Hanley v. Donoghue ( 1883 )

Robinson, J.,

delivered the opinion of the Court.

It appears from the pleadings in this case, that suit was; brought in Pennsylvania against Charles and John Donoghue on a joint contract; that Charles was regularly summoned, hut no process of any kind was issued against John,, nor did he appear, in person or by attorney, to the suit. Judgment was however subsequently recovered against both defendants, and on this judgment, suit is brought in this State against .Charles. In support of this action, it is contended, that the foreign judgment although void as to John is valid and binding on Charles, the party who was summoned.

At common law a judgment was regarded as an entire thing, and being an entirety it has been held repeatedly, that it could not be affirmed, as to one or more defendants, and reversed as to others. It must either be affirmed as a whole or reversed as a whole. Cutting vs. Williams, 1 Salk., 24; Parker vs. Harris, 1 Ld. Rayd., 825; Lloyd vs. Pearse, Croke Jac., 425; 2 Saunds. Rep., 101; 2 Bac. Abr., 228, marg.

Thus in an action of trespass against two or more defendants, if one of them died pending the suit, and judgment was rendered against all, it was decided that the entire judgment must be reversed; and for the reason, that being an entirety it could not be affirmed in part and reversed in part. 2 Bac. Abr., Letter E, 228.

But conceding this to be the law where a judgment is affirmed or reversed on appeal or on a writ of error, the argument is that the rule does not apply to a suit brought upon a foreign judgment recovered against two or more defendants, only one of whom was summoned, and which judgment has been permitted to stand unreversed and unchallenged. In such a case, the appellant- contends the judgment is valid and may be enforced against the party summoned in the original action, though void as to the parties against whom no process was issued. Row in determining this question, we must not lose sight of the distinction between void and voidable judgments. A judgment rendered by a Court having jurisdiction over the subject-matter and the person, is unquestionably conclusive and binding on the parties, unless reversed or set aside in some mode or manner prescribed by law. But it is essential to the validity of a judgment in personam, that the Court should have jurisdiction over the parties, and if rendered without such jurisdiction, it is a mere nullity. Such a judgment is not merely erroneous because of some irregularity in the mode of proceeding, or error on the part of the Court in the application of the law to the particular case, and for which the party aggrieved must seek a remedy by appeal or writ of error, hut being a judgment, rendered without jurisdiction, it is absolutely void, and may he assailed at all times, and in all proceedings by which it is sought to he enforced.

If then a judgment could not at common law he affirmed in part and reversed in part, because of its entirety, for the same reason, if a suit is brought in this State on a foreign judgment which is admitted to he void as to some of the defendants, such a judgment must he held to he void as to all. The reason of the law is that the judgment is an entire thing, and cannot he separated into parts. If execution is issued on such a judgment, it must he issued against all the defendants.

The question now before us was fully considered in Hall vs. Williams, 6 Pick., 232, where a suit was brought in Massachusetts on a judgment recovered in Georgia against two defendants, and it appeared from the record that one of the defendants had never been summoned, and had never appeared in person, or by attorney, to the suit brought against him in Georgia. And it was held, Parker, C. J., delivering the opinion of the Court, that the judgment being entire, if it was a nullity with respect to one, it was a nullity also as to the other defendant. In the still later case of Wright vs. Andrews, decided in 1881, 130 Mass., 150, the question was again argued before the Court, and the decision in 6 Pick., was approved, Gray, C. J., saying, that if the “ Court had no jurisdiction of one defendant, its judgment being entire and unqualified, is, in the absence of any evidence of the law of Maine upon the subject, void against both.” These decisions have been followed by the Courts of Maine, New Hampshire and in other States. 45 Maine, 183; 11 N. H., 290; 1 Abbott, U. S. C. R., 302. In Motteux vs. St. Aubin, et al., 2 W. Black., 1133; Ashlin vs. Langton, 4 Moore & S., 719; Gerard vs. Basse, 1 Dall., 119; Silver vs. Reynolds, 2 Harr., N. J., 275. Courts have permitted judgments, on motion, some of them in the exercise of a quasi-equitahle jurisdiction, to he set aside as to one defendant and to stand as to others. And in some States it has been decided that a judgment may he valid as to one defendant and void as to others. Douglass’ Lessee vs. Massit, 16 Ohio, 271.

The weight of authority is we think decidely the other way, and in accord with the law as laid down in Hall vs. Williams, 6 Pick., 232. Looking at the question from an equitable standpoint purely, there is some force in the appellants’ contention, that a judgment may and ought to he held valid as to parties summoned, and who had an opportunity to make their defences, even though it may he void as to others, against whom no process was issued. But if it be well settled, and such seems to be the law, that a judgment which is void as to one of the defendants is void also as to the other, the plaintiff in taking such a judgment has no one to blame hut himself. In bringing suit against two parties on a joint contract, it was his duty to have directed process to he issued against both, and if he failed to do so, and subsequently took a judgment against one of the defendants who never had been summoned, he has no right to complain because the law will not enforce the payment of such a judgment. For these reasons the demurrer to the second' and third counts, was properly sustained.

The first count, sets forth a judgment regularly recovered against both defendants; the suit is brought however against one only, and without any suggestion of the death of the other. Both were jointly and severally liable on the judgments, and both ought to have been sued, or some reason alleged why the other was not joined in the action. Merrick vs. Bk. of the Metropolis, 8 Gill, 64; Kent vs. Holliday, 17 Md., 393; State vs. Magraw, 12 G. & J., 265.

(Decided 19th January 1883.)

This was decided in Prather vs. Manro, 11 G. & J., 261, where npon a judgment against two defendants, a scire facias was issued against the terre-tenants of one of the defendants, only, without suggesting the death of the other, and upon demurrer this defect was held fatal.

Finding no error in. the rulings helow, the judgment will he affirmed.

Judgment affirmed.