Almand v. Hathcock

• Decision Date: 14 May 1913
• Citation: 78 S.E. 345,140 Ga. 26
• Parties: ALMAND v. HATHCOCK.
• Court: Georgia Supreme Court

78 S.E. 345

140 Ga. 26

ALMAND v. HATHCOCK.

Supreme Court of Georgia

May 14, 1913

Syllabus by the Court.

The general rule is that, where a joint contract is the subject of a suit, a recovery against one of the joint obligors merges the entire cause of action, and bars any subsequent suit on the same contract against any of the other debtors.

But under section 5591 of the Civil Code of 1910, when two or more joint contractors are sued in the same action, and service is perfected on one or more of such joint contractors, and the officer serving the writ shall return that the rest are not to be found, the plaintiff may proceed to judgment and execution against the defendants who are served in the same manner as if they were the sole defendants.

(a) Where suit is brought against two joint obligors on a promissory note, both within the jurisdiction of the court and no return of non est inventus as to either is made by the officer serving the writ, and it does not otherwise appear that either of the joint contractors is without the jurisdiction of the court, or is dead, but on the contrary it appears that both joint contractors are within the jurisdiction of the court, and one only has been served with process and judgment is had against him, and later the other is sued on the same joint contract, the judgment against the first merges the entire cause of action, and bars a recovery in the subsequent suit on the same contract against the other joint obligor.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by J. L. Almand against M. L. Hathcock. Judgment for defendant, and plaintiff brings error. Affirmed.

Horton Bros. & Burress, of Atlanta, for plaintiff in error.

J. F Golightly and J. Howell Green, both of Atlanta, for defendant in error.

HILL J.

Almand brought suit against Redwine and Hathcock on a certain promissory note returnable to the May term, 1910, of the superior court of Fulton county. This case was dismissed for want of prosecution and was reinstated by consent of counsel. Hathcock denied the authority of his attorney to reinstate the case as to him, and the court held that it was not reinstated as to Hathcock. Plaintiff then took judgment against Redwine. Thereafter Almand brought suit on the same note against Hathcock. The note was a joint, and not a joint and several, note. On the trial the plaintiff introduced the note and the agreement to reinstate the case of Almand against Redwine and Hathcock. The defendant Hathcock introduced the declaration in the case of Almand v. Redwine and Hathcock. The court, after hearing the evidence of Hathcock sustaining his plea, directed a verdict for the defendant, ruling that the note had merged into the first judgment and that no cause of action existed in the present suit as to Hathcock. To this ruling of the court the plaintiff excepted.

1. The one question to be determined is whether the plaintiff, who had sued and recovered on a joint, and not a joint and several, note, against Redwine alone, while Hathcock, the other joint obligor, was within the jurisdiction of the court, could subsequently sue Hathcock and recover on the same note. The answer to the question depends on whether the former recovery against one of the joint contractors merges the entire cause of action and bars any subsequent suit on the same note against the other joint debtor.

At common law, where a joint contract is the subject of an action, a recovery against one of the joint obligors merges the entire cause of action, and bars any subsequent suit on the same obligation against any of the other debtors, or against all jointly. 23 Cyc. 1208; Howell v. Shands, 35 Ga. 72; 2 Black on Judg. (2d Ed.) § 770. And see Robinson v. Snyder, 97 Ind. 56, holding that the burden of proof is on the one who claims to be released by the former judgment. In the case of Lauer v. Bandow, 48 Wis. 638, 4 N.W. 774, it is said: "It is perfectly well settled that if the holder of a joint debt or obligation sues one of the joint debtors and obtains judgment thereon against him, and then sues another of the joint debtors for the same debt or obligation, the latter may plead such judgment against his codebtor and bar the action. This is so because the joint debt is merged in the judgment against the debtor first sued, and, being indivisible, it cannot be merged or canceled as to one, and existing and operative as to another joint debtor." And in the case of Kennard v. Carter, 64 Ind. 31, it was said: "A separate judgment taken against one of several joint makers of a note in a suit to which the others are not parties, or in which steps are not taken to preserve the right to a subsequent judgment against such others, may be pleaded as a bar to a subsequent suit against those not included in the first suit or judgment." The leading English case on this subject is that of King v. Hoare, 13 Meeson & Welsby, 494. In that case, Parke, B., said: "The cause of action is changed into matter of record, which is of higher nature, and the inferior remedy merged in the higher. This appears to be equally true where there is but one cause of action, whether it be against a single person or many. "The judgment of a court of record changes the nature of that cause of action and prevents its being the subject of another suit, and the cause of action being single, cannot afterwards be divided into two. *** The distinction between the case of joint and several contract is very clear. It is argued that each party to a joint contract is severally liable, and so he is in one sense, that if sued severally, and does not plead in abatement, he is liable to pay the entire debt; but he is not severally liable in the same sense as he is on a joint and several bond, which instrument, though on one piece of parchment or paper, in effect comprises the joint bond of all, and the several bonds of each of the obligors, and gives different remedies to the obligee." In other jurisdictions one state only (South Carolina) seems to adhere to the opinion that a former judgment against one of the joint obligors to a contract or obligation does not merge the cause of action against the other obligor. 2 Black on Judg. (2d Ed.)§ 770. The last-named authority says: "But this stands as an exception to the universal consensus of opinion in England and...