Brenner, Trucks & Co. v. Moyer

• Citation: 98 Pa. 274
• Parties: Brenner, Trucks & Co. <I>versus</I> Moyer.
• Decision Date: 03 October 1881
• Court: United States State Supreme Court of Pennsylvania

Page 274

98 Pa. 274

Brenner, Trucks & Co. versus Moyer.

Supreme Court of Pennsylvania.

June 7, 1881.

October 3, 1881.

June 7th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Clinton county: Of May Term 1881, No. 156 C. G. Furst (with him P. S. Merrill), for the plaintiffs in error.—The former judgment merged and extinguished the cause of action and was a bar to the recovery in this. The maxim nemo debet bis vexari pro cadem causa applies as well where the one action is on a statute and the other at common law, because the statutory remedy is cumulative. But a plaintiff having elected one and having recovered judgment therein, is barred from recovering judgment in the other. He cannot subject the defendant to double costs: Garvin v. Dawson, 13 S. & R. 247; Wilson v. Hamilton, 9 S. & R. 429; Hess v. Heeble, 6 S. & R. 61; Marsh v. Pier, 4 Rawle 289; Duffy v. Lytle, 5 Watts 132; Broom's Legal Maxims 331.

The Act of March 17th 1869 gave a statutory remedy, but where the defendant appears, the attachment suit does not differ from a common law personal action. Where in such case the plaintiff has recovered a prior judgment, the only question is, was it tried on the merits for the same cause of action, and it so it is a bar: Blyler v. Kline, 14 P. F. S. 133. Such judgment may be given in evidence as a bar, in an action of assumpsit, under the general issue, although judgment was not entered in the first suit until after the institution of the second: Finley v. Hanbest, 6 Casey 194; 1 Greenleaf on Ev. § 530, and cases cited. The principle of this case is ruled by Baxley v. Linah, 4 Harris 250 H. T. Harvey, for defendant in error.—The judgment in the former action of assumpsit adjudicated, simply, that the defendants are indebted to the plaintiff in a certain sum. The judgment in the present attachment suit adjudicates that the plaintiff is entitled to proceed on the bond given by defendants with sureties, under the provisions of the Act of 1869, to recover the amount of the indebtedness found due by the former judgment. There is no inconsistency between the two, nor do the two judgments afford one and the same remedy, although, if either judgment is satisfied, the other will be.

If the court should hold the first judgment to be a bar, we will be deprived of our statutory remedy under the Act of 1869, which arose not merely because of the defendants' indebtedness, but because of their acts which that statute declared to be fraudulent, and by reason whereof we have a specific lien on the goods attached, or we can proceed on the bond given in lieu thereof, in addition to our general common law right of execution: Tams v. Lewis, 6 Wr. 402.

We adopt as our argument the remarks of ALLISON, P. J., in Swartz v. Lawrence, C. P. No. 1 of Phila. Co., 34 Leg. Int. 114, viz.: "But is a proceeding by attachment, under the Act of 1869, inconsistent with the action which had been brought on the claim? The two are not in conflict as to purpose, nor are the two modes of proceeding inconsistent with one another; they are not more unlike, as remedies seeking the same end, than a suit on a mechanic's lien, instituted by scire facias, and an action on a promissory note given for the same debt; in the first instance, a judgment binds only the property against which the lien is filed, and in the second proceeding, it is general, and binds all the land of a defendant. These two proceedings do not conflict, because they look to the accomplishment of the same purpose, for though there may be two recoveries, there can be but one satisfaction."

This court can control the costs, to prevent injustice to the defendant.

[SHARSWOOD, C. J. — Only in proceedings in equity, not in common law actions.]

The case of Baxley v. Linah does not apply. That was a foreign attachment in which the judgment of a foreign state was held, under the constitution, to be conclusive, and therefore a bar. Here both actions were in the same court, and the execution remained under the control of the court.

Mr. Justice GREEN delivered the opinion of the court, October 3d 1881.

On April 30th 1874, the plaintiff below issued a summons in assumpsit against the defendants, and on the same day filed a narr, and an affidavit of claim, alleging his cause of action to be an indebtedness due by the defendants to him in the sum of $1,303.19, for making and delivering 13,506 cubic feet of square timber. The narr. contained only the common counts, but subsequently an amended narr, was filed, declaring on a special contract in writing, for making and delivering square timber, the quantity delivered, and price therefor, being the same as set forth in the affidavit of claim. The pleas of non-assumpsit, payment and set-off being filed, the cause was tried on December 21st 1876, and a verdict was recovered for the full amount of the claim and interest, for which judgment was entered on December 28th 1876. This suit was No. 305, May T. 1874.

On the same 30th day of April 1874, upon which the summons in the above case was issued, the same plaintiff issued an attachment, under the act of 17th March 1869, against the same defendants, claiming the same indebtedness which constituted the cause of action in the previous suit. This proceeding was No. 306, May Term 1874. The affidavit and bond required by the act were filed, together with a præcipe for a writ of attachment, directing the sheriff to attach two rafts of timber, the property of the defendants. A writ of attachment was issued, served and returned, all on the same 30th day of April, and the rafts attached were delivered to the defendants, from whom, with sureties, a bond was taken for the surrender of the rafts, in the event of a recovery in the said attachment suit, No. 306, of May Term 1874. On December 20th 1878, a narr. was filed declaring on the same...