The plaintiffs were nonsuited at the trial upon the ground that the judgment, recovered in the State of Missouri, against Barber, in an action there commenced against him alone, merged and extinguished the *Page 470 original demand of the plaintiffs against him and the other parties who are in this action joined as defendants with him.
This was the main and controlling ground of the judgment appealed from; for unless it can be upheld on this ground it is difficult to see how the mere formal satisfaction of the judgment against Barber, which appears, by the contemporaneous bond referred to in the entry as the attorney's authority to satisfy, to have been founded on no actual satisfaction or extinguishment of the debt, but only upon a conditional compromise not shown to have been carried out, can be available to these defendants.
I shall assume, for the purpose of considering the question stated, that the suit brought against Barber in Missouri was founded, not upon a separate and special promise by him to repay to the plaintiffs the money which they should advance in paying the drafts of the present defendants, but upon the promise implied, by law, as to him and the other defendants, from the circumstance that the plaintiffs had, at their request and without funds furnished by them, advanced money to them by paying the drafts in question.
According to the common law of this State, a judgment against one of several joint debtors, obtained in an action against him alone, is a bar to an action against the others. (Robertson v.Smith, 18 John., 459; Pierce v. Kearney, 5 Hill, 82;Olmstead v. Webster, 4 Seld., 413.) 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." This is plainly founded upon the nature and force of a judgment under our law, and not upon the idea that the creditor is deprived of his right for any other reason than that by the first suit and judgment he has placed himself in a position where he is unable, legally, to assert or enforce his demand. We can easily conceive that the legislature might alter this rule, and enact that a judgment against one of several debtors should *Page 471 have no such effect. Such a law would be a mere modification of the remedy afforded by our own legal process, and would be within the legislative authority of the State. These observations are made as showing that the consequences of a judgment, in respect to its effect as a merger or extinguishment of the original demand, are a part of the law under which the judgment itself is rendered, just as much as are those other common consequences of judgments, that a party may have execution upon them and that they are not reëxaminable on the merits of the controversy determined by them.
In all these particulars, the effect of a judgment, in the government where it is rendered, is the subject of positive regulation by that government, just as it is the subject of positive regulation by what process and what courts judgments shall be rendered at all.
The case of Besley v. Palmer (1 Hill, 482), is not at all in conflict with these views. In that case a judgment had been recovered in Indiana, against L.P. Sanger, in a suit on a note against him and two others, in which he alone had been arrested, and the Supreme Court held that the judgment extinguished the simple contract debt as to him. Judge COWEN proceeds: "We are told this is the judgment of a neighboring State. But who can deny, since Mills v. Duryee (7 Cranch, 481), and Hampton v. McConnell (3 Wheat., 234), that a judgment in one of our sister States must be holden to work the same effect upon the original demand as if it were obtained in this court? At least the declaration shows no debt, valid within the attachment law, against L.P. Sanger." The action was on an attachment bond, and it was held that the attachment could not be sustained because, first, judgments of other States were not demands to which, as judgments, the terms of the statute could be extended; and, second, the contract of L.P. Sanger was merged in the judgment against him. The court assumed that the law of Indiana did not, in this respect, differ from the law of New York, as in the absence of proof *Page 472 they were bound to do; and then applying the settled rule that, under the constitution and laws of the United States, the judgments of the courts of any State are to have in every other State the same faith and credit which belong to them in the State where they were rendered, the consequence necessarily followed, that a merger had taken place as to L.P. Sanger.
While the rule just stated as to the effect of judgments of one State in the courts of another is clear, as is established by the cases cited by Judge COWEN, and by numerous others, yet no case can be found where a greater effect is given to the judgment of any State in the courts of another than belongs to it in the State where it was rendered. Indeed, such a rule would be against all reason, and not only out of the policy of the provisions of the constitution and laws of the United States on that subject, but against and irreconcilable with all policy and with the plainest and fundamental principles of justice.
Now it appears, in this case, that by the statutes of Missouri in force at the time when the suit was instituted, which gives rise to the present question, it was enacted as follows: "All contracts which by the common law are joint only, shall be construed as joint and several.
"In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable."
It was held in the Superior Court that, upon these statutes, no merger or extinguishment would have taken place in Missouri, so as to have there discharged the persons, other than Barber, who were bound by the original obligation. Of this we think there can be no doubt; for any other construction would deprive the sections quoted of all beneficial effect. We are, therefore, of opinion that the same effect only should have been given to these sections and the judgment obtained in pursuance of them, in this action. *Page 473
The only defendant appearing in this case is Girty. If he shall object that there is at least a merger as to Barber, against whom judgment has been rendered in Missouri, the answer is that under the Code, the joinder of a defendant, not liable at all in the action, is not a ground of defence to any one but the party not liable.
The judgment should be reversed and a new trial ordered, costs to abide the event.
COMSTOCK, DENIO, ROOSEVELT, PRATT and STRONG, Js., concurred.