Fitzgerald v. Campbell

• Decision Date: 17 November 1921
• Citation: 109 S.E. 308
• Court: Virginia Supreme Court
• Parties: FITZGERALD. v. CAMPBELL.

109 S.E. 308

FITZGERALD.

v.CAMPBELL.

Supreme Court of Appeals of Virginia.

Nov.17, 1921.

Error to Circuit Court, Augusta County.

Action by J. W. Fitzgerald against James Campbell. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

This is an action of trespass brought by plaintiff in error, as plaintiff in the court below, against the defendant in error, as defendant in the court below, seeking to recover damages for an assault and battery committed upon the plaintiff by the defendant as alleged in the declaration.

The defense interposed by the defendant in the court below by special plea was that at the same time at which this action was instituted the plaintiff also brought another action against one C. P. McClure and five others, as joint tort-feasors with the said defendant, Campbell, in the commission of the identical wrong, to wit, the said assault and battery, alleged in the declaration in the Instant case; that the plaintiff elected to try the action against McClure and others first, and on December 2, 1920, recovered a judgment against McClure and others in the said action against them at the term of court then being held; that no direction was given to the clerk by the plaintiff or his attorney when or after such judgment was recovered not to issue execution thereon, nor did the plaintiff or his attorney at any time request the clerk to issue execution on such judgment; that pursuant, however, to an established custom of the court, the court below, acting under section 6500 of the Code, on December 16, 1920, more than15 days from the beginning of the current term, entered the following order, to wit: "Ordered that execution may issue on all judgments and de-crees rendered during the present term of the court after ten days from this date"— that execution on said judgment was accordingly issued by the clerk of the court below, bearing date December 21, 1920, and went into the hands of the sheriff to be executed, and afterwards, and before the instant case was called for trial, the amount of the execution was paid to the sheriff by the several execution debtors; that the court did not adjourn for the term until some time in the following January; that at the time this payment was so made neither the sheriff nor the execution debtors had any actual knowledge of the fact that the plaintiff did not desire that payment should be so made and received. And such payment was, by such special plea, pleaded and relied on as payment in full and in discharge of the said execution and judgment and as satisfaction thus received by the plaintiff for the damages occasioned him by the alleged wrong committed upon him, and in bar of any recovery against the defendant in the instant action.

It was and is a fact, however, that neither the plaintiff nor his counsel intended to accept any payment from the said judgment debtors or any of them, or that execution should issue on the judgment, before the instant case had been tried and determined; nor did the plaintiff or his counsel know that the execution had issued until it was paid as aforesaid. Further, the plaintiff thereupon refused to accept said payment, and the money was left in the hands of the sheriff, with the direction from counsel for plaintiff that it might be returned to the parties who paid it.

The foregoing are conceded to be the facts in the case.

There being no controversy as to the facts, by pleadings which were somewhat irregular, but as to which all objections before us have been waived, the case was submitted to the court below for decision upon the point of law involved. Whereupon the court, in substance, decided that the payment to the sheriff was to one authorized to receive it, and was therefore, in contemplation of law, a payment and satisfaction of the judgment, within the meaning of section 6264 of the Code, and hence that upon the special plea and upon the facts aforesaid the law was for the defendant, and entered judgment accordingly, dismissing the plaintiff's action, with costs, however, to the plaintiff as the statute provides; and the plaintiff brings error.

Hugh A. White, of Staunton, and Chas. A. Hammer, of Harrisonburg, for plaintiff in error.

Curry & Curry and Timberlake & Nelson, all of Staunton, for defendant in error.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court:

The case turns upon the decision of the following question, namely:

(1) Was the execution issued by the clerk without the direction of the plaintiff, under the general order of court, such an execution that the payment of it to the sheriff by the execution debtors, without the express or implied actual consent of the plaintiff, can be considered as, in contemplation of law, a payment or satisfaction of the judgment within the meaning of section 6264 of the Code, so as to bar the plaintiff's action in the instant case?

This question must be answered In the negative.

Section 6264 of the Code, so far as material, is as follows:

"A judgment against one of several joint wrongdoers shall not bar the prosecution of an action against any or all the others, but the injured party may bring separate actions against the wrongdoers and proceed to judgment in each, * * * and no bar shall arise as to any of them by reason of a judgment against another, or others, until the judgment has been satisfied. If there be separate judgments against different defendants for a joint wrong, the plaintiff shall elect which of them he will prosecute, but the payment or satisfaction of any one of such judgments shall be a discharge of all, except as to the costs."

Prior to this statute the rule on the subject in Virginia was the same as that in England, being that a judgment against one of several joint wrongdoers, whether satisfied or not, was a bar to any action against the others. Petticolas v. City of Richmond, 95 Va. 456, 28 S. E. 566, 64 Am. St. Rep. 811. The revisors' note to section 6264 of the Code contains this statement:

"This section is new, and overturns Petticolas v. City of Richmond. * * * It is said, however, that the great weight of authority in the United States is otherwise (Burks' PI. & Pr. p. 10), and the new section makes this view statutory in Virginia, the revisors being of opinion that the bar should not fall until there has been a satisfaction of the wrong done."

The rule in the United States in accordance with the great weight of authority and that now made statutory in Virginia, as stated by the revisors of the Code, as aforesaid, is thus enunciated in 1 Cooley on Torts (3d Ed.) p. 232:

"The rule laid down by that eminent jurist [Chief Justice Kent of New York], and which has been since generally followed in this country, is that the party injured may bring separate suits against the wrongdoers, and proceed to judgment in each, and that no bar arises as to any of them until satisfaction is received. * * * But he [the plaintiff] can claim or enforce only one satisfaction for the same injury; he must elect against which of the several he will proceed to execution for the satisfaction of his damages. * * * And suchelection, followed by actual satisfaction of that particular judgment, will preclude the plaintiff from proceeding against either of the other defendants upon the judgments recovered against them, except for the costs of the respective cases, which he may enforce the collection of by execution."

See to same effect note 11 Am. St. Rep. 900.

We are of opinion that under this rule, and by the very terms of the statute above quoted, the plaintiff had the right to elect whether he would or would not prosecute the judgment he obtained against the wrongdoers other than Campbell, and therefore had the right to await the trial and the result of the instant case before deciding whether he would prosecute the judgment aforesaid, by suing out execution thereon. And whatever may be the effect of the action of a clerk in issuing executions in other cases, under a general order of court such as that involved in the instant...