Felsenthal v. Durand

Mr. Justice Sheldon delivered the opinion of the Court: The bill of exceptions shows that at the time the judgment was rendered a plea had been filed on the part of all the defendants in the suit; that there was no default in the respect of filing a plea and affidavit of merits, such as they were, but that the ground of the refusal to set aside the default and judgment was the insufficiency of the plea and affidavit. Admitting the insufficiency of the plea and affidavit, there was no justification for rendering a judgment against three of the defendants alone. In actions on contract against several, when all are served with process, the judgment must be against all or none, unless some of the defendants make a personal defense — as, infancy, lunacy, bankruptcy, and the like. Kimmel v. Shultz, Breese, 169 ; McConnel v. Swailes, 2 Scam. 571; Gribbin v. Thompson, 28 Ill. 61; Faulk v. Kellums, 54 id. 189. By statute, judgment may be taken against a part of the defendants who alone have been served with process. Although Jacob Felsenthal was not served with process, he, together with the defendants served, filed a plea. If this plea was defective, yet it was a plea by Jacob Felsenthal, who thereby entered his appearance, brought himself into court, and stood in the like attitude as if he had been served with process. Where a plea regularly filed is defective, the proper mode to meet and dispose of it is by demurrer—not to entirely disregard it as no plea. Where a party defendant appears and pleads by attorney without service of process, it is error to proceed to judgment against those who have been served, without also taking judgment against him who thus appeared by attorney. Breese, 182. The judgment must be reversed, and the cause is remanded with leave to the defendants to file an amended plea and affidavit of merits. Judgment reversed.