
    
      Otis Mills & Co. vs. Dickson & Mills.
    
    One of two partners confessed a judgment for tho firm in tho names of himself and his copartner — no suit pending: both partners shortly afterwards made an assignment for the benefit of their creditors — one of the two plaintiffs in the judgment confessed being tho assignee: tho partner who had not joined the confession made no objection to it j but on motion of the agent of tho creditors, appointed under the Act of 1828, the assignee, as plaintiff, opposing the motion, the judgment was set aside as null and void. One partner has no legal right to confess a judgment'|or his copartner.
    By the Act of 1785 all powers of attorney to confess judgment before suit brought, are void, 
    
    Judgments may, in this State, be set aside on motion,5 for irregularity, defect, or error, in all cases where a writ of error would lie in England. 
    
    Though no one, not a party to the judgment, can impeabh it for mere irregularity; yet, if the judgment be null and void for defect of substance, any one interested can move to set it aside.
    A judgment confessed by one partner for the firm is defective in substance, and null and void.
    An agent appointed by creditors under the Act of 1828, has the same powers as the assignee ; and, as representing the creditors, has such an interest in a judgment against the assignors, older than the assignment, that he may move to have it set aside as null and void, notwithstanding objection by tbe assignee, he being plaintiff in tho judgment.
    
      Before Wardlaw, J., at Charleston.
    
    The report of the case made by his Honor, Judge WaRdlaw, is as follows:
    “ The defendants, who had been grocers in Charleston, failed in business. A confession of judgment in this case appeared to be signed S. D. Dickson, S. S. Mills, without attesting witness— no suit pending — and thereupon judgment was entered and fi. fa. lodged, Peb. 12, 1848. The defendants, on Feb. 14, 1848, made an assignment to E. M. Beach, in trust for the payment of creditors, arranged into classes, (the plaintiifs being placed in the first class, which, in the order specified, was to be entitled to priority of payment,) and after full payment of all creditors, the residue in trust for the defendants. Besides this judgment, there were no debts of record against the defendants. Otis Mills and E. M. Beach form the firm of Otis Mills & Co., and Otis Mills is the brother of S. S. Mills, the partner of S. D. Dickson.
    
      “ Persons, who claimed to be creditors of Dickson & Mills, at a meeting to which Otis Mills & Co. were not invited, appointed C. Burckmyer to be their agent, under the Act of 1828, (6 Stat. 365.) The plaintiffs were selling the goods of the defendants under their fi. fa., ■ and C. Burckmyer, in behalf of creditors, moved before me, at Chambers, in Charleston, April 11, 1848, to set aside the judgment, or suspend the. execution of plaintiffs, upon the ground, (of which the facts were shown by affidavit,) that S. D. Dickson was not in Charleston when the confession of judgment was there signed, and that his name, signed thereto, is not in his handwriting.
    
      “ I granted an order, suspending the execution until the second Monday of the May Term, then near at hand, expecting the mover to take certain steps in equity, to which allusion had been made.
    “ At May Term following, the motion to set aside the judgment was renewed. It appeared, that S. D. Dickson had, from a day shortly after the entry of the judgment, been in Charleston, and was so then, but made no objection to the judgment.
    “ I refused the motion in writing.”
    The order made by his Honor, at Chambers, April 11, 1848, is as follows:
    Wardlaw, J. The motion was made to set aside the judgment, but as that could be done only in Term, by the Court in which the recovery was had, the motion was varied so as to be one, under the Act of 1818, to set aside or stay execution.
    
    The sheriff, it is said, has sold, and now has in his hands the proceeds of sale. The motion is made in behalf of C. Burckmyer, agent of the creditors of Dickson & Mills, appointed according to the Act of 1828, under an assignment made by Dickson & Mills to E. M. Beach, in trust for creditors in certain order. The ground of the motion is, that the confession of judgment was not signed by S. D. Dickson, but is, as to him at least, á nullity.
    S. D. Dickson is said to be in town, fully aware of the confession, and of all the proceedings that have been had under it, but makes no complaint. If only an irregularity were complained of, the defendant, or his representative, only, would be heard — he might waive the irregularity if he chose. A third person would be bound to regard the judgment as valid, so long as it subsisted. But if the Court which rendered the judgment had never acquired jurisdiction over the person of the defendant — if the judgment is void — then, it is void everywhere, and will be so considered whenever it is brought collaterally to the notice of any tribunal.
    Should the Court, whose process is abused by attempt to enforce a void judgment,' interfere, for its own dignity and the protection of its officers, to arrest further action ? Certainly — upon proper application. But it is a different question, whether a Judge, at Chambers, should, at the suggestion of a third person, interfere with an execution not complained of by the defendant. It is said the third person, here, stands in the place of creditors, in trust for whom the assignment has been made, and under the Act of 1828 has the rights of assignee ; and that the rights he has been appointed to protect, are endangered by the execution. I do not judicially know, that there are any creditors besides the plaintiffs in the case before me. If the execution is set aside, what shall become of the money in the sheriff’s hands? The defendants,Dickson & Mills, do notask for it, but are willing that the plaintiffs shall take it. I could not order it to he paid to the agent, as matters are presented to me ; the assignee does not ask it: peradventure all the creditors mentioned in the assignment, except these plaintiffs, have been satisfied, and a payment to the agent or assignee, would be only for the benefit of the plaintiffs, or of the defendants. At all events, both the agent and the assignee concurred in this application. I see not why they should not institute proceedings in such form, that their rights should be investigated, and, if they are entitled to receive, that the money should be paid to them, if the judgment is really null, as is here supposed.
    The motion to set aside is refused.
    As, however, serious mischief might ensue from the action of the sheriff before suitable proceedings could be had on the part of the applicant, it is ordered, that the execution of fieri facias be suspended until the second Monday of May next.
    On the renewed motion to set aside the judgment, made at May Term, 1848, the order made by his Honor is as follows:
    Wardlaw, J. The motion now made is refused, for reasons much like those which induced me to refuse the motion made at Chambers, to set aside the execution.
    If the judgment be void for matter aliunde, such as is here alleged, whenever the proof of that matter shall be made before any tribunal where the validity of the judgment may come into issue between parties litigant, the nullity of the judgment will follow as a necessary result. If now I should interfere, upon the application of one who is no party before me, and whose rights have never been judicially established, my interference could amount only to a declaration of opinion. I could make no effective order — certainly not an order for the sheriff to pay the money to Mr. Burckmyer, who is represented to be the agent of the creditors. Perhaps the assignment is invalid, as has been suggested ; if so, of course there is no lawful agent. Perhaps the agent was, (as has been suggested,) appointed by a minority of the creditors; if so, he has no rights. If investigations should he ordered, and these difficulties be cleared away, still the right of an agent, under the Act of 1828, to receive the funds, would not he clear.
    Suppose, however, that the assignment be unobjectionable, and that the agent have all the rights of a sole assignee. I have no judicial information that there are creditors whose rights intervened between the entry of this judgment and the subse-1 quent recognition of it by Dickson, who now disavows all objection to it. The right of the assignee, (even if he were an assignee, for valuable consideration, to the use of himself and others,) would be a right to the property assigned, and not to the proceeds of a sale of that property made by the sheriff. If he should be willing to waive the tort and look to the money in the sheriff’s hands, I know no authority for the Court’s interfering between the parties to the record, on his motion ; unless he can present himself as one entitled to take this money out of Court if the plaintiffs’ judgment be set aside. If he stood as a judgment creditor, he would receive such notice, as in Posey vs. Underwood, was given to a judgment creditor alleging invalidity of another judgment. But as the case is, I must leave creditors and others to their action, just as I would if this complaint was, that the debtor was paying, to some favored friend, all his money, to the injury of assignees and others who ought to have it.
    From the Order suspending the fieri facias, Otis Mills & Co. appealed on the grounds
    1. That the judgment and execution are neither irregular, defective nor void.
    2. That there are no parties before the Court competent to avoid the proceedings, if they are voidable; nor any cause before the Court in which it has jurisdiction to pronounce them void, if they be void.
    From the order refusing to set aside the judgment and execution, C. Burckmyer appealed on the grounds
    
      1.Because the judgment is defective in substance, and gives no legal authority for the issue of execution.
    '2. Because the record is irregular in form; and, whether defective or irregular merely, the agent of the creditors has sufficient legal privity to enable him to take advantage of it.
    3. Because the assignee of Dickson & Mills is a plaintiff in the execution, and is interested in refusing to make the objection ; and the agent of the creditors and himself thus differing in opinion, the agent has a right to the decision of the Court upon the point, and to ask its aid in setting aside the judgment.
    
      Bailey 6p Brewster, for Otis Mills & Co.
    
      Memminger, for C. Burckmyer.
    
      
      
         See Rankin & Birch vs. Lawrence & Johnson, 4 Rich. 267. vs. Way, 2 Rich. 324.
    
    
      
      6) See Saigler
      
    
    
      
       7 Stat. 321; 2 Rich. 111.
    
   The opinion of the Court was delivered by

Richab-dson, J.

The affidavits of C. Burckmyer and S. Dawson afford, at least, prima facie evidence of the necessary and essential fact of the case, and of the interest and position of the party moving to set aside the judgment.

The final question is this : Can the judgment confessed by Mills, be good and effectual in law, so as to bind the mercantile firm of Dickson & Mills, and supersede the subsequent assignment to Beach ? In considering the motion to set aside the judgment, which has been entered up both against S. D. Dickson and S. S. Mills, I shall take, as settled and conceded, the following legal positions:

1. That one partner has no legal right to confess a judgment for his copartner. See Green Sp Mosher vs. Beals, 2 Caines’s Rep. 254; Harrison vs. Jackson, 7 T. R. 20.

2. That by our Act of 1785, (7 Stat. 232,) all powers of attorney to confess judgment before suit brought, are void. See Dial vs. Farrow, 1 Spears, 115; 9 Wend. 437; 1 Ib. 311.

3. That motions to set aside judgments for irregularity, defect, or error, are competent before our Court of Common Pleas, in all cases, where the writ of error would lie in England. See Mooney vs. Welsh, 1 Mill, 133, in which case substitution of a motion, here, in open Court, in the place of the writ of error, there, is fully considered and decided : and has been acted upon ever since. Barns vs. Branch, 3 McC. 19.

4. That none but a party to.the record can take advantage of the mere irregularity of the judgment, or defect in form only. See Bourdeaux ads. Treasurers, 3 McC. 142; Mattheson ads. Garrineu, 2 Rice Dig. 48, § 67.

These law points are plain and established. But leave the application to. the facts of the case to be considered. First, then, is the alleged defect of the judgment, a mere irregularity, or defect in form ?

It is not questionable, that the defect of the judgment, in the case before the Court, is one of substance and not of mere irregularity of form; i. e., if true, per se it destroys the judgment; and revocation follows, of course. The judgment is recalled. So that, if Dickson were to move to set it aside, as a judgment null and void, as to him, there could be no doubt of the success of his motion : — Simply, because he had not signed the cognovit or confession of judgment made by Mills. And this, notwithstanding it is in form, as if Dickson too, had confessed it. For the distinction between mere irregularity and defect in substance, see 1 Tidd Pr. 437.

So far, the case as well as the principles of law are plain.

But it is questioned, and that is the important question of the case — Whether Burckmyer, the agent, appointed by the creditors of Dickson & Mills, under the Act of 1828, 6 Stat. 365, and acting on behalf of such creditors, has the same right as Dickson to succeed in a similar motion.

Secondly, then, we are to enquire, What are the powers and interests of such an agent as Burckmyer.

The Act empowers the creditors, p. 366, “ to name and appoint an agent or agents equal in number to the assignees, to act in their behalf, jointly with the assignee, or assignees, named and appointed by the assignor,”

By the fourth section it enacts “ That the proceeds arising from the sales of the property assigned, shall be deposited for safekeeping in the Bank of the State of South-Oarolina, or ajny of its branches, in the joint names of the assignee or assignees, and agent or agents, and subject to their joint drafts.”

And throughout all its provisions, the Act treats the agent, as having the same powers as the assignee, charged with the same duties and responsibilities, and entitled to the same commissions for his labor. >

By legislative enactment, therefore, the assignee and agent have joint power, and if they differ, the Act provides for the appointment of an umpire.

And I cannot but conclude, from all fair reasoning, that, if Beach, the actual assignee, were to join Burckmyer in the motion to set aside the judgment, it would be successful, on account of the substantive error ascribed to such judgment, to wit: as null and void, against Dickson. And that the same success would follow their motion, if Beach were a stranger to the judgment and not a party to it. But Beach is interested to maintain his own judgment, and of course does not join in setting it aside, being more interested in the judgment than in the assignment made to himself for the common interest of all the creditors.

This position of Beach and Burckmyer forms the perplexing peculiarity of the case.

But has not, either, as well as both of them, sufficient inter- ■ est, for himself and the creditors, to submit a plain question of law to the Court — to wit: Is or is not the judgment confessed by Mills, null and void as against Dickson 1

And as between such agents, counteracting each other, will not the Court decide the question according to the strict law ?

Has not either of them, a right to claim the decision of the Court, ex debito justitice; and that, by the usual form of proceeding, by motion to the Court to look into the record of the judgment; and to decide whether the judgment confessed has been properly entered up against Dickson ?

This brings the Court to the enquiry: — What privity or interest is required to sue out the writ of error. In Bacon Abr. Error (B) it is said, that “ if tenant in tail within age comes in as vouchee by attorney in a common recovery, he in remainder may assign this for error ; for he is party in interest to the recovery, and where a man’s interest is bound by another’s act, it is but reasonable, he should be allowed to free himself from the mischief of it, by taking advantage of any error in it.” Is not Burckmyer as much interested in the present judgment?

Chitty says, “In setting aside a warrant of attorney, the Court of Law combines the jurisdiction of a Court of Equity as well as of a Court of Law, so as to have power to interfere even on mere equitable grounds. And such an application may be made not only by the defendant who executed it, or his representatives, but also by a creditor or landlord or other third party prejudiced by it.” 2 Gen. Pr. 336. He quotes Martin vs. Martin, 3 B. and Adol. 934.

In Harrod vs. Benton, 15 Eng. C. L. R. 202, a motion was made to set aside a warrant of attorney, judgment, and execution. Tenterden C. J. says, “I think the Court has a jurisdiction over the warrant of attorney, which it may exercise at the instance of an.y party, who has any interest in supporting it or in setting it aside.”

Tidd says, “ It is a general rule, that no person can bring a writ of error to reverse a judgment, who was not party or privy to the record, or prejudiced by the judgment, and, therefore, to receive advantage by the reversal of it.” 2 Prac. 1052.

And as it cannot be questioned, that the agent Burckmyer, and his principals the creditors, have not only an interest, but a very great one, in setting aside the judgment — a judgment which would absorb all the effects of the firm of Dickson &. Mills assigned to the creditors — such agent must be heard: and the law being with his application, his motion ought to prevail.

But, and lastly, as to the possible consequences. Is there any difficulty, or incongruity, that can follow, from setting aside the judgment? None that lean foresee. In that event, the money in the hands of the sheriif simply passes into the hands of the assignee and agent, in virtue of the assignment; and, according to its provisions, for the-benefit of the creditors. But even if difficulties -were to he apprehended, the Court cannot he estopped from allowing a claim of legal right. The motion is therefore granted, and the judgment against the firm of Dickson & Mills is set aside. '

O’Neall, Evans and Fbost, JJ. concurred.

Wardlaw and Withers, JJ. dissented.

Judgment set aside.  