Boardman v. Acer

Decision Date28 January 1865
Citation13 Mich. 77
CourtMichigan Supreme Court
PartiesFrancis D. Boardman v. John A. Acer

Submitted July 12, 1864

Error to Kent circuit.

The action was debt, upon a judgment rendered in the state of New York. The defendant (plaintiff in error), under a special notice attached to his plea, offered to show that the trespass, for which said judgment was rendered, was committed by him jointly with Josiah Snell and Elijah A. Hawkins, and that the plaintiff (defendant in error), in a separate suit against said Snell and Hawkins, for said trespass, also obtained judgment, in the state of New York, against them and that two executions had been sued out upon said judgment against Snell and Hawkins--one before and one since the rendition of the judgment in suit--which had been placed in the hands of the sheriff for collection. To the admission of this testimony, an objection was interposed, which was sustained by the court, and defendant excepted.

Judgment for the plaintiff.

Judgment reversed, with costs, and a new trial granted.

Walker & Kent, for plaintiff in error:

The question is, whether the issue of an execution against one of several joint trespassers, against whom several judgments have been recovered, is a satisfaction of the judgments.

The question seems to have been settled in New York, in the case of Livingston v. Bishop, 1 Johns. 290. It is there held that separate judgments may be recovered against joint trespassers, and that the plaintiff may select the judgment he deems preferable, and by issuing execution on this, the other judgments, except as to costs, are discharged.

The authority of this case has been recognized in later decisions: 6 Johnson 26; 7 Cowen 344; Osterhout v. Roberts, 8 Cowen 43.

It has never been called in question in any case in that state. It must, therefore, still be considered as law there.

There are many cases in other states, and in England, which maintain the New York doctrine, or go beyond it: Page v. Freemen, 19 Mis. 421; White v. Philbrick, 5 Greenleaf 147; Wright v. Lathrop, 2 Ham. 33; Wilkes v. Jackson, 2 Hening & Munf., 355; Ammonett v. Harris, 1 Hening & Munf., 488; Broome v. Wooton, Yelverton, 67; Buckland v. Johnson, 80 Eng. Com. Law, 145.

E. Smith, jr., and D. C. Holbrook, for defendant in error:

The only question presented to the court is, whether the issuing of an execution, on one of several judgments recovered for the same wrong and trespass, operates, and is a satisfaction of the damages, as to the other judgments.

The decisions on this subject are not numerous, and the older decisions very conflicting. It will be observed, however, that in the later decisions, the bearing continually tends to place judgments, for the same tort, on the same footing as judgments on contract, and nothing short of a satisfaction of one judgment will discharge the damages as to, or recovery against, the others.

The following are the latest cases on the subject, and the facts are almost the same as in the present case: Sheldon v. Kibbe, 3 Conn. R., 214; Sanderson v. Caldwell, 2 Aiken R., 195; Osterhout v. Roberts, 8 Cowen R., 43; Sharp v. Gray, 5 B. Monroe R., 4.

The following are the principal American cases, and they refer to about all the prior cases: Livingston v. Bishop, 1 John. R., 290; Marsh v. Berry, 7 Cowen R., 344; White v. Philbrick, 5 Greenleaf R., 147; Wright v. Lathrop, 2 Ham. R., 33; Hopkins v. Hersey, 20 Me. 449.

OPINION

Christiancy J.:

Can a plaintiff who has sued several joint trespassers in separate actions, recovered separate judgments, and...

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4 cases
  • Verhoeks v. Gillivan
    • United States
    • Michigan Supreme Court
    • October 1, 1928
    ...and a bar to subsequent executions against any of the other defendants. It was held, in the early Michigan case of Boardman v. Acer, 13 Mich. 77, 87 Am. Dec. 736, that issuing execution against one of several defendants was a bar to seeking satisfaction of the judgment from any of the other......
  • Grimes v. Williams' Estate
    • United States
    • Michigan Supreme Court
    • June 28, 1897
    ...he cannot now recover from Mr. Williams. We think he was right in his interpretation of the law. Stone v. Dickinson, 5 Allen, 29; Boardman v. Acer, 13 Mich. 77. Kenyon v. Woodruff, 33 Mich. 315. Judgment is affirmed. HOOKER, J., did not sit. The other justices concurred. ...
  • Kenyon v. Woodruff
    • United States
    • Michigan Supreme Court
    • January 21, 1876
    ...against Kenyon and Goodale, or either of them, on account of the same conversion. The rule was so settled in this court in Boardman v. Acer, 13 Mich. 77, in case concerning joint trespassers, and the principle must equally apply where persons join in conversion. The liability of defendant i......
  • John A. Tolman Co. v. Waite
    • United States
    • Michigan Supreme Court
    • February 6, 1899
    ... ... held that title passed, under the election of the plaintiff ... to look to the judgment debtor alone, citing Boardman v ... Acer, 13 Mich. 77. This may properly be supposed to ... qualify the statement on page 314, 33 Mich., viz.: "The ... recovery of Schulenberg ... ...

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