Commonwealth ex rel. Graham v. McCleary

Mr. Justice Mercur delivered the opinion of the court January 5th 1880. . [191] This was an action of debt on a bond executed by the defendants jointly and severally, in the penal sum of $10,000. Judgment was taken against McCleary for want of an affidavit of defence. The prothonotary liquidated the judgment for the amount of the whole penal sum. Execution issued therefor, and some $2000 of it was collected. Conway' put in a plea, and on the trial of the issue, thé court instructed the jury to return a verdict in favor of the plaintiff for $4000, reserving the question whether the suit was prematurely brought, and whether taking the judgment against McCleary and issuing execution thereon, was a bar to plaintiff’s recovery. The court afterwards was of opinion, that the plaintiff made the judgment final by issuing execution thereon, and refused to enter a judgment on the verdict. It may be conceded as a general rule, there can be but one final judgment in any personal action: O’Neal v. O’Neal, 4 W. & S. 130 ; and if the plaintiff takes a final judgment against one co-defendant, it bars further proceedings in the same suit., against the other defendant or defendants: Finch v. Lamberton, 12 P. F. Smith 370. Whenever, however, the manifest justice of the case requires it, and it is not shown that the first judgment was intended to be final, the inclination of the modern cases is to hold it to be interlocutory only. Thus O’Neal v. O’Neal, supra, was a suit against two defendants on a penal bond. Judgment was rendered against one of them by default, “ for want of an appearance and plea for $910, being the amount of the penalty of the bond.” It was therefore said in that case, that the judgment was not in an interlocutory form, but for a definite sum. 'It was nevertheless held, that judgment for want of a plea is essentially interlocutory; and as the court below might have ordered the sum stricken out, this court would treat it as a nullity, and hold the judgment to be interlocutory. Finch v. Lamberton, supra, was an action of assumpsit against two defendants. Judgment was rendered against one for want of an affidavit of defence, “ amount to be liquidated by the prothonotary.” Same day the prothonotary did liquidate the damages. The other defendant took defence, and an award of arbitrators was made against him. The court refused to set aside the award, and judgment was entered thereon. On writ of error to this court, the judgment was affirmed. It was then held, where judgment is rendered by default, and the prothonotary liquidates the sum without waiting for a trial and assessment of damages against the other, the liquidation being the act of the officer, is amendable by striking it out in the court below,, or by treating it as amended in this court. There is another class of cases illustrating the same principle. McKinney et al. v. Mitchell, 4 W. & S. 25, was a suit against one defendant. He made affidavit of defence to a part only of plaintiff’s claim, and on their motion judgment was rendered secundum [192] regulum, against the defendant for the residue, a specific sum. This sum, together with all costs, was actually paid by the defendant and received by the plaintiff. It was held, the plaintiff might still proceed to issue, trial and judgment, for the remaining part of his claim which was disputed. Russell et al. v. Archer, 26 P. F. Smith 473, was also a case where the defendant made an affidavit of defence to a part only of the claim. The plaintiff took judgment for the part admitted to be due, and issued execution therefor. Thereupon the defendant entered bail for stay of execution. On a subsequent trial in regard to the residue, the court below held the former judgment was not final, except for purposes of lien and execution. In other words, that it had not such a characteristic of finality, as to bar a recovery for the part in dispute. It is- true these two cases rested principally on a rule of court. In the former, it impliedly authorized the judgment; and in the latter, in clearer terms, the execution. Nevertheless, the fact remains, that part of the judgment in the first case was collected by a voluntary payment, and in the latter, an attempt was made to collect by execution. In the last case it was said, where the first judgment “was not designed to put an end to the suit, there is no impropriety in so treating it.” To the same import is Coleman v. Nantz, 13 Id. 178. In the present case, McCleary was the principal debtor, and Conway was the surety. By the prompt action of the plaintiff in issuing execution, the surety was relieved to the amount collected. The latter has no just cause to complain of this. It was in his interest and for his benefit. We will not presume the plaintiff thereby intended to abandon all claim against the surety, who was really the only solvent defendant. The plaintiff did not discontinue of abandon the case against Conway, but pressed it to trial. Under all the circumstances, we conclude, that the action of the plaintiff in issuing execution did not indicate the intention, or have the effect, to make final, a judgment which otherwise would have been interlocutory only. It is not now alleged, that the suit was prematurely brought. The learned judge therefore erred in refusing to enter judgment in favor of the plaintiff, on the last reserved question. It follows, the case does not need the curative power of the Act of 4th April 1877, and we express no opinion as to its application. Inasmuch, however, as no judgment has yet been entered on the verdict, all we can do is to quash the writ of error. Writ quashed.