If, then, the judgment is a contract, it gives Whittemore no
right to sue in the courts of the United States for New York. There
is some conflict in the authorities as to whether a judgment
eo
nomine is a contract. In 1 Story on Contracts, sec. 2, they
are divided into three classes, in the first of which judgments are
mentioned with recognizances, statutes staple, &c. It is,
however, permissible in all cases, where justice requires it, to
inquire into the nature of the demand on which the judgment was
rendered. If rendered on a contract, the judgment
Page 104 U. S. 249
is a contract, the nature and extent of the liability having
been thereby judicially ascertained.
The bill in this case alleges that "the debt on which this
judgment was recovered accrued in the year 1858." It was,
therefore, recovered on a contract, and the present suit is a suit
to give a remedy on that contract, and any decree rendered in favor
of the complainant would be intended to enable him to recover the
money due on the contract.
The circuit court, if the judgment of Chester had been there
recovered, might have jurisdiction of the case to remove
obstructions to the enforcement of its own judgment, no matter who
for the time being was its owner. But where a party comes for the
first time in a court of the United States to obtain its aid in
enforcing the judgment of a state court, he must have a case of
which the former court can entertain original jurisdiction.
Christmas v.
Russell, 5 Wall. 290.
It remains to be seen whether the suit can be prosecuted further
on the part of Walker.
A very learned argument, with a review of the authorities, is
made by counsel for the appellants to show that it is not essential
to the relief sought that there should be a judgment and an
execution returned
nulla bona.
We do not think it necessary to enter upon the consideration of
that question as the case is presented to us.
If what we have already said of the standing of Whittemore is
sound, the bill is liable to the objection of multifariousness --
one of the points specified in the demurrer -- on almost every
ground on which that objection may be taken to a bill in
chancery.
1. There is a misjoinder of parties complainant.
There are but two complainants. Whittemore, as we have seen, has
no standing in the court, and is therefore improperly joined with
Walker, if Walker has such a standing, and the defendants cannot be
required, in litigating with Walker any right he may have against
them, to contest with Whittemore, who on his own showing has no
right in that court. It is true the difficulty could have been
removed if Whittemore had by an amendment been dismissed from the
case. This might have been done after the demurrer was sustained.
But
Page 104 U. S. 250
no such leave was asked, and the bill, as it originally stood,
was dismissed.
2. The causes of action and the relief sought in regard to
Congress Hall and the other property are distinct, in some respects
antagonistic, and such as cannot properly be joined in the same
suit. Whittemore seeks to have his title established in regard to
Congress Hall, and the cloud on it created by the fraudulent sales
and conveyances removed, so that he may be declared to be the owner
of that property. In this matter no one is interested but himself
and one of the defendants. The prayer of the bill is that the other
property may be subjected to the payment of Stewart's debts, and in
this Walker and all the other creditors of Stewart are interested,
and Ten Eyck also as defendant.
A case bearing a strong analogy to the one before us is
Emans v. Emans, 14 N.J.Eq. 114.
After a partition of real estate among part owners, a
controversy arose as to its fairness, which was submitted to
arbitrators. They awarded that the defendant should convey to the
complainant 23.30 acres to equalize the partition. The bill prayed
that the defendant might be decreed specifically to perform the
award; if not, that the court should declare how much more and what
lands he should convey to make the partition equal, and lastly for
general relief. On demurrer for multifariousness, the court
says:
"The leading object of this bill is to enforce specific
performance of an award of arbitrators. The submission to
arbitration related to the fraud or unfairness of a partition of
certain lands devised to the parties, and included the power of
making a just partition. A new partition was in fact made. If the
award cannot be enforced, the bill further asks that the court will
relieve against the unfairness or fraud of the partition. Now it is
apparent that these are matters of a distinct character. The one
relates to the validity of the submission and award and the power
and propriety of enforcing a specific performance, and the other to
the equity and fairness of the partition. The matters involve
totally distinct questions, requiring different evidence and
leading to different decrees."
Another analogous case is
Sawyer v. Noble and Randall,
55 Me. 227.
Page 104 U. S. 251
Sawyer and Noble were partners. The bill charges Noble with many
improper transactions justifying a dissolution of the partnership,
and, among others, a fraudulent and pretended sale of the stock in
trade and the goodwill of the business to Randall, his
co-defendant. It prays that this sale may be set aside and the
partnership dissolved and an account and settlement be had between
the complainant and Noble. The court says:
"It is obvious that Randall is in no way interested in the
partnership affairs of Sawyer, and that the settlement of the
affairs of the firm and the rescission of a fraudulent sale are
distinct and unconnected matters, and properly to be determined in
separate suits."
By multifariousness
"is meant the improperly joining in one bill distinct and
independent matters, and thereby confounding them -- as, for
example, the uniting in one bill of several matters perfectly
distinct and unconnected against one defendant, or the demand of
several matters of a distinct and independent nature against
several defendants in the same bill."
Story, Eq.Pl., sec. 271. In Daniell's Chancery Practice 335, it
is said in explanation of this that
"it may be that the plaintiffs and defendants are parties to the
whole of the transactions which form the subject of the suit, and
nevertheless those transactions may be so dissimilar that the court
will not allow them to be joined together, but will require
distinct records."
3. It seems to us also, though of that we are not quite so sure,
that if this real estate is to be subjected to the payment of
Stewart's debts, Frederick S. Stewart, Helen W. McConnell, and
Adeline M. Johnson, who are alleged to be his only heirs and the
devisees in his unprobated will, should be parties to the bill. The
mere allowance of the debt of Walker by the probate court is not
conclusive evidence against them in a suit to reach the real estate
of their ancestor and devisor.
The state where the lands sought to be reached are situate has
by statute enabled her courts to entertain jurisdiction of
necessary parties not within reach of process, and greatly modified
the rules of practice and pleading. It is possible that this bill
or some part of it might, by making additional parties, be
sustained in one of her courts. But we are satisfied
Page 104 U. S. 252
that the effort to prosecute it in the circuit court of the
United States, with the misjoinder of some parties and the
nonjoinder of others -- with the connection of matters totally
distinct in the right asserted and the relief sought -- and with
the principal party complainant entitled to no relief there, is
attended with insuperable difficulties, and that the bill was
properly dismissed.
Decree affirmed.