Brenner, Trucks & Co. v. Moyer

Mr. Justice Green delivered the opinion of the court, On April 30th 1874, the plaintiff below issued a summons [277] in assumpsit against the defendants, and on the same day filed a narr. and an affidavit of claim, alleging his cause of action to be an indebtedness due by the defendants to him in the sum of $1,303.19, for making and delivering 13,506 cubic feet of square timber. The narr. contained only the common counts, but subsequently an amended narr. was filed, declaring on a special contract in writing, for making and delivering square timber, the quantity delivered, and price therefor, being the same as set forth in the affidavit of claim. The pleas of non-assumpsit, payment and set-off being filed, the cause was tried on December 21st 1876, and a verdict was recovered for the full amount of the claim and interest, for which judgment was entered on December 28th 1876. This suit was No. 305, May T. 1871. On the same 30th day of April 1871, upon which the summons in the above case was issued, the same plaintiff issued an attachment, under the act of 17th March 1869, against the same defendants, claiming the same indebtedness which constituted the cause of action in the previous suit. This proceeding was No. 306, May Term 1871. The affidavit and bond required by the act were filed, together with a praecipe for a writ of attachment, directing the sheriff to attach two rafts of timber, the property of the defendants. A writ of attachment was issued, served and returned, all on the same 30th day of April, and the rafts attached were delivered to the defendants, from whom, with sureties, a bond was taken for the surrender of the rafts, in the event of a recovery in the said attachment suit, No. 306, of May Term 1871. On December 20th 1878, a narr. was filed declaring on the same written contract which was set out in the amended narr. in the case No. 305, and also on the common counts, and alleging, in addition thereto, that the defendants were about to remove their property out of the jurisdiction of the court, with intent to defraud their creditors. The cause subsequently went to issue on the pleas of non-assumpsit, payment with leave, &c., and a denial that the defendants were about to remove their property. On the trial, the record of the judgment in the case No. 305, was given in evidence, and the court was asked, amongst other things, to charge that this judgment was a bar to a recovery in the present suit. This the court declined to do, and that refusal is assigned inter alia, for error here. We are of opinion that the learned court below erred in thus ruling, and that the judgment must be reversed for that reason. We would have been very willing to sustain the judgment if we could do so, especially as we are informed that a practice prevails •in some portions of the State, to proceed in this class of cases, in the same manner as was done here, and, doubtless, the learned [278] counsel for the plaintiff followed the practice usual in Ms vicinity. But we are quite clear that this method is erroneous, upon, very familiar legal principles which cannot be overlooked. It is without question that the cause of action in these two proceedings is the same. Considered as personal actions between the same parties, it is manifest that a recovery in the first worked an extinguishment of the right to recover in the second. We said in Wilson v. Wilson’s Administrators, 9 S. & R. 429, that “ to permit a party to recover in a second action what was included in, and might have been recovered in the first action, would be against the policy of the law and unjust, because it would harass a defendant and expose him to double costs.” And in Marsh v. Pier, 4 Rawle 289, it was held that a judgment of a proper court being the sentence of the law upon the facts contained within the record, puts an end to all further litigation on account of the same matter, and becomes the law of the case. In Duffy & Mehaffy v. Lytle, 5 Watts 132, Kennedy, J, said that “the first judgment when given, whether it be in the action commenced first or last, extinguishes the original cause of action, and gives to the plaintiff* in lieu thereof one of a higher order.” These principles, which are very familiar, dispose of the question at issue, if in fact as well as in law, the two proceedings are for the same identical cause of action, and if the first judgment really determines every essential element involved in the second action. It is argued, however, and not without 'force, that the two proceedings are not essentially the same; that the first action is founded upon, and results in a judgment for, the mere personal liability of the defendant; while the second is a special proceeding against particular personal property only of the defendant. If this were strictly so there would be much weight in the argument. An examination, however, of the Act of 1869, develops that the view thus presented is not a correct interpretation of its provisions. The first section authorizes the issuing of a writ of attachment in &uj pending action, because it provides that it may issue against any defendant upon the application of any plaintiff', upon filing the necessary proof and bond. It is therefore in aid of an action which has already been commenced, and in case no such action is pending may be issued in the first instance. But in either event, under the third and fourth sections of the act, it becomes an ordinary personal action, if either there is a personal service of the writ, or, if the defendant is a resident of the county, or appears to the action. In this case the defendants appeared and made defence, after a bond was given to the sheriff for the return of the rafts in the event of recovery. Erom that [279] time it is entirely clear tliat tlie proceeding became and was a mere personal action against the defendants, witli a right to bring an action on the bond taken by the sheriff, if the rafts were not returned according to the condition, of the bond. If they were surrendered there would be, of course, a right to have process of execution levied upon them, as upon any other property of the defendants. These being the characteristics of the proceeding it is entirely clear that, independently of authority, it must be regarded, in the circumstances of the present case, as a mere personal action, and hence subject to be barred by the recovery of a judgment in a personal action previously brought for the same cause. "Wo consider, moreover, that the question has been practically settled by previous decisions of this court. In Baxley v. Linah, 4 Harr. 241, we held that a judgment in a sister state is to be deemed to have the effect of a domestic judgment in relation to the cause of action ; and where the defendant had notice, it is conclusive of the subject-matter and the original cause of action is merged in it; therefore a suit pending-in the state of Maryland and a judgment subsequently obtained therein, is a bar to a proceeding between the same parties and for the same cause of action, by foreign attachment, instituted in Pennsylvania, after the bringing of the suit and before judgment therein. On p. 250 Chambees, J., said : “ It is settled that where a judgment'has been already obtained in a prior action by the plaintiff against the defendant for the identical demand, contract or obligation, it is merged by the superiority of the record security acquired by the judgment; tra/isit in remjudicatam, and the creditor can no longer prosecute suit upon the original demand, though it were a specialty.” In Blyler v. Kline, 14 P. F. S. 130, it was expressly ruled that a judgment in a foreign attachment case where the attachment is dissolved, or is contested without dissolution, has the like force and effect as in case of an action commenced by a summons. See also the case of Garvin v. Dawson, 13 S. & R. 247, and the authorities there cited. We are of opinion that the judgment in the case 305 May Term 1874, being for the same cause of action, in a suit between the same parties, extinguished the cause of action in the present case, and hence, constituted a good bar to any recovery in the latter suit, and therefore, The judgment is reversed.