Markley v. Rand

Baldwin, J., delivered the opinion of the Court—Terry, C. J., concurring.

This was a bill in equity to set aside a judgment under the following facts : A suit was brought against several members of a joint stock association, one Baldwin among them. Baldwin denied he was a partner, and suit was dismissed as to him, and judgment rendered against several others for whom he was attorney. It is claimed now, that Baldwin was really a partner, and that the discontinuance of the suit as to him was a discontinuance as to all. No fraud is averred, certainly none shown; nor is it shown that this was not a joint debt as to the defendants charged, or that they have offered to pay the judgment, or their several proportions of it even, or that Baldwin suffered this judgment by collusion, or that he is insolvent. But the plaintiff below seems to suppose that this informality—supposing we could inquire into it—is sufficient to entitle him to attack the judgment of a Court [277]of competent jurisdiction in this collateral manner. It-is not clear, that in a direct proceeding by appeal the Court would reverse such a judgment for any cause assigned. If there was error in the plaintiff in the case below, taking judgment, as he took it, in the face of the answer, by Baldwin denying that he was a partner, the other defendants should have availed themselves of the fact, which would have given them, then and there, the full benefit of the point. They were represented by counsel. If the counsel acted unfairly by them, he was responsible—not the plaintiff, unless he was in collusion with the counsel, which is not charged. There was a full opportunity to contest every fact while the trial was going on, or before the Court lost jurisdiction of the case ; and the plaintiff cannot re-try the case by bill in equity. If this were so in every case where by the neglect of the party, or his attorney, a judgment was rendered against him, the case could be taken from the Court of law into a Court of Chancery.

There is nothing in the point that judgment went and execution issued against Markley by the wrong name. This should have been taken advantage of below. If he be not the real defendant, and the Sheriff levies on his property, the Sheriff would be responsible in an action at law, and there is no need of equitable interference.

The decree is aErmed.