People v. Frisbie

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

This is a suit brought under the provisions of an act passed in April, 1861, to provide for the collection of delinquent taxes in the county of Contra Costa, etc. The case of the People v. Seymour (16 Cal. 332) is decisive of the right of the plaintiffs to maintain the action; and the complaint contains all the allegations necessary to entitle them to recover. The defendants interposed, separate defenses, but Castro alone filed an answer ; Frisbie, relying upon a demurrer to the complaint, declined to make any other defense. On a trial of the issue as between the plaintiffs and Castro, the latter recovered judgment; and a judgment was thereupon entered in favor of Frisbie also. This was done on the ground that the plaintiffs having failed as against Castro, were not entitled to a several judgment against Frisbie. Their right to such a judgment is the only question raised by the appeal.

The matter in controversy is in the nature of a debt, and the rules of practice prevailing in cases of contract must govern our determination of the question before us. This is the view upon which the case is argued on behalf of the respondent, but we think the conclusion arrived at cannot be maintained. It rests upon a technical rule of the common law, and although this rule is perhaps not entirely abrogated by our statute, we have recently held that its operation has been materially modified and restricted. The statutory provisions upon the subject were taken literally from the Code of Procedure of New York; and it is settled by a uniform course of decisions in that State, that in cases of contract involving professedly a joint liability, the common law rule requiring a recovery against all of the defendants or none, does not apply. “ When two defendants,” said the Court, in Claflin v. Butterly, [404](5 Duer, 327) “ are sued jointly on a contract which on its face is the joint contract of both, but which in legal effect was, at all times, the contract of one only, a judgment may be rendered against the party liable, and in favor of the other.” Several cases to the same effect are cited in the opinion of the Court; and among them, the case of Brumskill v. James, (1 Ker. 294) in which the Court said: “ The defendant relies upon the general rule of the common law, that where a joint contract is the subject of the suit, the recovery must be against all the defendants, or neither. This was the inconvenience which the provisions of the code was designed to remedy.”