186 S.E. 119 | W. Va. | 1936
Lead Opinion
This writ involves the judgment of the circuit court in favor of defendants, on the plea of res judicata, of defendant, Continental Coal Company.
This action is in debt, and was instituted in 1931 by the State, suing on behalf of Connellsville By-Product Coal Company against Continental Coal Company and The Fidelity and Casualty Company. The declaration alleges that in 1926, Continental Coal Company secured an injunction against the Connellsville Company and executed an injunction bond for $12,500.00 (surety not mentioned); that subsequently an additional injunction bond of $7,500.00 was executed by the two instant defendants; that later the injunction was dissolved; that the injunction caused the Connellsville Company to sustain damages amounting to $76,356.70, consisting of twenty-five separate items of damages which are listed; and that the defendants, though requested, have refused to pay the plaintiff the sum of $7,500.00.
The plea of res judicata alleges that the plaintiff herein impleaded Continental Coal Company at the November term, 1928, of the circuit court of Marion County, in a certain motion for judgment "to the damage of the plaintiff of $76,359.70 for not performing the very same promises, in the said declaration mentioned," and recovered in that proceeding a subsisting judgment for $12,500.00 against Continental Coal Company. A demurrer to the plea was overruled and the plea was tried before the court. It there appeared that the notice of motion for judgment (named in the plea) was addressed by the instant plaintiff to Continental Coal Company, H. W. Showalter, G. K. Barrickman and F. E. Christopher, and that the notice alleged the granting of the injunction referred to in the instant declaration; the execution of an injunction bond of $12,500.00 (the one for that sum referred to in the declaration) by the four defendants to *449 the notice; the dissolution of the injunction; and damages to plaintiff by the injunction of $76,359.70, composed of the same twenty-five items of damages which are listed in the instant declaration. It further appeared that each item was put in issue generally; that the major items of damages claimed by plaintiff (attorney's fees of $35,000.00 and damages to a mine of $38,921.01) were specially contested; and that a verdict and judgment for $12,500.00 was awarded plaintiff, which with costs was paid by Continental Coal Company.
The conditions of the two bonds are identical. Each bound the several obligors, in case the injunction should be dissolved, to pay all costs incurred and damages sustained by the Connellsville Company, which Continental Coal Company should fail to pay.
The common law rule nemo debet bis vexari pro una et eademcausa, no man shall be twice vexed for one and the same cause, would seem to be its own interpreter; but in order that the rule may be applied with uniform precision, the courts have agreed that certain entities must concur to make a second action a second vexation. The two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character, (2) the same cause of action, and (3) the same object. Collins v. Treat,
Against the concurring identities, plaintiff takes the following position:
"The two bonds in question are cumulative, covering the same damages, and each bond was liable for the costs and damages incurred, but the sureties thereon being different, two actions were necessary to recover the respective penalties of the bonds. * * * The issue in the first action was upon a different bond, made at a different time by different parties with the penalty in a different amount. No other issue or cause of action arose in the *451 first case. No evidence as to any other bond was or could be considered by the jury. No liability and costs or damages beyond the penalty of the first bond was or could have been considered by the jury and no such liability beyond the penalty of the first bond could have been determined by the jury. No greater sum than $12,500.00 could have been found or considered by the jury in the first action. The jury did not find that there were not costs and damages in excess of $12,500.00, for no such function was legally in the power of the jury."
The defendants respond:
"The plea of res judicata does not challenge the right to institute and maintain separate actions. What it does challenge is the right, even under separate or successive bonds, to recover twice for the same identical damages. If the plaintiff in his second suit had stipulated any item of damage which had not been the subject of adjudication in the former suit, there would be no question as to his right to recover on the second bond. But when he has elected to set out in his declaration and bill of particulars the identical items upon which he had recovered judgment, and been paid in the former case, he is estopped by the plea of res judicata, not because successive actions cannot be maintained on successive bonds, but because he cannot recover twice for the same items of damage. * * * All the items were before the jury in the former trial; evidence was submitted in support of each and every item claimed; who can now say what are those items which constituted the basis of the jury's verdict? Who can say but that the jury in passing upon the evidence found the amount of the verdict was the full amount which the plaintiff was entitled to recover?"
We are of opinion that defendant's answer is well made. The position of plaintiff, summarized, is that the cause of each action is the bond; that the two actions differ because the two bonds differ in penalties and sureties; and that joinder of the several sureties in one action is not permissible, making separate actions necessary. That position is unsound. (a) The cause of each action *452
(as already stated) is the failure of Continental Coal Company, upon the dissolution of the injunction, to pay the damages it had occasioned the plaintiff. (b) The differences in the bonds do not make the actions different. The bonds relate to the same matter, have the same condition, and are cumulative. Every surety is equally liable pro tanto for a default of that condition, they are all regarded as co-sureties, and as if bound by one instrument, in proportion, however, to the penalties of their respective bonds. This doctrine, first pronounced by Lord Chief Baron Eyre in 1787 in Dering v.Winchelsea, 1 Cox 318, has found ready acceptance in the States. He said: "What difference will it make if they (sureties) are severally bound, and by different instruments, but for the same principal, and the same engagement? In all these cases the sureties have a common interest and a common burthen: they are joined by the common end and purpose of their several obligations as much as if they were joined in one instrument, with this difference only, that the penalties will ascertain the proportion in which they are to contribute." Accord: Remage v. Marple,
We are cognizant that in U.S. v. Hoyt, 26 Fed. Cas. 403, No. 15, 409, it was held that a plea which set up a judgment upon the second of two official bonds given by the same principal but with different sureties, and which averred that the two actions were identical was *455 not a good plea. And that a like ruling was made inEllis v. State, 2 Carter (Ind.) 262. But the basis of each decision was that the judgment plead as a bar had not beenpaid. The Hoyt opinion specifically stated that the pleader should have "gone further and have averred * * * that satisfaction had followed the judgment on the first bond." TheEllis opinion specifically stated that the plaintiff had the right to proceed in both actions "until he obtained satisfaction of the amount to which he was entitled." The word "satisfaction" as used in these opinions has a distinct legal significance. The word does not refer to the personal gratification of a plaintiff, but signifies payment of an adjudicated sum to him. When an unliquidated claim is reduced to judgment and paid, the party aggrieved is said to be satisfied legally, no matter how badly he is disgruntled personally at the exiguity of the judgment. Consequently, those decisions are not authority, as plaintiff contends, for its right to proceed "until there is complete satisfaction of its claim to the extent it is covered by both bonds." The Hoyt decision limited the satisfaction required to the judgment therein. That decision, by inference, favors the defendants herein, since the judgment they plead has been fully satisfied. The Ellis decision required payment not of the full amount of the two bonds therein, but merely of the amount to which that plaintiff was lawfully entitled. The plaintiff herein having elected voluntarily to litigate every item of its alleged damages in the first action, and having received full payment of the judgment secured by that litigation, cannot say now with persuasion that it has not received the full amount to which it was entitled for those items.
The judgment is affirmed.
Affirmed.
Dissenting Opinion
I am unable to agree with the conclusion of the court, sustaining the special plea of res adjudicata. The opinion is largely devoted to the question of whether the plaintiff *456
could have declared on both bonds in one action. A decision on this question one way or the other does not settle the issue ofres adjudicata, the sole matter under consideration. In Collins
v. Treat,
Assuming that the other requisites are present in this case, the plea is clearly insufficient because of want of identity of parties and identity in the thing sued for. Damages to the extent of $12,500.00 was the thing sued for in the former action while the subject matter of this action is a claim for damages in the amount of $7,500.00. "A former judgment is not a bar to a subsequent action between the same parties if the subject matter involved in the two actions is not identical, * * *." 34 C. J., 811. The bringing of the two actions did not constitute the splitting of a cause of action. Arthur v. Doyle,
Judge Maxwell concurs in this note of dissent.
