Davison v. Harmon

• Decision Date: 07 July 1896
• Citation: 65 Minn. 402,67 N.W. 1015
• Parties: DAVISON v HARMON ET AL.
• Court: Minnesota Supreme Court

65 Minn. 402

67 N.W. 1015

DAVISONvHARMON ET AL.

Supreme Court of Minnesota.

July 7, 1896.

(Syllabus by the Court.)

Where the plaintiff in an action brought upon a joint contract obligation against the joint debtors elects, upon default of one of them to answer, to enter judgment against such defendant, the judgment is a bar to a subsequent action against the others, the debt being merged in the judgment.

Appeal from district court, Hennepin county.

Action by Suviah T. Davison against Elijah A. Harmon and another. Judgment was entered against defendant Harmon by default, and there was a judgment on the pleadings in favor of defendant Charles K. Sherburne, from which plaintiff appeals. Affirmed.

Louis A. Reed, for appellant.

A. Ueland, for respondents.

BUCK, J.

The plaintiff commenced this action in the district court for Hennepin county against the defendants upon a joint partnership note. The summons was personally served upon both defendants, but the defendant Harmon did not appear, and a separate judgment was entered against him by default on the 29th day of December, 1892, for the full amount claimed in her complaint, including interest, costs, and disbursements. The defendant Sherburne answered, and by it raised material issues, and after the entry of the default judgment against Harmon he filed a supplemental answer, alleged the entry of the separate judgment by plaintiff against Harmon, and prayed for judgment against plaintiff that the action be dismissed as to him (Sherburne). When the cause came on for trial, the defendant Sherburne moved for judgment on the pleadings, which motion was granted by the court, and judgment was accordingly entered that plaintiff take nothing by this action as to the defendant Sherburne, and that he recover his costs and disbursements against the plaintiff.

That the obligation sued upon is a joint one, must be conceded. Where an action was brought at common law upon a joint contract the general rule was that there could be no judgment except in favor of, or against, all defendants. 1 Black. Judgm. § 82. The same authority states that there are exceptions to this rule; for instance, where one of the defendants sets up and succeeds in establishing a defense entirely personal to himself, as a release or discharge or a personal disability to contract. Consequently, where several persons are summoned as defendants, and one of them pleads, and the others suffer a default, final judgment cannot properly be entered upon the default until the issue as to the other defendants is disposed of, unless the rule has been changed by statute. The plaintiff in this case elected to enter a separate judgment against one of two defendants upon a joint obligation, and, this cause of action being joint, and not several, it cannot be divided, and judgment entered against each one by piecemeal. If this could be done, there might be as many separate judgments as there are different or several defendants, and we know of no principle of law which permits it to be done. In the case of Lauer v. Bandow, 48 Wis. 638, 4 N. W. 774, it is said by the court that: “It is perfectly well settled that if the holder of a joint debt or obligation sues one of the joint debtors, and obtains judgment thereon against him, and then sues another of the joint debtors for the same debt or obligation, the latter may plead such judgment against his co-debtor, and bar the action. This is so because the joint debt is merged in the judgment against the debtor first sued, and, being indivisible, it cannot be merged or canceled as to one and existing and operative as to another joint debtor.” Numerous authorities sustain this position. And if one action is brought against joint debtors, and the plaintiff elects to take judgment against one separately, his rights are no greater than if he had sued each separately. The plaintiff having elected in such case to enter a several judgment upon a joint obligation, the cause of action is merged in the judgment, and the further proceeding against the other defendant would be an attempt to procure a several judgment, while the cause of action sued upon is joint, and thus there would be a variance between the cause of action alleged and the several judgment sought to be entered. Hence, if the plaintiff elects to enter a several judgment against one defendant in an action against more than one defendant upon a joint obligation, the cause of action having merged in the judgment against one, it is a bar to a subsequent recovery against the others. See Kingsley v. Davis, 104 Mass. 178;Cowley v. Patch, 120 Mass. 137;Ward v. Johnson, 13 Mass. 148;People v. Harrison, 82 Ill. 84.

We have...