City National Bank v. Hager ( 1892 )

Mitchell, J.

This was an action on a judgment rendered in Iowa, and the only question is whether the judgment was against the respondents or only against one William IT. Hager, their co-•defendant in that action. The Iowa record discloses, to say the least of it, a very remarkable practice. It shows that plaintiff •brought that action against William H. Hager, these two respondents, and one Gurley, upon a promissory note executed by all four, ■ and also upon a judgment recovered in Maryland against William H. Hager alone upon the same note. Judgment by default was first •entered against William H. Hager alone for the amount due on the Maryland judgment, which, by reason of the difference in rates of in•terest, was much less than the amount due on the note. This default judgment was afterwards vacated, and the defendants given •time to answer. Thereupon all of the defendants, appearing by the ■same attorneys, answered, admitting the execution of the note, and The rendition of judgment in Maryland against William H. Hager; The defendants, other than William H. Hager, further pleading the pendency of a former action on the note in Maryland, also that the mote had been paid.

Aside from an amendment of this answer, bearing upon the issue of payment of the note, the next thing that occurred was the rendition and entry of the judgment here sued on. It will be observed that in the Iowa action the complaint, or “petition,” as it is there called, stated one cause of action (the Maryland judgment) against William H. Hager alone, and another cause of action (the note) against all the defendants; also that in the answer William H. Hager virtually admitted the cause of action against him on the judgment, while the other defendants interposed defenses to the note, which is the only cause of action set up against them. Coming now to the judgment, we find that, while the names of all the defendants appear in the title, this is followed by the words, “Judgment on transcript from Maryland.” Then, after reciting that plaintiff appeared by its attorneys, and that his attorneys withdrew their appearance for William II. Hager, who, although called, came not, but made default, it proceeds: “Whereupon it is.considered bj’ the court that the plaintiff ought to recover by reason of the premises the amount due on the transcript judgment * * * sued on, which, by order of the court, is assessed by the clerk, and found to be the sum of,” etc. “It is therefore considered by the court that said plaintiff have and recover of the said defendants the said sum of,” etc., (amount of the Maryland judgment.) • .

The defendants other than William H. Hager never withdrew their ’ answer, and there is nothing in the record indicating that the issues between them and the plaintiff have ever been tried or disposed of. The memorandum of the judge on the court calendar, “Trial for the. court,” is no part of the record, and cannot be considered; and, even if it could, it might, in view of Iowa-Code § 2870, have-reference merely to determining the default of William H. Hager. In view of these facts, and upon consideration of the entire record, we are of opinion that the fair construction is that the adjudication was predicated solely on the default of William H. Hager, and that the judgment was intended to be against him alone, and for the amount of the Maryland .judgment. If the word “defendants” had not been used in the latter part of the judgment, there would have been no reasonable doubt of this. But when there are several defendants, the use of the plural is not necessarily conclusive; In such cases the court will look into the entire record, and if it is apparent that the judgment was intended to be against one of them only it will be so held. Black, Judgm. § 116; Banning v. Sabin, 41 Minn. 477, (43 N. W. Rep. 329.) At any rate, this record is too indefinite and uncertain to furnish that positive and conclusive bar against the other defendants which is created by a judgment. Hubbard v. Dubois, 37 Vt. 94.

We have not referred to the denial by the Iowa court of respondents’ application, made after the commencement of the present action, to correct the record in that court, as this could have no effect, one way or the other, upon the judgment.

Order affirmed.

(.Opinion published 53 N. W. Rep. 867.)