
    Austin & Spicer v. Carpenter et al.
    
    Equity -will afford relief to tliose -who are indirectly injured Ivy official fraud or misconduct, as well as to tliose ivlio are directly injured by such fraud.
    The rule that a judgment will not be reversed where the error does not affirmatively appear of record, applies to cases at law, and not to appeals in chancery.
    
      
      In Equity. Appeal from Des Moi/nes DisPi'iot Court.
    
   Opwúon by

KiNNET, J.

It appears from the record in this case, that the appellants Austin & Spicer, in the fall of 1845, commenced a suit against one Edwin Wilcox., That they sued out an attachment and that Postlewait, Coolbaugh and Garrett became sureties in the attachment-bond. Judgment was afterwards rendered in favor of complainants against said Wilcox. The goods attached, were sold upon execution, Francis J. C. Peasley being the purchaser, and he was ordered by the court to pay the costs that had accrued upon said suit out of the proceeds ^ of said sale.

In February, 1848, Wilcox for the use of Anthony W. Carpenter, commenced a suit before J ames R. F ayerweather a justice of the peace, against the said Postlewait, Cool-baugh and Garrett, for the costs in the attachment .suit, and recovered judgment.

A bill in chancery was then filed,' enjoining said Carpenter, Fayerweather and Harris the constable, from the collection of said judgment.

In the district court the bill was demurred to, the demurrer sustained, the injunction dissolved, and the bill dismissed.

The complainants appeal to this court and assign for error this ruling of the court.

The demurrer having admitted the facts set forth and charged in the bill, which were well pleaded, to be true, we have only to examine the bill to ascertain whether it exhibits such a case as will entitle the complainants to the interference and aid of a court of equity.

It was urged by counsel for the appellees in the argument, that the court would not look into the merits of the case, as by the chancery act, the court were compelled to dismiss the bill for the reason, that the complainants did not appear and prosecute the suit. This position is not sustained by the record, which shows that the cause came up to be heard upon the defendant’s demurrer to the complainants’ bill, whereupon all and singular, the premises being seen and heard, &e., the injunction was dissolved and the bill dismissed. It is conclusive from the record, that the bill was tried upon the demurrer and dismissed for the want of equity, and not pro forma as was urged in the argument.

Looting into the bill, we find that it sets forth in substance that the attachment against Wilcox was sustained, that the sureties thereby became absolved from the payment of costs upon their bond; and that Beasley was ordered to pay all costs which accrued in said suit.

The bill also states that when the suit for the collection of the costs against said sureties was about to be tried, the counsel for the complainants appeared in order to defend; but said justice P ayerweather refused to let him do so. That said sureties did not appear, expecting said Austin & Spicer to do so, and defend said suit. The complainants also state, that the case would have been appealed, had not the justice informed their attorney that the same was settled -and would not be pursued. Fraud is charged in the rendition of the jndgment, and it is charged that the justice acted contrary to good faith, &c.

It is not necessary for this court sitting in chancery, to decide whether the defendants before the justice had a good defence at law, nor does it become material in the view in which this case is presented to our minds. But it is proper to ascertain whether Austin & Spicer had a right to appear and defend the suit, and whether they .were improperly deprived of their appearance and defence by the misconduct of the justice. The defendants before the justice, although the real parties, were only nominally so in interest, as they would have their action over against the principals in the bond for any judgment that might be recovered against them.

Although the appellants were not party defendants, yet it became important for them to protect their sureties from any judgment, and thus preserve themselves from a liability which would necessarily result in favor of the sureties, if judgment were rendered against them. And we see no impropriety in their conducting the defence, particularly as the sureties did not defend, expecting that the counsel for Austin & Spicer would do so. But the justice appears to have been unnecessarily technical, and to have shut out the defence, from hones.t motives we would presume, if it were not otherwise charged in the bill.

If the bill did not state that the defence was left to the appellants, or in language which is equivalent to it, we might come to a different conclusion, for as a general rule the parties only to a suit have the right to defend. B ut the justice not only prevented them from defending, but after judgment was rendered and an appeal applied for, informed the pounsel that the case was settled, and would not be pursued, thus depriving them of the benefit of an appeal, as the execution upon the judgment was retained until after the time for appeal had expired.. If suplí conduct as this in a public-officer acting in an official capacity, in violation of "the rights of parties, is not a fraud, it would be difficult to ponpeive of a case in which official malfea-zance could be construed into fraud. The principle of law is well settled, that not only the parties directly in interest may be relieved from this hind of fraud, but a court of equity will afford relief to parties who are indirectly made to suffer by such official misconduct. 2 Am. Chy. Dig. 16, 19, 24.

But it was contended by pounsel for the appellees that if there was error in the district court in dismissing the bill, the judgment should not be reversed unless the error appears affirmatively upon the record. This is the law when applied to cases upon writs of error, as has been frequently decided by this court. Mackemer v. Benner, 1 G. Greene 157; Saum v. Jones Co. Com., ib. 165; Hemphill v. Salladay, ib. 301.

But this doctrine does not obtain when applied to appeals in chancery. On appeal, a court of equity freed from those rigid rules wbicb limit and confine a court of errors, baying acquired jurisdiction, will examine into tbe merits of tbe case foi tlie purpose of administering' justice; guided only by tbe universal principles of equity jurisprudence. Not confined to errors apparent, tbé c'orirt will correct errors of conscience, wliieli sometimes aré of sucb a nature that they cánnot be spread upon tbe record. All appeals in chancery, must be tried de novo, tbé sáirie as if tbis court bad original jurisdiction, regardless of tbe decision of tbé Court below, except so far as necessary to a correct understanding of tbé récord and tbe' hia-tidrs- at issue.

J. 0. Hall, for appelíántd.'

D. Rover, for appellees.-

From a careful éxaminátioh of tbé hiatteis presented iil tbis case, we aré of tbe opinion that tbe bill exhibits a strong case for éqxiity interference, and that, tbe court ber low erred in sustaining tbe demurrer, to tbe complainants’ bill.

Tbe decree is reversed, and tbe case remanded to tbe court below, for further proceedings and incompetent with this opinion.

Decree reversed..  