276 N.W. 228 | Minn. | 1937
Lead Opinion
For injuries sustained by her in an automobile collision, Carrie Kemerer procured judgment against plaintiff and Martin Mock as codefendants. See Kemerer v. Mock,
The question presented, put in abstract form, is this. May one of two or more of the debtors upon paying a judgment summarily compel contribution irrespective of an equity, as between the debtors, which would have prevented contribution in the absence of the judgment? The answer, affirmative or negative, must be *241 found in construction and application of 2 Mason Minn. St. 1927, § 9410, reading thus:
"Whenever a judgment against two or more persons shall be enforced against or paid by one of them, or one of them shall pay more than his proper share as between himself and the other judgment debtors, he may continue the judgment in force for the purpose of compelling contribution; and if, within ten days after such enforcement or payment, he shall file with the clerk a notice of the amount paid by or collected from him in excess of his proper share, and of his claim for contribution, * * * the judgment shall remain in effect in favor of the party filing such notice for the amount and against the party in such notice specified."
Was that statute intended merely to set up a new and summary procedure for the enforcement of old rights? Or was the purpose to change old rights and the substantive law concerning contribution?
1. The coverage of such a statute can be delimited only by aid of a survey of the field of common law and equity (as it is at the time the new law is enacted), within and on which it is intended to operate. In that domain is one rule, and a limitation of another, so illuminating as to light us far on the way through this appeal. The rule is "that parties to a judgment are not bound by it in a subsequent controversy between each other, unless they were adversary parties in the original action." Pioneer S. L. Co. v. Bartsch,
That modification is obviously correct. But the important thing now is that the reach of the judgment as res judicata includes only the question of liability of the judgment debtors "to the plaintiff." It does not include their rights and liabilities, in respect to the judgment, among themselves.
2. Next the result just stated follows necessarily upon a limitation of the rule that a cause of action is merged in the judgment thereon. As between creditor and debtor, that absorption is ordinarily complete. But "the merger of the cause of action has no effect upon the liabilities of the coplaintiffs or the codefendants between each other, since they are ordinarily not adverse parties and with respect to each other the judgment is therefore not res judicata. Those liabilities are not in issue in the case, and therefore are not affected by the final determination of the action." 2 Freeman, Judgments (5 ed.) § 564. A typical case cited by the author is that of a recovery upon a note against the makers and indorsers which does not so merge the obligations on the note as to prevent the indorsers from paying the judgment and maintaining an action against the maker. Kelsey v. Bradbury, 21 Barb. (N.Y.) 531.
3. In this state it is not the rule that there can be no contribution between joint tortfeasors. Since Ankeny v. Moffett,
The rejoinder is that the statute (§ 9410) automatically and arithmetically fixes the "proper share" of each judgment debtor, or *243 rather that a judgment for money against several jointly and severally has that effect by reason of the statute. If so, the only thing remaining to be done, in order to ascertain the "proper share" of each debtor, is to make the simple division indicated by the amount of the judgment and the number of solvent debtors. If that be the result, the statute has wrought a radical change in substantive, as distinguished from adjective, law.
By way of illustration, take the case of a promissory note to A as payee with B and C as makers, C signing solely for the accommodation of B. If after maturity and upon demand against him but without judgment C pays the note, he has a cause of action against B, not for contribution but for exoneration. Can it be supposed that it was the intention of the statute (§ 9410) to have that status altered, as between the makers, if the payee, A, procures judgment by default against them? (Neither such a judgment nor the underlying record would show the rights and liabilities of the defendants as between themselves.) Again, if the statute has not changed the old law, C, upon paying such a judgment, would have a cause of action against B for the whole amount. But if under the statute nothing is left but to divide the judgment equally between the debtors, C can recover only half, and that by way of contribution rather than indemnity.
Suppose further that in such a case the judgment against B and C is paid by B, the accommodated maker. He may then, if the statute has changed the law as contended on behalf of respondent, recover one-half the amount from C, who signed the original note solely for his accommodation. It is not complimentary to the legislature to entertain argument that they intended any such absurd and unjust result.
If one of these joint debtors had providently compromised and paid the claim of the original plaintiff without suit he would have been at liberty to sue the other for contribution (Duluth M. N. Ry. Co. v. McCarthy,
The real obstacle to a holding that the statute has changed the substantive law is that the change, if made, must rest upon an inference of the gossamer texture of mere conjecture, as distinguished from implication. Changes in common-law fundamentals are not so made. Courts will give full effect to legislative intent to effect such alterations, but the intention must be at least reasonably clear. Donnelly v. Minneapolis Mfg. Co.
It is not clear here for the simple reason that against the backdrop of common law and equity the statute takes on unmistakably the color and displays the substance of a mere change in procedural rather than substantive law. The purpose is to enable one or more judgment debtors to obtain contribution by the summary method indicated, without resort to further litigation unless the latter is necessary (ordinarily it will not be) to determine the rights of the debtors among themselves. Such a statute was so construed in Forsythe v. Los Angeles Ry. Co.
For the reasons indicated, we hold that the statute made no change in the substantive law of contribution as between joint judgment debtors, and that where the right to contribution is claimed by one of them, the original cause of action may be examined, unaffected by the judgment, in order to determine the issue between them. Whenever justice requires it, the judgment will generally be construed "not as a new debt but as an old debt in a new form." Gould v. Svendsgaard,
There is nothing in Ankeny v. Moffett,
This case suggests this query. In a tort case, why may the equities of the defendants among themselves not be litigated and a judgment be reached which will settle the whole matter, not only as between plaintiff and defendants, but also as between the latter? All parties jointly liable may be sued. (2 Mason Minn. St. 1927, § 9411; applicable in tort as well as contract, Fryklund v. G. N. Ry. Co.
The propounding here of the foregoing questions must not be taken as indication of opinion as to what the answers should be. But we do suggest the problem. If the answer is negative, there is an opportunity for legislative action to the end that our procedural law may be so built out as to enable the court in one action "to grasp all the issues germane to the main controversy, whether arising between the plaintiff and the defendant, or between defendants, or between a defendant and an outside party, and dispose of them in one and the same action, and thus avoid circuity of action and multiplicity of suits." That result has been accomplished in Wisconsin by the statute dealt with in Hemenway v. Beecher,
Both orders under review must be reversed and the case remanded for further proceedings not inconsistent with this opinion.
So ordered.
Concurrence Opinion
I concur in the result. Joint tortfeasors have no equitiesinter se until one of them has discharged the joint liability by payment. Contribution recoverable is the amount paid which is "more than his just share of the burden." Duluth M. N. Ry. Co. v. McCarthy,
"The obligation can be established and measured as well in the action for contribution between the wrongdoers as in that of the injured person against them. In fact the whole job canbe done better there, for all the issues can be settled;whereas often the original suit must leave open as between thewrongdoers the issues of negligence and proximate causation."
What we said then condemns the Wisconsin procedure. It is open to the charge, perhaps, that it introduces complicated issues into *247 a jury trial which it might be advisable to avoid. In New York the whole matter is determined by the court upon motion after trial. It is apparent that the legislature will have a choice of procedures. The remedy, if one is needed, is primarily a legislative question. I do not want to be understood as suggesting any particular remedy.
MR. CHIEF JUSTICE GALLAGHER took no part in the consideration or decision of this case.