Best v. Hoppie

3 Colo. 137 | Colo. | 1876

A. W. Stone, J.

Appellee sued appellant on a promissory note. Appellant plead, first, a former recovery on the same note by a judgment rendered by a justice of the peace; and secondly, a plea of a judgment on certiorari in the district court in favor of appellant.

The judgment in the district court was, that the action as to John Best be dismissed.

It is admitted the causes of action are the same. The “ certiorari act” provides, “that in cases coming before the court on certiorari, the court shall proceed to give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the justice, which did not affect the merits, and may affirm or reverse the judgment in whole or in part, or render such judgment as the facts and law will warrant.”

The whole proceeding had by the justice was before the district court, and the court determined that the judgment against Tolies be affirmed, and as to Best, dismisses the action.

The only evidence in the case was a note signed by S. C. Tolies and A. A. Smith, with the name of John Best written on the back of it. To charge Best, it was necessary to show specifically that he put his name on the back of the note before it was delivered to the payee. Good v. Martin, 1 Col. 165.

The plaintiff failed in this proof. He failed to make out his case. The judgment of dismissal was a judgment on the merits.

The plaintiff had elected to litigate his rights as to both defendants, in the justice’s court and in the district court. The judgment as to Best was against him and he is bound by it. The former suit in judgment is a bar to this suit. Zimmerman v. Zimmerman, 15 Ill. 84; Elwell v. McQueen, 10 Wend. 520.

The judgment is reversed with costs.

Reversed,