Tams v. Lewis

• Decision Date: 26 April 1862
• Court: Pennsylvania Supreme Court
• Parties: William Tams, who was sued with John Tams, <I>versus</I> Saunders Lewis, Trustee of James Tams.

Page 402

42 Pa. 402

William Tams, who was sued with John Tams, versus Saunders Lewis, Trustee of James Tams.

Supreme Court of Pennsylvania.

April 26, 1862.

ERROR to the District Court of Philadelphia.

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A. V. Parsons and Theodore Cuyler, for plaintiff in error. — The jury found for the plaintiff on the plea of "not guilty," and in favour of the defendant on all the special pleas — when the defendant asked for a judgment in his favour on those pleas, particularly the first and second. In those pleas the defendant avers that, in a former trial between the same parties, the question, the same cause and ground for action was tried before a jury, when there was a verdict and judgment rendered in favour of this defendant, which was unreversed nor made void.

To these pleas the plaintiff replied, denying the fact that the same question was tried between the same parties in a former trial, and in his replication concluded to the country; and this was the issue on the first two special pleas between the parties. On it the jury have found a verdict in favour of the defendant.

Was such a finding a bar to this action? If it was, then the defendant was entitled to a judgment in his favour on the verdict. Does a former trial, of the same question of law and fact between the same parties, bar a second action?

We think the rule of law is well settled that whatever may be the form of action, if the original question appears to have been the same, and the same evidence will support both actions, and a judgment be had on the merits, it bars all other actions for the same cause of controversy: Wilson v. Hamilton, 9 S. & R. 424; Cist v. Zeigler, 16 Id. 282; Marsh v. Pier, 4 Rawle 273; Souter v. Baymore, 7 Barr 417; Duffey v. Lytle, 5 Watts 120; Bower v. Tallman, 5 W. & S. 556; Carmony v. Hoober, 5 Barr 309.

Acting under the case as thus settled, the defendant did show, by testimony of the jurors who tried the former cause, that on the previous trial the question decided by that jury was, whether the sale of the store of goods from John to William was fraudulent or not, and made merely to hinder, delay, or defraud creditors. And now we have the finding of the present jury of that fact in our favour, which is conclusive: Phillips v. Burch, 16 Johns. 189, 161; Brackway v. Kinny, 2 Johns. 210; Fannington v. Payne, 15 Id. 432; Parker v. Thompson, 3 Pick. 429; Rizer v. King, 7 Johns. 20; Kitchen v. Campbell, 2 Black. Rep. 881; 3 Wilson 304-8; Boget v. Williams, 3 Bain & Hess 235; Tams v. Richards, 2 Casey 97; Rockwell v. Langley, 7 Harris 509.

But, we are told, that on an attachment execution sur judgment, the question of fraud in the sale, and a combination between John and William Tams, could not arise. We reply, that we plead that the question did arise, and was tried by a jury; and we have the verdict of the jury who tried this cause on this issue that it did arise, and was decided. If it could not, in law or fact, arise on the trial between the same parties, why did not the plaintiff demur to our pleas? That it could arise, is clearly shown by the cases of Penrod v. Mitchell, 8 S. & R. 522; 2 Penna. Rep. 126; Mott v. Danforth, 6 Watts 308.

John S. Powell, William L. Hirst, and B. Gerhard, for defendant in error. — The judgment was given by the court below in favour of the plaintiff, non obstante veredicto, on the ground that the issue raised by these pleas was immaterial. That question could have been raised upon demurrer, but the plaintiff having replied and gone to trial, it was decided by the court below upon the motion for judgment. The error complained of does not seem to embrace the fourth plea; if it does, it has been abandoned by the plaintiff in error in his argument. Were it otherwise, there would be no difficulty in regard to it, the attachment execution of Edwin Tams being by a different plaintiff, and it having been decided by this court that a verdict and judgment in an attachment execution is no bar to a subsequent attachment by another creditor, directed against the effects of the same defendant, in the hands of the same garnishee: Breading v. Seigworth, 5 Casey 396. Tams v. Bullitt, 11 Id. 308, would apply this doctrine still more strongly to another and different form of action.

The error alleged as to the second and third pleas then remains. This action was brought against William and John Tams, for defeating the plaintiff's execution by the fraudulent sale of November 11th 1850. At that time the plaintiff was entitled to recover the entire value of the goods withdrawn from the reach of his execution: Penrod v. Mitchell, 8 S. & R. 522. Has anything taken place since to prevent a recovery of these damages, and can the attachment execution of Saunders Lewis against William, as garnishee, be a bar? In the latter, the object of the trial was to determine the amount then held by William of either goods or money belonging to John Tams, the plea being nulla bona, while the present action is one against John and William both, for a tort, the parties defendant being different, and it being possible to introduce evidence that would have been entirely incompetent under the other action.

The plaintiff in error has cited a number of authorities as to the cases in which the plea of res judicata may be pleaded, and whether it is a question for the jury. A few of them only need be considered. The jury have passed upon the issues raised by these pleas. Only the one point is left for argument. In pleading a former recovery, it is essential that it should appear to have been not only for the same cause of action, but between the same parties: Hampton v. Broom, 1 Miles 241; Marsh v. Pier, 4 Rawle 273.

In Tams v. Richards, 2 Casey 97, the moneys held by Richards, Bispham & Co. were the proceeds of goods received by them through William Tams, as his agents. These moneys were recovered by Edwin Tams from William, on the ground of the goods having been obtained by him originally in fraud of creditors, and to have permitted a recovery of their value from his agents, the auctioneers, would have been to make William pay their value twice over to the same person. Without this explanation there would appear a manifest inconsistency between the ruling in this case and that of the subsequent cases of Breading v. Seigworth and Tams v. Bullitt. "But a bar in one assize, &c., is a bar in every other. Here, by actions of the like nature, must be meant actions in a similar degree, not merely those which have a similitude of form:" Hitchin v. Campbell, 2 W. Black. 831. Can the two actions of Saunders Lewis be considered in any manner as being of the same degree? All personal actions are treated as such in the case last cited, but upon being defeated in a real action, the plaintiff could resort to one of a higher degree. An attachment execution is created by the Act of 1836, and is in rem as well as in personam. The issues raised were on the pleas of not guilty and nulla bona, the ends to be attained are entirely different. In no sense, then, can an attachment be considered as of the same degree as an ordinary personal action. It was not merely a choice between two forms of action whereby the remedy would have been the same, as in Cist v. Zeigler, 16 S. & R. 282.

The question is, what amount of damage we suffered by the sale on the 11th of November 1850? while the question in the attachment was, what amount of the property of John Tams was in the hands of William at the time of the service of the writ of attachment on him in 1853.

"In any use of the attachment which the Act of Assembly warrants, no such questions as those which are stated in the defendant's second plea could have arisen in the course of the proceedings upon the attachment there mentioned.

"Nor could the action to which the defendant's second plea was pleaded, and the attachment execution to which it refers, be said in any proper legal sense to be for the same cause of action. The first is founded in tort, and so declared upon clearly and positively, whilst the attachment execution, by virtue of the Act of Assembly which authorizes it, is limited to the enforcement of a judgment, by subjecting for that end certain intangible property of the original defendant, and certain rights of the same intangible things, where, by reason of a contract between such defendant and a third person, an interest in and control over the same has been acquired by the latter:" Finley v. Hanbest, 6 Casey 190.

In addition to this, the verdict of Edwin Tams for $3137.50 had been obtained before the issuing of the attachment of Saunders Lewis from the goods of John, in the hands of William, obtained through the fraudulent sale, which is the basis of this action, thus clearly depriving the plaintiff of that amount should the special pleas be held to be a bar. The action of Bullitt & Fairthorne, the insolvent assignees, in which the record of the case of Edwin Tams was given in evidence as a set-off, shows a further sum of $2647.22, of which the plaintiff was also deprived, and which would be lost to him were the views of the counsel of the plaintiff in error taken as correct.

The plaintiff below was injured by a fraud; subsequently, by diligence, he obtained part of what he had then lost. His right to recover the remainder cannot be affected by the recovery of strangers. He would still have his action for the wrong done him.

The filing of the petition, and the discharge of John Tams in the Insolvent Court had taken place in 1852, between the fraudulent sale and the issuing of the attachment; the latter, therefore, could only apply to goods or funds in the hands of William subsequent to the insolvent proceedings. Though the verdict on the plea of nulla bona, in the attachment, was for the defendant as to the goods in his hands, yet, on the question of fraud or no fraud, it was for the plaintiff since the...