Beazley v. Sims

• Decision Date: 15 April 1886
• Parties: BEAZLEY'S ADM'R v. SIMS' ADM'R.
• Court: Virginia Supreme Court

81 Va. 644

BEAZLEY'S ADM'R v. SIMS' ADM'R.

Supreme Court of Appeals of Virginia.

April 15, 1886

Error to judgment of circuit court of Greene county, rendered June term, 1883, in an action of debt on a joint bond in the name of James Sims' Executor against P. H. Miller and Wyatt S Beazley. The latter died pending the action, and it was revived and proceeded in against his administrator, James G Field, who, the judgment being against him, obtained a writ of error and supersedeas to this court.

Opinion states the case.

J G. & W. W. Field, for the plaintiff in error.

Watson & Perkins, for the defendant in error.

OPINION

LACY, J.

James Sims, on the 13th of August, 1866, instituted in the circuit court of Greene county an action of debt on a bond against P. H. Miller and W. S. Beazley, the obligors therein. On the same day P. H. Miller confessed judgment on the bond, which was duly entered in the clerk's office with appended statement of the balance due, and which became final in due course in the mode prescribed by law.

In September, 1879, James Sims having in the meantime died, his administrator, J. B. Davis, instituted a second action of debt on the said writing obligatory against the said P. H. Miller and W. S. Beazley, the obligors therein. The defendants, by special plea, set up the former judgment in bar of a second suit in the same cause of action, by which they claimed that the judgment in 1866 had merged the bond, and no suit could be thereafter (in 1879) maintained on the said bond. The circuit court struck out the plea, and gave judgment on the said bond against W. S. Beazley's administrator, he having died pending the suit, which was ordered to be proceeded in as to him as a separate suit. On writ of error to this court the question is, was the judgment obtained against P. H. Miller in 1866 a bar to any other suit on this bond against his co-obligor?

The counsel for the defendant in error relies with confidence on the nineteenth section of ch. 173 and section fifty of ch. 167 of the Code. The fiftieth section of chapter one hundred and sixty-seven of the Code provides for judgment against one defendant served with process and a discontinuance or subsequent service of process and judgment against the other defendant at the election of the plaintiff.

In this case the plaintiff did not elect to proceed by subsequent service of process against the other defendant, as he might have done, but took a final judgment against the one defendant served with process, and suffered his suit to abate and discontinue as to the other; and the question in this case is not what might have been done in that suit further. Nothing more was done in that suit, which has long since ended. The question here is under a new suit, brought on the same cause of action with which the said fiftieth section of chapter 167 has some connection. The subject of that provision has been the source of much discussion and conflict in the courts, until, by the passage of the section in question as an act of the legislature, the controversy was ended.

Mr. Minor gives a brief history of this subject in his fourth volume, p. 569. The common law rule was, that, where there are several defendants in an action, ex contractu, all should be summoned either actually or constructively by prosecution to outlawry, before the declaration could be filed or judgment had against any. Min. Inst., vol. IV, 569-570; 1 Tidd's Prac. 420; Sheppard v. Bailler, 6 T. R. 328; Bovill v. Wood, 2 M. & S. 23; Saunderson v. Hudson, 3 East. 144; Barton v. Pettit, 7 Cr. 194. And this rule, long disused in Virginia, (see Moss v. Moss, 4 H. & M. 293; 1 Rob. Pr. 1st Ed. 258-259) in Early v. Clarkson, 7 Leigh 83, was asserted as that which must regulate proceedings with us Whereupon the legislature enacted the said fiftieth section (see Bush v. Campbell, 26 Gratt. 439), by which successive judgments may be obtained in the same suit, and, upon the judgments as they are severally obtained, execution issues just as if each party were the only defendant in the case.

The said fiftieth section provides, as we have seen, for final judgment as to one, and a discontinuance as to the other, or further proceedings as to him, in that suit, at the election of the plaintiff; and this change in the law we have stated above. As to the ninteenth section of chapter one hundred and seventy-three, which provides for judgment against one defendant against whom the plaintiff is not barred, although he may be barred as to another, we will say that in a joint action against several joint contractors, when all have been served with process and all are before the court, and the fiftieth section of chapter 167 is inapplicable, the plaintiff must recover against all or none as at the common law, unless the defence upon which some are discharged is merely personal to them that plead it, and does not touch the liability of the other defendants; as, for example, the plea of infancy, bankruptcy, non est factum, non assumpsit, and the like, which will not prevent the action from being proceeded in to judgment against the others so as to recover against them only. Muse v. Farmers Bank, 27 Gratt. 254; Bush v. Campbell, 26 Gratt. 427; Moffett v. Bickle, 21 Gratt. 280. But, as is authorized by our statute, judgment was obtained against one of the obligors in this joint obligation and there was a discontinuance as to the other; and here the question is, what was the effect of the judgment recovered against one obligor in this joint obligation upon the bond? Did it merge the bond as to one obligor, or as to both, or as to neither? There is no distinction as to this question between a judgment by confession and other valid judgments. If a creditor accepts and ratifies a confession of judgment in his favor, it becomes, from the moment of its acceptance, valid; and is attended with all the results incident to other valid judgments. Although no adjudication is in fact required in entering a judgment of confession without action, yet it has all the qualities, incidents and attributes of other judgments, and cannot be valid unless entered in a court which might have lawfully pronounced the same judgment in a contested action. Freeman on Judgments, sections 547, 548; Lanning v. Carpenter, 23 Barb. 402; Chapin v. Thompson, 20 Cal. 681; Wilcoxson v. Burton & McCarly, 27 Cal. 228.

In this case it is not denied that this confession of judgment was accepted, received and acted on by the creditor who took final judgment thereon as the law prescribes, and did not seek, by service of process or otherwise, to proceed further against the other obligor then nor subsequently during his life.

We may now consider, briefly speaking, generally what is the effect in an original cause of action of maturing the same to judgment. The judgment establishes in the most conclusive manner, and reduces to the most authentic form, that which had hitherto been unsettled. The cause of action thus established, and permanently attested, is said to merge into the judgment establishing it upon the same principle that a simple contract merges into a specialty. The cause of action, though it may be examined to aid in interpreting the judgment, can never again become the basis of a suit between the same parties. It has lost its vitality; it has expended its force and effect. All its power to sustain rights and to enforce liabilities has terminated in the judgment. It is drowned in the judgment and must henceforth be regarded as functus officio.

This principle is well established and is supported by a variety of reasons, which cannot conveniently be stated in full here, but which are set forth in the two hundred and fifteenth section of the excellent work of Mr. Freeman on Judgments. This principle is well illustrated in the case of Wayman v. Cochrane, 35 Ill. 154.

In delivering the opinion of the court in that case Chief Justice Walker said: " The general rule is, that by a judgment at law or a decree in chancery, the contract or instrument upon which the proceeding is based becomes entirely merged in the judgment. By the judgment of the court it loses all its vitality and ceases to bind the parties to its execution. No force and effect are then expended, and all remaining legal liability is transferred to the judgment or decree. Once becoming merged in the judgment, no further action at law or suit in equity can be maintained on the instrument. All rights and liabilities originally imposed by or growing out of the instrument or agreement terminate with the judgment of the court. This being so, when the judgment was rendered on the bond in this case, it ceased to be evidence of the debt, and the judgment then became the evidence of the debt, and the only evidence that could be used in a court of the existence of the original debt. And that debt could only bear six per cent. interest whether evidenced by a judgment or decree." White v....