Stone v. Wainwright
| Decision Date | 19 June 1888 |
| Citation | 17 N.E. 301,147 Mass. 201 |
| Parties | STONE v. WAINWRIGHT et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.C. Cogswell, for defendant Wainwright.
The defendant contends that, upon consideration of all the evidence, the first request should have been granted; and second, that by the common law Wainwright was entitled to judgment; that the evidence offered of the law of New York failed to change the common law in this respect, and therefore the second request should have been granted. Service at common law was required to be made personally upon defendant, who was taken into custody, etc. The liability of members of a partnership is a joint liability, as distinguished from a several or joint and several liability. In an action against joint debtors, the judgment must go against all the joint debtors, or the plaintiff will be defeated. A judgment recovered against one of several joint debtors is a good bar to an action against another of the joint debtors. The law of another state or country must be proved as fact, and, in the absence of evidence, the common law is presumed to control. There is no presumption that the statutory law of another state corresponds with a statute of Massachusetts. Statutes which alter common-law remedies, or affect common-law rights, must be strictly complied with. A transaction must be both within the letter and spirit of the statute which derogates from the common law, in order to be governed by it. Ward v. Johnson, 13 Mass. 148; King v. Hoare, 13 Mees. & W. 494; Murphy v Collins, 121 Mass. 6; Dewey v. Goodenough, 56 Barb. 54. If the plaintiff Stone might originally have brought his action and taken judgment against four, and then sued Wainwright upon the original cause of action, it is sufficient to say that he did not elect so to do, but chose a different course of proceedings, and adopted all the consequences that might fall therefrom. Gay v Raymond, 140 Mass. 69, 2 N.E. 782. The court erred in omitting to give any effect to the judgment, which, on the evidence, was a good bar. If this action can be sustained, defendant is in the position of having two judgments against him rendered upon the same cause of action in two different states, each of which regards its own judgment as valid. The law does not place any man in such a position. Could the plaintiff maintain another suit in New York on this same cause of action? Not while the judgment he has deliberately taken remains unreversed. McCormick v. Fiske, 138 Mass. 379, sustains this position. The action was upon a domestic judgment, which defendant was not allowed to impeach for want of jurisdiction. The remedy was error, which lies at common law for want of jurisdiction. Bodurtha v. Goodrich, 3 Gray, 508. The record was just as binding upon plaintiff, and defendant could have successfully pleaded it in bar to an action on the original demand. Hendrick v. Whittemore, 105 Mass. 24, 29.
Fred'k A.P. Fiske and W.C. Wait, for plaintiff.
The refusal of the court below to allow the defendant Wainwright's request "that, upon all the evidence in the case, the defendant Wainwright was entitled to judgment," is not a ground for exception. Curry v. Porter, 125 Mass. 94; Dwyer v. Fuller, 144 Mass. 420, 11 N.E. 686. According to the rule of common law as expressed in numerous decisions, (Rangely v. Webster, 11 N.H. 299; Knapp v. Abell, 10 Allen, 485; Legg v. Legg, 8 Mass. 101; Hall v. Williams, 6 Pick. 232; Wright v. Andrews, 130 Mass. 149,) a judgment against several joint obligors, being in its nature entire and unqualified if rendered by a court that has no jurisdiction over one of the defendants, is not only void as to the defendant, over whom the court had no jurisdiction, but as to all the defendants. Whatever right the defendant may have to make use of a New York statute, the plaintiff denies that the defendant has any right to ignore, as he asks leave to do, the very existence and effect of the statutes of this commonwealth. See Odom v. Denny, 16 Gray, 114; Shirley v. Shattuck, 13 Metc. 256. The decision of the court below is founded upon, and can be upheld by, a long line of decisions of the supreme court of the United States and of the supreme court of this commonwealth; said decisions clearly and unmistakably holding that a personal judgment is without any validity if it be rendered by a state court in an action upon a money demand against a non-resident, upon whom no personal service was made, and who did not appear in person or by an authorized attorney to defend such action. Pennoyer v. Neff, 95 U.S. 714; D'Arcy v. Ketchum, 11 How. 165; Bissell v. Briggs, 9 Mass. 462; Odom v. Denny, 16 Gray, 114; Ewer v. Coffin, 1 Cush. 23; Freeman v. Alderson, 119 U.S. 185, 7 S.Ct. 165. And such a judgment is of no value, even within the jurisdiction of the court rendering it, other than to subject the property actually attached to the payment of the demand which the court may find to be due to the plaintiff. Pennoyer v. Neff, 95 U.S. 714, 724; Eliot v. McCormick, 144 Mass. 10, 10 N.E. 705; Cooper v. Reynolds, 10 Wall. 309. The judgment rendered in New York against defendant Wainwright is therefore totally invalid in this commonwealth, and, being thus invalid, the plaintiff in his suit against said defendant in this commonwealth very properly declared upon the note instead of the judgment.
OPINION
This is an action of contract upon four promissory notes, brought by the payee against the five makers, who were copartners under the name of the "Olympian Roller Skating Club." Two only of the defendants, Noble and Wainwright, were within the jurisdiction, or were served. These defendants set up a judgment recovered in New York as a bar. The New York judgment was rendered against all five, but the defendant Wainwright lived in Massachusetts, and was never served with process in New York. The New York summons and complaint were served upon him in Boston, in pursuance of an order of one of the justices of the New York court. In the present action the court found for the defendant Noble, but declined to rule that Wainwright was entitled to judgment, or that his liability was to be determined by the common law, and found against him. The case comes up on Wainwright's exceptions to the refusal to rule as stated.
In the absence of any evidence of the New York statutes, the New York judgment would be no bar to the present suit against Wainwright, because it would be void as against him for want of jurisdiction, and, being a joint judgment, it would be void altogether. Knapp v. Abell, 10 Allen, 485, 490; Wright v. Andrews, 130 Mass. 149, 151. In our opinion, the sections of the New York Code put in evidence do not change the result. Sections 438-445, 1932-1938, 1946. By section 1932 the plaintiff in an action against defendants jointly indebted upon contract may proceed against the defendants served with process, and, if he recovers, may take judgment against all the defendants. By section 1933, when such a judgment is taken against a defendant upon...
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