Ruff v. Ruff

• Decision Date: 07 January 1878
• Citation: 85 Pa. 333
• Parties: Ruff <I>versus</I> Ruff.
• Court: Pennsylvania Supreme Court

85 Pa. 333

Ruff versus Ruff.

Supreme Court of Pennsylvania.

October 24, 1877.

January 7, 1878.

October 24th 1877.

Before MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ. AGNEW, C. J., and SHARSWOOD, J., absent

Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1877, No. 135 A. A. Stewart, H. D. Foster and McAfee & Atkinson, for plaintiff in error.—The plaintiff in this action, being neither a party nor privy, could not be heard in the determination of the action of Barclay v. Painter et al., and therefore is not concluded from recovery in this action: Breading v. Siegworth, 5 Casey 396; Tams v. Bullitt, 11 Id. 311.

To make a former verdict and judgment conclusive, it must be between the same parties. The party must have had a right to appear and be heard: 1 Starkie Ev., part 2, §§ 57, 60; 1 Greenleaf Ev., §§ 523, 8; Hart's Appeal, 8 Barr 37; Carmack v. Commonwealth, 5 Binn. 184; Respublica v. Davis, 3 Yeates 128; Timbers v. Katz, 6 W. & S. 290; Bratton v. Mitchell, 3 Barr 49; Hurst v. McNeil, 1 Wash. C. C. 70; Hamm v. Beaver, 7 Casey 58; Mer. Ins. Co. v. Algeo, Id. 446; Ihmsen v. Ormsby, 8 Id. 198; Childs v. Digby, 12 Harris 26.

Cowan & Hazlett and H. C. & J. A. Marchand, for defendant in error.—C. P. Ruff, having been a party to the attachment execution, was barred by the verdict and judgment in favor of Michael Ruff, the garnishee, because in that trial the subject-matter in dispute was legally determined against him, and he having no right to assign it to Hillis, the latter took nothing by the assignment. Here the judgment on the attachment execution was by a court of competent jurisdiction, on the same subject-matter, between the same parties and for the same purpose. The plea is therefore good: Aspden v. Nixon, 4 How. 467.

Mr. Justice GORDON delivered the opinion of the court, January 7th 1878.

William Hillis having taken the assignment of the judgment note, executed by Michael Ruff in favor of C. P. Ruff, after the issuing of the attachment by Barclay, can have no other or better standing in this controversy than his assignor. We may treat the matter, therefore, as between the original parties to the note. It appears, from the statement we have before us, that Thomas J. Barclay, to May Term 1870, issued an attachment, from a judgment he then had against C. P. Ruff and others, with notice to Michael Ruff, the defendant in the case now trying, as garnishee. Upon this attachment the court directed an issue with Barclay as plaintiff and the garnishee as defendant. A trial was had, in due course, which resulted in a verdict and judgment for the defendant. This established conclusively, as to the parties to the issue and their privies, that Michael Ruff had, in his hands, no money, goods or effects of any kind, belonging to C. P. Ruff.

The one question for us to resolve is, was C. P. Ruff, by reason of his having been served with the writ of attachment, such a party or privy to this issue as would make the judgment therein binding on him? If he is so bound, the demurrer to the defendant's plea in bar was well ruled by the court below; if not, that ruling was erroneous. But if he was such a party, then should he have been included in the issue and the jury should also have been sworn as to him; this, however, was not done; and why not? The answer is, because he had no standing as a party against the garnishee, and was, therefore, properly excluded from a participation in the trial. If he had aught to say against the judgment, from which the attachment issued, he might have pleaded and had issue; it is, that he might have such...