56 W. Va. 356 | W. Va. | 1904
S. H. Smith & Bro. and John G. Harman executed to Aaron Armentrout their two joint promissory notes, one for $29,0.00, and the other for $200.00. On the 27th day of January, 1897, Armentrout sued out of the cleric’s office of the circuit court of Grant county, a summons, commencing his action against S. H.
In this condition of the case, judgment was t$fcen by default against Smith & Bro. only, for $338.20, fhe amount due to the plaintiff upon the notes sued on. .Afterwards a motion of the plaintiff to have the judgment set aside was overruled by the court, but “without prejudice to the right of said Armentrout to bring suit on said notes against the said S. Ií. and R. 0. Smith and John G-. Harman.” Later, a new action was instituted ■against the Smiths and Harman upon the notes, totally disregarding the former action and judgment therein. Harman plead- the former judgment in bar of the second action against him. His plea was sustained; the action dismissed at the -costs -of the plaintiff; and the judgment of dismissal affirmed by this •Court. Armentrout v. Smith et al., 52 W. Va. 96.
After the affirmance of the last mentiqped judgment, the circuit court, on motion of the plaintiff, re-ihstated the original action on the docket; awarded summons thereout against Harman, ■and .remanded the case to the rules to be matured thereat. Summons wass issued and served on Harman, who, at the March -■term, 1904, appeared and moved tlie¥court to dismiss the action, but admitted that, if plaintiff was entitled to judgment against him therein, such judgment should be for $366.28, with interest thereon from that date. The court sustained his motion, dismissed the action, and rendered judgment against the plaintiff for costs. That judgment is now before us for review on writ •of error.. Harman was not a party to the original action, at ifis ■commencement, or when judgment was rendered therein as •aforesaid against Smith & Bro. his co-makers of the notes. The process to commence a suit shall be a writ, commanding the •officer to whom it is directed, to summon the defendant to ■answer the bill or action. Code chapter 124, section 5; Geiser Mfg. Co. v. Baldwin, 53 W. Va. 523. The last mentioned judg.ment became and is now final and binding upon the plaintiff, Armentrout, and defendants, S. H. and R. C. Smith. That suit was ended by the judgment therein. “It is res judicata,. The
For the reasons stated, the judgment complained of is affirmed.
Affirmed. ?