Briggs v. Adams, 31 Ill. 486 (1863)

April 1863 · Illinois Supreme Court

31 Ill. 486

Silas Briggs v. George Adams.

1. Several defendants —judgment must be against all or none. In actions not sounding in tort, where two or more are sued, judgment must be rendered against all who are served, or, if that cannot be, then against none.

2. Same — exceptions to the rule. There are some exceptions to this rule where the defense is personal, as infancy, or bankruptcy.

3. Same — rule applies to justices' courts. The rule applies as well to actions commenced before justices of the peace, as in courts of record.

Appeal from the Circuit Court of Cook county; the Hon.. George MaNierre, Judge, presiding.

George Adams instituted suit before a justice of the peace in Cook county, against Silas Briggs and Joel Briggs, for an alleged breach of warranty, upon an exchange of horses.

The suit, while pending before the justice, was dismissed by the plaintiff as to the defendant, Joel Briggs, who had been Served with process, and proceeded to judgment against Silas Briggs, alone, who thereupon appealed to the Circuit Court. In that court, also, judgment was rendered against Silas Briggs, from which he appealed to this court.

The only question presented is, as to the propriety of entertaining the suit and proceeding to judgment against one of the defendants, after the suit had been dismissed as to his co-defendant, who was in court by the due service of process.

Messrs. Claflin & Eat, and C. C. Botnet, for the appellant.

Mr. A. GaRkisoN, for the appellee.

Mr. Chief Justice Catón

delivered the opinion of the Court.

In actions not sounding in tort, when two or more are sued, judgment must be rendered against all who are served, or, if that cannot be, then against none. There are some exceptions to this rule where the defense is personal, as infancy or bankruptcy, which are the most familiar cases. This principle applies as well to actions commenced before justices of the peace, as in courts of record. When one of the defendants had been dismissed from the cause, it rendered it improper to proceed and render judgment against the other, either in the justice’s or the Circuit Court.

It is unnecessary to consider the other errors assigned.

The j udgment is reversed.

Judgment reversed.