23 Wend. 293 | N.Y. Sup. Ct. | 1840
After advisement, the following opinions were delivered :
Under the old statute in relation to proceedings against joint debtors, it was held that the judgment was prima facie evidence of a debt against the defendant not brought into court in the first suit — that an action of debt could be maintained against him on the judgment, but that he was at liberty to enter again into the merits, and show that he ought not to have been charged. Dando v. Tremper, 2 Johns. R. 87. Bank of Columbia v. Newcomb, 6 id. 98. Taylor & Twiss v. Pettibone, 16 id. 66. But in none of these cases did the defendant plead any matter going to the justice of the original demand. Had he done so, I cannot suppose that the judgment would have been regarded as furnishing prima facie evidence of his liability. It is against a first principle in the administration of justice, to hold a man concluded by a judgment, or to lay on him the burden of proving a negative for his discharge, when he had no opportunity of answering in the original action. Borden v. Fitch, 15 Johns. R. 121. Starbuck v. Murray, 5 Wendell, 148. Holbrook v. Murray, id. 161. Shumway v. Stillman, 6 id. 447. There is only one case where the defendant by his plea denied his oi’iginal liability, and there the judgment was not regarded as furnishing presumptive evidence of the joint indebtedness. Carman v. Townsend, 6 Cowen, 695, 6 Wendell, 206, S. C. in error. Carman, who was not taken in the first suit, pleaded that the promises on which the judgment was recovered were made by the other defendant solely, and not by both defendants jointly. *The plaintiffs took issue on [ *296 ]
If this were a new question, I should have thought that the only effect of the judgment, as against the party not brought into court, was, to authorize an execution against the joint property of all the defendants, and that an action of debt would not lie upon the judgment. 1 R. L. 521, § 13. But a different rule can work no great injustice, so long as the defendant is at liberty to set up any matter of defence which would have been available in the first action, and the burden of proof is not changed; and such is, I think, the result of the cases under the former statute. If the defendant does not, by his plea, call in question the justice of the original demand, the judgment is prima fade evidence against him; but if he denies' his original liability, the judgment proves nothing, and the plaintiff must make out his case de novo.
Although it must be regarded as settled, that an action of debt will lie on such a judgment recovered prior to the year 1830, it does not follow that this action can be maintained. Under the former statute, there was some ground for holding the judgment to be prima facie evidence of a debt against the defendant who was not brought into court in the first suit; for the statute authorized a judgment against all of the defendants, without limiting its effect, except as to the execution to be issued upon it. 1 R. L. 521, § 13. But the present statute, under which this judgment was recovered, has gone a step further, and provided, that as against a defendant not served with process, the judgment “ shall be evidence only of the extent of the plaintiff’s demand, after the liability of such defendant shall have been [ *297 ] * established by other evidence.” 2 R. S. 377, § 2. The plaintiff may have an execution against the partnership property of all the defendants. § 4. But in an action against the defendant not taken, the judgment proves nothing. His “ liability” must be established by “ other evidence ;” and it would be a strange anomaly in the law to hold that an action of debt will lie on a judgment which is not even prima facie evidence against the party sued. True, there is an implication that the judgment may be evidence of the extent of the plaintiff’s demand” when “ the liability” of the defendant has been made out by other proof: but this can have no influence beyond that of limiting the amount of the recovery in the second action. Whether the plaintiff sues on the judgment, or counts on the original cause of action, he cannot recover more, but he may recover
But it is enough for the present question, that the judgment alone, as against the defendant Mervin, only proves that the plaintiff is entitled to an execution against the partnership property of both defendants, and may affect “ the extent” of the recovery in a second action. As to any further or different liability of Mervin, the judgment proves nothing whatever. If the plaintiff in declaring upon it had stated the case truly, and admitted that Mervin was not brought into court in the first suit, the declaration would have been bad on demurrer. It would not have made out any cause of action. It would be strange, indeed, if that were a good declaration which shows no “ liability” on the part of the defendant.
If the plaintiff could make any use of the judgment in declaring against Mervin, he should, I think, have set out the original cause of action in addition to the judgment. That he has not done. The declaration contains no averment whatever of the original liability of Mervin.
*But I think an action of debt, in any form of declaring,, can- [ *298 ] not be maintained upon this judgment, except against the defendant Goldsmith, who was brought into court in the first suit. If the plaintiff wishes to go beyond the partnership effects of the defendants, and reach the sole property of Mervin, he should sue on the original cause of action ; and that I am inclined to think he may do, notwithstanding the judgment. In Robertson v. Smith, 18 Johns. R. 459 — see also the opinion of the chancellor in Carman v. Townsend, 6 Wendell, 206 — -the judgment in the first suit was held to be 'an extinguishment or merger of the original promises, so that a second action could not be maintained upon them. But the first suit was not brought under the joint debtor act. The plaintiff only named in the process and subsequent proceedings the two defendants against whom the judgment was recovered, without impleading the two others who were afterwards sued. But here Mervin, as well as Goldsmith, was named in the process and subsequent proceedings; and if the plaintiff should now bring a new action on the original promises, serving the process on Mervin only, although both must be named in it, I see no sufficient reason why he should not be allowed to recover. True, it would be an anomalous case, but the necessity for it grows out of the statute; and permitting an action on the original indebtedness, would be far less objectionable than it would be to hold that debt will lie on a judgment which is not even prima fade evidence of the defendant’s liability.
But if debt on the judgment will lie against Mervin as well as Goldsmith, and if the plaintiff may declare without averring an original joint indebted
But if we lay the special plea out of the case, it is difficult to maintain that Mervin was not entitled to a verdict on the issue of nul tiel record. The plaintiff counts in the usual form, as upon a record furnishing conclusive evidence of the liability of both defendants. Mervin answers, that there is no such record; and so the fact turned out to be on the trial. The record produced proved no liability whatever on the part of Mervin. There was no such judgment, in its legal effect, as that upon which the plaintiff counted; and he either failed altogether to maintain the issue of fact, or was liable to be nonsuited on the ground of variance.
On the pleadings as they stand, the objections to the action are, I think, insuperable. But if we disregard the pleadings, and look only to the question of right, it will not aid the plaintiff’s case. He gave no evidence beyond producing the record ; and the statute must be repealed before we can say that the judgment proved the liability of Mervin. The plaintiff should have been nonsuited. On this point we are all agreed that the judgment must be reversed. On the other questions my brethren do not concur with me in opinion.
I think the court below erred in overruling the motion for a nonsuit. The first section of the first article, 2 R. S. 299, 2d ed. declares that, where one of several joint debtors is not served with process, judgment shall, notwithstanding, be entered against all, in the same manner as if all had been served. But the second section provides that, though the judgment shall be conclusive against the defendant
An effort was made, on the argument, to show that since the revised statutes, the plaintiff in the original suit has no longer any right to declare on' his judgment as such. It was contended that he must connect with it the original cause of action, indeed recur and to make that his substantive ground. Therefore, it was insisted that the judgment for the plaintiff below on the demrurer to the replication was erroneous. Several cases were cited to prove that a judgment obtained in a neighbouring state cannot be relied on as of any force whatever, where the defendant had no notice and did not appear nor reside within the jurisdiction of the court. Starbuck v. Murray, 5 Wendell, 148. Holbrook v. Murray, id. 161. The second plea is framed on the latter case; and claims to treat a domestic judgment as void, though rendered on a proceeding in exact accordance with the statute. The cases cited pronounced that a judgment in Massachusetts rendered on attachment might be avoided, (even thought he record asserted the defendant’s appearance,) by a plea that he did not appear, and had not notice. Indeed, the principle of the plea here,, for aught I see, goes the length
The now revised statutes, we have seen, give the same direction as the old in respect to the form of entering judgment against joint debtors where all cannot be reached by process ; and if the judgment is to be regarded as having any effect whatever, it seems to me it must be effectual for the purpose of confining the plaintiff to a declaration in debt or a scire facias, the same as if the defendant had been brought in. Should the plaintiff recur to his original cause of action, the defendant might meet him with the plea of a former recovery in bar ; and it is extrerhely difficult to see liotv he could .avoid it. Upon him who comes in and takes the benefit of our remedy, it would, perhaps, in any view, be conclusive. I am aware that the same objection may arise in respect to foreign judgments which we have held void under similar circumstances ; nor will I deny that after the debtor has avoided any judgment by plea, he should be estopped to plead the same judgment in bar. There is, however, a license taken in respect to the lex fori of foreign countries, which we cannot apply to our own. *Ex [ *304 ] parte judgments and decrees, even of neighboring states, are, notwithstanding the provisions of the federal constitution and statute, received with deductions which we have no power to make in respect to those which have passed, under statutes of this state in our domestic tribunals. Those of neighboring states, though pursuant to constructive statute notices, we have always claimed either to disregard in toto, or receive under notions of international comity, to such qualified extent as we may deem conformable to the general safety of our own citizens. This doctrine, as I believe it is generally understood and acted on by the state courts, is presented and vindicated in Denison v. Hyde, 6 Conn. R. 508, 519, Clearly we hiyve no
[ *305 ] *Without insisting, however, that a statute which, under the circumstances stated in the second plea, should attempt to conclude a defendant, would be operative as an estoppel, it is enough to say, that the statute in question disavows such a purpose. It merely declares that the judgment shall come as an admission of the defendant’s co-debtor, who has had reasonable notice to contest the demand for both. The form of action is not such, as to cut off any essential right; and a special action upon a formal judgment, in a court of record would be so very anomalous, that I cannot think the statute intended to require or even tolerate it. It was the constant course under the old statute, to declare in a general way. And I must be permitted to say, I am not willing to sanction anomalies in the forms of pleading or practice, except when I feel that the ends of substantial justice imperiously call for them.
No evil can, that I see, arise from a general form of declaring, more than from any other. The practice of proceeding ex parte against one, while another is served with process, may be abused; and evidence be thus improperly manufactured. But that objection has existed a great while, under the practice of declaring in the ordinary mode, and while the judgment would perhaps, on any issue, have been prima facie evidence of the plaintiff’s whole case. Townsend v. Carman, and Dando v. Doll, before cited. Bank of Columbia v. Newcomb, 6 John, Rep. 98. Taylor v. Pettybone,
It is not necessary to pursue the question, however, upon the second plea; for we all agree that the judgment must be reversed upon the bill of exceptions. For myself, I *should have said nothing as to [ *306 ] either ground, beyond concurring in the judgment of reversal, ’’ had" not my brother Bronson entertained a difficulty upon the second plea, which I could not bring myself to feel. I am of opinion that the judgment below was right upon that plea; and concur upon the sole ground of error, in refusing to nonsuit, that the judgment should be reversed.
I do not care any thing for the precise chronological order in which the record is to be received ; as whether it comes before or after the extrinsic proof. I do not think the statute means to make that material. -Upon this, the question is the common discretionary one, as to the order of evidence. Perhaps the record and evidence of original liability must be considered together, in order to connect them. What the statute means, is, that the record shall not be allowed as of any manner of effect, unless the jury shall believe there was a joint liability on the cause of action, which it sets forth. If there be no evidence raising even a question of this for the jury, the record should be withhholden from them altogether.
Judgment reversed; venire ele novo from court below; costs to abide event.