Smith v. Byrd, 7 Ill. 412, 2 Gilm. 412 (1845)

Dec. 1845 · Illinois Supreme Court

7 Ill. 412, 2 Gilm. 412

Joseph H. Smith et al., appellants, v. Adam Byrd, appellee.

Jlppeal from Jo Daviess.

A judgment against a person not originally a party to the suit, and who did not subsequently become a party to it, is erroneous.

Where a judgment is rendered against two persons, over one of whom the Court had no jurisdiction, the judgment, being a unit, must be reversed as to both of the defendants.

This was an action originally commenced before a justice of the -peace in Jo Daviess county against Joseph H. Smith, one of the-appellants, against whom a judgment was obtained in favor of Byrd, from which judgment the said Joseph .H. Smith appealed by certiorari to the Circuit Court of said county.

The record shows, that on the 27th day of June, 1844, said Joseph H. Smith and said Byrd entered into a written agreement to submit all matters in controversy between them to arbitrators. It further appears from the record, that on the 7th day of November, 1844, the said Byrd, by his attorney, filed the award of arbitrators selected by the parties, and moved the Court for judgment on the award.

The award of the arbitrators was as follows, to wit:

“ We do award—First: That the said Joseph H. & George F. Smith pay to the said Adam Byrd the sum of $40, and all former costs which have heretofore accrued in this case; and second, that each party pay his own costs and charges'made by him in this arbitration.”

The said Joseph H. Smith, on the 13th day of November, 1844, filed his motion and affidavit, showing cause why judgment should not be entered upon said award. The record further shows, that on the 21st day of November, 1844, it was ordered by the Court, that the said agreement to refer be entered of record nunc pro tunc, as of the 27th day of June last, at which time the counsel for Byrd moved again for judgment on the award. At the March term of the Circuit Court, the Hon. Thomas C. Browne presiding, judgment was ordered to be entered on said award against the said Joseph H. Smith and George F. Smith, for the sum of $40, and all costs which had accrued up to the date of the reference of the case to the said arbitrators.

T. Campbell, for the appellants.

A. Lincoln, for the appellee.

The Opinion of the Court was delivered by

Treat, J.^*

This suit was commenced before a justice of the peace by Byrd against Joseph H. Smith. The justice rendered a verdict against the defendant for $100. He removed the case to the Circuit Court by certiorari. The parties then referred the case to arbitrators, whose award was to be entered as the judgment of the Court. The award was, that Joseph H. Smith and George F. Smith pay to Byrd the sum of $40, and the costs. The Circuit Court rendered a judgment on the award against both of the Smiths. They assign that decision for error.

The judgment was clearly unauthorized as to George F. Smith. He was not originally a party to the case. Nor does the record show that he afterwards became a party, or in any manner assented to the proceedings before the arbitrators, or in the Circuit Court. The Court had no jurisdiction over his person. Although the award may be binding between the original parties, it is a mere nullity as to him. The judgment is a unit, and must be reversed as to both of the Smiths. -

The judgment of the Circuit Court is reversed with costs, and the cause is remanded for further proceedings between the original parties.

Judgment reversed.

* Wilson, C. J., did not sit in this case.