Commercial Bank of Lake Erie v. Meach , 7 Paige Ch. 448 ( 1839 )

The Chancellor.

Upon the hearing of these motions I was under the impression that this case came within the principle that, upon a joint judgment against several defendants, some of whom had not been served with process, all must made defendants, in a creditors’ bill, to enable those whose property was taken to satisfy the debt under the decree of the court to claim contribution against their co-defendants who are jointly liable. In such cases, unless there is an averment in the bill that those who have not been served with process so as to make the judgment at law absolutely binding upon them personally, are mere sureties for the others, or are not legally or equitably liable to contribute towards satisfying the debt, or are destitute of property or out of the jurisdiction of the court, so that the defendants have no interest in having them made parties for the purposes of contribution, the complainant must bring them all before the court, or his bill may be demurred to on that ground.

On examining this case more attentively, however, I am satisfied that it does not come within that principle ; as the form of the order of the supreme court is such that no proceedings whatever against Jackson, founded upon that judgment, can be sustained. And if he was made a party defendant in this suit he might demur to the bill, on the ground that it was a proceeding against him upon the judgment which in effect had been vacated as to him. Upon the case, as it now stands before me, I must presume that Jackson satisfied the supreme court that he had some defence which was personal as to himself; or that he never was jointly liable with the other defendants, but that the complainants had been deceived by the other defendants as to his joint liability ; or that there was some other equitable grounds for retaining the verdict as against them, notwithstanding it was set aside as to him. For the purposes of this suit, therefore, it must be considered as a judgment against the present defendants only, upon a joint claim against all which has not been sustained as to Jackson.

What would be the effect, upon the rights of these parties, of an answer supported by the proofs, showing that Jackson was both legally and equitably liable to the complainants, as a joint debtor with these defendants, and that as between him and them he was bound to contribute towards satisfying this debt, it is not necessary for me now to consider. For although Durant swears that from the claim, as exhibited in the supreme court, the demand was joint, neither of the defendants ventures to allege under oath that the complainants had in fact a joint claim against all, and that Jackson is equitably bound to contribute towards the satisfaction of that claim; or that they believe the complainants could succeed in obtaining a verdict against him.

For these reasons I think a demurrer to the bill would not lie, either for the want of parties, or upon the ground that the complainants have not obtained a verdict and taken out an execution against Jackson in the county where he resides. The motion of Durant to dissolve the injunction must therefore be denied with costs. And the application for a receiver is granted, as asked for by the complainants in their notice.