Fleming v. Ross

• Decision Date: 07 February 1907
• Citation: 80 N.E. 92,225 Ill. 149
• Parties: FLEMING v. ROSS et al.
• Court: Illinois Supreme Court

225 Ill. 149

80 N.E. 92

FLEMING

v.ROSS et al.

Supreme Court of Illinois.

Dec. 22, 1906.

Rehearing Denied Feb. 7, 1907.

Appeal from Appellate Court, First District.

Action by Alice G. Fleming against Henry C. Ross and others. From a judgment of the Appellate Court affirming a judgment for defendants, plaintiff appeals. Affirmed.

Moses, Rosenthal & Kennedy, for appellant.

Arthur Humphrey, for appellees.

Appellant brought an action in assumpsit December 2, 1901, against Henry C. Ross, Alexander H. Seelye, and D. Flanner, obtaining service on Ross only. The declaration alleged that the three defendants, by the name of Flanner, Seelye & Ross, executed two promissory notes on December 27, 1890, at Wausau, Wis., payable to the order of P. B. Champagne, each for the sum of $4,332.33, due, respectively, one and two years after date. Ross pleaded to the declaration that this was a partnership, and not an individual indebtedness, and that the plaintiff had sued one defendant, Alexander H. Seelye, in the circuit court of Cook county, at the October term, 1895, on these notes, and obtained a judgment thereon in full, which judgment then remained in full force and effect, as the defendant was ready to verify by the record. To this plea appellant replied that defendants Ross and Flanner, during all of said action, were not residents or inhabitants of or domiciled in the state of Illinois; that Ross was then a resident and domiciled in the state of California. A general demurrer was filed to this replication. In January, 1905, jury was waived, and the cause submitted to the court. The court sustained the general demurrer, and held that the plea filed by Ross constituted a bar to the recovery. Plaintiff elected to stand by her replication, and judgment was given for defendant. The Appellate Court, upon appeal, affirmed the judgment of the lower court. Appeal was then prosecuted to this court.

CARTER, J. (after stating the facts).

The sole question presented in this case is: What is the effect, as to the other copartners, of the recovery of a judgment in this state against one member of a copartnership in an action brought against him alone, at a time when his copartners were nonresidents of the state, and were without the jurisdiction of the court? Is the recovery of such a judgment a merger of the cause of action upon the partnership obligation and a bar to any further action thereon against the other partners? This court has passed on this question several times in previous decisions, but it is earnestly insisted that, in most of these cases, the point was not necessary for the decision of the case, and a most careful review of these cases has been presented by counsel to demonstrate this fact. It is admitted that in some of the cases the point was squarely before the court, but it is argued that the great weight of authority in other jurisdictions is so strongly against the rule laid down in this state, that this court should reconsider and modify those decisions so far as they apply to the point in question.

The rule is well settled that by the common law a judgment on a joint obligation against one or more joint obligors is a bar to an action against any other joint obligor or obligors, or against all the obligors jointly. This rule involves not only the doctrine of res judicata, but also that of merger. ‘The judgment being a higher order of security than the simple obligation, the entire cause of action is merged in the judgment.’ 24 Am. & Eng. Ency. of Law (2d Ed.) p. 760, and cases there cited. See, also, Jansen v. Grimshaw, 125 Ill. 468, 17 N. E. 850, and cases cited. In 1845 a law was enacted holding that all joint obligations and covenants should be taken and held as joint and several obligations and covenants. Hurd's Rev. St. 1905, c. 76, § 3, p. 1253. In the same year another law was enacted providing that if summons or capias is served on one or more, but not on all of the defendants, the plaintiff may proceed to trial and judgment against the defendant or defendants on whom the process is served, and the plaintiff may, at any time afterwards, have a summons in the nature of a scire facias against the defendant not served, to cause him to appear in said court and show cause why he should not be made a party to the judgment, whereupon such defendant may present the same defense as he might have done at the original hearing. Hurd's Rev. St. 1905, c. 110, § 9, p. 1532. In December, 1845, this court, without referring in any way to these two acts, held in the case of Wann v. McNulty, 2 Gilman, 355, 43 Am. Dec. 58, that a judgment against one member of a firm for a debt due from the firm constituted a bar to a recovery against the other members. In 1854, in the case of Thompson v. Emmert, 15 Ill. 415, it was again decided that if a judgment was obtained against one partner, a second action could not be maintained against another partner. See, also, Moore v. Rogers, 19 Ill. 347;Mitchell v. Brewster, 28 Ill. 163;People v. Harrison, 82 Ill. 84;Schott v. Youree, 142 Ill. 233, 31 N. E. 591; Freem. Judgm. (4th Ed.) §§ 231, 234, inclusive; 1 Chitty, Pl. 14th Am. Ed.) *42, *43. In Sandusky v. Sidwell, 173 Ill. 493, 50 N. E. 1003, it was held that neither said section 3 of chapter 76 nor said section 9 of chapter 110 applied to...