Davidson v. Bond, 12 Ill. 84 (1850)

Nov. 1850 · Illinois Supreme Court

12 Ill. 84

Amy Davidson, Admtx, &c., et al., Pltffs in Error, v. Benjamin Bond, et al., Defts in Error.

ERROR TO OLIITTOir.

A party may have his judgment reversed, if the judgment below was exparte, and the errors which render it inoperative are patent.

It is error to render judgment against a part of the defendants, while the cause remains undisposed of as to the others.

The record in this case shows, that William Russell, now deceased, in his life túne, by his attorney filed in the office of the clerk of the Circuit Court of Clinton County a precipe and declaration in assumpsit, on the 16th day of June, 1846, against several defendants. A summons was issued, returnable at the September term, 1846, of that Court, which was returned served, on four of six defendants, on the return day of the summons, and returned not served on the other two. On the following day, an appearance was entered for four of the defendants, and subsequently a default for failing to plead was entered, and judgment was rendered against four of the defendants without making any order as to the other two.

The plaintiffs below sued out this writ of error, to procure a reversal of their own judgment.

Gr. Trumbull, for plaintiffs, made the following points :

The Court erred in rendering judgment at thé return term of 'the process against the defendants in the judgment, they not having been served with process ten days before the commencement of the term of Court, and the ten days’ notice not having been waived by the defendants against whom the judgment was entered. Gore v. Smith, Breese, 206; R. S. 1845, p. 413, Sec. 5; Teal v. Russell et al., 2 Scam., 321; Tidd’s Prac., 1188.

It was error to render judgment against part of the defendants, and make no order as to the other defendants who were served with process. Ladd et al. v. Edwards, Breese 139; O’Connor, et al. v. Mullen, 11th Ills. Reps., 116.

That a plaintiff may reverse a judgment for his own errors, see Capron v. Van Norden, 1 Cond. Reps., 370; 2 Scam., 321; Jones et al. v. Wright et al., 4. Scam., 338; 2 Tidd’s Prac., 1134.

S. Beeese, for Deffcs in Error.

Caton, J.

On the return day of the summons it was served

on all of the defendants. During the term to which the summons was returnable the appearance of four of the defendants was entered. At the same term a default was entered and judgment rendered against the four defendants whose appearance had been entered, and no notice taken of the other two defendants who had been served with process. This was unquestionably erroneous. At the common law, in action upon a joint contract or obligation, the judgment must be rendered against all or none of the defendants, and this has only been changed by our statute, by allowing the plaintiff to take judgment against a part of the defendants, who alone had been served with process. This case should have been continued until the next term, when all of the defendants might have been proceeded against.

Here there was an error, for which the defendants might, at any time within five years from the rendition of the judgment, bring the case to this Court, and have the judgment reversed. And while this is the case, it is not an open question in this Court, since the decisions in the cases of Teal v. Russell et al., 2 Scam., 319, and Jones v. Wright et al., 4 Scam., 388, that the plaintiffs may bring the record here, and rid themselves of a judgment, which while it presents a bar to their obtaining a regular one, still affords them no sufficient security.

Inasmuch however, as their intestate was chargeable with the error which renders the judgment defective, they must pay the costs of getting it reversed. Jones v. Wright et al., 4 Scam., 338.

Let the judgment be reversed at the cost of the plaintiffs, to be paid in due course of administration.

Judgment reversed.