Norfolk Lumber Co. v. Simmons

(delivered the opinion of the Court.)

The narr filed in this case is in trespass, in the usual form for taking certain goods and chattels, which it is alleged were not the goods and chattels of the defendant, but were the property of other parties.

In the third and fourth pleas the defendant has set up the defence in substance, that the plaintiff has prior to instituting this action, brought suit in another jurisdiction against James E. Simpson, James E. Simpson, Jr., Alfred H. Simpson and William *328Simpson, who were joint tort feasors with him in committing the alleged trespass, and alike liable-jointly and severally, for said supposed trespasses in. this declaration mentioned, and recovered judgment therein against them for some eighteen hundred and forty-five dollars as damages, etc., which judgment still remains in full force.

The fourth plea is the same as the third, but alleges that an execution was sued out on said judgment.

To these pleas 'the plaintiff has demurred generally and specially. The question, therefore, which we are called upon to decide is whether the facts alleged in said pleas constitute a bar to the cause of action as set forth in the several counts in said declaration to which said pleas apply. In other words, is the recovery of judgment merely against four tort feasors, when there are other tort feasors, a bar to recovery against those not sued.

It is admitted and cannot be denied, that in trespass all trespassers are equally liable, and may be sued jointly or severally, or that a part may be sued. The English and American authorities are uniform in this, and they are alike uniform that but one satisfaction can be had. The recovery of judgment merely does not satisfy a debt, and if all joint trespassers are liable jointly and severally to satisfy the debt, on what principle can those not sued be discharged, when the judgment merely is recovered, which constitutes no satisfaction ? It has been said that unless recovery against a 1 portion be not a bar against those not sued it results in vexatious suits, but the object of the law is to promote the ends of justice, and without satisfaction this cannot be done but amounts to a miscarriage of justice. The doctrine laid down in this country, proceeds on this principle, that all are liable until satisfaction, while the English doctrine proceeds upon the principle, that the party plaintiff may make his election, and having done so, is precluded against further suits against trespassers not sued.

An examination of the English cases, however, clearly shows that after all, the party is entitled to satisfaction. There may be a reason for the diversity of ruling on this question in this country *329and England, founded on the fact that in England all parties are under the jurisdiction of the English Court, and hence it is laches on the part of the plaintiff, if he sue not all joint trespassers, or sufficient to make good his satisfaction, and unnecessarily increase the number of actions, but in this country it is different; all the co-trespassers may not reside in one and the same jurisdiction, and hence from necessity may be driven to suits in different jurisdictions. If there were three co-trespassers, and each one resided in a separate state, and the cause of action justified the recovery of damages in an amount, such as would absorb the entire estate of all three co-trespassers, then in that case, in this country, if recovery had in one state be a bar to actions in other states against the remaining two co-trespassers, the plaintiff would be precluded by such a law from obtaining satisfaction of his damages. Mot so in England, for the Courts have jurisdiction throughout the country and all defendants may be reached by process from one Court. Many of the Courts throughout our country where this question has arisen have by their ablest judges decided that a mere recovery of judgment against one co-trespasser is no bar to an action against another co-trespasser. Chief Justice Kent in Livingstone vs. Bishop, 1 Johns. 290; Lovejoy vs. Murray, 3 Wall. 1; in both of which cases all the English decisions are carefully and fully reviewed. The reasons upon which the .cases cited rest are in our opinion, the true and only grounds by which justice may be done and satisfaction had in such cases, and we unhesitatingly adopt their rulings.

The defendant contends in his said fourth plea, that not only was judgment recovered against a part of said co-trespassers but that execution was sued out thereon, and, hence, that the rendition of judgment, and execution thereon is a satisfaction of the debt, and constitutes a bar to this action. We fail to see that the mere issuing of execution affects more than the recovery of judgment» It is true at common law the issuing of execution and levy is prima facie a satisfaction of a judgment, but it may be rebutted, by the return, and besides we have an express statute, long after *330the decision of our Courts on this question, in the 11th Vol. of Del. Laws, which expressly provides, “ That no judgment shall be deemed to be paid or satisfied, in whole or in part, by a levy or execution process, unless it appear otherwise than by the fact of such levy, that such payment or satisfaction has been made.”

It is also insisted by the defendant, that though his pleas should not be deemed sufficient in law, by the Court to constitute a bar to the cause of action in the said counts in said declaration mentioned, yet, the declaration is defective in substance, since it does not aver an unlawful taking, and this being a demurrer, the Court will according to a well established rule of law, go back, and strike the first bad pleading. This principle of law is undoubtedly correct, but to do so the alleged pleading must be bad. We have carefully examined the usual forms of declaration in trespass in cases of a like character, and in no case find the averment differing from the form.followed, and there is no reason why the taking and seizing should be averred as unlawful.

We therefore give judgment in favor of the demurrants.

Nields, for the defendant, I apprehend that I am entitled to a writ of error.

Higgins, for the plaintiff1. Writs of error in Delaware and supersedeas on security given are regulated by the Constitution, Art. 6, § 19, and Eevised Codes, Chap. 106, § 17.

A writ of error will not lie to the decision of a Court granting or refusing a nonsuit. May vs. Curry, 4 Harring. 265; Pettijohn vs. Bloxon, 1 Houst. 547.

The provision of the Constitution of Delaware, Art. 5, § 19, is only permission and not mandatory. It merely says, that a writ of error “ shall be no stay of proceedings in the Court to which the writ issues unless the plaintiff in error shall give sufficient security to the approver by a judge of the Court to which the writ issues. It does not say that “ upon giving sufficient security there shall be a stay of proceedings.”

*331Security thereupon only supplies that single condition to a supersedeas. It does not abolish or repeal this other condition laid down by the Courts thereto for the administration of justice namely, (1) that the judgment must be final; (2) that it must not appear to be for delay or vexatious. A writ of error brought when the judgment for the plaintiff or the demurrers to the third and fourth pleas being merely interlocutory and not final, is but vexatious and can only be brought for the purpose of delay and so should not be permitted by the Court to act as a swpersedeas.

Proceedings in error are only allowed to review first judgments. Powell, App. Pro. 187, §109; U. S. vs. Bailey, 9 Pet. 272; Kelly vs. Hunter, 12 Ohio 249; Kelley vs. Stanberry, 13 id. 421; Bradley vs. Bearp, 4 Ind. 186; Knapp vs. Marshall, 26 Ill. 63; Hobbs vs. Beckinth, 6 Ohio 262.

This rule excludes all decisions in interlocutory judgments and orders in the progress of the case to be considered in error before the first judgment. Powell, App. Pro. 188, § 111; Cathcart vs. Commonwealth, 37 Pa. 108; O’Hara vs. Penn, 2 Grant (Pa.) 241; Kelly vs. Stanberry, 13 Ohio 408. After final judgment and before execution, executed a writ of error -is, generally speaking, ad supersedeas of execution from the time of its allowance, provided bail, when necessary, be put in ad supersedeas. 2 Tidd, Prac. 1145,

A judgment for the plaintiff on demurrer is interlocutory merely and not final when the action sounds in damages, as in trespass trover, assumpsit, covenant, etc. 1 Tidd, Pr. 568. The plaintiff ought to recover his damages leaving the amount of them to be afterward ascertained. Id.

The proceedings which can be superseded by a writ, of error, and which alone are contemplated, are confined to executions or actions of scire facias or other proceedings to affect ah execution. No case can be found where a writ of error acted as a supersedeas so as to delay, hinder or obstruct the case going on to a final judgment.

*332A writ of error regularly sued out is a supersedeas of execution in the King’s Bench from the time of its allowance or in the Common Pleas from the delivery of it to the clerk of the errors, provided bail when requisite be put therein in due time.

But if it be apparent to the Court that the writ of error is brought merely for delay, they will not stay the proceedings. How this is to be made out depends upon the circumstances of each particular case. 1 Tidd, Pr. 530.

We think this is not a judgment to which a writ of error would lie.