Gutta Percha & Rubber Manufacturing Co. v. Mayor of Houston

Majority

p. 607

The Gutta Percha and Rubber Manufacturing Company, App’lt, v. The Mayor, Aldermen, etc., of the City of Houston, Resp’ts.^[1]

(Court of Appeals,

Filed January 24, 1888.)

Headnote

1. Attachment—In suit on judgment.

In a suit upon a binding judgment, whether foreign or domestic, the-plaintiff is entitled to the same provisional remedies as he would be entitled to in an action upon a contract express or implied.

3, Same—Code Crv. Pro., § 635 includes express and implied contracts.

Two Mnds of contracts are contemplated by Code Civ. Pro., § 635; ex press contracts which are such as are voluntarily made by the parties thereto, and implied contracts which, though not expressly made by the parties, are made by the law, where it imposes upon a party an obligation to pay a debt or discharge a duty.

8. Judgment is a debt and implies a promise to pay—When a contract.

After the recovery of a judgment, whether it was recovered for a tort or upon contract, the recovery becomes a debt which the judgment-debtor is under obligations to pay, and the law implies a promise or contract on his part to pay. A judgment is not for all purposes and under all circumstances to be treated as a contract.

4. Same—What merged in a judgment.

The plaintiff’s original cause of action was for a tort that was merged in the judgment, and the plaintiff could not thereafter sue in this state for the tort.

Appeal frem an order of the supreme- court, general term, first department, reversing an order of the special term denying a motion to vacate an attachment.

Pellón & Poucker, for app’lt; Michael H. Cardozo, for resp’ts.

The plaintiff commenced this action against the defendant in the supreme court of this state to recover the amount of a judgment rendered in its favor against the defendant in Texas, by a court in that state having jurisdiction of the action. For the purpose of obtaining an attachment against the defendant an affidavit was made on behalf of the plaintiff, in which it was stated, among other things, that the judgment was duly recovered in the Texas court; but there was no allegation in the complaint nor statement in the affidavit showing what the judgment was recovered for. The attachment having been granted, a motion was made to vacate it, on the ground that it did not appear for what the judgment was rendered, and hence

p. 608

that it may have been rendered in an action ex 'delicto, not embraced within section 635 of the Code, which specifies the only cases in which attachments can be granted against the property of defendants. The motion to vacate was denied by the judge who granted the attachment, and then the defendant appealed from his order to general term, and there the order was reversed and the attachment vacated upon the ground that, “the plaintiff’s papers did not show that the action was brought to recover a sum of money only, as damages for the breach of a contract express or implied, other than a contract to marry.”

A judgment is not, for all purposes and under all circumstances, to be treated as a contract; and yet it has frequently been so treated. There is always on the part of the judgment debtor an obligation or promise implied l)y law to pay the judgment. In Taylor v. Root (4 Keyes, 335), an action upon contract, it was held that a judgment in an action of slander could be set up as a counter-claim, for the reason that it was a cause of action arising on contract and existing at the commencement of the action. In Nazro v. McCalmont Oil Co. ( 36 Hun, 296 ), upon an appeal from an order of a special term denying a motion to vacate an attachment issued in an action brought upon a judgment recovered in the state of Pennsylvania, Davies, P. J., said: “We think a judgment is a contract, express or implied, within the meaning of section 635 of the Code of Civil Procedure.” In Donnelly v. Corbett ( 7 N. Y., 500 ), an attachment was based upon a judgment recovered against the defendant in a suit in the state of South Carolina.

Two kinds of contracts are contemplated by section 635; express contracts which are such as are voluntarily made by the parties thereto, and implied contracts which, though not expressly made by the parties, are made by the law, where, in enforcing a sound morality, a wise public policy acting upon principles of equity and justice, imposes upon a party an obligation to pay a debt or discharge a duty. After the recovery of this judgment, whether it - was recovered for a tort or upon contract, the recovery became a debt which the defendant was under obligations to pay, and the law implied a promise or contract on his part to pay. The previous cause of action, whatever it was, became merged in the judgment. Besley v. Palmer, 1 Hill, 482 ; Goodrich v. Dunbar, 17 Barb., 644 ; McButt v. Hirsch, 4 Abb. Pr., 441 ; Mallory v. Leach, 14 id., 449 ; Clark v. Rowling, 3 N. Y., 216 , 227; Sugdam v. Barber, 18 id., 468; Atlantic Dock Co. v. The Mayor, etc., 53 id., 64; Freeman on Judgments, §§ 216, 217.

This is not, therefore, an action ex delicto, but ex con

p. 609

tract-u, and the plaintiffs were entitled to such remedies only as are authorized in actions upon contracts. If the Texas judgment had been for tort, and the defendant had been a natural person, upon any judgment recovered in this action an execution could not have been issued against the person of the defendant.

We find nothing in the letter of the statute or in the policy upon which it is founded which requires us to hold that the plaintiff is not entitled to an attachment in this case, and we find no authority sustaining the contention of the defendant. There are authorities which hold that judgments for some purposes are not contracts, but there is no authority that they are never to be treated as contracts, and all of them recognize the implied obligation of every judgment-debtor to pay the judgment, and that for the purpose of actions and remedies upon them they are to be treated as contracts. O’Brien v. Young, 95 N. Y., 428 ; Chase v. Curtise, 113 U. S., 452 .

In a suit upon a binding judgment, whether foreign or domestic, the plaintiff must, therefore, be entitled to the same provisional remedies to which he would be entitled in an action upon a contract, express or implied.

If the plaintiff’s original cause of action was for a tort that Was merged in the judgment, and the plaintiff could not thereafter sue in this state for the tort; but even if he could there is no authority holding that he was obliged to, and he could not take his remedy in this state upon the judgment treating the tort as-merged therein.

We are, therefore, of opinion that the order of the general term should be reversed, and that of the special term affirmed, with costs in all the courts.

All concur.