Henrickson v. Van Winkle

Walker, J. This was an action of assumpsit commenced by Ransom Van Winkle against Edward S. Henrickson, H. Reinback and Hiram Van Winkle, in the Morgan Circuit Court, to the October term, 1857, on a promissory note. A summons was issued and served on Reinback and Henrickson, and no return as to Van Winkle. At the return term the defendant Henrickson, filed the general issue, on which issue was joined, and by consent the court tried the cause without the intervention of a jury, and found the issue for the plaintiff, and assessed the damages at $251.17. Defendants Reinback and Van Winkle were called and a default entered against them, anda judgment was rendered against all the defendants for the amount of the damages so assessed. And Henrickson brings this writ of error to reverse this judgment. To this writ of error the defendant in error pleads a release of all errors, executed by Reinback and defendant Van Winkle before the writ was issued. To this plea, plaintiff in error filed a demurrer, on which there was a joinder. This demurrer presents the question, whether a releas'e of error executed by a portion of the defendants to the record, is sufficient without the concurrence of the others. This we have no doubt may be done in all cases where the error complained of relates alone to the party executing the release. If the error is personal to him alone, no one else has a right to object if he chooses to waive his privilege of insisting upon it. And if by his releasing such error the record becomes regular, there is then nothing of which his co-defendant can complain. But one party has no right to release an error which is personal to another party to the record, nor can one party urge an error personal to another party. If in this case there was an error in not empanneling a jury to assess the damages after default was entered, which is by no means conceded, no person was injured or had a right to complain but Reinback and Hiram Van Winkle. If that proceeding had been erroneous, Henrickson was not injured by it, as he had expressly waived a jury to pass upon his rights. The other defendants would alone have a right to complain, and had the undoubted right to release the supposed error, and when they did so, they only waived, as he had already done, a trial by jury. By their doing so, Henrickson sustained no wrong, and was deprived of no legal right. It was, however, clearly erroneous to enter a default, and to render a judgment against Hiram Van Winkle, who had not been served with process, and who had not entered any appearance to the action. But it was an error which could injure no one but himself, and he had, if he chose, an unquestioned right to have insisted upon it, or to release it, as he might choose. The plea alleges that he adopted the latter course, which is admitted by the demurrer, and the other defendants have no right to complain of his exercising this legal right. This plea professes to be a bar to the entire cause of action, and would not be good if there are any errors in the record which could not be released by the defendants executing the release. But on a careful examination of the record, we perceive none but such as affected the defendants who executed the release, and when they executed it, the record and judgment became regular and binding on all the defendants. The plea, we therefore think, presents a complete bar to the writ of error, and plaintiff not showing that he has anything to reply to the plea, judgment of affirmance is rendered on the demurrer in favor of the defendant in error, and the judgment of the court below is affirmed. Judgment affirmed.