JOHNSON a. SMITH

JOHNSON a. SMITH. New York Common Pleas; General Term, May, 1862. Action on Judgment against Joint-debtoes.—Defect of Paeties. Where a judgment has been recovered against joint-debtors, under a service of process upon one only, it is not a valid defence to an action upon the judgment, that the party served with process in the former action is not joined as a defendant. Where two joint-debtors have been sued in a justice’s court, and only one served with process, and judgment is recovered by the plaintiff, he may proceed by a new summons and complaint against the debtor not served, stating, in the complaint, the former action, and the facts showing the liability of the present defendant ; and may recover judgment against such defendant. This is, in effect, the procedure prescribed by the Code for courts of record, and its adoption in justices’ courts preserves the uniform course of proceeding. Appeal from a judgment of the Fifth District Court, in the city of IsTew York. This action was brought by George W. Johnson and James M. Wallace, against Charles Smith. The complaint set forth a cause of action against defendant and one George Wells, as partners, for goods sold, in the sum of $57.58, and then averred that in an action against Wells and Smith, in the same court, judgment had been recovered against Wells and Smith, on a service of summons upon Wells only, for $72.75; and the plaintiffs now demanded judgment against Smith, for the last-named sum. On the return of the summons, defendant objected that a nonjoinder of a party who should he made a defendant appeared on the face of the complaint. Plaintiffs applied for leave to amend the summons, by adding George Wells as a party defendant. The justice denied the motion, and rendered judgment for the defendant. The plaintiff appealed to this court. Francis Byrne, for the appellant. John Anderson, Jr., for the respondent. [MAJORITY — By the Court.—Brady, J.] By the Court.—Brady, J. The plaintiffs could maintain an action against the defendant and his partner Wells, although the latter had been served in a former action,- and judgment had been rendered against him. (Carman a. Townsend, 6 Wend., 206.) Whether the defendant Smith could be sued alone, after the judgment, does not appear to have been considered heretofore, and I believe has not been decided in any reported case. The original indebtedness as to the partner served with process, is merged in the judgment, and the proceeding against him is on the judgment rendered. The defendant not served would have the right to interpose any defence of which he could have availed himself in the former action. (Carman a. Townsend, supra.) The judgment against him was not conclusive. It was evidence only of the extent of the plaintiffs’ demand, after the defendant’s liability should be established by other evidence. (Oakley a. Aspinwall, 4 N. Y., 513 ; 2 Rev. Stat., 377, § 2.) The action would be anomalous in this view of it, because the issues would be different as to each defendant. The complaint in this case avers the judgment against the joint-debtor Wells, in a former suit commenced against both, and also the facts showing the liability of the present defendant, as the other joint-debtor. I do not understand what objection there can be to this form of procedure. It is simple, direct, and I think just to the defendant Wells. It is scarcely possible that he can have an individual defence. Why subject him then to the expense of another suit ? He is already declared to be the plaintiffs’ debtor. As to him, the law has declared its judgment, and now, by allegations showing that the defendant Smith is a joint-debtor with him, the plaintiffs ask a judicial determination of that liability, so that his personal property may be reached. Such, in effect, is the proceeding in courts of record under the Code. Section 375 provides that joint-debtors, not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judgment, and the proceeding goes on against them only. Permitting, in effect, a similar practice in justices’ courts, will tend to establish that “ uniform course of proceeding in all cases,” declared in the preamble of the Code to be expedient. I think the justice was wrong in dismissing the complaint, and that the judgment should be reversed. I have not deemed it necessary to determine whether the justice had power to amend the summons in this case, regarding the amendment, as I do, unnecessary. Present, Daly, F. J., Hilton and Brady, JJ. Compare Mallory a. Leach, infra, 449, note.