Finch v. Galigher

Mr. Justice Bigelow delivered the opinion of the Court. As the order of the court overruling appellant’s motion to strike appellee’s plea in abatement from the files has not been assigned for error, this court would be justified in refusing to consider the matter. But since the counsel on both sides seem to have assumed that such an assignment was made, or that the question would necessarily have to be determined under some one of the errors actually assigned, and hence have fully and ably discussed the matter, we have concluded not to ignore it. If the defendant, before filing his plea in abatement, had appeared for any purpose other than to make motions going directly to the writ, the matter might have been very different from what it now is. What he did, and all he did, before filing his plea, was to move to quash the return to the writ, and this motion being overruled, he next moved to quash the writ for a variance between it and the declaration as they then stood, which was also overruled. In the meantime plaintiff dismissed his suit as to Charles Galigher, and amended the summons so that Frank L. Galigher was the only defendant named therein, and by leave of court filed a new amended declaration against Frank L. Galigher alone; whereupon defendant filed a further motion to quash the amended writ for a variance between it and the amended declaration, which was overruled by the court. In each of these motions the defendant specifically limited his appearance to the object of the motion. It is a mistake to suppose the defendant was rightfully entitled to make but one dilatory motion, or file but one dilatory plea, without its having the effect of a full appear, anee in the case. He could make as many such motions and file as many such pleas as he deemed necessary, provided he pursued the regular order of pleading in doing so. He could not however have made any one of the motions he did make, or filed a plea in abatement for non-joinder, and after that, have rightfully filed a plea in abatement to the jurisdiction of the court, because such a plea comes first in the order of pleading, and the reason is, because there is manifest absurdity in calling upon the court to determine the sufficiency of a motion or plea, and afterward insisting that the court had no jurisdiction to determine anything except its own lack of jurisdiction. Nor could he have first filed his plea in abatement for non-joinder of Charles G-aligher, and then followed it with the motions or any of them he did make, because the plea was founded upon a matter dehors the record (and for this reason had to be verified by affidavit), while the motions were not so founded, and hence preceded the plea, in the regular order of pleading, as laid down by all the standard writers on pleading and practice. The motion to strike defendant’s plea from the files was properly overruled. The plaintiff by replying to defendant’s plea admitted that Charles G-aligher and the defendant were copartners in the execution of the note, and sought to avoid the necessity of making Charles a party to the - suit, by setting up the fact that judgment had already been recovered by the plaintiff against him on the note in the county and State of New York. / Whether the defendant could not have raised the question as to the effect of that judgment by demurrer to some of the counts of plaintiff’s declaration, we shall not stop to inquire, but the question could certainly not have been raised on demurrer to the second count of the declaration. The effect of this judgment is the vital question in the case. It is a well settled rule of the common law, a rule long since adopted and steadily adhered to by the Supreme Court of this State, that a judgment on a joint obligation, against one or more of several joint obligors, is a bar to any suit thereafter brought against the obligors not served, and against whom the judgment was not rendered. The reason of this rule is said to be, because the judgment is of a higher order of security than a simple obligation, and since both can not exist, the entire obligation is merged in the judgment. To avoid the effect of this rule, a laxv was enacted by the legislature of this State as long ago at least as 1845, providing that parties not served could, subsequently to the rendition of the judgment, be brought in by scire facias, and made parties to the judgment, and this law is now section 10 of our present practice act. In 1872, the legislature enacted another law, which is now section 12 of our practice act, and which is as follows: “When several joint debtors are sued and any one or more of them shall not be served with process, the pendency of such suit, or the recovery of a judgment against the parties served, shall be no bar to a recovery on the original cause of action against such as are not served, in any suit which may be brought against them in any other place than in the county where the first suit is brought. This section shall not be so construed as to allow more than one satisfaction.” Appellant has plead no statute of Mew York saving the merger, and does not contest the fact that this court must presume the common law of England is a part of the law of Mew York, but as we understand appellant’s counsel, the contention is, that section 12 of our practice act (above quoted) saves the note from merging in the judgment, and failing in this, that the fact the defendant was not a resident of, and was not in the State of Mew York at the time suit was brought and judgment rendered there, prevented the merger. As we regard the first contention the more important, we will first consider it. The act in which the section is found is entitled “ An act in regard to practice in courts of record.” It seems evident to us that the law embraces only joint debtors who are sued and not served in this State, and that the legislature did not intend to embrace joint debtors who might be sued elsewhere, even though they* might be residents of this State at the time. The primary object of laws is for the protection of subjects of the State which enacts them. It will be time to determine the question, if the legislature of this State can legally enact that a joint obligation on which one of the co-obligors has been sued and judgment rendered in a foreign State, shall not become merged in a judgment there when it has attempted to do so. All that it has thus far done is to enact a law. which, with the necessarily implied words, reads as follows: When several joint debtors are sued in this State, and any one or more of them shall not be served with process in this State, the “pendency of such suit or the recovey of a judgment against the parties served shall be no bar to a recovery on the original cause of action against such as are not .served, in any suit, which may be brought against them in any other place in this State than in the county where the first suit is brought.” This law is a partial repeal of the common law on the subject of merger, and in construing it courts should be governed by the rule laid down by Mr. Dwarris, which is: “When a statute alters the common law, the meaning shall not be strained beyond the words, except in cases of public utility, when the end of the act appears to be larger than the enacting words.” Dwarris on Stat., 196. The case of Shirley v. Shattuck, 54 Mass. (13 Met.) 256, relied on by appellant’s counsel, though contrary to the great weight of authority on the question, still falls far short of sustaining the point contended for. In that case, Shattuck and one Bennett were joint obligors and were sued in Mew Hampshire, and judgment was rendered against Bennett alone. Afterward Shattuck was sued in Massachusetts under a statute which provided, “ If such judgment remains unsatisfied, an action on the same contract may be afterward maintained against any of the other joint contractors, as if the contract had been joint and several.” This statute is much broader than section 12 of the practice act of this State as will be readily seen. The only analogy of that case to this that we can discover is, there as here the judgment was rendered in a foreign State. The case of Merriman v. Barker, 121 Ind. 74, as well as the other cases cited by appellant’s counsel, in support of their contention, are cases holding that where the joint obligors are residents of different States, a judgment against one of them, where he resides, is no bar to a suit against others residing in other States. Without going further, it is sufficient to say that the plea of defendant avers that Charles Galigher “is still living at the county of Alexander” in this State, where the suit was brought, and this is not controverted in the replication, and it is not averred in the replication that Charles Galigher and the defendant ever resided in different States. All that is averred might well be true, and yet they may have resided in the same house when the suit was brought and the judgment rendered in New York. The order of the court sustaining the demurrer and quashing the writ was right, and as, under the circumstances, the court had no alternative but to render judgment against plaintiff for costs, the judgment will be affirmed.