Simpson v. Cochran & Cherrie

Wright, JT.

1. judgment: blank recovery: merger, It is questionable, to say the least, whether the judgment of Dec. 13, 1861, operated to dis-place or merge plaintiff’s right of action on r f r & the note. There is certainly no recovery for a specific amount. The order is, that plaintiff recover, but the amount thereof is left blank. And under such circumstances it was the right of the plaintiff, under section 2935 of the Nevision, to declare as he has, claiming to recover but for one of such causes. Defendants had their election to allow judgment to go against them on either of such causes, or to contest both; and plaintiff if entitled to recover on either, might do so, or if he had recovered on both, would have been driven to his election; and the recovery on one would be in bar of the other. Some of the members of the court are of the opinion that the first recovery was so wanting in form and substance, that plaintiff had a right to sue as he has, and that he should have had judgment; while others, including the writer of this opinion, neither admitting nor denying the correctness of this view, put the reversal upon the single ground that, assuming the full validity of the first recovery, plaintiff might bring a new suit upon it and recover.

2. — domestic: action . upon. In other words, that á judgment, whether domestic or of another State, gives to the party in whose favor • rendered, a complete right of action; that it is a w . _ contract of the highest character, and he may declare upon it and recover as upon any other contract. The right to execution thereon is merely cumulatory, and the law does not deny the right of action on a judgment, *83 if the holder elects that remedy. Headley v. Roby, 6 Ohio, 521, where the point is expressly ruled. So it is in Greathouse v. Smith, 3 Scam. 541 ; which, as is this, was an action upon a judgment recovered in the same court. There, it was expressly held, that no rule of law is better settled than that an action may be maintained on a judgment; that there was no principle which inhibits the creditor, on a judgment which is in force and unsatisfied, from recovering in an action brought on it, although he may at the time of bringing sujt be entitled to an execution on his judgment; that his right to recover is clear, and the court has no power to prevent him. And see Denison v. Williams 4 Conn., 402 ; Jackson v. Shaffer, 11 Johns. 513 ; Millard v. Whittaker, 5 Hill, 408 ; Andrews v. Smith, 9 Wend. 53 ; Haven v. Baldwin, 5 Iowa, 503 ; Thomson v. Lee County, 22 Id. 206; 12 California, 11; 16 Id. 372; 29 Vermt. 332; 18 Alabama, 519; 33 Id. 659; 14 Mass. 237 ; 3 Black. Com. 160.

Now, it is conceded that an execution might, under our statute, have issued on the first judgment (assuming its validity) at any time before it was barred by the statute of limitations, and that it would not be thus barred for twenty years from the date of its rendition, itev. §§ 2740, 3246.

The lien continues, however, but for ten years. § 4109. It is also conceded that the creditor might, by sci/re facias, preserve the lien of the judgment.

But if, instead of doing this, he prefers to take a new judgment, we know of nothing under the statutes of the State to prevent it. Whether he acquires any new rights thereby, or, if any, what, or whether he surrenders any, are questions not now before us. What control, if any, the courts have over the» question of costs, is also a question not now necessary to consider.

The defendants have a clear escape from what is appar *84 ently, and probably in some cases would be, vexatious and oppressive litigation, by discharging tbe debt, and thus ending tbe controversy. But, so long as tbe debt is unsatisfied, tbe creditor may, if be so desires, bave a second judgment. Tbe remedy, if any is deemed advisable, is with tbe legislature.

Reversed.