Murray v. Lovejoy

17 F. Cas. 1052, 2 Cliff. 191

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1863
• Status: Published

Opinion

[CLIFFORD, Circuit Justice.

This is an action of trespass, and the ease comes before the court upon an agreed statement of facts.- Referring to the agreed statement, it will be seen that the present defendants, on the sixteenth day of May, 1S57, in a certain suit, wherein they were plaintiffs, and one O. H. Pratt was defendant, attached certain personal property as the property of the defendant in that suit. According to the agreed statement, the suit was commenced in the district court for the county of Dubuque, in the state of Iowa, and the writ of attachment was served, and the attachment made by the sheriff of that county; but the case shows, that in serving the writ, and in making the attachment, he acted by the directions of- the attorneys of the plaintiffs in the suit, and that they, the attorneys, gave him a bond of indemnity, conditioned that the plaintiffs should pay all damages he might sustain by reason of his making the attachment, and stipulating to save him harmless in the premises, and that the plaintiffs ratified their doing in giving the bond. Agreed statements also show, that the plaintiffs in that suit recovered judgment, and that the property so attached was sold under the process of the plaintiffs, and by the • directions of their attorneys. Property'so attached and sold, was claimed by the plaintiff in this suit, and he. on the thirtieth day of May, 1857, brought an action of trespass against the sheriff, who had thus attached and. sold the property. Due notice was given by the sheriff to the attorneys who brought the attachment suit and gave the directions and executed the bond of indemnity, to appear, and defend the trespass suit, and the present defendants employed counsel and defended the suit. Trial was had, and on the twentieth day of October, 1859, judgment was rendered against the sheriff for the sum of six thousand \wo hundred and thirty-three dollars and three cents damages, and costs of suit, taxed at seventy-seven dollars and fifty-five cents. No execution ever issued upon the judgment, but the case shows that the sheriff satisfied the judgment against him, in part, to wit-, for the sum of eight hundred and thirty dollars, out of the proceeds of the attached property. Present defendants employed the counsel to defend that suit, and had the exclusive control of the defence; and the case shows that they had paid all of the counsel fees, except one hundred dollars, which was paid by the sheriff out of the proceeds of the attached property, and it should be remarked, that both of the payments made by the sheriff out of the proceeds of the attached property, were made prior to the commencement of this suit. Mention should also be made of the fact, that, on the twentieth day of April, 1800. the present defendants paid the sheriff one thousand dollars, and that he on the same day surrendered the bond of indemnity to their attorneys; but it should be remarked, in the same connection, that the admission to that effect is accompanied by a denial on the part of the plaintiff in this suit, that the surrender so made was rightful, and also that the bond is now in the possession of the attorneys to whom it was delivered. Writ is dated the first day of October, I860; and the agreement is, that if the court should be of opinion that the suit cannot be maintained against the defendant, by reason of the former judgment against the sheriff, and by reason of having received part satisfaction of him, then judgment is to be entered for the defendants; otherwise the case is to stand for trial, unless the court shall be of opinion that the defendants, upon the foregoing facts, are estopped from making further defence in this action, in which event the court is to enter such judgment as shall be proper.] ⁴

Practical questions, like those presented in this record, ought not now to be the subject of dispute or doubt, but it must be admitted, that in respect to most or all of them, it would not be difficult to present authorities of an entirely contradictory character. Certain general principles, however, which are applicable to the case may be regarded as settled: and among the number is the rule, that the attachment and sale of the property of a third person, under the circumstances disclosed in the agreed statement, is tortious, as against the person whose property is so taken and converted, and renders the sheriff liable to the plaintiff therefor, as a wrongdoer.

Doubt cannot be entertained upon the subject, and it is equally clear that the present defendants rendered themselves also liable to the plaintiff as wrongdoers, by subsequently ratifying the directions given by their attorneys, and by approving what they had done, in giving the bond of indemnity. Indemnification itself must be regarded as a ratification of the attachment, arid as the cause of the subsequent sale; and the well-settled rule is, that all persons who direct, or request another to commit a trespass, are liable as co-trespassers, if their directions or request are obeyed and followed. Herring v. Hoppock, 15 N. Y. 409; Castle v. Bullard, 23 How. [64 U. S.] 185. Where the attachment is made by the directions of the plaintiff, he is as much liable as the sheriff making it; and after conversion, the injured party may sue both or each one separately, as in other cases of joint and several liability. More than half a century ago, Parsons, C. J., held, in Baker v. Lovett, 6 Mass. 80, that where a trespass had been committed by several persons jointly, the party injured might sue any or all the trespassers, but he could have but one satisfaction for the same injury. Nothing is more clear, said Judge Story, in Smith v. Rines [Case No. 13,100], than the right of the plaintiff to bring. an action of trespass, or trespass on the case, against all the wrongdoers, or against any one or more of them at his election. Undoubtedly, the injured party may proceed against all the wrongdoers, jointly, or he may-sue them all or any one of them separately;, but if he sues them all jointly, and has judgment, he cannot afterwards sue any one of them separately; or if he sues one separately, and has judgment, he cannot afterwards sue' them all in a joint action, because the prior judgment against one is, in contemplation of law, an election on his part to pursue his several remedy; but it is no bar to a suit for the same trespass against any one or more of the other co-trespassers. Cases may be found, and have been cited at the bar, which assert a different rule, and which decide, that, where separate actions are commenced against several tort feasors for the same act of trespass, the pendency of the first suit may be pleaded in abatement of all the rest; but the doctrine, as was well said by Prentiss, J., in Sanderson v. Caldwell, 2 Aikens, 201, is opposed to the principle, which runs through all the authorities, that a separate trespass attaches to each of the parties individually, and which asserts that_the plaintiff may sue all or any of them, or bring separate suits against each, at his election. Heydon’s Case, 11 Coke, 5; Mitchell v. Tarbutt, 5 Term R. 649; Thomas v. Rumsey, 6 Johns. 30; Livingston v. Bishop, 1 Johns. 290; Brooke, Abr. “Judgment,” Pl. 98; Cocke v. Jennor, Hob. 66; Corbet v. Barnes, W. Jones, 377; Bird v. Randall, 3 Burrows. 1345. Much discussion. says Mr. Greenleaf, has taken place as to the effect of a former recovery, in cases where different actions of tort have successively been brought in regard to the same chattel; as, for example, where an action of trover is brought after a judgment in trespass. Great diversity of opinion, he says, has existed, whether a plaintiff, after having recovered judgment in trespass without satisfaction, is thereby barred from subsequently maintaining trover, against another person for the same goods. Decided cases, asserting the negative, assume that the recovery of the judgment, in trespass, for the full value, has the effect to vest the title to the property in the defendant in that suit; and consequently, that the plaintiff cannot recover of another for that which he himself has ceased to own. Broome v. Wooton, Yel. 67. Other cases decide that the rule of transit in rem judicatam, extends no further than to bar another action for the same cause, against the same party. Of this latter class, the case of Drake v. Mitchell, 3 East, 258, may be regarded as the most important; and Mr. Greenleaf, after referring to it, states that the weight of authority seems in favor of the latter opinion, and the same views are expressed in numerous cases decided by different courts in the United States. Lord Ellenborough held, in the case last named, that a judgment recovered in any form of action, was still but a security for the original cause of action, until it was made productive in satisfaction to the. party; and therefore, until, then, that it could not operate to change any other collateral, concurrent remedy which the party might have. Attempt was made by a majority. of the court in Campbell v. Phelps, 1 Pick. 62, to maintain that there was a distinction between cases of trespass or trover for goods, and trespass for a personal wrong •or injury done to property; but Parker, C. J., who gave the opinion, was compelled to admit, that according to the modern decisions, nothing short of satisfaction of a judgment against one trespasser, for any tortious act, would bar an action against his associates; and Wilde, J., utterly denied that there was any such distinction, and held that a recovery against one person, without .satisfaction, was no bar to an action against another, for the same cause, and that there was no difference in this respect between joint contracts and joint torts. Adverting to the maxiin so-lutio pretii emptionis loco habetur, Chancellor Kent says (2 Comm., 10th Ed., 388), that “the books either do not agree, or do not speak with precision on the point, whether the transfer takes place, in contemplation of law upon the judgment merely, or- whether the amount of the judgment must be; first actually paid or recovered by execution.’-’ Three theories, it will be seen, are stated' 'by that author. First, that the mere recovery of judgment transfers the title, and. he refers to Broome v. Wooton, Yel. 67, as an example of the cases where that doctrine '.'is held. Secondly, that the • recovery of : judgment merely, dees not have that effect; .hist if ex-eeution follow, the two things combined transfer the property. The example given, is that of a case in Jenkins; but the language of the opinion is, that “by the recovery and execution done thereon,” the property of the chattel is vested in the trespasser. Jenk. Cent. 189. Language to the same effect is employed in Shep. Touch, tit. “Gift,” where it is.said, that if one recovers damages of a trespasser for taking his goods, the law gives the trespasser the property of the goods because he has paid for them; but he has not paid for them, unless something has been done besides the issuing of the execution, which is only an incident of the judgment, an act of the clerk. Two .cases, however, are cited, which support that view of the law, but neither of them seems to rest upon any substantial basis. Curtis v. Groat, 6 Johns. 168; White v. Philbrick, 5 Me. 147. Thirdly, the reference is to the rale of the civil law, that when the wrongful possessor or movable property, who is not in a condition to restore it, has been condemned in damages, and has paid the same to the original proprietor, he becomes possessed of the title; and the learned author refers to Drake v. Mitchell, 3 East, 251, as an example of the decisions of the common-law courts, where that view of the law is maintained. Commenting upon that case, he concludes by saying. this is the more reasonable, if not the most authoritative conclusion on the question. Some diversity of judicial decision still exists, even in this country; but the great weight of authority in the United States, is on the. side of the theory, that nothing short of satisfaction transfers the title, and in that view of the question I entirely concur. Morgan v. Chester, 4 Conn. 387; Hyde v. Noble, 13 N. H. 501; Sharp v. Gray, 5 B. Mon. 4; Hepburn v. Sewell, 5 Har. & J. 212; Barb. v. Fish [8 Blackf. (Fed.) 481]; Calkins v. Allerton, 3 Barb. 173; Jones v. McNeil. 2 Bailey, 474; Sheehy v. Mandeville, 6 Cran. [10 U. S.] 253; Cooper v. Shepherd, 3 C. B. 266; Knott v. Cunningham, 2 Sneed. 204. Recovery of judgment merely, therefore, against one of the several tort feasors, is no bar to a suit against another for the same trespass; and it makes’ !no difference whether the plaintiff did or did’ not 'take out execution on the first judgment, unless it also be shown that he received satisfaction. Where no satisfaction has been received, the law is clear, to the effect, ás stated; but the defendants contend, in the second place, that the recovery of judgment against/the sheriff, and the receipt of partial satisfaction of the judgment from him, [ operate as a complete bar, upon the ground- that the receipt of partial satisfaction is an election, on the part of the plaintiff, to seek his redress against that party. But the reason assigned for the conclusion, if it be a good one, proves too much, because the plaintiff,. Avhen he brought the first suit, elected to seek redress against the party prosecuted, and that-election, if such it be regarded, was confirmed by his act. in prosecuting the suit to judgment. Subsequent acts, however, such as the taking out execution or the receipt off part satisfaction, add nothing to the force of' the argument that the institution of the suit, and the prosecution of the same to judgment, show that the plaintiff had elected to seek redress against that party. A recovery of judgment against one is an election, undoubtedly, to regard the remedy as several, and such an election is final and conclusive. But the-judgment is no bar to another suit against another of the co-trespassers, as has already appeared, unless the judgment has been sat-' isfied. Full satisfaction by one tort feasor, whether before or after judgment, is a-good defence to a suit against any one of the others; but part satisfaction before suit would clearly be no defence, and it is not perceived that part satisfaction after judgment can have any other or greater effect. Suppose the part payment made by the judgment debtor had been made by him before.'he was sued; in that case it clearly would not have afforded him a full defence to the action, and if not. it is difficult to see how it can be any more effectual as a defence for a co-trespasser. because paid after judgment. • Look-, ing at the question as a question of principle. I am of the opinion that there is no middle ground on which a court of justice can safely stand in regard to it. When viewed in that light, it must either be held that the recovery of the judgment is a bar. or that-it is no bar; and if the latter, as I hold, then nothing short of full satisfaction is an answer to a suit against another of the co-trespassers.' Question is also made, whether the verdict and judgment against the sheriff are • or -are not conclusive upon the defendants.-. The affirmative of the proposition is assumed by the plaintiff, and the defendants maintain the-negative. The facts of the case have already been stated, and need not be repeated, except to say that the case shows that the defendants were jointly liable for the same trespass; that they were duly notified of the pendency of the suit against the -sheriff, and voluntarily appeared and conducted and controlled the defence.

Justice requires, says Mr. Greenleaf (1 Greenl. Ev. § 522). that every cause be once fairly and impartially tried; but the public tranquillity demands, that having been once so tried, all litigation of that question between the parties should be closed forever. Xo man ought, however, to be bound by proceedings to which he was a stranger; but the converse of the rule is also true, which is, that by proceedings to which he is not a stranger, he may well be held bound. Under the term parties, says the same commentator, the law includes all who are directly interested in the subject-matter, and have a right to make defence, adduce testimony, cross-examine witnesses, and control the proceedings, and appeal from the judgment. Courts of justice in general agree that a judgment of a court of competent jurisdiction is conclusive in a second suit between the same parties or privies on the same question, although the subject-matter may be different, and a fortiori it is so when the subject-matter is the same. Doty v. Brown, 4 Comst. [4 N. Y.] 71; Castle v. Noyes, 14 N. Y. 331. All parties are estopped by the judgment who had a right to appear, control the defence, and appeal from the judgment. The attachment in this case, in legal effect, had been made by the directions of these defendants, and they had given a bond of indemnity to the sheriff, and stipulated to save him harmless. They were, therefore, under a moral as well as legal obligation to defend the suit; and when they were duly notified to make the defence, and appeared and assumed the control of it, in pursuance of such notice, they had the right to adduce testimony and cross-examine the witnesses, and might have appealed from the judgment. Appeal, undoubtedly, must have been taken in the name of the sheriff; but as they had appeared in the case in pursuance of .notice, and the control of the defence had been conceded to them, under the stipulation in the bond of indemnity, to save the sheriff harmless, it cannot be doubted that they might have appealed from the judgment. Castle v. Noyes, 14 N. Y. 332. Where the first action was against the agent, who had taken lumber by the direction of the principal, and the case showed that the principal appeared and defended the suit, the court of appeals, in the case last mentioned, held that the parties in the second suit, which was a suit against the principal, who gave the directions, were to be regarded as the same, and that the former judgment was conclusive. Parties appearing and defending under such circumstances are regarded as having the same rights substantially as the party in fact, and as having the same power and authority to use the judgment against the adverse party. Smith v. Kernochen, 7 How. [48 U. S.] 217-219; Calkins v. Allerton, 3 Barb. 173; Glass v. Nichols, 35 Me. 328; Warfield v. Davis, 14 B. Mon. 33; Tarleton v. Johnson. 25 Ala. 314; Eaton v. Cooper, 29 Vt. 444; Peterson v. Lothrop, 34 Pa. St. 228; Farnsworth v. Arnold, 3 Sneed, 252; Train v. Gold, 5 Pick. 387. The stipulation of the bond of indemnity was, that the defendants would pay all damages the sheriff might sustain, or which might be recovered against him by reason of his attaching the property, and, of course, they covenanted for the results or consequences of any suit which might be brought against him on that account; and I am of the opinion that such a covenant so connected them in privity with the proceedings, that the record of the judgment is as conclusive against them as the actual party to the suit. Rapelye v. Prince, 4 Hill. 119; 1 Greenl. Ev. § 523; Carver v. Jackson, 4 Pet [29 U. S.] 86; Case v. Reeve, 14 Johns. 81; Chapin v. Curtis. 23 Conn. 388; Emery v. Fowler, 39 Me. 326. Judgment, therefore, must be for the plaintiff; but the question is also presented, as to what the amount shall be, and the authority is conferred upon the court “to enter such judgment as shall be proper.” Attention should be called to the fact that the case is presented upon an agreed statement of facts. The federal courts regard such statements as a part of the record; and. hence it is that a writ of error will lie upon an agreed statement of facts. Suydam v. Williamson, 20 How. [61 U. S.] 434; U. S. v. Eliason, 16 Pet. [41 U. S.] 291; Stimpson v. Railroad Co.. 10 How. [51 U. S.] 329; Graham v. Bayne, 18 How. [59 U. S.] 60.

Regarding the question in that point of view, that it appears of record in this case that the measure of the injury sustained by the plaintiff was legally ascertained in his suit against the sheriff; that it also appears of record that $830 of that amount has been paid, I am of the opinion that the plaintiff is entitled to recover the same damages as in the suit against the sheriff, deducting the amount received in part satisfaction of that judgment, as set forth and admitted in the agi’eed statement, but adding to the balance so ascertained a sum in the nature of damages equal to six per cent, interest on account of the delay.

Judgment for plaintiff accordingly.

[Upon a writ of error, the case was taken to the supreme court, where the judgment of this court was affirmed, with costs. 3 Wall. (70 Ü. S.) 1.]

4 [From 26 Law Rep. 423.]