
By the court. The judgment of the superior court is affirmed.
James Green brought two actions of debt against James Edmonds and John Edmonds, on single bills, in the superior court of Fauquier county. William Edmonds, the appellant, became their appearance bail. At a succeeding court, the appellant entered himself special bail. The defendants failing to appear, an office judgment was confirmed against them and " William Edmonds security for their appearance." A fieri facias issued against the defendants and " William Edmonds jun. their appearance bail." Upon service of the execution, the defendants together with the appellant gave a forthcoming bond. The bond being forfeited, a motion was made against all the obligors, who gave a judgment by consent. William Edmonds the appellant (who had become special bail, but against whom a judgment had been erroneously entered as appearance bail) then applied for, and obtained, a supersedeas, from a judge of this court, on the original judgment.
Briggs, for the appellant, contended, that the original judgment was clearly erroneous, in being entered against the special bail; and the only question was, whether the confession of judgment on the forthcoming bond, operated as a release of errors in the original judgment. He contended, that it would not; because although the forthcoming bond is to some intents dependent on the original suit, yet it is not a part of that suit. The act of assembly therefore is fully satisfied in confining the release of errors, to the judgment on the forthcoming bond. The appellant had no opportunity on the motion on the forthcoming bond, to avail himself of the errors in the original judgment. If he had attempted it, his attempt would have been fruitless. Why then should his confession of judgment be construed into a release of errors, to which he could not have excepted, in any mode of proceeding? When the execution was served on him, he was compelled either to give bond, or to suffer his property to be sold. Having chosen the former alternative, he could not, by any means in his power, have averted the judgment. He acted throughout, under a species of duress. To confess a judgment, which could not be prevented in any legal mode, cannot surely come within the meaning of the act of assembly. That act can only reasonably apply to such errors as might be taken advantage of, if the confession had not been made.
1 Rev. Code, p. 112, § 26.
Tucker, for the appellee, contended: 1. That the mere filing special bail does not discharge the appearance bail. The act of assembly declares, that the appearance bail may be proceeded against, if the principal does not both appear and give special bail. The word and cannot be construed or; because then either would suffice. But appearing without bail, will certainly not be sufficient. So that the word " and" cannot be construed " or," and it is just as insufficient to give bail without appearing, as to appear without giving bail.
1 Rev. Code of 1819, p. 500.
1 Mun. 284.
If then it be insufficient to give bail without appearing, the appellant cannot complain, for his principal did not appear. The appearance bail did indeed enter into a recognizance as special bail, but there was no appearance entered for the principal; of course, under the act, the proceeding went on against both.
But, admitting that the judgment ought not to have been entered against both, the appellant ought to have moved to have quashed the execution, and to correct the office judgment before he came here.
1 Wash. (VA) 303, Leftwich v. Stovall; 4 Munf., Moss v. Moss.
2. The confession of judgment has released all error. The judgment, on the delivery bond here, is entered by consent of the defendants, of whom the appellant was one. This is a confession of judgment in the strongest form; for, it not only acknowledges the right to a judgment on the merits, but assents to its entry, whatever errors there might have been. It is, perhaps, stronger than the case of Cooke and Pope, where the defendant agreed the plaintiff's damages; and stronger than Leftwich v. Stovall. That was a case of arbitration.
3 Munf. 167.
1 Wash. (VA) 303.
Here there being a confession of judgment on the delivery bond, the act of assembly says it shall be equal to a release of errors. But it seems to be supposed, this confession operates to release the errors in the proceeding on the delivery bond alone. But this is too limited a construction. The object of the act was to prevent frivolous and vexatious objections, where a party had solemnly acknowledged on record, that the debt, for which he was sued, was just, and that he was willing he should have judgment for it. The act has been construed to dispense with the necessity of a declaration. Of what importance can it be, whether the proceedings in the original cause were regular or irregular, if the judgment against the defendant is by himself acknowledged to be just?
1 Wash. (VA) 306.
The proceedings on the forthcoming bond are in law considered as appendages to the original judgment and proceedings. The reversal of the original judgment reverses or annuls the judgment on the delivery bond, and the supersedeas to the former also supersedes the latter.
1 Cranch. 309.
4 Munf. 73, 260.
Briggs, replied.
OPINION
The court.
The judgment of the superior court is to be affirmed.