79 A. 347 | N.J. | 1911
The record shows that Blessing, now defendant in error, commenced suit in the Cape May circuit court against William H. Quigg and James McLinden (the latter now plaintiff in error) to recover the amount due upon a judgment theretofore rendered against them as copartners in a court of record of the state of Pennsylvania. Summons against both defendants was issued to the sheriff of the county of Cape May, and to it the declaration was annexed as permitted by the practice act. P.L. 1903, p. 564, § 95. The sheriff returned that the summons and declaration were served personally upon McLinden, and that Quigg could not be found in his county, and, according to the information and belief of the sheriff, was a resident of the state of Pennsylvania. The defendant McLinden appeared, and filed certain pleas, which, on motion of the plaintiff, were struck out upon the ground that they were sham and frivolous, and did not set up any defense to the action. Judgment by default was thereupon entered in behalf of the plaintiff, and against McLinden alone as defendant, for the amount claimed to be due upon the Pennsylvania judgment, with costs.
The grounds relied upon for reversal are, first, that the circuit court erred in striking out the pleas; and, secondly, that the court erred in rendering judgment against the defendant McLinden alone, whereas it is insisted that under the "Act concerning obligations," approved March 27, 1874 (Gen. St. 1895, p. 2336, § 2), the judgment, if any judgment was lawful, should have been against both Quigg and McLinden as copartners. The record shows that the pleas in question were struck out as sham and frivolous. This court decided in Brown v. Warden,
The pleas being thus eliminated, and the plaintiff having thereupon proceeded to take judgment by default as for want of a plea, it remains to be considered whether his judgment against McLinden alone is erroneous. As to this the argument is that under section 2 of our act concerning obligations (Gen. St. p. 2336), while one of two defendants jointly indebted to the plaintiff may be required to answer, he nevertheless remains only jointly liable; that the judgment provided for by the act must be a joint judgment, and may not be a judgment against the answering defendant alone; that the act may not be reasonably construed to change a joint liability to a several liability; that by virtue of the adoption of the fourteenth amendment of the federal Constitution, as construed by the Supreme Court of the United States in Pennoyer v. Neff,
The old English practice respecting actions against joint debtors, some only of whom could be served with process, was to proceed to outlawry against the absent or absconding defendant, and, having done this, to prosecute the action against the defendant who was served, declaring against him alone upon a joint contract made by him and the absentee. 1 Tidd. Prac. (3d Am. from 9th London Ed.) pp. *130, *131; 1 Chit. Pl. (13th Am. from 6th London Ed.) p. *42; 2 Chit. Pl. p. *8. But this practice did not rest upon the ground that the joint contractor who was within the jurisdiction had any right to have his fellow joined as defendant if the latter were without the jurisdiction. The law did not deny a recovery against one joint contractor because his co-contractor could not be served with process. The non-joinder of one of several joint contractors could be availed of only by plea in abatement, and such plea must inform the plaintiff of the names of the parties not joined, and must state that they were still living unless this appeared on the face of the declaration. Rice v. Shute, Burr. 2611; Id., 1 Smith Lend. Cas. (H. W. Ed.) p. *645, and notes; 1 Chit. Pl. *43, 46; 2 Chit. Pl. *901; Mershon v. Hobensack,
The statute came under criticism in our Supreme Court in Harker v. Brink,
Until the adoption of the fourteenth amendment, however, it was commonly held that a state might authorize a personal judgment, good within its own territory, against one who had not been subjected to the process of its courts by service of such process within the jurisdiction. But by that amendment it was (among other things) provided that no state should deprive any person of life, liberty, or property without due process of law, and this was construed by the Supreme Court of the United States in Pennoyer v. Neff,
In Stehr v. Ollbermann,
Whether the plaintiff by taking judgment against one only of the joint debtors debars himself from any future recovery against the other is a question that does not now concern us. There seems to be a conflict of authority upon the point. See Freem. Judgts. (4th Ed.) §§ 231-233; Bigelow on Estoppel (5th Ed.) 104.
The judgment under review should be affirmed.
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