Cameron v. Kanrich

201 Mass. 451 | Mass. | 1909

Braley, J.

The plaintiff’s cause of action appears from the single count of the declaration to have been for an assault, and instead of bringing separate actions she joined the defendants in one action. It is settled at common law that a judgment without satisfaction against one of two joint wrongdoers, who are sued separately, is no bar to taking judgment against the others. Oulighan v. Butler, 189 Mass. 287, 298. But if they are sued jointly, taking judgment against one not only operates as a discontinuance, but constitutes a bar to obtaining judgment against the others. The cause of action, being single, has beenTnerged in the judgment and the form of the action changed. It cannot afterwards be divided into two actions, one sounding in contract and the other in tort. Sprague v. Waite, 19 Pick. 455. Elliott v. Hayden, 104 Mass. 180, 181. McAvoy v. Wright, 137 Mass. 207. Munroe v. Carlisle, 176 Mass. 199, 202. Broome v. Wooten, Yelv. (Metcalf’s ed.) 67, 68, n. King v. Hoare, 13 M. & W. 494, 504, 505. Buckland v. Johnson, 15 C. B. 145, 163, 164.

In actions upon a joint contract it is provided by R. L. c. 177, § 6, that the plaintiff may have separate judgments if it is found that all the defendants are not jointly liable, but there is no similar provision as to joint tortfeasors when sued jointly. Downing v. Coyne, 121 Mass. 347. The judgment of the Municipal Court in favor of one and against the other defendant must be taken to have been rendered upon the pleadings, and there could not be in the plaintiff’s favor a joint and also a separate judgment upon the count. Munroe v. Carlisle, ubi supra.

If the plaintiff had appealed generally, the whole case would have been brought up to the appellate court. He was not obliged to accept the finding in his favor if the damages awarded were less than the amount claimed in the writ, and within the meaning of R. L. c. 173, § 97, he was aggrieved, even if the judgment had not been wholly adverse. Kingsley v. Delano, 172 Mass. 37, 38. The record, however, conclusively shows that the appeal was not claimed and taken generally, as in Cronin v. Barry, 200 Mass. 563, but was strictly limited to an appeal from the judgment in favor of the defendant Albert M. Kanrich. But, having voluntarily taken judgment against the co-defendant, not only was a discontinuance of the action as against the appellee immediately worked, but the plaintiff had no cause of action remaining which he could prosecute to judgment against him. Elliott v. Hayden, 104 Mass. 180, 181. Munroe v. Carlisle, 176 Mass. 199, 202

The Superior Court not having acquired jurisdiction of the case, the appeal must be dismissed.

So ordered.