LaIne v. Francis

• Decision Date: 12 February 1884
• Citation: 15 Mo.App. 107
• Parties: DAMASO LAINE ET AL., Appellants, v. JULIA FRANCIS ET AL., Respondents.
• Court: Missouri Court of Appeals

15 Mo.App. 107

DAMASO LAINE ET AL., Appellants,

v.JULIA FRANCIS ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Feb. 12, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

PATTISON & CRANE, for the appellants: After a foreclosure of a mortgage an action may be brought on the secured note or bond for any remainder due.-- Newal v. Wright, 3 Mass. 150; Amory v. Fairbanks, 3 Mass. 562; West v. Chamberlain, 8 Pick. 336; Jones on Mort., sect. 950; Standish v. Vosberg, 27 Minn. 175. A second action may be brought upon a bond for a breach thereof not included in the former suit.-- The State v. Morton, 18 Mo. 53. A foreclosure of a mortgage will not prevent a subsequent foreclosure of a contemporaneous mortgage on the same property.-- Watkins v. Hackett, 20 Minn. 106.

KEHR & TITTMANN, for the respondents: “A decree rendered against a married woman charging her separate estate with the payment of her promissory note and directing a sale of the realty charged, is a judgment by which a debt is recovered within the meaning of the statute.”-- Gawtry v. Adams, 10 Mo. App. 32, 33; Staley v. Howard, 7 Mo. App. 377. The note was, therefore, merged in the judgment and could not thereafter form the basis of a suit between the same parties.-- Cookory v. Railroad Co., 74 Mo. 479.

THOMPSON, J., delivered the opinion of the court.

The question which arises upon this record is presented by a demurrer to the answer, and it is this: Whether a party who holds the promissory note of a married woman, and has brought an action upon such note to charge a portion of her separate estate in respect thereof, and has prosecuted such action to judgment, and has, in pursuance of such judgment, caused such portion of the married woman's separate estate to be sold under a special execution, can, in case such portion of the married woman's separate estate does not at such sale bring enough money to satisfy his special judgment, interest, and costs, bring another action to charge another portion of the married woman's separate estate for the residue, without showing some valid reason why he did not bring the former action against a sufficient portion of her separate estate to make his debt, interest, and costs. The circuit court held that this could not be done. We are of opinion that the circuit court was right in so holding. The general rule is, that every judgment concludes the parties to it, and pronounces the law of the particular case. Ex parte Watkins, 3 Peters, 193; The People v. Sturtevant, 9 N. Y. 363. It is also a general rule that, where a party has chosen his ground and litigated the subject-matter of an action to its final conclusion, he has exhausted his remedy except for the purpose of such supplementary proceedings as the statute law or the principles of equity may give him for the enforcement of his judgment. The rule is so strong that a majority of this court at the present term held, that where a person having a cause of action against a person domiciled in another state, elects to sue such person in such other state, and is there cast in his suit, by reason of a short statute of limitations in such other state, so that judgment is rendered in such other state for the defendant, the person having such cause of action can not afterwards sue in this State, although the statute of limitations in this state have not barred his demand. Fulton Iron Works v. Riggin, 14 Mo. App. 321. The rule rests upon two reasons. The one is technical, and the other substantial. The technical reason is that where a party having a cause of action prosecutes it to judgment, his cause of action is thereafter merged in the judgment, and whatever further remedy he may have, under the law, against the defendant, must be founded on the judgment, and not on the original cause of action. The substantial reason is that the law, on grounds of obvious justice and convenience, discountenances the splitting of causes of action and the multiplying of suits. Union, etc., Co. v. Traube, 59 Mo. 355, 362; Wagner v. Jacoby, 26 Mo. 532; Corby v. Taylor, 35 Mo. 447. It is upon this ground that the law will not allow a part of a chose in action to be assigned. This rule has always been a favorite one with courts of equity; and wherever it is possible for a party having an equitable cause of action to litigate and conclude it in one suit, although by making parties to such suit a number of persons standing in different relations to the cause of action, those courts have obliged him to do so ( Henderson v. Henderson, 3 Hare, 100, 115; Strike's Case, 1 Bland Ch. 57; Purefoy v. Purefoy, 1 Vern. 29; Bass v. Nelms, 56 Miss. 502, 507); denying the application of the rule only in those cases where a party has attempted to litigate in one action a number of matters so separate and disconnected that they can not be conveniently litigated in one proceeding. Here the party is repelled on the ground of multifariousness in his bill. The general rule, therefore, is that, if a party having a cause...