Gould v. Sternburg

Mr. Justice Sheldon delivered the opinion of the Court: The record in this case shows that a joint action was brought against Richardson and Gould upon two promissory notes executed by them, the declaration containing two counts, one upon each note. Both the defendants were served with process, and, at the December term, 1859, of the Will circuit court, final judgment was rendered by default against both defendants for the sum of $485.26. Subsequently, the default was set aside as against Gould, and he pleaded. Issues were joined upon his pleas, and afterward, at the January term, 1867,—the plaintiff in the meantime having entered a nolle prosequi as to one count of the declaration,—a judgment was rendered against Gould alone, for the sum of $322.40. Gould brings the case here by writ of error, and assigns for error the entry of such judgment against him. We know of no warrant in the law for rendering separate judgments for different amounts against defendants severally, when sued in a joint action upon a contract, and all served with process. In such case, there can be but one judgment for one amount, and it must be against all the defendants, unless one or more of them be discharged from the suit. The proper course here would have been to have set aside the judgment by default against Richardson as well as Gould, and then, on trial of the issues tendered by Gould, to have assessed the damages against both defendants, and have rendered a joint judgment against them. Wight et al. v. Meredith etal., and Same v. Hoffman, 4 Scam. 360, 362. It is contended that, because the notes were joint and several, the separate recoveries were allowable. But, in order to that, separate suits must have been brought. The plaintiff was at liberty to proceed against the parties jointly, or each separately. Having elected to bring a joint action, and treat the contracts as joint ones, the rule of recovery as in an action upon a joint contract must govern. The judgment against Gould is reversed and the cause remanded. Judgment reversed.