Green v. Starr

The opinion of the court was delivered by Royce, J. The first question is the exception taken to the ruling of the court in dismissing the special count. The action is debt, and the original declaration contained only the common counts. The special count was seasonably filed, and declared upon a judgment recovered by the plaintiff against the defendant at a term of the Supreme Court, held at Whitehall in the State of New York, on the 16th day of February, 1878. If the cause of action declared upon in the special count was the same as that declared upon in the original declaration, the motion to dismiss it should have been overruled. If it was for another and a different cause of action, the court was right in sustaining the motion and dismissing the count. Under the original declaration the plaintiffs’ right of recovery was limited to the causes of action described in the common counts in assumpsit. Under the special count, his right of recovery would depend upon the-;existence and proof of such a judgment as is described in it. Under the original declaration, such common-law evidence would be required as would warrant a recovery in the action of general assumpsit. Under the special count, record evidence would be required. So that according to our understanding of the legal definition and classification of causes of action, the cause of action in the original declaration and the special count are not the same. It is said in Dewey v. Nicholas, 44 Vt. 24, that the rule laid down in Carpenter v. Gookin, 2 Vt. 495, that an amendment that changes the form of action, or introduces new counts for a new cause of action, cannot be granted, has ever since been recognized, and may now be regarded, as the settled law upon that subject. The only other exception taken was to the ruling of the court [429] overruling the demurrer and adjudging the defendant’s plea in bar sufficient. The plea alleges that the plaintiffs, on the 16th day of February, 1878, at a special term of the Supreme Court, held at Whitehall in the County of Washington, in the State of New York, recovered judgment against the defendant on account of his not performing the identical promises and agreement in his declaration mentioned; and prays judgment whether the plaintiffs ought to maintain their action against him. The demurrer to the plea is general. The defects complained of in the plea are not to the substance of the plea, but are to matters of form, and do not vitiate it. It is well settled that a judgment rendered in another State, by a court having jurisdiction of the parties and subject-matter, merges the cause of action, and is a bar to the prosecution of a suit in the courts of this State between the same parties upon the same cause of action. The plea in bar we hold was sufficient; and the judgment is affirmed.