Carit v. Williams

Foote, C. This is an appeal froman order denying the motion of the defendant, Andrew Charles, to sot aside a certain alias execution, to stay the issuance of any future execution, and to have the judgment marked satisfied.

The grounds upon which the appellant based his contention that the motion should be granted were: that he had been discharged as an insolvent from any and all obligation either to pay or have satisfied in any manner out of his property the judgment upon which the alias execution issued.

It appears from the recofd in the original suit that the second amended complaint filed in the action was not to be found when the court below considered the appellant’s motion', and that it was upon the issues made up by that pleading, and the answer filed thereto by the appellant, that the cause was submitted to a jury, who returned a general verdict for the plaintiff for a large sum of money.

The appellant contends that, even if in a matter of the kind in hand the court could look behind the judgment to the record in the action where it was rendered, to ascertain if the debt claimed to have been discharged by the certificate of the court presiding in the insolvency proceedings was created by the appellant’s fraudulent acts, yet that as the complaint was not to be found, it was not permissible for the court to determine that the original debt was founded in the fraud and deceit practiced by the appellant.

In this we think he is mistaken. If the complaint is not to be found, but the answer to that complaint is, and it shows, as in this case, that the only material denials upon the part of the appellant are as to the commission by him of acts of fraud, it will be presumed that the judgment was founded upon allegations in the complaint to which the answer was responsive, and that therefore the debt must have arisen through the fraud [185]of the appellant. The latter should certainly be held to the statements of his answer, and as that is devoted to a denial of specific acts of fraud, and there is nothing else to show what the allegations of the complaint were, it will be presumed that there were none other than those to which the answer was responsive, unless admitted by the answer to be true.

But the appellant contends that the court below had no right to look at anything in the record of the action in which the judgment was recovered, except that judgment; that the original debt was merged in the judgment; that the latter had been obtained before the certificate of discharge was granted; and that the court, upon the hearing of his motion to stay the alias execution, etc., was bound to treat that judgment as covered by and included in the certificate. But such does not seem to have been the views in similar cases of learned judges other than the one who determined this contention against the appellant.