Fairfield v. McNany , 37 Iowa 75 ( 1873 )

Cole, J.

I. The finding of facts by the court is fully sustained by the evidence. It was not error on the trial of the issue made upon the answer of the garnishee, to admit such answer in evidence, for our statute says (Rev., § 8208), “ upon such trial the answer of the garnishee is competent testimony.”

II. The judgment by default against the defendant McNany, on the note given in part payment for the land, is no bar to an action by him against Turner xrpon the bond for title for a breach thereof. Our statute provides (Rev., § 2621) : “Judgment obtained in an action by ordinary proceedings shall not be annulled or modified by any order in an action by equitable proceedings, except for a defense which has arisen or been discovered since the judgment was rendered. But such judgment does not prevent the recovery of any claim, though such claim might have been used by way of set-off, counterclaim or cross-demand in the action on which the judgment was recorded.” This section was taken verbatim from the Kentucky Code. See Stant. Ky. Code (ed. 1859), § 11. So was our section 2880 respecting “ answer ” taken substantially from the Kentucky Code, § 125, id. And it was held by the court of appeals of Kentucky, in 1853, and prior to the adoption here of their statute, that where a defendant permitted a judgment to go against him by default upon a legal demand, he might in a subsequent action set up and rely upon .equitable matters which would have constituted an available defense in the first action. Dorsey v. Reese, 14 B. Monr. 157. Having adopted the statute after it had received this construction, it is just to presume that the legislature intended to adopt the construction also. Pangborn v. Westlake, 36 Iowa, 516; 7 West. Jur. (Aug. No. 1873). Besides, the language of the statute is so plain and direct that it scarcely admits of any other construction, whether the recovery sought in the subsequent action is legal or equitable.

As to the effect of a recovery at law on a cause of action against which the defendant held a claim available as a defense, upon his right to bring a subsequent action thereon, the authorities are not uniform; some hold that the judgment in the first action is a bar to the subsequent one. Davis v. Tabcott, 13 N. Y. 184; Yates v. Preston, 41 id. 113, and cases cited. Others hold it no bar. Sykes v. Bonner, Cin. Sup. Ct. Rep. (1871) 464, and cases cited; Mondel v. Steel, 8 Mees. & Welsb. 858; Davis v. Hedges, Law Rep., 6 Q. B. (1871) 687; Nichols v. Tremlette, 1 Sprague, 361 (i. e. 367); see also Barker v. Cleavland, 19 Mich. 230; Thornton v. Thompson, 4 Gratt. 421. Our own decisions, while they do not expressly and directly rule the precise point, indicate a decided inclination toward the view that the first judgment is not a bar. Clark v. Sammons & Van Pelt, 12 Iowa, 368; Griffin v. Seymour, 15 id. 30; Delany v. Reade, 4 id. 292; Griffith, admr. v. Lovell et al., 26 id. 226.

Since, then, the defendant McNany has a right to maintain an action against Turner for a breach of the bond, the damages on which much exceed the amount of the judgment held by Turner against him, it was not error to adjudge that he need not pay such judgment to the plaintiff, who is only a creditor of Turner’s. Even if he was assignee of the judgment, he would have no better right than Turner himself. Cook & Sargent v. Burtis, 16 Iowa, 191. The defendant McNany, having by way of an independent action a good defense to the enforcement of the judgment by Turner, ought not to be required as garnishee to pay the judgment to his creditor.

Affirmed.