The sole question presented in the appeal is whether the running of the statute was arrested as to all the partners by the institution of the original action, or (308) continued for the protection of the appellee, because not prosecuted by the issue of an alias summons against him.
The preceding section of The Code makes separate provisions for prosecuting the action on liabilities that are joint and liabilities that are several, and it is to the former that the four following sections apply. Under the rules of pleading, according to our former system, if the action was upon a joint contract and the plaintiff took judgment against a part only of those liable, there could be no recovery in a subsequent suit against those omitted, for the reason that the contract was merged in the judgment, while not being parties to the judgment, they were not bound by its rendition.
It was otherwise as to contracts that created a several liability, and to such, as in case of torts, a judgment against one or more, left their separate liabilities in force, and then exposed to a subsequent action in like manner as if no judgment had been rendered against the others.
To obviate the legal consequences of a judgment against some of the joint obligors in extinguishing, through the merger, the cause of action against the others, is the manifest purpose of this innovating legislation introduced in the new system of pleading and practice. Such is the view taken by Mr. Freeman in his work on Judgments, and in our opinion it is a correct view. Secs. 231, 233, 234.
In this State contracts, whether made by copartners or other joint obligors, were made several by statute, and the plaintiff could sue one or more at his election without impairing his right to proceed against the others afterwards. Rev. Code, ch. 31, sec. 84. This enactment was not introduced in C. C. P., and hence the principle governing contracts as construed at common law being restored, the necessity arose of providing the remedy contained in that Code. The omitted section, which in Merwin v.Ballard, 65 N.C. 168, was decided to have been repealed, was enacted at the session of the General Assembly of 1871-'72, ch. 24, sec. 1, and now constitutes sec. 187 of The Code. *Page 274
(309) The result is to render contracts joint in form, several in legal effect, and to neutralize, if not displace, those provisions which operate only upon contracts that are joint and pursuant to which the present proceeding is conducted.
That the contract possesses the two-fold quality of being joint as well as several in law, cannot render available provisions which, in terms, are applicable to such as are joint only. It is solely to remove the resulting inconveniences of an action prosecuted to judgment against part of those whose obligation is joint only, that the remedy is provided, and it becomes needless when the obligation is several also. Such is the construction adopted in the courts of New York. Stannard v. Mattin, 7 How. Pr., 4; Lakeyv. Kingan, 13 Abb. Pr., 192.
We are then constrained to regard the issue of the summons against the appellee as the beginning of a new suit, and the action as open to every defense which could be set up if there had been no previous recovery of the other partners.
If sec. 224 is so construed as to cut off any defenses which the appellee might have and, when he has had no day in court and no notice of the suit against his associate partners, subject his individual property to the payment of the firm debt, it would be, to say the least, a harsh measure, which we should be reluctant to attribute to the Legislature as an intended result, without a very clear declaration of such intent in the statute. It permits, in cases where the proceeding may be authorized, the setting up any defense that may have arisen thereto, "subsequently to such judgment," and literally, such would be the statutory bar that since became, and was not when that action begun, a defense. But it is not necessary to pass upon this point.
There is no error, and the judgment must be affirmed.
No error. Affirmed.
Cited: Koonce v. Pelletier, 115 N.C. 235; Davis v. Sanderlin,119 N.C. 87; Gorham v. Cotton, 174 N.C. 729.
(310)