Duryee v. Hale
31 Conn. 217
Conn.
1862
Check Treatment
Dutton, J.

The plaintiff in this case brought an action of debt on judgment, to which were added money counts in debt. To prove the first count, he introduced the record of a judgment rendered in the state of New York, under a statute law of that state. The defendant Hale, a resident of this state, had no legal notice of the suit in which the judgment was rendered. The plaintiff introduced evidence of the indebtedness of Hale, but it showed an individual, and not a joint indebtedness. The case presents a question of much practical importance, as suitors in this state frequently have occasion to bring actions to recover a debt on which such a judgment, or quasi judgment, has been rendered in New York, and a mistake in the form of proceeding might be attended *222with serious inconvenience, if not loss. The question is, can the plaintiff sustain debt on judgment against the joint debtors ; or assumpsit or debt against both on the original cause of action; or must he sue one of the debtors separately on the judgment, and the other on the original cause of action ?

Looking only at the statute in question, we should find little difficulty in coming to the conclusion that the proceeding in New York constituted a judgment. The statute itself says: “ The judgment, if rendered’in-favor of the plaintiff, shall be against all the defendants.” How could language show more clearly that the legislature intended that it should be regarded as a judgment against all the joint debtors ? So the second section says: “ Such judgment shall be conclusive evidence, &c.” And the third section provides that execution may issue against the partnership property of all the defendants. Mervin v. Kumbel, 23 Wend., 297. An execution not founded on a judgment would be a novelty in legal proceedings. It is to have the effect also of a judgment, as to the extent of the plaintiff’s claim against the party not served with process.

We are not aware that this precise question has been decided in the state of New York. We think however that the weight of judicial opinion in that state is in favor of this construction. In Merwin v. Kumbel, 23 Wend., 293, the supreme court of New York held that the plaintiff could not recover against both joint debtors in an action founded on such a judgment without some further proof than the record of the proceedings. Cowen, J., gave a strong opinion in favor of the construction which we have given, in which Nelson, Oh. J., concurred. Bronson, J., regarded the judgment as a nullity against the defendant who was not served with process. Judges Nelson and Oowen concur in the opinion that the proper course to be taken by a plaintiff is, to bring an action on the judgment, but they think he ought to prove, and perhaps allege, the liability of the debtor who was not served with process.

There are strong reasons why we should favor this mode of proceeding, even on a judgment rendered in another state. It has the merit of simplicity. The creditor has no questions *223to solve as to joinder or merger. It does not change the liabilty of the defendants from a joint to a several liability. It does not require a creditor to bring two suits instead of one to recover his debt.

The principal objection to it is, that it binds a defendant as to the amount of his debt, in a proceeding of which he had no notice. It may be said with truth that the general doctrine is that a man is not bound by a judgment in another state , where he had no notice. Aldrich v. Kinney, 4 Conn., 380; Wood v. Watkinson, 17 id., 500 ; Opinion of Bronson, J., in Merwin v. Kumbel, 23 Wend., 295. This rule is founded on the manifest injustice of a contrary doctrine. But the foundation of the rule fails here. The judgment, according to the view we take, only binds a joint debtor by the action of his co-debtor. The joint indebtedness must be first proved. Now it is well settled that the admission of one co-debtor will be evidence against the other, even to the extent of taking a case out of the statute of limitations. So one joint promisee can bind the other in discharging the obligation. There is no hardship, therefore, in making this an exception to the general rule. If the judgment has been obtained for too great an amount, by fraud, collusion, or even mistake, there will ordinarily be a remedy in the state where the judgment has been rendered, by an application for a new trial or for relief in chancery.

The New York statute does not go so far as one which has been for a long time among the statutes of this state. This is in the following words: — “ In actions on joint contracts, if all the defendants are not inhabitants of this state, the service of the process upon such as are inhabitants of this state, shall be sufficient notice to maintain the suit against all the defendants.” Rev. Stat., tit. 1, sec. 21. Courts in this state have not hesitated to render full judgments against inhabitants of other states who have had no notice except what may be implied from service on a joint contractor. Bishop v. Bull, 1 Day, 141; Southmayd v. Backus, 3 Conn., 474. We suppose there can be no doubt that such a judgment would support an action against all the defendants.

*224We are aware that some remarks were made by Storrs,'J., in the case of Wood v. Watkinson, before referred to, which apparently conflict, to some extent, with the view which we have taken. But that case did not call for a decision of the precise point raised in this case. The only question presented by the record, and discussed by the judge who gave the opinion, was the same as that in Merwin v. Kumbel, to wit, whether the record was sufficient evidence for the plaintiff against both of the defendants. At all events, the point which we have been considering does not appear to have been brought to the attention of the court. We have therefore come to the conclusion, especially as it is important that this vexata qucestio should be ended, that this action was properly brought on the judgment against both defendants, and that it was competent for the plaintiff to have sustained it against both the defendants by proper evidence of the original cause of action as to Hale.

But the evidence offered by the plaintiff proved only a several liability on the part of Hale. We think this was not sufficient. The New York statute proceeds wholly on the ground of a joint liability. The defendant not served with process is not to be bound to any extent by the judgment unless a joint liability is proved against him. He ought not to be affected by any express or implied admission of his co-defendant, till it is shown that some mutual relationship between tliem, like that of a partnership, gives one an authority to act for the other.

It has been ingeniously argued, that the judgment proves the indebtedness of one of the defendants, and the parol evidence that of the other, and that thus a joint indebtedness is established. A slight examination will show the fallacy of this reasoning. It does not follow at all that because two are bound to pay the same debt, they are joint debtors. Where A guarantees the debt of B} each may be sued for it, but they could not be sued together.

It has been suggested that several judgments may be rendered against the defendants. There is however no authority or precedent for such a course.

*225Iu the last place the counsel for the defendants insist that we are called upon to say what judgment shall be rendered on the facts found by the superior court, and that as a case is made out equally against each of the defendants separately, and there is no foundation laid for a distinction between them, and as judgment can not be rendered against both the defendants, either jointly or severally, we ought to advise judgment against the plaintiff. To this claim it is a sufficient answer to say, that if the facts present an imperfect case the proper course is to remand it to the superior court for correction.

The plaintiff in that court will be obliged, by withdrawing the case against one of the defendants, to entitle himself to a judgment against the other, according to the provisions of the statute, (Rev. Stat., tit. 1, sec. 150,) or abide the consequences.

In this opinion the other judges concurred.