64 P. 637 | Kan. | 1901
The opinion of the court was delivered by
The important question in this case is, Did the judgment recovered in the former action become merged in the subsequent judgment, and thus extinguished ? The defendant in error, in its first action, included all causes of action which it held against Price and wife, and when judgment was rendered in that action all such causes became merged in that
“The cause of action is merged in the judgment and can never again become the basis of any claim against the defendant in the judgment. The original claim has, by being sued upon and merged in.the judgment, lost its vitality and expended its force and effect. ... So where judgment is recovered on a note, it is merged and extinguished, and a second judgment cannot be had thereon between the same parties.”
When the defendant in error recovered its first judgment against Price and wife, the several causes of action sued on became merged in that judgment for $16,728.09. This judgment then might have been made a cause of action, but as such it is inseparable and indivisible. The subsequent judgment obtained by the defendant in error must be held to have been on this greater cause of action, and not on a separate part of it. • If one has a single cause of action and elects to split it and recover on a part, this is a bar to a recovery on the remainder. In other words, the law declares that whatever of that cause of action is not sued on is merged in the judgment and thus extinguished. To hold otherwise would be to permit a creditor not only to embarrass his debtor but also to bankrupt him in interminable litigation, costs, and record liens on his property. The law will not tolerate this. It was held in Coal Co. v. Brick Co., 52 Kan. 747, 749, 35 Pac. 810:
“It is the policy of the law to avoid a multiplicity of actions, and a party is not' permitted to split a cause of action into two or more parts and maintain separate actions for each of the separate parts. A re*740 eovery of one part of an action so split up will constitute a complete bar to a recovery upon any remaining portion thereof.”-
The same principle was again adhered to in Thistler v. Miller, 53 Kan. 520, 36 Pac. 1060.
In Bateman v. Railroad Co., 96 Mich. 441, 56 N. W. 28, Blaisdell executed to plaintiff a chattel mortgage on certain household goods, securing the payment of eighty-four dollars, according to the conditions of a certain promissory note of even date and collateral thereto. On February 28, 1889, plaintiff replevied the mortgaged chattels in the circuit court. In April, 1889, pending the replevin suit, plaintiff recovered judgment on the note before a justice of the peace. The replevin suit was afterward prosecuted to judgment, and the court found that there was nothing due on the debt secured by the mortgage in excess of the amount tendered at the commencement of the suit. Afterward plaintiff took out a writ of garnishment against the defendant in the proceeding before the justice of the peace. The defendant answered, pleading the finding and judgment in the replevin proceeding. The court held that this was a bar to the plaintiff’s action; that the judgment in the replevin suit, having become final, was binding and conclusive as to the subject-matter on all persons and on all courts.
In the syllabus in Gould et al. v. Hayden et al., 63 Ind. 443, the court said : “Where a judgment is thus recovered upon a judgment, the latter is merged in the former, and all of its liens or priorities released.” In the opinion, on page 448, the court used this language :
“Was the judgment first rendered in the court of common pleas of Union county, in this state, in favor of said Louis Stix & Co. and against said Louisa J.*741 Johnson, so merged and absorbed in the judgment afterward rendered thereon in the court of common pleas of Warren county, in the state of Ohio, as to destroy the lien, vitality and other qualities of the first-named judgment?
“It seems very clear to us that this question must be answered in the affirmative. A judgment is a ‘debt of record’; and, whether foreign or domestic, an action may be maintained thereon for the recovery of such debt, even where it might appear that the judgment plaintiff could enforce the collection of his judgment by an execution issued out of the court in which it was rendered. ... If the precedent judgment is merged, as we think it must be, in the succeeding judgment, then it follows of necessity, as it seems to us, that the former judgment is completely extinguished. It has ceased to exist for any purpose ; it cannot be used again as the foundation for another action, and all its qualities and incidents are lost and swallowed up in the judgment obtained thereon.”
Under the laws of Mississippi, the sheriff or other officer is required, upon the levy of an execution upon personal property, to take a bond, if tendered with sufficient security, from the debtor, payable to the creditors, reciting the service of such execution, and the amount due thereon, in a penalty of double the amount of such execution, with condition to have the property levied on forthcoming at the day of sale; and, in case the property is not forthcoming, said sheriff <"• other officer shall return the bond so forfeited, with the execution, to the court from which the latter issued, on the return-day thereof. The law provides that every bond so forfeited shall have the force and effect of a judgment, and that execution shall issue against all the obligors thereon, etc. Under this law it was held, in Brown v. Clark, 4 How. (U. S.) 13, 11 L. Ed. 850: “The original judgment is
It was held in Purdy v. Doyle, 1 Paige, 557, that “where a creditor has obtained a lien upon real estate by a judgment at law, if he subsequently brings an action of debt on his judgment, and recovers a new judgment, he will lose his first lien.”
It is claimed by counsel for defendant in error that the judgment debtors in this case were amply protected. We find nothing in either judgment that protects them. In the first action the defendant in error recovered a judgment for $16,728.09 and costs. This was the total amount of the Prices’ indebtedness. In the second action it recovered another judgment in the sum of $11,647.84 and costs. Both of these judgments were liens, so far as the record is concerned, on the property of the defendants, and were subject to enforcement. To say that the judgment debtor could have gone into court and pleaded the satisfaction of one as the satisfaction of both, is not a protection.
It is contended by counsel for defendant in error that the extinguishment of the j udgment by merger would not extinguish the mortgage lien: The mortgage lien was security for the j udgment, and when the j udgment becomes extinguished or satisfied the security is released ; it has nothing upon which to rest. In Kansas a mortgage passes no title ; it is but incident to the debt, and cannot continue where there is no debt.
It is also contended by counsel that a merger can only apply where the party has had a full and complete opportunity to recover its whole judgment. In the action brought by the defendant below, it not only had an opportunity to recover its full demand, but it prosecuted that opportunity to final judgment, and ofter judgment it then waived its right and brought a
While the several causes included in the first action became merged in the judgment therein rendered, and thereby extinguished, the debt still existed in that judgment, and the second judgment, being for the debt included in the first judgment, is a total extinguishment of that judgment. The judgment itself having been thus extinguished, there was nothing to support the order of sale, and the sale conveyed no title.
It is therefore ordered that the judgment of the court below be reversed, and the cause remanded with instructions to enter judgment for plaintiffs in accordance with this opinion.
