McDonald v. Judson

Mr. Justice Sears delivered the opinion of the court. The only question presented which it is necessary to determine in disposing of this appeal, is as to the sufficiency of appellant’s plea, i. e., as to the effect of the judgment rendered on February 17, 1900, upon the suit as pending against appellants. Counsel for appellants contend that the effect of this judgment against two of the defendants was to work a discontinuance as to the other defendants. We regard this contention as sound. The proceeding for a writ of mandamus is a common law action, and except as may be otherwise provided by statute, it is governed by the rules of common law procedure. Bolton v. The People, 95 Ill. App. 285, and cases therein cited. At common law, in a suit where it is permitted to take judgment against a part only, of the defendants, the taking of such judgment operates to discontinue the suit as to all other defendants. Davis v. Taylor, 41 Ill. 405; Callaghan v. Myers, 89 Ill. 566; Vieths v. Skinner, 47 Ill. App. 325. Without considering the propriety of the judgment which was rendered against the defendants Mackenzie and Eollins alone, a question which is not presented by this record, it is enough for the decision of this case that the judgment against them, while it stood of record, operated to preclude the appellee from a further maintenance of this suit against the other defendants. Two several judgments in the one action could not be had at the common law, and we find no provision of our statute regulating proceedings for mandamus which in any manner modifies this rule. On the contrary the statute in terms provides that the procedure after pleading shall be as in other cases at common law. Sec. 4, Chap. 87, R. S. It is urged by counsel for appellee that the judgment of February 17, 1900, against Mackenzie and Eollins, is not a final judgment, but interlocutory only. To this we can not assent. The judgment is that the peremptory writ of mandamus issue against the defendants named, which is precisely the judgment in this proceeding, to which a petitioner is entitled when he prevails in his suit. The record discloses that the writ did afterward issue in conformity with the judgment. It is difficult to perceive in what respect this judgment lacks the essentials of a final judgment. We are of opinion that it was error to enter the judgment against appellants. Therefore the judgment is reversed and the cause is remanded.