Vandenburgh v. Biggs

Parker, Justice.

In this case, the suit in which the judgment was recovered, had been commenced by declaration, served on Defendant Biggs alone. By Session Laws of 1883, chap. 271, § 3, it is provided that such judgment shall have the like effect, and execution thereon shall be issued, as if process against the Defendants had been served on one of them. That effect is declared by §2, art. first, title 6, chap. 6, of the third part of the Revised Statutes, which enacts that such judgment shall be conclusive evidence of the Lability of the Defendant, who was personally served with process in the suit, or who appeared therein; but against every other Defendant, it shall be evidence only of the extent of the Plaintiff’s demand, after the liability of such Defendant shall have been established by other evidence.

The liability of Moore must then be established by evidence other than the recovery of the judgment. On that judgment, the Plaintiff might collect by execution from the property owned jointly by both Defendants. (2 R. S., 3d ed., 475.) Beyond that, there was no right to levy of the property of Moore. The only advantage gained by the Plaintiff in the recovery of his judgment was the right to collect from the joint property of both Defendants, and in á suit on the judgment, to make it evidence of the extent of his demand, after the liability of Moore had been established by other evidence. (Carman v. Townsend, 6 Wendell, 206 ; Mervin v. Kimbal, 23 Wend., 293.)

The Defendant Moore now denies his liability by alleging that the Plaintiff’s cause of action did not accrue at any time within six years next before the commencement of this suit; and it seems to me that this allegation, admitted by the Plaintiff in not replying, forms an entire defence. It cannot be, that the recovery of the judgment, formed any bar to the running of the statute of limitations. To give it such an effect, would be to go far beyond that prescribed by the statute, and would be a dangerous infringement upon the rights of a Defendant not served with process, and utterly ignorant of the service of process on his co-debtor.

There is no reported case in which this question has been decided, but the law was so held by the late Supreme Court, in Brown v. Dokee, decided in 1846.

There must be a judgment for the Defendant; but as the Plaintiff may be able to show some new fact, sufficient to take the case out of the statute, he must have leave to reply on payment of costs.