Donnelly v. Graham

Mr. Justice Gokdon delivered the opinion of the court, The summons in this case was issued against William F. Willard, James Donnelly, Patrick Rafferty and William Monaghan, as partners trading under the firm name of William Willard & Co. Service was not had upon Willard, and he is therefore not in the case. The other three were served. The plaintiffs’ narr. charged the defendants with a joint indebtedness. Monaghan and Donnelly appeared and pleaded, but Rafferty did neither. The plaintiffs, however, without first taking an interlocutory judgment against Rafferty for want of appearance, proceeded to trial, and obtained a verdict and judgment against the; three. Now, so far as Rafferty is concerned, there can be no doubt but that this judgment is incurably bad. It does not present the case of a mere technical error, as in Blackstock v. Leidy, 7 Harris 335, where the defendant was in court and there was the want only of the interlocutory judgment. Here the proceedings are not only ex parte, but the judgment is procured in a manner authorized neither by statute nor common law. But can the judgment be reversed as to Rafferty, and affirmed as to Donnelly and Monaghan ? We answer this question in the negative. The suit is joint; the narr. alleges a joint claim; [276] hence, the plaintiffs must recover against all thus charged or none. On this ground it was ruled, in Nelson v. Lloyd, 9 Watts 22, that, where the summons was against three as partners, who were all served, a verdict and judgment against one, without an interlocutory judgment against the other two, was irregular and bad, and the judgment was accordingly reversed. So in Boaz v. Heister, 6 S. & R. 20, it was held that, where, upon a joint action, judgment is rendered against two, which is erroneous as to one, it cannot be reversed as to one and affirmed as to the other. It is apparent, therefore, that the judgment in this case is not only bad as to Rafferty, but being bad as to him it cannot be sustained as against Donnelly and Monaghan. The judgment is reversed, and a venire facias de novo is awarded.