Turner v. Brock

• Decision Date: 30 September 1871
• Citation: 53 Tenn. 50
• Parties: Washington Turner v. W. J. Brock.
• Court: Tennessee Supreme Court

53 Tenn. 50

Washington Turner

v.W. J. Brock.

Supreme Court of Tennessee.

September Term, 1871.

FROM M'MINN.

Appeal in error from the judgment of the Circuit Court, August Term, 1869. WILLIAM L. ADAMS, J.

Blizard & Bradford for the plaintiff, insisted: Judgment against the wrong-doer with satisfaction thereof vests the title in him, but judgment without satisfaction does not: citing Williams v. Otey, 8 Hum., 563;Lovejoy v. Murray, 3 Wall., 1; 2 Kent, Marg. p. 388, n. a; 1 Greenl. Ev., s. 533; Knott v. Cunningham, 2 Sneed, 204; Walker v. Farnsworth, MS., Knoxville, 1844.

R. M. Edwards for the defendant, insisted:

1. The plaintiff having elected to waive the tort as to the original wrong-doer, waived it as to all the world and was bound by the election.

2. If the plaintiff can recover in this action, he will be in a condition to have double satisfaction, for equity would not give relief to the tort feasor.

NICHOLSON, C. J., delivered the opinion of the Court.

The question of law to be determined in this cause arises upon the following statement of facts as agreed on by the parties, and the charge of the Circuit Judge thereon:

“Turner, the plaintiff, sued Swaffords, in the Circuit Court of Bledsoe county, in an action of replevin for a mare and colt. He failed to get the property, and elected to proceed in case. He recovered judgment, and execution issued thereon, and was returned nulla bona. After these proceedings in Bledsoe county, Turner found the mare in defendant Brock's possession in McMinn county, and replevied her in this action in the McMinn Circuit Court. This was all the evidence in the case agreed upon.”

The Circuit Judge instructed the jury, that if they found the state of facts to be as agreed upon, the plaintiff is barred by the former recovery in Bledsoe county, and can not recover in this action, although the said judgment in Bledsoe county is unsatisfied, and you will find in favor of the defendant. The jury returned a verdict in favor of the defendant, on which judgment was rendered, from which the plaintiff has appealed in error to this court.

It has been the settled doctrine in this State for many years, that a judgment against one joint trespasser, without satisfaction, is no bar to an action against a cotrespasser: Knott v. Cunningham, 2 Sneed, 204.

But it does not appear by the facts, as agreed upon, whether or not Brock was a co-trespasser of the Swaffords. It seems that the original suit commenced in Bledsoe county, was against the Swaffords, and upon failing to obtain possession of the mare by the writ of replevin, the plaintiff elected to proceed against the Swaffords in case; and in that form of action obtained judgment against them for the value of the mare, but this judgment is unsatisfied.

Is this unsatisfied judgment a bar to the present action of replevin for the same mare? It is clear, upon the authority of Knott v. Cunningham, that if Brock, the defendant in this action, was a co-trespasser of the Swaffords, the judgment against them was no bar to another action against Brock. The evidence does not show how Brock got possession of the mare--whether as a trespasser or as a purchaser from the Swaffords with or without notice of their unlawful possession. But the Judge's instruction to the jury necessarily required them to find for the defendant, whether he was a co-trespasser or a purchaser, and was therefore erroneous, upon the hypothesis that Brock was a co-trespasser.

Upon the hypothesis that Brock was a purchaser from the Swaffords he is clearly entitled to the defense of a bar to the action, if the legal effect of Turner's judgment against the Swaffords was a waiver of his title to the mare.

It was decided in the case of Knott v. Cunningham, that the plaintiff could elect to sue one or all of several joint trespassers, and if he elected to sue one and obtain...