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May 22, 1952


The opinion of the court was delivered by: TAMM

This is an action to recover money lent. The complaint alleges that Helen L. Adams and Earl M. Adams owe the plaintiff $ 26,929.36. Originally in this case, recovery was sought of both defendants, either jointly or severally, in this amount. Subsequent to the filing of the complaint, however, the cause as against Helen L. Adams was dismissed without prejudice.

The plaintiff in this action owned and operated a rooming house in 1946. At that time the defendant and his then wife, Helen Adams, were tenants of the plaintiff. Helen Adams represented to the plaintiff that she was the principal beneficiary of a sizeable estate in Illinois which was in the process of being probated and that in order to settle this estate she had to obtain some money. From time to time she requested the plaintiff to lend her money for this purpose. The plaintiff acceded to these requests and lent a total of $ 26,929.36 to Mrs. Adams and the defendant. Later the plaintiff learned that the representations of Mrs. Adams concerning the Illinois estate were false, and the latter was subsequently indicted for obtaining money under false pretenses. Upon a plea of guilty to this charge, Helen Adams was sentenced by this Court to prison.

 After the present complaint was filed in this Court, counsel for the plaintiff was unable to effect service of process on Helen Adams because of her confinement in a federal prison in Virginia. Consequently the case as against the defendant Helen Adams was dismissed without prejudice and the plaintiff then filed a similar complaint against Mrs. Adams in the United States District Court for the Eastern District of Virginia. Judgment was obtained in that Court in the amount of $ 22,365.45. That judgment has not been satisfied.

 For a further defense, the defendant argues that the plaintiff's judgment against Helen Adams in the federal District Court of Virginia bars this Court from entering a judgment against the defendant. In making this argument, the defendant contends that if he is obligated to the plaintiff at all, he is a joint obligor with Helen Adams on the debt.

 The rule of law on which the defendant relies may be found in United States v. Ames, 1878, 99 U.S. 35, at pages 44-45, 25 L. Ed. 255. It is there stated:

 '* * * Even without satisfaction, a judgment against one of two or more joint contractors is a bar to an action against the others, within the principle of the maxim transit in rem judicatem, the cause of action being changed into matter of record. King v. Hoare, 133 Mee. & W. 494.

 'Judgment in such a case is a bar to a subsequent action against the other joint contractors, because the contract being joint and not several, there can be but one recovery. Consequently the plaintiff, if he proceeds against one only of the joint contractors, loses his security against the others, the rule being that by recovery of the judgment, though against one only, the contract is merged and a higher security substituted for the debt. Sessions v. Johnson, 95 U.S. 347 (24 L. Ed. 596); Mason v. Eldred, 6 Wall. 231 (18 L. Ed. 783).'

 This statement of the general rule of law is, of course, accurate. This rule, however, is subject to exceptions. One of these is that where the joint obligors reside in different jurisdictions each may be sued in the state which has jurisdiction of his person or property and a judgment against one in one state is no bar to a recovery against the other in another state.

 Freeman in his treatise on Judgments, states:

 '* * * So, also, where a joint promise is made, by parties residing in different states, and probably in every case in which it is not possible to bring an action in any court before which all the joint obligors can be compelled to appear, a recovery against those within the jurisdiction of the court will not bar a subsequent action against those who were without such jurisdiction.

 'In all these cases it is evident that some modification of the doctrine of merger is indispensable to secure to plaintiffs the full benefit of their contracts. In the first case the parties liable could not be joined in one action. The plaintiff, therefore, showed no intention of releasing one party by pursuing the other. In the last case no judgment could be secured in any court binding on both promisors. To give a judgment against either the effect of a merger of the cause of action against both would therefore be to require plaintiff, without any fault of his, to abandon his remedy against a part of the co-obligors. In fact, it has been said that whenever a joint action is impossible, the general rule is inapplicable.' 2 Freeman, Judgments, ยง 570 (5th Ed., 1925).

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