Beazley's Adm'r v. Sims' Adm'r

Citations

• 81 Va. 644
• 1886 Va. LEXIS 131

Syllabus

<p>1. Practice at Common Law—Construction of statutes.—In an action ex contractu against several defendants, the common law rule was that all should be summoned actually, or constructively by prosecution to outlawry, before judgment could be had against any. Code 1873, ch. 167, sec. 50, changes this for another rule, whereby judgment may be had against one defendant served with process, and a discontinuance as to the others, or at the plaintiff’s election, subsequent service of process and judgment, in the same suit, against the other defendants. Bush v. Campbell, 26 Gratt. 438-9.</p> <p>2. Idem—Judgment—Discontinuance—Merger—Case at bar.—In 1866, S. sues M. and B. on their joint bonds. M. confesses judgment that day. Suit is suffered to abate as to B., who had never been summoned. S. having died, his administrator in 1879 brings a second suit on the bond against both obligors. They plead the former judgment in bar. This plea the court below rejects as to B., but admits as to M., and causes the action to proceed as a separate one against B., and renders judgment against him. Upon error—</p> <p>Held:</p> <p>The bond is merged in the judgment against M., and the second action is barred by the recovery in the first.</p>