Scales v. Scott

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

[78]This is a proceeding by an attaching creditor to set aside a judgment confessed by Scott in favor of Place, on the ground of fraud.

Judgment was confessed on the 12th of August, 1858, by Scott, in favor of Place. Upon this judgment execution was issued, and levied upon certain jivoperty. Subsequently, plaintiffs sued out an attachment against Scott, which was levied upon the same property, in the hands of the Sheriff, and plaintiffs then instituted this proceeding. The Court below gave judgment, postponing Place’s judgment to plaintiffs, and defendant appeals.

The errors assigned are :

1. The bill should have been dismissed, because it shows that plaintiffs were neither judgment nor execution creditors of Scott.

2. That there was no evidence of fraud.

The first point is sufficiently answered by the opinion in the case of Heyneman v. Dannenberg, (6 Cal. 376,) in which the question is discussed with some care.

Upon the question of fraud, the principal evidence is found in the answer of defendants; for we are disposed to give no weight to the fact that a slight mistake was made in the computation of interest, included in the judgment. The data for the computation are given, and the miscalculation is clearly the result of mistake, and not a design to defraud.

The judgment purports to be for the amount of two promissory notes—one for three thousand dollars, dated 1st of March, 1858; the other for two thousand five hundred dollars, dated June 5th, 1858—each bearing two per cent, interest per month. The consideration of the notes is stated to have been money loaned, at the respective dates of the notes. In the answer of defendants, filed in this case, it is stated that the consideration of the first note was money loaned, at its date, and that the consideration of the second was money loaned at the time of its date, “ and at various times subsequently.” What portion of the sum advanced subsequently does not appear.

The confession of judgment includes interest upon the whole amount of two thousand five hundred dollars, from the date of the note; when it is clear, from the sworn answer of defendants, that interest on a portion only was due from that time. This fact must have been known to the parties at the time judgment was confessed.