Gilman v. Rives
35 U.S. 298

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U.S. Supreme Court

Gilman v. Rives, 35 U.S. 10 Pet. 298 298 (1836)

Gilman v. Rives

35 U.S. (10 Pet.) 298

Syllabus

Gilman obtained a judgment in an action of debt instituted in the circuit Court of Kentucky against Rives and Lyric, and he instituted a suit against Rives on the judgment, in the Circuit Court of West Tennessee. The declaration stated the judgment to have been joint, against Rives and Lyric, and no reason was assigned in it, why Lyne was not a party to the suit. The defendant, Rives, demurred, and the circuit court sustained the demurrer. The judgment of the circuit court was affirmed.

Generally speaking, all joint obligors, and other persons bound by covenants, contract, or quasi-contract, ought to be made parties to the suit, and the plaintiff may be compelled to join them all by a plea in abatement for the nonjoinder. But such an objection can only be taken advantage of by a plea in abatement, for if one party only is sued, it is not matter in bar of the suit or in arrest of judgment upon the finding of the jury, or of variance in evidence upon the trial. But the same doctrine does not appear to have been acted upon to the full extent in cases of recognizance and judgments and other matters of record such as bonds to the Crown. If in cases of this sort it appears by the declaration or other pleadings that there is another joint debtor who is not sued, although it is not averred that he is living, the objection need not be pleaded in abatement, but it may be taken advantage of upon demurrer or in arrest of judgment.

A judgment that a declaration is bad in substance (which alone, and not matter of form, is the ground of a general demurrer) can never be pleaded as a bar to a good declaration for the same cause of action. The judgment is in no just sense a judgment upon the merits.

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