Scott v. Shropshire

CHIEF JUSTICE SAMPSON

delivered the opinion op the court:

The appellant recovered against the appellee two judgments in the Harrison circuit court — one for $1,557, the other for $ 151 — had executions issued thereon, which were returned no property found. He thereupon filed in said court a petition in equity, seeking to subject to his judgments an equitable interest of appellee in a tract of land in the county of Harrison.

Upon the hearing of that cause, the court rendered a formal judgment again for the debts, as well as for the sale of the land. The land was sold and the debts thereby satisfied.

Afterwards appellee brought this suit in equity, seeking to recover of appellant the usury embraced in the two notes, on which said judgments at law were rendered. Appellant filed his answer, relying, in the second paragraph, upon the foregoing proceeding in equity as a bar to the action; to which appellee demurred; his demurrer was sustained, to which appellant excepted; and the correctness of that ruling is the principal question presented by the record.

The judgments at law, rendered by default, present no obstacle to the recovery of appellee, as settled by this court in the case of Ross vs. Ross (3 Met., 274); and as the proceeding in equity was merely in aid of the common law judgments, and for the sole purpose of having them satisfied, and did not in any way involve their correctness, or the liability of appellee for the whole amount thereof, we do not see upon what principle it can have any further effect as a bar to the present action than those j udgments themselves had.

If it-can have that effect, ii, must be upon the assumption that the appellee had a right, in that proceeding, to relitigate, upon the ground of usury, his liability upon the notes on which the judgments were rendered, an assumption which is in direct antagonism to the express provisions of section 14 of the Civil Code. He could only, under that section, avail himself of “ a defense that had arisen or been discovered after the judgments are rendered.” <•

The proceeding in equfiy did not seek any judgment in personam against appellee; it was a proceeding in rem, the purpose of which was to have satisfaction of the judgments already rendered; and the rendering of a' personal judgment therein was outside of the ends and purposes of the proceed.ing, and was no part of the relief Bought, and can have no further operation than to accomplish its legitimate objects; and the motiey arising, from the sale of tbe land, under the order of the court, must be regarded as paid upon the judgments at law, through the aid of the equitable action. The principle, therefore, settled in the case of Pearce vs. Hedrick (3 Litt.), and the other cases referred to by appellant, has no application to this case.

There is, therefore, no error in the judgment of the court sustaining the demurrer.

Nor do we see any error to the prejudice of appellant in the amount adjudged against him. The note for $1,557 was a renewal of the two former notes held on appellee, and a calculation of the interest on those notes shows that appellee paid on one of them the $110, which he claims to have paid. We are equally satisfied that the whole of the note for $151 was given for usury; in’fact, it is so alleged in the petition, and not denied by the answer.

Tbe judgment is affirmed.