Bonesteel v. Todd

• Decision Date: 20 November 1861
• Citation: 9 Mich. 371
• Court: Michigan Supreme Court
• Parties: Joseph F. Bonesteel v. Albert Todd, impleaded with another

9 Mich. 371

Joseph F. Bonesteel v. Albert Todd, impleaded with another

Supreme Court of Michigan

November 20, 1861

Heard October 16, 1861; October 17, 1861 [Syllabus Material]

Error to Washtenaw circuit court.

Bonesteel brought an action of covenant against Albert Todd and John S Jacox, to recover the rent reserved by a lease bearing date May 1st, 1852. Todd alone was served with process. He pleaded the general issue, and gave notice, among other things, of a former suit in bar, upon the same lease, in the Supreme Court of New York, in which judgment was rendered in form against Todd and Jacox jointly, on May 25th, 1855, after personal service upon Jacox alone.

On the trial before the court without a jury, the plaintiff having established an affirmative case, and rested, the defendant gave evidence of the judgment mentioned in his notice, and the court held the same to be a bar to this action, and gave judgment for the defendants.

Certain objections which were made to the form of the judgment it is unnecessary to notice.

Judgment of the circuit court reversed, and a new trial granted.

L. D. Norris, for plaintiff in error:

The court erred in holding the alleged judgment a bar to this suit. The courts of New York have refused to decide directly whether an action of debt can be brought in their courts on such a judgment; in effect they hold such judgments nullities: 4 N. Y., 513; 11 N. Y., 500. Later, they have also decided this identical case, to wit: "When joint debtors reside in different states, they may be sued separately in the states having jurisdiction of their respective persons and property, and a judgment in such cases against one in one state is no bar to a recovery against the other in another state:" 29 Barb. 549.

That this, or any other judgment, has any force in this state, as a bar, or otherwise, is owing to the "faith and credit" courts are called upon to give it, by the act of congress of the 26th May, 1790; but the Supreme Court of the United States has expressly decided that a judgment in a state court (N. Y.) under their joint debtor act is not entitled to "faith and credit" within the United States against a joint debtor not served: 11 How. 165.

And accordingly state courts have never given "faith and credit" to judgments rendered under joint debtor acts of other states, against defendants not served or appearing: 17 Conn. 500. The courts of nearly every state in the Union hold that a judgment without personal service upon the defendant or defendants, or appearance by him, or them, is entitled to no "faith and credit" in any other state--is in fact void. If void as to Todd (being a joint judgment) it is also void as to Jacox: 6 Pick. 232; 2 Am. Lead. Cas., 712-45, cases collected.

H. J. Beakes, for defendant in error:

The judgment, unless the former decisions of this court are to be disregarded, is a bar to this suit: 4 Mich. 316; 2 Mich. 255. There can be no doubt that it is a valid judgment in New York; in other words, not a nullity. But the question here is one of remedies, and not of rights, and must be determined by the laws of this state. On this question, the New York judgment must be held to produce the same results, by way of extinguishing the original claim, as if rendered here: Story Confl. L., § 609; 1 Hill 482. As our courts hold that, for all the purposes of a remedy, such a judgment merges the original cause of action, it is immaterial what the New York courts hold.

Upon principle, this suit can not be maintained unless plaintiff has a right of action upon his original demand against both defendants. But as to Jacox, the judgment is a common law judgment. Suppose he had paid the judgment; would it be competent for plaintiff to bring a new suit here, and take his chance of recovering a larger judgment? Payment of the judgment would not satisfy the original demand unless it was merged. Upon the principle contended for by plaintiff, Jacox, after payment of the judgment, would still be liable to a suit here, upon the same cause of action, in which his property owned jointly with Todd might be seized; and if personally served, any of his property.

The judgment is either an utter nullity, or it is a bar. If it destroyed the right of action as to one, it did as to both. A release of one is a release of both. A higher security is an extinguishment. These propositions can not be disputed.

Under the New York law of 1801, which provided for a judgment and execution in form against all, though part only were served with process, but declared it should not be lawful to issue or execute any such execution against the body or the property of the person not served, it was uniformly held that the judgment merged the demand: 2 Johns. 87; 6 Johns. 98; 16 Johns. 66; 6 Cow. 695; 6 Wend. 206. Under the New York Revised Statutes, from which ours are copied verbatim, there has been some conflict of decisions: 23 Wend. 293; 1 Hill 482; 4 Denio 56; 4 N. Y., 514, 539; 13 N. Y., 504; 18 N. Y., 569, 572; 8 N. Y., 413. But it will be noticed that the restrictions upon the liability of the defendants not served with process, which were added in the New York Revised Statutes, were omitted by the code of 1851, and it would seem that the construction uniformly placed by the courts of that state on the act of 1801, should be regarded as the settled construction of the provisions on that subject in the code.

OPINION

Campbell J.:

Plaintiff sued defendants upon a joint indebtedness--Todd only being served with process. He set up in bar that plaintiff had recovered a judgment in New York upon the same claim. The judgment relied on was rendered in that state in form against both defendants, but upon personal service against Jacox alone.

The questions which are presented relate, first, to the effect of such a judgment upon the original demand when set up in this state; and, second, to the sufficiency of the evidence to establish such a judgment.

It is claimed on behalf of the defendants, that the New York judgment extinguished the original demand entirely, and that plaintiff was thereafter either entirely without remedy, or confined to a suit or other proceeding upon that judgment.

It was decided in Candee v. Clark, 2 Mich. 255, that a judgment against one joint debtor operated as a merger, and put an end to any action on the original contract against either. This decision was in accordance with an unbroken line of decisions at the common law, whereby a party electing to take a higher security, and thereby put an end to the liability of one debtor upon the contract, deprived himself of any further claim against the other by destroying the only joint demand. A party must always take such consequences as the law annexes to his election of remedies. And such were the consequences at common law where a sole judgment was obtained on a joint demand. The reasons are perhaps not as satisfactory as they might be, but the law was clear. There was nothing before the court in Candee v. Clark, to affect the common law rule.

While, however, at the common law such was the effect given to a common law judgment rendered in England, yet no such consequences attended a foreign judgment. A party might sue upon his original cause of action, or he might bring assumpsit upon the foreign judgment, which was regarded as mere evidence whereon to base a demand, and of no higher character than a simple contract: Hall v. Odber, 11 East, 118; Smith v. Nicolls, 5 Bing. N. C., 208.

Were it not for the constitution of the United States, the judgments of sister states would be left on the footing of foreign judgments; and until the case of Mills v. Duryee, 11 U.S. 481, 7 Cranch 481, 3 L.Ed. 411, was decided, they were very frequently, if not generally, regarded as open to the same investigation, and as not operating to merge the debt or demand sued upon: Bartlet v. Knight, 1 Mass. 401; Hitchcock v. Aicken, 1 Caines 460; Taylor v. Bryden, 8 Johns. 173; Pawling v. Wilson, 13 Johns. 792. But under the constitution and laws of the United States, the judgment of one state is to have the same credit in another state as it has by law or usage in the courts of the state where it is rendered.

As the judgment rendered in New York against the defendants impleaded before us was without any service of process against Todd, and he never appeared in the suit, it can have no binding force upon him personally. This is a principle of universal justice, and has been directly...