Netso & Bohlen v. Foss & Schneider

The Chief-Justice delivered the opinion of the court. Foss & Schneider sued Netso & Bohlen upon three joint promissory notes. There was a default entered as to Netso, And a plea by Bohlen At the trial the jury were sworn to try the issue as to [144] Bohlen, and to assess the damages as against STetso. There-was a verdict for plaintiffs and the damages were assessed against both defendants. Motion for a new trial was made- and denied and final judgment entered, from which an appeal is -taken. Appellants contend that a judgment by default having-been entered as to one of the joint promissors, there should have been no judgment against the other, but he should have been discharged, on the principle that a judgment, against one merges the entire cause of action and there can he but one judgment upon the same cause of action, both defendants being summoned, in the same court. The rule-has no application in this case, because there is but one final judgment. A judgment of default as to one does not affect the right to pursue the other who has pleaded. Another point urged by appellants is that there having-been a default as to one, the clerk should have assessed the-damages and it was irregular to refer the assessment of damages to a jury. The act of 1878, ch. 1938, sec. 7, authorizes the clerk to-assess the damages on default entered where the action is on written promises. But there is no default here as to-one of the defendants, but an issue joined.' This statute-therefore does -not include this case. Moreover, the defendant in default has no standing to complain of amere irregularity (if there had been such) if the damages were' assessed at the proper amount. There is no error and the judgment is affirmed.