Fogel v. Dussault
| Decision Date | 25 February 1886 |
| Parties | FOGEL v. DUSSAULT and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Dubuque & Higginson, for defendants.
S.W Ashton, for plaintiff.
Parties are permitted to answer jointly when they make the same defense. Pub.St. c. 167, § 16. The answer of the defendants was joint, and consisted only of a denial of the allegations of the plaintiff's writ. The declaration alleged a final judgment for the plaintiff against the principal defendant at a particular date, by the district court in the suit originally brought there. This denial was a defense, if successfully maintained, which was available to all the defendants. If, upon separate answer, the defendant sureties might have availed themselves of any invalidity in the judgment by plea and proof, they could not do so under the answer, which, as it stood, simply denied the existence of the judgment. So far as the principal defendant is concerned, it is established that the judgment of a domestic court of record, proceeding according to the course of the common law, is conclusive evidence of all the facts decided in subsequent suits between the same parties; and that the only remedy of a party who has been injured by a judgment erroneously rendered is by review, or by proceeding to reverse the same upon a writ of error. The party plaintiff is not allowed to treat a judgment lawfully attained by him, from a court of competent jurisdiction, as a nullity, or to proceed upon his original demand as if it had not been rendered. While it exists, he can only proceed by suit on his judgment or levy of execution. These principles apply to judgments rendered by courts such as the Second district court of Bristol county. Loring v. Bridge, 9 Mass. 124; Cook v. Darling, 18 Pick. 393; Hendrick v. Whittemore, 105 Mass. 23; Wood v. Mann, 125 Mass. 319.
It is the contention of the defendants that the case at bar is not governed by those principles which apply when a judgment is erroneously rendered by a court having competent jurisdiction of the subject-matter, but that the appeal shown by the record to have been taken by the principal defendant vacated the judgment, thus rendering it wholly inoperative, and that, the judgment having been thus vacated, the only remedy of the plaintiff was to enter a complaint for the affirmance thereof. Pub.St. c. 155, § 33.
The principal defendant claimed an appeal from the judgment of the district court, and was ordered to file a bond, with surety, to prosecute his appeal. It is contended by the defendants that such order was wholly unauthorized; that the debtor having given bond to dissolve the attachment of his property, which had been filed at the entry of the original action, such bond was unnecessary; and that without it the appeal was completed, and the judgment vacated. Pub.St. c 155, § 29, provides that an appeal from the judgment of a trial justice shall not be allowed except upon recognizing to the adverse party, with surety, to prosecute the appeal, and to pay all subsequent costs. Section 30 provides that the party appealing may, in lieu of filing a bond, deposit a sum of money as security for the prosecution of the appeal and the payment of costs. Section 33 provides that, when an appeal is claimed, no recognizance or deposit shall be required for the allowance of such appeal, when the defendant shall have "given a bond to dissolve the attachment made in such case as provided by law." These provisions as to appeals from trial justices (Pub.St. c. 154, § 39) applied to district courts before St.1882, c. 95. By Pub.St. c. 154, § 52, it was provided that in the municipal courts, "instead of entering into a recognizance, the party appealing in such proceeding shall file a bond, with surety or sureties, to the adverse party, within the same...
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