Verhoeks v. Gillivan

• Decision Date: 01 October 1928
• Docket Number: No. 47.,47.
• Citation: 244 Mich. 367,221 N.W. 287
• Parties: VERHOEKS v. GILLIVAN.
• Court: Michigan Supreme Court

244 Mich. 367

221 N.W. 287

VERHOEKS

v.GILLIVAN.

No. 47.

Supreme Court of Michigan.

Oct. 1, 1928.

Error to Superior Court of Grand Rapids; Leonard D. Verdier, Judge.

Suit by Gerrit Verhoeks against Leone Gillivan. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before the Entire Bench.Dunham & Cholette, of Grand Rapids, for appellant.

Charles E. Misner, of Grand Haven, and Corwin, Norcross & Cook, of Grand Rapids, for appellee.

NORTH, J.

This case presents a single question of law, to wit, Can a plaintiff, who has obtained separate judgments against joint tort-feasors and who has caused an execution to issue against one of them, but failed to obtain satisfaction thereon, have a subsequent execution against one or more of the other judgment debtors?

This suit was tried before the court without a jury, and judgment was rendered for the plaintiff. Exceptions were properly reserved, and the defendant reviews by writ of error. An agreed statement of facts has been filed, the material portions of which are as follows: The plaintiff herein obtained a judgment in a separate suit against Allen O. Gillivan in the sum of $1,232.53. That case was based upon the alleged negligence of Allen O. Gillivan while operating a motor vehicle resulting in damage to plaintiff's automobile. After judgment, the plaintiff caused a writ of capias ad satisfaciendum to be issued, upon which writ Gillivan was taken into custody. On the succeeding day he obtained his freedom by giving a jail limits bond. He immediately filed a petition in voluntary bankruptcy, and later, having been adjudicated a bankrupt, was discharged as such, thus ending his liability upon the judgment recovered against him. The bankrupt's estate was practically without assets, and the plaintiff's judgment was and still is wholly unsatisfied. After the release of Allen O. Gillivan, this suit was commenced against his wife, Leone Gillivan. At the time of the accident out of which this litigation arises she was the lawful owner of the motor vehicle then being driven by her husband, and was legally responsible for the resultant damage. At the time of instituting the suit against Allen O. Gillivan, the plaintiff herein knew that the automobile was owned by Mrs. Gillivan. Neither the question of negligence nor the amount of damages is a matter of dispute in the present case. The sole question presented is that first above indicated.

There is a distinct conflict in the authorities as to whether the issuing of an execution against one of several defendants in cases arising from liability as joint tort-feasors will be held to be an election by the plaintiff and a bar to subsequent executions against any of the other defendants. It was held, in the early Michigan case of Boardman v. Acer, 13 Mich. 77, 87 Am. Dec. 736, that issuing execution against one of several defendants was a bar to seeking satisfaction of the judgment from any of the others. We quote the syllabus:

‘Where separate judgments are obtained against two or more joint trespassers, the suing out of an execution on one of them, is an election by the plaintiff to enforce that judgment, and no action will afterwards lie on the others.'

The Boardman Case is cited with approval in Kenyon v. Woodruff, 33 Mich. 310; but it should be noted in the latter case it is clearly stated that not only was the execution issued, but its satisfaction was assured. However, in a later Michigan case it is stated that the prevailing doctrine in this country is that the plaintiff has a right to have his judgment satisfied. In Blackman v. Simpson, 120 Mich. 377, 79 N. W. 573,58 L. R. A. 410, Justice Moore said:

‘The authorities are not agreed whether the bringing of a suit against one will prevent bringing a second suit against others. Some of them hold the bringing of the first suit is an election, which will preclude the bringing of other suits. See 2 Black, Judgm. § 780. Justice Kent stated the rule to be that the party injured may bring separate suits against the wrong-doers, and proceed to judgment in each, and that no bar arises as to any of them until satisfaction is received. Livingston v. Bishop, 1 Johns. [N. Y.] 290, 3 Am. Dec. 330. This is the prevailing doctrine in this country. Cooley, Torts (2d Ed.) 159.'

If no bar arises until satisfaction is obtained, then issuing an execution against one defendant, unless it is satisfied, does not foreclose seeking satisfaction from another defendant. It is stated by various annotators, and it seems clear, that the weight of authority in American courts is in accord with the doctrine that the plaintiff has the right to have actual satisfaction of his judgment, and that an unsuccessful attempt to collect from one of the defendants is not a bar to obtaining an execution against another of the joint wrongdoers. Lovejoy v. Murray, 3 Wall. 1, 18 L. Ed. 129;Sessions v. Johnson, 95 U. S. 347, 24 L. Ed. 596;Cole v. Roebling Const. Co., 156 Cal. 443, 105 P. 255; Sheldon v. Kibbe, 3 Conn. 214, 8 Am. Dec. 176; Cushing v. Hederman, 117 Iowa, 637, 91 N. W. 940,94 Am. St. Rep. 320;Ketelsen v. Stilz, 184 Ind. 702, 111 N. E. 423, L. R. A. 1918D, 303; Ann Cas. 1918A, 965; Renfrow v. Condor, 153 Ky. 701, 156 S. W. 385,44 L. R. A. (N. S.) 989;Cleveland v. City of Bangor, 87 Me. 259, 32 A. 892,47 Am. St. Rep. 326;Hyde v. Noble, 13 N. H. 494, 38 Am. Dec. 508;Russell v. McCall, 141 N. Y. 437, 36 N. E. 498,38 Am. St. Rep. 807; Brison v. Dougherty, 3 Baxt. (Tenn.) 93; Sanderson v. Caldwell, 2 Aikens (Vt.) 195; Sherman v. Brett, 7 Wis. 139. See notes in 58 L. R. A. 410, 27 A. L. R. 805. In some of the states earlier decisions to the contrary have been overruled by their more recent adjudications. See Ketelsen v. Stilz, supra, and Cleveland v. City of Bangor, supra.

The following from the note...