
    HECKEMANN v. YOUNG.
    
      N. Y. Court of Appeals, Second Division;
    
    
      June, 1892.
    [Reversing 55 Hun, 406, and confirming the opinion in 22 State Rep. 600; s. c., 5 N. Y. Supp. 212.]
    1. Judgment^ When a judgment against joint debtors is opened as to one of them against the opposition of plaintiff, and allowed to stand as against the other, it is not a merger of the cause of action, available to the defendant who was let in to defend.
    
    2. Joint debtors ; merger of joint obligation in judgment.] A judgment was entered by default against two joint debtors. Subsequently, upon motion, against plaintiff’s objection, the judgment was opened as to one of the defendants with leave to him to answer. He pleaded as a defense the judgment still standing against the other defendant.—Held, (it appearing that plaintiff was entitled to judgment against both defendants at the time of its entry) that as plaintiff opposed the opening of the 1 _ judgment he could not be deemed to have elected to proceed separately against the joint debtor against whom the judgment still stood, thereby extinguishing the cause of action against the other; the judgment, therefore, was not a bar to further proceedings against the answering defendant.
    
      Appeal from a judgment entered upon an order of the General Term of the Supreme Court, First Department, overruling exceptions directed to be heard before it in the first instance, and directing judgment for the defendant.
    Pauline Heckemann,trading under the name of Johannes Heckemann, sued George W. Adams and David B. Young to recover a sum of money alleged to be due from the defendants as co-partners for money paid. Both defendants appeared generally in the action, but by separate, attorneys. Adams served an answer to the amended complaint, but it was subsequently withdrawn. Young did not answer. Both defendants being in default for failure to answer, judgment was entered against them jointly. Subsequently the defendant Young moved to vacate the judgment as to himself. The motion was granted against the plaintiff’s objection,.the order directing among other things, that the defendant Young have costs of the motion, and that the plaintiff have leave to serve an amended complaint within twenty days after the service of the order upon her attorney and that the defendant Young have twenty days after service of the amended complaint to answer. The answer served in pursuance of such order set up as a defense that the action was brought against Young and Adams as joint debtors and that the judgment still standing against Adams was a bar to further proceedings.
    
      On the trial the complaint was dismissed at the close of plaintiff’s evidence on the ground that the judgment was a bar to the enforcement of the debt against the defendant Young, and plaintiff’s exceptions ordered to be heard in the first instance at the general term.
    
      The general term, on re-argument held that as the order vacating the judgment gave costs to the defendant Young, it was to be presumed that it was granted upon the ground that there was some irregularity in the entry of the judgment against him. The plaintiff therefore having taken judgment against Adams before he had a right to take judgment against Young, the claim against Young was merged in the judgment.
    For these reasons the general term overruled the exceptions and directed judgment for defendant. [Reported in .56 Hun, 406, superseding the first decision in 22 State Rep. 600.]
    Plaintiff appealed to the court of appeals. f4
    
      Gilbert R. Hawes, for plaintiff, appellant.
    
      A. Edward Woodruff, for defendant, respondent.
    
      
       See note at the end of this case.
    
   Parker, J.

It is the rule of the common law, recognized and enforced by the courts of this State, except as modified by section 1278 of the Code of Civil Procedure, that a judgment rendered against one of several joint debtors in an action against him alone is a bar to an action against the others (Candee v. Smith, 93 N. Y. 349 ; Suydam v. Barber 18 Id. 468).

Section 1278 of the Code of Civil Procedure provides that in case of a confession of judgment by one or more joint debtors, judgment may be entered and enforced against them, “and it is not a bar to an action against all the joint debtors, upon the same demand.” That section is not in terms applicable to the situation before us, but it is instructive as indicating a legislative intent to limit in some measure the common law rule. This court had before it, in Harbeck v. Pupin (123 N. Y. 115), a case which was held to be governed by that section. It was objected that the action was not within its provisions because not brought against “ all the joint debtors,” but against the personal representatives of one of the joint debtors ; also, that it was not “ upon the same demand," but upon a demand reduced by payments made in pursuance of a compromise with two of the joint debtors after confession of judgment. It was said that “ to adopt a construction so, narrow and literal as this, would be to practically nullify a remedial statute intended by the legislature to abrogate a harsh and technical rule of the common law that frequently operated to defeat a just claim.” Except as modified by the statutory provision to which we have referred, the common law rule obtaining at the time of its enactment continues in' force. But such enactment should be regarded as a caution against any extension of the rule beyond the lines already firmly established by authority.

In Suydam v. Barber (18 N. Y. 470) the court, in assigning a reason for the rule that a judgment against one of several joint debtors obtained in an action against him alone is a bar to an action against the others, said : “ It is held to be a bar upon the ground that by the recovery of the judgment the promise or cause of action as to the party sued has been merged and extinguished in the judgment by operation of law at the instance and by the act of the creditor.” Having but one debt, although two or more persons may be jointly liable for it, the creditor has but one cause of action, which he is not permitted to split up into as many different actions as there are joint debtors. Having but one cause of action, if he prosecute that to judgment against less than the whole number of joint debtors, he is deemed to have intended to waive his right to proceed against the others. The idea of election by the creditor is necessarily involved. Being presumed to know the law, the extinguishment of his cause of action by the recovery of a judgment against only a part of his joint debtors is presumed to be intended by him, because the result of his own act.

Now, this plaintiff did not elect to" proceed to judgment against Adams alone. Adams and Young were parties defendant, and a joint judgment was rendered against them. And the recitals in the judgment indicate that the plaintiff was, at the time of its entry, entitled to judgment against both defendants. Subsequently, it is true, the judgment was vacated as to the defendant Young, and he let in to answer. But this was not on plaintiff’s motion. On the contrary, he opposed it. He insisted on the right to retain his judgment against both defendants, and the determination of the court to open the judgment as to one of the defendants, and let him in to contest his liability cannot be deemed an election by the plaintiff to extinguish the cause of action which the court, by its order, said the defaulting defendant might litigate.

The record does not contain the motion papers, and we are therefore in the dark as to the ground upon which the special term based its decision vacating the judgment as to Young and letting him in to contest the cause of action alleged in the complaint. So far as this record discloses, he had no defense at the time when the motion was made. Certainly the court did not intend that the order granted should create a defense where none existed, nor can such an effect be given to it.

The judgment should be reversed

All the judges concurred.

Note on Several Judgment against one of Several Joint Debtors.

Further confirmation of this principle may be found in this provision of Code Civ. Pro. § 1946, which seems to be unnoticed by many practitioners. It is as follows :

“ Section 1946. When partner not sued remains liable.] Where, for any cause, one or more partners have not been joined as defendants in an action upon a partnership liability, and final judgment has been taken against the persons made defendants therein, the plaintiff, if the judgment remains unsatisfied, may maintain a separate action" upon the same demand, against each omitted partner, setting forth in the complaint the facts specified in this section, as well as the facts constituting his cause of action upon the demand.”

It may be worth while to inquire why this provision was restricted to partners, instead of extending to joint debtors generally

The restriction may have originated with the impression that equity, in treating joint liability as joint and several, did not go beyond partnerships; and it did not do so unqualifiedly. The doctrine of equity was that where each of joint debtors was shown or presumed to have shared the consideration, equity, in order to conform the effect of the instrument to the nature of the original demand, would treat the obligation as joint and several ; and that in the case of partners the law presumed that all had shared it, while in the case of mere joint promissors or obligors, evidence either direct or presumptive might be required. But in either case, equity might dispense with the absence of one, although at law he would be a necessary party.

This and similar liberties which chancery took in dispensing with the rules as to parties which courts of common law observed, led to the distinction in equity between the phrases “necessary parties” and “ indispensible parties.” A necessary party in the language of a court of equity includes one whose absence would be fatal in a suit at law, on the obligation, if objection were made by an actual defendant, but whose absence would be disregarded if such objection were not made ; because the wrong of proceeding without him would injure not him, but only the one who waived the objection. An “ indispensible party” is one whose presence is essential for reasons of justice, because by judgment in his absence wrong may be done to him, and not merely to those already parties.

It seems to have been the object of this provision of the Code not to take away the right of a joint debtor sued in an action of a legal nature to compel the co-debtor to be brought in before the trial, but to prevent, in case of partners at least, a judgment against one or more in the absence of the others however that result may have been reached,— whether by waiver through omission to object in pleading, or by irregularity or error,—merging the cause of action and barring fresh suit against the others. See Decker y. Kitchen, 26 Hun, 173. It is to be observed, however, in passing, that the statute, for what reason is not apparent, expressly confines the fresh action to a separate action against each omitted party, as if it were not intended to allow a joint action against all of several. If this is intentional it only conforms to the old common-laxv rule that on a joint and several obligation plaintiff must sue all together or only one in any one action. It was the Code that opened the door to suing more than one and less than all in one action.

Other provisions of the Code confirm the same modified view of a judgment as a merger of the cause of action.

Thus, by section 1278, Code Civ. Pro., a confession of judgment by one only of several joint debtors is not a bar to an action against the others upon the same demand j'and. it has been held that this is to be liberally construed, and should not be limited to technical judgments by confession without action, but should be held to embrace confessions, made through the medium of a cognovit or offer to allow judgment after action brought (Kantrowitz v. Kulla, 20 Abb. N. C. 321; s. c., 13 Civ. Pro. R. 74). This case it is true was disapproved by the supreme court in 55 Hun, 406, the decision reversed in our text; but the disapproval seems to have rested wholly on the ground that the so-called confession, in the Kantrowitz case was not a confession within section 1278.' Before this provision of section 1278, the confession, if by one joint debtor only, merged the claim and barred suit against the others (Candee v. Smith, 93 N. Y. 349 ; Smith v. Kibbe, 31 Hun, 390).

So it would seem that under Code Civ. Pro. § 544, a judgment recovered elsewhere for the same cause, pending the action may now be set up by supplemental complaint, although if a judgment be regarded as absolutely merging the cause of action, this would be wholly abandoning the original case.

In equity, after a bill has been filed on the original cause-of action, a supplemental bill may be filed setting up a judgment recovered thereon (Jenkins v. Internal. Bk. of Chicago, 127 U. S. 484), and it is doubtless this practice as well as liberty to plead an adverse recovery as a bar, that this provision of the Code was intended to sanction.

There seems, no good reason why, since the merger of law and equity, the court should not in furtherance of justice treat legally joint obligations as joint and several undei any circumstances where equity would formerly have done so.

But the prudent course still is in actions of a legal nature (unless the debtors were partners) to delay entry of judgment against one who has been sued and is in default, until af-ter verdict report or decision against the others if it is desired to pursue their liability.  