Lebanon v. Mead , 64 N.H. 8 ( 1885 )

If by operation of law, a third person is answerable to a defendant for whatever the plaintiff may justly recover, and has due notice of the suit, the judgment obtained without fraud against the defendant is, in an action brought by him against such third person to enforce his liability, conclusive evidence of the facts determined by it. It would be unreasonable to permit him to contest the justice of the claim in the suit against himself, after having neglected or failed to show its injustice in the suit against the person he is bound to indemnify. Thrasher v. Haines, 2 N.H. 445; Littleton v. Richardson, 34 N.H. 179; Philbrick v. Shaw, 63 N.H. 81. Knowledge of the action and an opportunity to defend it are indispensable to make the judgment evidence. Burrill v. West, 2 N.H. 190. Upon the question what constitutes a sufficient notice, the authorities are not uniform. Miner v. Clark, 15 Wend. 425; French v. Parish, 14 N.H. 496, 502; Boston v. Worthington, 10 Gray 496; Boyle v. Edwards, 114 Mass. 373; Rawle on Cov. (4th ed.) 221-232. Whether it is sufficient that the party responsible over, though not expressly notified, has know]edge, however acquired, of the pendency and nature of the action, and of the facts upon which his liability depends (Chicago v. Robbins, 2 Black 418, Robbins v. Chicago, 4 Wall. 657, Fogg v. Plumer, 17 N.H. 112, Parker v. Moore, 59 N.H. 454; and Philbrick v. Shaw, supra), is a question which need not now be considered. It does not appear that these defendants had such knowledge. The written notice served on them did not purport to come from, or to be issued at the suggestion or for the benefit of, the town. It informed them that the court had ordered them to be notified to appear and take upon themselves the defence of an action to which they were not parties. It gave them no reason to suppose the action was not a petition for an abatement of Eaton's taxes, or for a new highway, or a suit on a promissory note. The reason given in the notice for ordering its service on them was, that it had been suggested to the court by some person, whose name is withheld, that they might in some undisclosed manner be interested in the defence of the action. It is not found that they had any knowledge of the cause or nature of the action, or of a purpose of the town to employ against them the judgment which Eaton might recover, or of any fact tending to show that such a judgment could concern them, or of any interest they could have in the defence of the town. If they were tax-payers in Lebanon, they might infer they were invited to resist Eaton's effort to obtain a judgment which would increase their share of the public expense. The written order of notice, and the circumstance that two of them testified at the trial, may or may not be competent evidence upon some material question of fact. These two witnesses may have been called merely to impeach, or to sustain, the general reputation of another witness for veracity. They may have had no knowledge of the controversy, or of any reason why they should undertake the defence, or be bound by the judgment. All information of Eaton's claim, and of every fact tending to show their duty of satisfying or resisting it and indemnifying the town, may have been studiously concealed from them. If a notice would be sufficient that would put a person of ordinary prudence upon inquiry, it is not found that such a person would have inquired, or by reasonable inquiry would have discovered a ground on which these defendants could be affected by a judgment against the town. If the fact of their knowledge or understanding, or of the town's intention, is material, it is to be found at the trial term.

Case discharged.

SMITH and BINGHAM, JJ., did not sit: the others concurred.