Opinion
09-20-1871
GUNN & als. v. TURNER'S adm'r.
Brockenbrough, for the appellants.
1. An office judgment confirmed in debt on a bond dated November 21st, 1862, in favor of T against G and three others, upon one of whom the process was not served, G and another give notice to T that they will move the court to reform the judgment, by allowing certain credits, one of the date of the bond and one a payment January 4, 1864, and directing at what scale of depreciation the judgment should be discharged. In fact, one of the credits claimed is endorsed on the bond, and the plaintiff endorses the other at the time of the motion: The court therefore refuses to reform the judgment, and no exception is taken, nor does it appear what was the evidence before the court. HELD:
1. There was no error in refusing to reform the judgment as to the credits.
2. No exception having been taken, and the evidence before the court not being shown by the record, the appellate court cannot review the judgment of the court below as to the scaling of the debt.
3. As there was no motion to reverse the judgment, on the ground that the process was not served on one of the defendants, that question cannot be considered by the appellate court.
In February 1866, Wm. T. Turner's administrator instituted an action of debt in the Circuit court of Rockbridge county, against Nancy Turner, Giles Gunn, Wm. C. Gilmore, and A. B. Tanquary, to recover the sum of $1,267.30, the amount of a bond executed by the defendants to the plaintiff. The process was executed on all the defendants except Tanquary; as to whom it was silent. The declaration was against all, and they not appearing, the office judgment was confirmed against them, including Tanquary, at the April term of the court.
The bond on which the action was founded bears date the 21st of November 1862, and was payable nine months after date: and a credit of $200 was endorsed upon it as of the date of the bond. This bond was filed with the declaration.
After the office judgment was confirmed, Gilmore and Gunn gave notice to Turner's administrator, that they would, on the 13th September, move the court to reform the judgment, as well by allowing offsets improperly omitted for $200 on November 21, 1862, and $300 on January 4, 1864, as by settling and directing at what depreciation the judgment should be discharged, according to the act of Assembly.
The motion came on to be heard at the September term, and the evidence being heard, the court was of opinion that if the 3d section of the act of March 3d, 1866, for the adjustment of liabilities, & c., applies to judgments rendered after the date of said act, as to which the court expressed no opinion, no sufficient reason was shown for altering or reforming the judgment in this case; one of the credits specified in the notice having been endorsed on the bond when filed with the declaration, and, therefore, to be credited by the clerk whenever execution should issue; and as to the second, though not before endorsed, it was then endorsed by consent of the plaintiff; and the motion was therefore overruled, with costs. Gunn and Gilmore thereupon applied to a judge of this court for a supersedeas to the judgment, which was awarded.
Brockenbrough, for the appellants.
There was no counsel for the appellee.
OPINION
STAPLES, J.
The first error assigned in this case is the refusal of the court to scale the judgment rendered by default at the April term 1866, against the plaintiffs in error. This assignment is based upon the proposition, that as the bond upon which the judgment was founded, was executed on the 25th November 1862, and a payment was made on that day of two hundred dollars, and another payment of three hundred dollars made on the 4th January 1864, the receipt by the obligee of such payments in Confederate currency affords a strong presumption that the contract was entered into with reference to such currency as a standard of value.
The record does not disclose the consideration of the bond, nor the kind of currency in which the payments were made. And if this court were authorized to infer from the date of the instrument and the period of the respective payments that the bond in question is solvable in Confederate currency, it would not be warranted in drawing such a conclusion, where the record states, as in this case, that the Circuit court, upon the evidence adduced, refused to apply the scale of depreciation. What that evidence was; what it tended to prove, we have no means of ascertaining. No bill of exceptions was taken; and none of the facts are stated on the record, by which this court can undertake to review the decision of the Circuit court. If the plaintiffs in error considered themselves aggrieved by the judgment, it was plainly their duty to obtain a certificate of the facts proved; and thus show affirmatively there is error in the judgment. As they have failed so to do, this court is bound to conclude the decision was warranted by the evidence adduced on the trial.
The second assignment is, that the original judgment having been rendered upon a joint bond against the four obligors therein, and process being served only on three, such judgment is erroneous, and must be reversed as to all. The 6th section, chap. 181, Code of 1860, provides that " no appeal, writ of error or supersedeas shall be allowed by an appellate court or judge, for any matter for which a judgment or decree is liable to be reversed or amended on motion, by the court which rendered it or the judge thereof, until such motion be made and overruled in whole or in part. No motion, however, was made in the court below, to reverse or amend the judgment for the error now assigned. The motion actually made was to reform the judgment by applying thereto certain omitted credits, and" " by settling and directing at what scale of depreciation it should be discharged, according to the act for adjusting Confederate liabilities." The question raised by the second assignment of error is therefore not before this court, and no opinion is expressed thereon.
For these reasons the judgment of the Circuit court is affirmed; but without prejudice to the right of the plaintiffs in error to move in said court, to reverse or amend the original judgment against them, upon the ground suggested in the second assignment of error.
JUDGMENT AFFIRMED; but without prejudice.