Lilly-Brackett Co. v. Sonnemann

MELVIN, J.

Plaintiff brought suit upon a judgment against defendant obtained in the state of Massachusetts. Defendant answered alleging that a judgment, based upon the Massachusetts judgment, had been obtained by plaintiff against him and had become final in the state of Washington. The court gave judgment for plaintiff on the pleadings and from it this appeal is taken.

The only question presented is whether or not the judgment rendered in Massachusetts was merged in the judgment based upon it which was given in favor of plaintiff in Washington. This is a new question in California, so far as we are advised, and the authorities in other jurisdictions are in conflict. Appellant in commending to our attention the authorities favoring the theory of merger says that if the original judgment or “debt of record” is to remain of full vitality in the state in which it was originally obtained and judgments in other states based upon it are also to be enforceable, a debtor may be harassed in various states in which he may own property and prevented from selling it to advantage by the existence of the creditor’s judgments. Respondent’s answer is that this hardship may be avoided by the payment of the debt. (Ames v.

Hoy,

12 Cal. 19.)

In 23 Cyc. at page 1474 the rule is thus stated: “According to the weight of authority, where an existing judgment is sued on as a cause of action, and a new judgment recovered on it, there is no merger of the first judgment, nor is it extinguished without satisfaction of the second.” Lawson in his work on

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Bights, Remedies and Practice (vol. 5, p. 2580) says: “No merger takes place where the two securities are of equal degree.” The leading case holding the contrary doctrine has been followed in some jurisdictions by the courts and adopted as convincing authority by some text-writers. In 92 Am. St. Rep. at page 778 is a note reviewing the decisions and announcing the better rule to be that a judgment is extinguished when by its use as a cause of action it grows into another judgment. This view is also approved by Mr. Freeman in his work on Judgments (as indicated in the note in 92 Am. St. Rep. cited above), and to the same effect is the text in 15 Am. & Eng. Ency. of Law, p. 336. After stating this doctrine and the authorities for it, the supreme court of Colorado in