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CHAPTER LXXXVII.

JUDGMENTS.

ARTICLE I.

OF ACTIONS UPON JUDGMENTS.

Morse v. Toppan, 3
Thus, a judgment

Section 1. In general. Judgments are either interlocutory or final. A final judgment is the final determination of the rights of the parties in an action. This is the definition adopted under the Code statutes of several of the States. A final decree may be defined as the final determination of the rights of parties in a suit conducted according to the methods and principles of courts of equity. Where, however, but one form of civil action is known, as under the Code system, the term "judgment" includes decrees in equity. A judgment has been said to be a contract. Gray (Mass.), 411; Stuart v. Lander, 16 Cal. 372. is regarded as a contract within the meaning of the statute giving justices jurisdiction of actions arising on contract for the payment of money. McGuire v. Gallagher, 2 Sandf. (N. Y.) 402. Whether the obligation of a contract be regarded as arising from an implied contract, or from the legal effect of the judicial determination irrespective of any implication of consent, it is still such an obligation as will sustain an action of debt and furnish the highest and most satisfactory evidence to support the action. The right of action seems, however, to arise from the existence, not of a contract, but of a circumstance, namely, the recovery of a judgment, which enables the plaintiff to sue the defendant as if there had been a contract between them; i. e., it is a right quasi ex contractu. Dicey on Parties, p. 16.

A judgment creditor has a common law right to sue upon his judgment as soon as it is rendered (Hale v. Angel, 20 Johns. 342; Smith v. Mumford, 9 Cow. 26; contra, Pitzer v. Russel, 4 Oreg. 124; Smith v. Belmont, etc., Iron Co., 11 Bush [Ky.], 390), even though the judgment be for costs merely. Ives v. Finch, 28 Conn. 112; Denison v. Williams, 4 id. 402. And this is true quite irrespective of the fact that the judgment may be enforced by other remedies, as by execution. Simpson v. Cochran, 23 Iowa, 81; Thomson v. Lee

County, 22 id. 206; Haven v. Baldwin, 5 id. 503; Clark v. Goodwin, 14 Mass. 237; Linton v. Hurley, 114 id. 76; Headley v. Roby, 6 Ohio, 521. The arrest of the judgment debtor, so long as it continues, is a defense (Chapman v. Hatt, 11 Wend. 41; Kinsman v. Page, 22 Vt. 628); but an arrest, after the action on the judgment was commenced, was held not to prevent a recovery on the judgment. Moor v. Towle, 38 Me. 133. After a valid levy under an execution on the judgment, the right of action on the judgment is suspended. Lawrence v. Pond, 17 Mass. 433. The action may be brought before the expiration of the time allowed to the sheriff to return the execution, if the execution has been in fact returned. Renaud v. O'Brien, 35 N. Y. (8 Tiff.) 99.

Actions on domestic judgments are not favored (Biddleson v. Whitel, 1 W. Black. 507); because they ordinarily serve no purpose which could not be secured by a more simple and less costly method. Burnes v. Simpson, 9 Kan. 663. Hence under the English statute (43 Geo. 3, ch. 46, § 4), the plaintiff in an action on a judgment is not entitled to costs except by special order, and in some of the States no such action can be maintained unless special leave of the court is first obtained (see post, 187, § 4); but a foreign judgment can be enforced only by action. Succession of Beckham, 16 La. Ann. 352. Indeed, the only effect of a foreign judgment, outside of the jurisdiction of the court in which it is rendered is, that it entitles the plaintiff to a new decree. Davis v. Headley, 22 N. J. Eq. 115, 121.

In an action upon a judgment, in a case where the judgment roll has been lost or destroyed, secondary evidence may be given of its contents. Mandeville v. Reynolds, 68 N. Y. (23 Sick.) 528.

§ 2. Who may sue. The right of action on a judgment in favor of the original plaintiff exists as a matter of course, subject to restrictions by statute. See ante, 184, § 1; post, 187, § 4.

But at common law a judgment is not assignable so as to authorize the assignee to maintain an action on it in his own name. The action is properly brought in the name of the judgment creditor. Goodrich v. Stevens, 116 Mass. 170; Moore v. Coughlin, 4 Allen, 335; Elliott v. Waring, 5 Monr. (Ky.) 338; Triplett v. Scott, 12 Ill. 137. See Tufts v. Braisted, 4 Duer (N. Y.), 607. But under the provision of the Code, that every action shall be prosecuted in the name of the real party in interest, the assignee of a judgment may maintain an action in his own name. Tufts v. Braisted, 4 Duer (N. Y.), 607; Charles v. Haskins, 11 Iowa, 329.

In Kentucky it has been held that the assignee of a judgment has no VOL. IV.-24

right to a second judgment, but must proceed upon the first. Smith v. Belmont & Nelson Iron Co., 11 Bush (Ky.), 390.

The assignee of a judgment, however, takes it subject to all the equities between the original parties. Scott v. Harkins, 32 Ga. 302; McJilton v. Love, 13 Ill. 486; Robeson v. Roberts, 20 Ind. 155; Blakesley v. Johnson, 13 Wis. 530. See McCotter v. McCotter, 16 Abb. Pr. (N. Y.) 265; Starr v. Haskins, 26 N. J. Eq. 414.

Upon the death of a judgment creditor, the right to enforce the judgment passes to his personal representatives. And this right is enforceable at common law, both by the writ of scire facias, and by an action of debt on the judgment. Carter v. Colman, 12 Ired. 274. No execution upon the original judgment can issue; a new proceeding is therefore essential (Jay v. Martine, 2 Duer, 654; Thurston v. King, 1 Abb. [N. Y.] 126; Cameron v. Young, 6 How. [N. Y.] 372); and the statutory provisions requiring leave to sue upon judgment do not apply to such actions. Smith v. Britton, 45 How. (N. Y.) 428; Wheeler v. Dakin, 12 id. 537.

A judgment recovered in favor of one person by mistake for another, cannot be sued upon by the latter even though the mistake be proved. Gilbert v. Hanford, 13 Mich. 40.

§ 3. Who may be sued. A judgment is conclusive upon the parties to the action and their privies. At common law, it is said that a judgment does not survive the defendant against whom it is rendered. By no means known to that law can a judgment be enforced against the administrator of a deceased debtor. As to him, its character as a judgment is functus officio. Freeman on Judg., § 438. A remedy against this defect is, however, provided by writ of scire facias, and in all the States, ample remedies are provided for enforcing judgments against the estates of deceased judgment debtors.

A judgment against an administrator will not support an action against the heir or devisee, because there is no privity between them (McCoy v. Nichols, 4 How. [Miss.] 31; Robertson v. Wright, 17 Gratt. 534; Dorr v. Stockdale, 19 Iowa, 269); although it furnishes prima facie evidence against the realty (State v. Lineberger, 59 Penn. St. 308; Sergeant's Heirs v. Ewing, 36 Penn. St. 156); but a judgment against the administrator will not support an action against the administrator and heir. Nourse's Adm'r v. Ramsey, 2 Bibb (Ky.), 547.

A judgment, void as against one joint debtor, cannot be enforced against the other. Hall v. Williams, 6 Pick. 232; Mackay v. Gordon, 34 N. J. Law, 286.

A judgment against two is to be regarded as a joint judgment.

Mahaney v. Penman, 4 Duer (N. Y.), 603; Barnes v. Smith, 16 Abb. Pr. (N. Y.) 420. But see Read v. Jeffries, 16 Kans. 534. § 4. Leave to sue. As we have already seen, the recovery of a final judgment creates an immediate right of action on the judgment in favor of the judgment creditor. He may, in this way, multiply actions against the debtor and increase the costs unnecessarily without any substantial advantage in the collection of the debt. In most, if not in all of the States, this right of a judgment creditor has been limited either by requiring him, upon good cause shown, to obtain the leave of the court before bringing an action, or by depriving him of costs. Thus in New York, it is provided (Code, § 71) that no action shall be brought upon a judgment rendered in any court of this State, except a court of a justice of the peace, between the same parties, without leave of the court for good cause shown, on notice to the adverse party; and no action on a judgment rendered by a justice of the peace shall be brought in the same county, within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed.

This provision does not, however, apply to a bona fide assignee of the judgment who may still sue without leave (Tufts v. Braisted, 4 Duer, 607; S. C., 1 Abb. Pr. 83; McButt v. Hirsch, 4 id. 441; Kopper v. Howe, 2 Hilt. 69); or to an action by an executor or an administrator of a deceased judgment creditor. Smith v. Britton, 45 How. (N. Y.) 428; Wheeler v. Dakin, 12 id. 537.

The leave to sue need not require the suit to be brought in the court in which the judgment was rendered. Nat Mechanics' Bank Ass. V. Usher, 1 Sweeny (N. Y.), 403.

If an action be brought without first obtaining the leave of court, it is an irregularity merely (Lane v. Salter, 4 Robt. [N. Y.] 239) to be taken advantage of by motion to set aside the summons and complaint. Finch v. Carpenter, 5 Abb. Pr. (N. Y.) 225; contra, McGuire v. Gallagher, 2 Sandf. (N. Y.) 402.

§ 5. Upon what judgments. It is a final judgment only, that will support an action, an interlocutory judgment will not do so. Ledyard v. Brown, 39 Tex. 402; S. C., 28 id. 393; Dimick v. Brooks, 21 Vt. 569. Thus a judgment of foreclosure, directing the sale of the property and the payment of any deficiency by the defendant, is not a final judgment upon which an action can be maintained against the defendant for the deficiency, until a judgment has been docketed against the de

fendant. Hanover Fire Ins. Co. v. Tomlinson, 3 Hun (N. Y.), 630. So, an action cannot be maintained upon a judgment of a foreign court, in replevin, for the return of goods or the recovery of their value. Thorner v. Batory, 41 Md. 593.

Judgments are either foreign or domestic, and are rendered either by courts of general and superior jurisdiction, or by courts of limited and inferior jurisdiction. They are also distinguished as being in rem, or in personam. These distinctions must be borne in mind in considering the right of action.

§ 6. Judgments in rem. Several definitions of judgments in rem have been attempted, none of which are satisfactory. Freeman on Judgments, § 606. For the present purpose it is enough to state the legal effect of such a judgment and the conditions upon which i is based. These are well expressed by Mr. Justice BLACKBURN in the case of Castrique v. Imrie, L. R., 4 H. of L. 414, 429. He says: "We think the inquiry is whether the subject-matter was so situated as to be within the lawful control of the State under the authority of which the court sits; and secondly, whether the sovereign authority of that State has conferred on the court jurisdiction to decide as to the disposition of the thing, and the court has acted within its jurisdiction. If these considerations are fulfilled the adjudication is conclusive against all the world." Story's Confl. of Laws, § 618 e.; Grignon's Lessee v. Astor, 2 How. (U. S.) 319; 338; Peters v. Warren Ins. Co., 3 Sum. (C. C.) 389; S. C., 14 Pet. 99; Magoun v. N. E. Ins. Co., 1 Story, 157. Such has always been the rule with respect to proceedings in rem in the admiralty. Magoun v. N. E. Ins. Co., 1 Story, 157; Peters v. Warren Ins. Co., 3 Sum. (C. C.) 389; S. C., 14 Pet. 99; Grant v. McLachlin, 4 Johns. 34; The Mary, 9 Cranch, 126; Hudson v: Guestier, 4 id. 293; Williams v. Armroyd, 7 id. 423; Whitney v. Walsh, 1 Cush. 29. A judgment in rem, however, while it binds the property against all the world, does not, if the defendant does not appear and defend the suit, go further, and it cannot be made the basis of an action, even in the State where it is rendered, to obtain satisfaction out of other property. Eastman v. Wadleigh, 65 Me. 251; 20 Am. Rep. 695; Easterly v. Goodwin, 35 Conn. 273. Nor will it support a personal action against a defendant in a foreign court. Arndt v. Arndt, 15 Ohio, 33; Mc Vicker v. Beedy, 31 Me. 316. This is happily illustrated by SANDFORD, V. Chan., in Monroe v. Douglas, 4 Sandf. Ch. (N. Y.) 134, 182. He says: "It is to be borne in mind, that the effect of a judgment in rem, is wholly distinct from its effect against the person of the defendant. It may be entirely conclusive as to the former, and yet be inefficacious for any purpose, in personam, either in a foreign tribu

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