Roach v. Duckworth

Davis, P. J.

This appeal is from a judgment perpetually enjoining the collection of a judgment of the court of common pleas, for a recovery of damages and costs, and two judgments for costs on appeal to the general term of that court and to the court of appeals. The judgment in this case rests substantially upon the fact that a prior judgment had been recovered against the present plaintiffs in the name of another person, but really for and on behalf of the present defendant for the same cause of action, which prior judgment if the facts had been known could have been pleaded in bar to the recovery of the judgment the collection of which is now sought to be enjoined; and which judgment was after-wards satisfied and discharged by the party in whose name it had been recovered. It is manifest that both actions were attempts by the defendants to enforce a penalty against the jfiaintiff Boach for the default of a corporation of which he was a trustee, in neglecting to make and file its report as required by statute. The corporation was indebted' for borrowed money to the amount of §6,000 and interest; and in the form detailed in the opinion of the court below,, a scheme was devised by which it was attempted (successfully so far as the recovery of the judgments was concerned) to collect of the defendant Boach double the amount of the loan to the corporation. The success of the scheme was defeated by the conduct of an attorney’s clerk, in whose name, as owner, the first suit was commenced, in which a judgment was recovered and afterwards compromised and settled in,fraud- of defendant (as it is claimed by him).

Both actions being for a penalty given by a statute, and the one now sought to be enjoined being clearly an attempt to recover such penalty twice by a course of proceeding altogether indefensible in equity_and morals, the court beloAV was entirely justified not only in enforcing- the- rules strictissind juris, which the law applies to- that class- of actions, hut in holding the defendant, upon - the facts proved and found, strictly to the- consequences- that followed on the recovery of the first judgment and the compromise and discharge thereof by the accomplice of the defendant in the Avrongful scheme to extort the double penalty.

If the cause of action, for which the duplicate judgments were recovered had been an indebtedness of the plaintiffs in this suit it would,, doubtless, be -strictly equitable to require the payment of the amount actually owing and not paid as a condition ©f relief from the judgment sought to he restrained. But the plaintiffs owed no debt. The claim against them was a- penalty for- neglect of duty, as is now settled by the court of last resort. It is not inequitable, therefore, that"the defendant should be held to the consequences acLjpdged to’hinr By the special term. The case is disposed of in accordance with and upon the grounds assigned by Van Vorst, J., in his opinion in 61 Howard, 128, which we adopt as indicating more fully the grounds of our decision.

There seems to have been no errors affecting any substantial rights committed by the learned justice in the progress of the trial.

The judgment is therefore affirmed, with costs.

Beady, J., concurs.