Amis v. Smith

Mr. Justice M'Kinley

delivered the opinion of the Court.

This is a writ of error to" the District Court of the United States for the'southern district of Mississippi, exercising Circuit Court powers.

Smith brought an action of assumpsit against Amis and others, surviving .partners of the Real Estate Banking Company, of Columbus, Mississippi, founded upon their certificate of deposit. All the defendants joined in a plea of non-assumpsit; and Wright, one of them, afterwards pleaded the same plea -separately. At the trial, all 'the defendants, except Wright, Withdrew their plea, and permitted judgment to go against them by nil dicit, for the sum of two thousand five hundred and eighty-four dollars and seventy-four cents; and the plaintiff then discontinued the suit *310 against Wright. Upon the judgment execution issued, and was lévied, by the marshal, on the property-pf Amis, who,. hi conformity with a. statute of Mississippi entered into bond, with security, conditioned for the forthcoming of the property on the day fixed for its sale. Amis failed to- dellvér. the property, according to the condition of the bond to the marshal, who thereupon made return that it was forfeited; which, by the statute, gave it the force and effect of a judgment. Howard, and Hhtchin-: Son’s Statute Laws of Mississippi, 653; Amis, at the next term,' moved the Court to quash the bond, which motion was overruled, and thereupon he prosecuted this suit.

■To remove the judgment, he' relies on these grounds: First, The-Court erred in permitting the plaintiff to discontinue the suit-against Wright, and in rendering judgment against the other ’defendants. Secondly,-The fieri facias was illegal', because it included interest not authorized .by the judgment. Thirdly, Overruling the motion to quash the forthcoming bond-was a final judgment by the Court, which ought to be reversed.'

■ Whether a.discontinuance o- the suit can be entered against one of several, defendants in a case arising on contraot, depends upon the character of the contract, and the state of the pleadings between thg parties. If the contract be joint and several, and the defendants s.ever in. their pleas, whatever may have been the doubts and conflicting opinions of former times as to the effect of a nolle prosequi in- such a case, it has néver been held that a simple discontinuance of ,a • suit amounted to a retraxit, or that it in any manner worked a bar to the repetition of the plaintiff’s action.

By-a statute of. Mississippi, all promises, contracts, and liabilities of copartners, are, to be deemed and; adjudged joint and several. And -in all suits founded on promises, agreements, or contracts in writing, by two or more persons as copartners, signed by one or more of them, hr by any person as ágéht in their behalf, it shall be lawful to declaré against any one or more of them, Howard and Hutchinson’s Statute Laws' of Mississippi, 595.. This is such a severance of the contract as puts it in the power of the plaintiff' to hold any portion of them jointly, and the others severally bound for the contract.' And there is ño obligation on his part to .put them in such condition, by his pleadings;;/as to *311 compel each to contribute his portion for the benefit of the others. This reduces the inquiry to this simple question: Is the discontinuance, in.this case, authorized by law?

In the case of Minor and others against the Mechanic’s Bank of Alexandria, a suit was brought on the office-bonds of the cashier of the bank, against him and his sureties. The bond was joint and several, and the defendants pleaded jointly to. the action; and, as in this case, the cashier afterwards pleaded severally, whereupon judgment was rendered against the sureties; and. afterwards the plaintiff entered a nolle prosequi against the other defendant. This Court sustained this proceeding, and held that it' did not affect the judgment against, the sureties. 1 Peters, 46. That case, we think, is decisive of the first point made in this. On a joint and several bond, suit must .be brought against all the Obligors jointly, or against each one- severally, because each is liable for the whole; but a joint suit cannot be maintained against a part, omitting the rest. ThérS is, therefore, no 'analogy between the right of action and the right to enter a nolle prosequi against one, as was done in that case. In this case, the plaintiff had a legal ..right to sue any number of the joint and several promisors, and to omit the others; and, therefore, there is a perfect analogy between the right .of action and the right to discontinue the action against one, after judgment against the others. Thus far, the propriéty. of this judgment is undoubted.

The second point involves a question not cognisable in this Court. Whatever may be the defects or illegality of the final process, no error can bé assigned here for that caused The remedy, according to modern practice, is by motion.to the Court below-to quash the execution. If, however, the question were properly before the Court we can see no good reason why interest upon a judgment, which is secured by positive law, is not as much a part of the judgment as if- expressed in it. The legislature say, “ All judgments shall bear interest at the rate of eight per cent,” Can the judgment be satisfied without paying the interest? It is the practice in Mississippi, and several other states, to include no interest in the judgment, except what is then due ; but to leave it to the collecting officer to calculate the amount of interest, according' to law. when he settles with the defendant.

*312 The remaining'obj ection' will now fee examined. If an execution hád; issued upon the. bond improperly, that might have been quashed on motion of the defendant. ■ This leads us to the consideration of the grounds assumed fey the . counsel of the defendant.

By a statute of Mississippi, it is enacted that; “ No writ óf error shall fee granted in any case where á forthcoming bond shall have been given and forfeited •'? Howard and Hutchinson, Statute Laws of Miss/541; and the District Judge has, it is said, adopted this provision of the "statute, ferrule of. Court. This being the local law of Mississippi, it is contended that this Court is hound by it; and fey the expositions givenito it fey the Supreme Court of that state; .and- many decisions of that Cdurt have been referred to. In the case .of the Bank of the United States v. Patton, 5 How. Rep. 200, it is held that á forthcoming bond forfeited is an extinguishment of the' original judgment^ apd that a writ of error will not lie-to it; arid the same doctrine was held in Sanders and others v. M'Dowell, 4 How. Rep. 9.

If-these doctrines are to prevail, the act of Congress, authorizing a writ of error on final judgment, would become a dead lettei and the laws of Mississippi oh this subject become the supreme law in that state. ' If the forthcoming bond is applicable at all to the proceedings bf the Courts of the United States,,it must be in the character of final process.

By the third Section of the act of Congress of the 19th of May, 1828, It is enacted, “ That writs of execution, and other final process issued on judgments and decrees, rendered in ¿any of the Courts' of the United States, and the proceedings thereupon, shall fee the" same, except their style, in each state respectively, as are now used in. the Courts of such state, saving to the Courts of the United ’ States in . the states in which there are not Courts of

Equity with the ordinary equity, jurisdiction; the power of prescribing the mode of executing their decrees in equity by'rules of Court: Provided, however, thpt it shall be in the power of the Courts, if the}r see fit, iii their discretion, by rules.of Court, so far to alter final process in said Courts, as to conform the same to anyphange th^i may be adopted by the legislature of the several states, for the State Courts.” 4 Story’s Laws United States, 2121.

Wé think tfeis section of the act of 1828, adopted the forthcoming bond in Mississippi, as. part of the final process of that *313 -state, at the passage of the act. And we understand- by the phrase, “ final process,” all the writs of execution'theft in use in the State Courts of Mississippi, which were properly applicable to the Courts of.the United States; and we understand by the phrase “the proceedings thereupon”-to mean, the exercise of all the duties of the ministerial .officers -of the states; prescribed, by the. laws of the state, for the purpose of obtaining the 'fruits of judgments, And among these duties is tó be . found one,prescribe.d.to the sheriff, directing, him :to restore personal property levied on, by him, to the defendant, upon his executing a forthcoming bond according to law, and the further duty, to return.it to the Court, forfeited, if the defendant fail to deliver the property; on the day of sale, according to the condition of the bond. These áre certainly proceedings upon an execution;' and, therefore,'the forthcoming bond must be regarded as part of the final ‘ process: It aids materially in securing the payment of the money to satisfy the judgment; and it is part of the process by which the plaintiff is enabled to obtain tlje payment of the money seemed to him- by the judgment.

But is this forthcoming bond a judginent as well as process ? The statute declares that it shall have the force and effect of a judgment, simply, that an execution may issue upon it against the surety as well as the principal, and for all the cqsts incurred after, the judgment. The same effect would have been produced, if the- statute had directed, execution to issue upon the forthcoming bond, without giving it the force and effect of a-judgment. .- The proceeding which produced this bond was purely ministerial; the judicial mind was, in no way, employed in its production.. It •does not then possess the attributes of a judgment, and ought, therefore, to be treated-in this Court as final process, or, at least, as part of the final process. With all due respect for the judicial decisions of State Courts, we cannot concede to those of Mississippi all that is claimed for them in this easel As. far as they settle -rules of property, they will be properly respected by this Cqurt. But when the effect of a state decision is only to regulate the practice of Courts, and to determine what shall be a judgment, and the legal effect of that, or any other judgment, this Court cannot consider themselves bound by such decisions, upon the ground that the laws upon Jhich they are made are local in their cha *314 racter. It is the duty of this Court, by their decisions, to preserve the supremacy of the laws Of the United States, which they cannot do without- disregarding, all state laws and state decisions which conflict with the laws of the United States.

- In exercising the power conferred upon tb Circuit Courts of the United States, by the third section of the act of 1828, authorizing them to alter final process, so far as to conform it to any change which may be adopted by the legislatures of the respective states, for the State Courts; there is the same danger to be apprehended as from state legislation, and state adjudications on the same subject. And therefore no rule ought to be made without the concurrence of the Circuit Judge. No rule made by a District Judge will therefore-be recognised -by this Court as binding, except thosé made, by District Courts exercising Circuit Court powers. The statute of Mississippi taking away the ri^ht to a writ of error, in the case of a forthcoming bond forfeited, can have no influence whatever in regulating writs of error to the Circuit Courts of the United States; a rule of Court adopting the statute as a rule of practice would, therefore, be void.

Regarding the forthcoming bond as part of the process of execution, a refusal to quash the bond is not a judgment of the Court, and much less is it a final judgment; and, therefore, no writ of error lies in such a case. 6 Peters, 648. But, in this case, the writ of error is not- to the supposed judgment, in refusing to quash the forthcoming bond, Jaut to the principal judgment. It 'nas been sued out and prosecuted by one of several joint defendants; and without asking that- the other defendants should be summoned and served; the defendant in error has, however, appeared and defended the suit, and thereby waived the irregularity. But one error has been assigned to the judgment of the Cpurt, the other two apply to the final process. The judgment of the Court below must therefore be affirmed for the reasons here stated.