Joyce v. Spafford

Me. Presiding Justice Adams delivered the opinion of the court. The case presented by the record is this: An action against two defendants jointly, service of process on both and appearance of both; an undisposed-of demurrer of one to the declaration, and final judgment by default against the other. The rule that if two or more be sued jointly and are served with process, or appear, the judgment must be against all or none, is fundamental, inflexible, and recognized by numerous decisions. Russell v. Hogan, 1 Scam. 552; Wight v. Meredith, 4 Scam. 360; Gould v. Sternburg, 69 Ill. 531; Sherburne v. Hyde, 185 Ib. 580, 582; Waugh v. Suter, 3 Ill. App. 271. Iii Sherburne v. Hyde et al., supra, Hyde and Grace were sued jointly; process was not served on Grace, one of the defendants, and the court say: “ Had Grace appeared to the action, or been served with process, it is settled law that the judgment must have been against both or neither.” Many other cases to the same effect might be cited. The only case relied on by counsel for appellee is Roby v. Opdyke, 61 Ill. App. 328. That was an appeal from an order overruling a motion to vacate a judgment by con fession, and the court say : “ But neither did the appellant, on the hearing of the motion, show any equity why the judgment should not stand.” And, for that reason, the-court declined to interfere with the judgment. In Berg v. Com. Nat. Bk., 84 Ill. App. 614, 618, the court say: “ It has been repeatedly held that in cases of judgments by confession, a court of law exercises a purely equitable jurisdiction, and that it will not disturb such a judgment, upon a motion to vacate it, unless the moving party shows that he does not owe the amount of the judgment,” etc., citing cases. To the same effect is Gilmore v. German Savings Bank, 89 Ill. App. 442. The decision in Roby v. Opdyke has not the least application to the present case. We think that if the appellant should apply for leave to plead, on specifically stating facts, by affidavit, constituting a defense to the action, he should be allowed so to do. The judgment will be reversed and the cause remanded.