Johnson v. Smith

14 Abb. Pr. 421, 23 How. Pr. 444

Opinion

By the Court.

Footnotes

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*—Brady, J.

The plaintiffs could maintain an action against the defendant and his partner Wells, although the latter had been served in a former action,- and judgment had been rendered against him. (Carman a. Townsend, 6 Wend., 206.)

Whether the defendant Smith could be sued alone, after the judgment, does not appear to have been considered heretofore, and I believe has not been decided in any reported case. The original indebtedness as to the partner served with process, is merged in the judgment,* and the proceeding against him is on the judgment rendered. The defendant not served would have the right to interpose any defence of which he could have availed himself in the former action. (Carman a. Townsend, supra.) The judgment against him was not conclusive. It was evidence only of the extent of the plaintiffs’ demand, after the defendant’s liability should be established by other evidence. (Oakley a. Aspinwall, 4 N. Y., 513 ; 2 Rev. Stat., 377, § 2.)

The action would be anomalous in this view of it, because the issues would be different as to each defendant.

The complaint in this case avers the judgment against the joint-debtor Wells, in a former suit commenced against both, and also the facts showing the liability of the present defendant, as the other joint-debtor. I do not understand what objection there can be to this form of procedure. It is simple, direct, and I think just to the defendant Wells. It is scarcely possible that he can have an individual defence. Why subject him then to the expense of another suit ? He is already declared to be the plaintiffs’ debtor. As to him, the law has declared its judgment, and now, by allegations showing that the defendant Smith is a joint-debtor with him, the plaintiffs ask a judicial determination of that liability, so that his personal property may be reached. Such, in effect, is the proceeding in courts of record under the Code. Section 375 provides that joint-debtors, not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judgment, and the proceeding goes on against them only. Permitting, in effect, a similar practice in justices’ courts, will tend to establish that “ uniform course of proceeding in all cases,” declared in the preamble of the Code to be expedient. I think the justice was wrong in dismissing the complaint, and that the judgment should be reversed. I have not deemed it necessary to determine whether the justice had power to amend the summons in this case, regarding the amendment, as I do, unnecessary.

Present, Daly, F. J., Hilton and Brady, JJ.

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Compare Mallory a. Leach, infra, 449, note.