Westheimer v. Craig

Robinson, J., delivered the opinion of the Court. This is an action of assumpsit brought by the appellee against Moses Westheimer and Michael R. Kelly. The [406] declaration contains the ordinary money counts, and with it is filed a statement or hill of particulars, charging the defendants with having collected and fraudulently appropriated to their own use the proceeds of certain cheques drawn by the appellee. Kelly having failed to plead within the time prescribed by law, a judgment by default was entered against him, and the judgment so stands, the Court never having been called on to assess, nor the jury to inquire of, the damages. The judgment by default, it seems, was entered upon a motion in writing, to which the name of the plaintiff’s attorney was signed by the deputy clerk at the request of said attorney. Westheimer, the other defendant, and now appellant, pleaded never indebted, and never promised, as alleged in the declaration, and upon the issues made on these pleas the case was tried, and verdict was rendered in favor of the plaintiff for $450. The defendant Westheimer then filed a motion for a new trial, and a motion also in arrest of judgment, and, these motions being overruled, he filed a motion to strike out the judgment, which the Court also overruled. .It is unnecessary, in the view we take of the case, to state at length the several grounds relied on in support of the motion in arrest of judgment. Briefly stated, the main grounds are: First, that being an action on a joint contract against joint debtors, the plaintiff could not recover separate judgments against each defendant; and, secondly, that no judgment could he recovered against Westheimer until the damages had been assessed in the judgment by default against Kelly. In an action upon a joint contract at common law, if all the defendants were summoned or appeared, the judgment was entered, it is true, for or against all the defendants. This general rule was, however, subject to this exception: If one or more of the defendants pleaded infancy, or coverture, or dis [407] charge in bankruptcy, these pleas being consistent with the averment in the declaration of an original joint contract, the plaintiff could enter a nolle prosequi as to such defendants, and recover judgment against the other defendants. See 1 Black on Judts., sec. 206, and cases referred to; 1 Freeman on Judts., sec. 43, and cases. The rule of the common law in this respect, however, has been changed by the Code, and the statute now provides that in actions upon joint contracts against joint debtors, the plaintiff shall be entitled to judgment "as in actions ex delicto against such one or more of the defendants, as shall be shown by the evidence to be indebted to him.” Sec. 12, of Art. 50, of the Code. And at common law it is equally true, that a judgment against one or more joint debtors upon a joint contract, merged or extinguished the debt as to other parties not joined in the action, and, if they were subsequently sued on the original contract, they could plead the former judgment in bar of the action. But this has also been changed by statute, and sec. 10, Art. 50 of the Code, provides that “a judgment rendered against one or more members of a partnership, or one or more persons jointly liable on any bill, bond, covenant, promissory note, bill of exchange, contract, or agreement whatsoever, less than the whole number of partners or persons so bound, shall not work an extinguishment or merger of the cause of action on which such judgment may have been rendered, as respects the liability of the partners or persons not bound by such judgment; and they shall remain liable to be sued as if their original responsibility had been joint and several; provided, that but one satisfaction of the debt or demand shall be made.” And since the decisions in Barker vs. Ayers, et al., 5 Md., 202, and Thomas vs. Mohler and Graff, 25 Md., 36, and Loney, et al. vs. Bailey and Caldwell, 43 Md., 10; and Gott vs. State, use of Barnard, 44 Md., 319, the right of [408] the plaintiff to recover separate judgments against the members of a partnership for partnership debts, and separate judgments against joint obligors, and against joint debtors in an action of assumpsit for goods sold and delivered, can no longer he questioned. But then it was argued that the contracts or agreements within the meaning of the statute are joint express contracts, and not such as arise by implication of law. The object of the statute was to prevent a judgment recovered against one or more joint debtors from operating as a merger or extinguishment of the original cause of action; and thereby to enable the plaintiff to recover judgment against the other defendants. And, after specifically enumerating bills, bonds, covenants, promissory notes, and bills of exchange, the statute says, or “contract or agreement whatsoever.” Now, in this case the plaintiff could have brought an action of tort against each of these defendants, but he waives the tort, which he had the right unquestionably to do, and sues in assumpsit to recover money belonging to him, and which the defendants had fraudulently appropriated to their own use. It is an action founded on contract, arising, it is true, by implication of law, but none the less a contract strictly within the letter and spirit of the Code. And as such it was so recognized in Barker vs. Ayers, et al., 5 Md., 202, and Loney, et al. vs. Bailey and Caldwell, 43 Md., 10. Now, as to the judgment by default against Kelly, we-have but a word to say. Whether this judgment was properly entered or not, the name of the plaintiff’s attorney having been signed to the motion by the deputy clerk, at the request of the attorney, or whether the judgment had been extended or not, are matters which in no manner affected the plaintiff’s right to judgment on the verdict rendered by the jury in the trial of the issues joined on the pleas filed by the defendant West [409] heimer. There could be but one satisfaction of the debt, and if the debt had been paid in whole or in part by Kelly, these were matters of proof, and of which Westheimer could have availed himself in the trial against him. For these reasons we concur with the several rulings of the Court below, and the orders appealed from will therefore be affirmed. (Decided 2nd December, 1892.) Orders affirmed.