Pratt v. South Canon Supply Co.

• Decision Date: 07 February 1910
• Citation: 47 Colo. 478,107 P. 1105
• Parties: PRATT v. SOUTH CANON SUPPLY CO.
• Court: Colorado Supreme Court

107 P. 1105

47 Colo. 478

PRATT v. SOUTH CANON SUPPLY CO.

Supreme Court of Colorado

February 7, 1910

Rehearing Denied April 4, 1910.

Error to District Court, City and County of Denver; Booth M Malone, Judge.

Action by the South Canon Supply Company against the Boston-Colorado Coal Company and Addison S. Pratt. From a judgment in favor of plaintiff against Pratt, he brings error. Reversed, and case remanded.

Bicksler Bennett & Nye, for plaintiff in error.

Ernest Morris, Willis V. Elliott, Milton Smith, and Charles R. Brock (W. C. Kingsley, of counsel), for defendant in error.

CAMPBELL J.

The action is against two defendants, the Boston-Colorado Coal Company and Addison S. Pratt. The complaint alleges an indebtedness due plaintiff from the coal company for goods and merchandise sold to it, which debt Pratt afterwards assumed and agreed to pay. The record fails to disclose what disposition of the action, if any, was made as against the defendant coal company; but it does show that a judgment by default was rendered against defendant Pratt in a sum approximating $12,000. It is to this judgment that Pratt prosecutes this writ.

A number of errors are assigned to rulings of the trial court which, together with the objections and exceptions thereto, must, under our practice, be preserved by a bill of exceptions to entitle the unsuccessful party to a review thereof by this court. As no authenticated bill of exceptions including such rulings has been filed in this court, we cannot consider them. There is, however, one question presented which is not dependent upon a bill of exceptions, but is included, and has been brought here, in the record proper and falls under the general assignment that the judgment was improperly rendered against plaintiff in error. The resolution of this assignment compels a reversal of the judgment.

August 29, 1905, the defendant coal company filed its verified answer, in which, among other things, it alleged a discharge of the indebtedness sued on before the action was begun. On the following day, August 30th, the default of defendant Pratt was entered, and on September 7th final judgment on the default was rendered against him. The complaint on its face shows that in this action on contract there might have been a judgment against the original debtor, the coal company, and in favor of defendant Pratt. A judgment also might have been rendered against both defendants. There could not, however be a judgment against defendant Pratt unless there was also one against his codefendant, the original debtor. This is so because Pratt's liability, if any, was secondary, not primary, and if the original debtor, the coal company, could not be held, Pratt could not. No argument of such a self-evident proposition could make it plainer than the statement of the proposition itself. The rule of law seems to be well recognized that where an action upon contract is brought against two defendants, and one of them is in default, whose liability hinges upon that of his codefendant whose answer is on file denying the liability, it is improper to render judgment against the defaulting defendant before trial of the issues raised by the answer of the codefendant. The proper course is to await disposition of the trial as to the answering codefendant.

Manifestly therefore, while the answer of the coal company in this case was on file and went to the merits of the cause, it was improper to render judgment against Pratt upon his default. The answer inured to his beenfit as well as that of his codefendant coal company. The plaintiff here must succeed in the action against the coal company to entitle it to recover against Pratt. If it is possible to bring out more clearly this point, a moment's reflection will do so by considering that if, upon the trial, it appeared that the coal company had discharged the original debt, or ownership of the obligation had passed from the plaintiff before the commencement of the action, which might have been shown by the evidence under the answer, there could have been no recovery by plaintiff against defendant Pratt. The rule of law applicable is not changed or modified by section 223 of our Code, which, in an action against several defendants, permits a judgment for or against one of them, allowing the action to proceed against the other whenever a several judgment is proper. And this is so because, under the allegations of the complaint, plaintiff must first prove a state of facts which warrants a...