Savage v. Stevens

• Decision Date: 24 January 1880
• Parties: Theodore L. Savage v. Seymour W. Stevens. Same v. Daniel Norcross
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 254

Theodore L. Savage v. Seymour W. Stevens.

Same v. Daniel Norcross

Supreme Court of Massachusetts

January 24, 1880

Argued November 17, 1879

Suffolk. Two Actions of tort for false and fraudulent representations. The cases were submitted to the Superior Court, and, after judgment for the defendants, to this court on appeal, on an agreed statement of facts in substance as follows:

The plaintiff brought three separate actions of tort for the same cause of action, the two above named and one against C. S Bridge. All of the actions were brought on the same day, were returnable at the same term of court, and were put in order for trial at the same term. At the trial of the action against Stevens, the presiding judge directed a verdict for the defendant, and the plaintiff alleged exceptions, which were sustained by the Supreme Judicial Court, and a new trial ordered. See 126 Mass. 207. After the trial of this action but before a new trial had been ordered, the action against Bridge was tried, and a verdict rendered therein for the plaintiff for $ 500, upon which judgment was entered, and for costs, which was satisfied, and the execution thereon was discharged. After that judgment was satisfied, each of these defendants filed a supplemental answer, pleading the judgment and satisfaction in bar.

The plaintiff contends that he is entitled to nominal damages and costs in both cases. The defendants contend that they are entitled to a general judgment, and for costs.

Judgments affirmed.

B. E. Perry & S.W. Creech, Jr., for the plaintiff, in addition to some of the cases referred to in the opinion, cited Livingston v. Bishop, 1 Johns. 290; Stevens v. Briggs, 14 Vt. 44; Wheeler v. Fuller, 39 Vt. 310; Tarin v. Morris, 2 Dall. 115; Knott v. Cunningham, 2 Sneed 204; Sherman v. Brett, 7 Wis. 139.

A. V. Lynde & W. P. Harding, for the defendants.

Gray C. J. Morton & Soule, JJ., absent.

OPINION

Gray C. J.

When an injury is done to one man by the wrongful act of several, the law allows him to proceed against them either jointly or severally, and, if he sues them severally, he may prosecute all the actions to judgment, although he can have but one satisfaction for the same injury. By our law, judgment against one without satisfaction does not bar an action against the others. Lovejoy v. Murray, 3 Wall. 1. Elliott v. Hayden, 104 Mass. 180. It is clear, on the one hand, that, after judgment recovered and satisfied against one, no action can be commenced against the others; and, on the other hand, that if the plaintiff prosecutes several actions to judgment before receiving any satisfaction, he may recover judgment in each action for damages and costs, and may levy execution in any one of the actions for the damages, and in each action for the costs adjudged to be due him.

The question now before us is whether, after judgment and execution for damages and costs have been obtained and satisfied in the action against one wrongdoer, while actions are pending against the others, judgments for nominal damages can be entered in these actions, so as to enable the plaintiff to recover the costs thereof also. This is a question of practice rather than of principle, and, notwithstanding the variety of opinion in other courts, as shown by the cases cited at the argument, can hardly be considered an open one in this Commonwealth.

In Gilmore v. Carr, 2 Mass. 171, pending an action by the indorsee against the maker of a promissory note, judgment was recovered in an action by the plaintiff against the indorser for the amount of the note and costs, and execution was issued thereon and satisfied; and these facts being submitted to the court in a case stated, it was held, by separate and concurring opinions of Chief Justice Parsons and Justices Sedgwick, Sewall and Parker, that in the action against the maker the judgment should not be for the plaintiff for nominal damages and costs, but for the defendant for his costs.

Subsequent decisions show that, if there had been no satisfaction, the plaintiff might have recovered judgment for damages and costs in each action; Simonds v. Center, 6 Mass. 18; that the mere taking in execution of the body of the defendant in one action would not have barred the other action; Porter v. Ingraham, 10 Mass. 88; and that the court would not, against the plaintiff's objection, exercise its equitable power to stay proceedings in one action on the payment by the defendant therein of a sum of money into court which did not include the costs of both actions. Whipple v. Newton, 17 Pick. 168.

But the decision in Gilmore v. Carr, as to the effect upon one action of actual satisfaction received by the plaintiff of the amount of the judgment for damages and costs in the other, has never been overruled in this Commonwealth. In Porter v. Ingraham, which was decided by Justices Sewall, Thatcher and Jackson, in the absence of Chief Justice Parsons and of Mr. Justice Parker, the court after observing that the practice recognized in Gilmore v. Carr varied from the practice in England and in Pennsylvania, said that, if...