Griffie v. McClung

• Decision Date: 31 January 1872
• Citation: 5 W.Va. 131
• Parties: Joseph Griffie v. Thomas McClung.
• Court: West Virginia Supreme Court

5 W.Va. 131

Joseph Griffie

v.Thomas McClung.

Supreme Court of Appeals of West Virginia.

January Term, 1872.

A judgment against one joint trespasser is no bar to a suit against another for the same trespass; nothing short of full satisfaction, or that which the law must consider as such, can make such judgment a bar.

Action of trespass brought to August rules, 1865, in the circuit court of Kanawha county, by Joseph Grime against Thomas McClung and others. Judgment for the defendant on the demurrers of the plaintiff to the pleas, at April term, 1869. The question considered by this court is clearly stated in the opinion of Maxwell. J.

The plaintiff appealed.

Smith & Knight for the plaintiff in error.

Joseph Griflie brought an action of trespass in the circuit court of Kanawha county, in 1865, against John Halstead, David L. Hounshell, Thomas McClung, Edward McClung, William McClung, Joseph Crane, John Sydenstricker and George M. Thompson, and at the December term of said circuit court the plaintiff obtained a judgment against all of the defendants for two thousand five hundred dollars, with interest from March 4th, 1865, until paid, and costs of suit. This judgment was subsequently, to-wit, at the October term, 1867, of said circuit court, set aside on notice and motion under the statute, as to said Thomas McClung alone, on the ground that he was an infant when the same was rendered. The case was thereupon remanded to rules as tothe said Thomas McClung, and a guardian ad litem appointed and the cause matured as to all.

When the cause was matured upon the docket as to said Thomas McClung, he, by his guardian ad litem, tendered three special pleas, to each of which the plaintiff objected, and his objections were overruled by the court and the pleas ordered to be filed. The plaintiff then demurred to each of the said special pleas, and the defendant joined in the demurrer, and the court overruled the demurrer and gave judgment for the defendant.

The first plea sets up the judgment against Halstead and others, before referred to, as a bar to the action against Thomas McClung.

The second plea sets up the same judgment and issue of two executions upon said judgment, to-wit, one December 28th, 1866, and the other February 15th, 1867, as a bar to the action against the said Thomas McClung.

The third plea sets up the judgment and execution mentioned in the second plea, and third execution issued December 14th, 1867. See printed record, pages 11, 12 and 13.

Neither of the pleas allege a payment of the judgment or executions, in whole or in part.

All three of the pleas are bad, and formed no defense to the action. If it ever has been decided that a judgment or judgments and issue of execution against one joint trespasser is a bar to the prosecution of a suit against his co-trespasser, such decision has long since been overruled, and it is now the well settled law that nothing but actual satisfaction for the trespass, or what is equivalent thereto, will. bar such suit. See Lovejoy vs. Murray, 3 Wallace, p. 1; Swope vs. Courtney, 1 Cranch C. C. Rep., p. 33; Bloss vs. Pymale, 3 Hagans, p. 393.

The Code of West Virginia, which was in operation when these pleas were passed upon, also settles the principles involved in the pleas. See Code of West Va., p. 644, § 7, 8 and 9.

Price and Mollohan & Nash for the defendant in error.

In the event that the court should reverse the judgment of the court below, then it is contended that the judgment upon the verdict should be set aside as to all the defendants, and a new trial granted to all. Vandever vs. Roberts, 4 W. Va. 493-5.

Is the judgment wrong as to McClung? The authorities are in conflict upon the subject. The court may either re- verse or affirm the judgment, and be sustained by respectable authorities. The English authorities are all in favor of the judgment. They present an unbroken series. Yelverton, 67; Moore, 672; King vs. Hear, Bellieson and Welsby, 504; Leachmere vs. Fletcher, 1 Compton and Meeson, 634; Buckland vs. Johnson, 8 Eng. Com. L. R., 148.

In the State courts the decisions have been contradictory. Wilhs vs. Jackson, 2 Hen. and Munf, 355; Hunt et al. vs. Bales, 7 Rhode Island R., 217; Rodgers et al. vs. Moore, 1 Rice S. C. R., 60; Floyd vs. Brown, 1 Rawle., 121; 4 do., 288; Fox vs. Northern Liberties, 3 Watts and Sergt., 103-5; do., 9-17; Norris vs. Beekman, 5 Mills Consl R. S. C, 228; Johnson et al. vs. Packer, Nott. and McCord, 1; Welburn vs. Bogan, 1 Spear. 179; Trafton vs. U. S., 3 Story, 646; Town of Marlborough vs. Sesson, 31 Con. R., 332; Ayres vs. Ashmead, 31 Con. R., 447; Livingston vs. Bishop, 1 John. R., 290; White vs. Philbuck, 5 Greenleaf, 147; Campbell vs. Philips, 1 Pickering, 65.

These authorities are all referred to and commented on in the case of Lovejoy vs. Murray, 3 Wallace, 1, and it is conceded that that case is against the judgment. But the judge delivering the opinion of the...