Coles v. McKenna

• Citation: 80 N.J.L. 48,76 A. 344
• Parties: COLES v. McKENNA et al.
• Decision Date: 13 June 1910
• Court: New Jersey Supreme Court

76 A. 344

80 N.J.L. 48

COLES

v. McKENNA et al.

Supreme Court of New Jersey.

June 13, 1910.

(Syllabus by the Court.)

Error to Court of Common Pleas, Monmouth County.

Action by Susan Coles against Thomas P. McKenna and Arthur L. Meyer. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

Argued February term, 1910, before GARRISON, SWAYZE, and PARKER, JJ.

Gilbert Collins, for plaintiffs in error.

Thomas P. Fay, for defendant in error.

SWAYZE, J. This was an action brought against the West End Company, Arthur L. Meyer, Thomas P. McKenna, and the Cottentin Hotel Company to recover a laundress' bill. Judgment final was entered by default against the West End Company and the Cottentin Hotel Company, and the case thereupon proceeded to trial against the individual defendants; and, although the attention of the trial court was called to the fact that judgment had already been entered against two of the defendants and that the plaintiff was thereby precluded from proceeding against the remaining defendants, the learned trial judge permitted the case to go to the jury, a verdict was rendered against the individual defendants, and a separate judgment entered against them which is now before us on this writ of error.

It is clear that the plaintiff cannot split up his cause of action in this way. At common law he was bound to join all defendants who were jointly liable. He could not have sued McKenna and Meyer alone, and, even if they did not plead the nonjoinder of the other defendants in abatement, nevertheless the defendant might demur or move in arrest of judgment or sustain a writ of error if it expressly appeared on the face of the declaration or some other pleading of the plaintiff that the party omitted was still living as well as that he jointly contracted. 1 Chitty on Pleading (14th Am. Ed.) 46. If, therefore, the contract was a joint one, as would appear from the face of the declaration, a judgment could not be entered thereon against two of the four joint contractors. for it would still be open to them to insist that the contract declared upon was a contract of four defendants, and not of two alone. Our statute (P. L. 1903, p. 544, § 37) does not apply to this case, but only to a case of misjoinder. The objection, however, goes deeper than the question of pleading. The cause of action merged in the judgment, and in the case of a joint debt whatever extinguishes or merges the debt as to one merges it as to all. Robertson v. Smith, 18 Johns. (N. Y.) 459, at page 478, 9 Am. Dec. 227. In King v. Hoare, 13 Mees. & W. 494, the contract was the joint contract of the defendant and one Smith. The plaintiff recovered a judgment against Smith, and then sued the defendant. Baron Parke said: "If there be a breach of contract, or wrong done, or any other cause of action by one against another, and judgment be recovered in a court of record, the judgment is a bar to the original cause of action, because it is thereby reduced to a certainty, and the object of the suit attained, so far as it can be at that stage; and it would be useless and vexatious to subject the defendant to another suit for the purpose of obtaining the same result. Hence the legal maxim, 'transit in rem judicatnm'—the cause of action is changed into matter of record, which is of a higher nature, and the inferior remedy is 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." Afterward it was held in a thoroughly considered case by the House of Lords that, where judgment had been recovered against two partners for breach of a contract and suit was...