Goldberg v. Harney

Mr. J ustice Dibell delivered the opinion of the court. This is an action of assumpsit brought by Harney Brothers against Andrew Goldberg and Isaac Goldberg in the Circuit Court of DeKalb County. Andrew Goldberg and Isaac Goldberg each filed separate pleas to the jurisdiction of the court, duly verified. To each of these pleas plaintiffs interposed a demurrer. These demurrers were sustained. Andrew Goldberg elected to stand by his said plea, and was defaulted. Isaac Goldberg filed verified pleas of the general issue and denying that he was jointly liable with Andrew Goldberg in. respect to the several supposed causes of action in the declaration mentioned, or any or either of them. There was a jury trial, and a verdict and a judgment for plaintiffs and against defendants for §974.04, after motions by Isaac Goldberg for a new trial and in arrest of judgment, had been denied. Defendants have sued out this writ of error to review that judgment. Andrew Goldberg’s plea began, “And the said Andrew Goldberg in his own proper person comes and defends, etc., and says,” and ended as follows: “And this the defendant is ready to verify, wherefore he prays judgment if the court here will take cognizance of the action aforesaid.” It is argued that the commencement and closing of this plea were insufficient in form. The demurrer was general and not special, and the commencement and closing seem to be in proper form, as approved in 3 Chitty’s Pl., 895; Gould’s Pl. (5th ed.), sec. 29; Puterbaugh’s Com. Law Pl. & Pr. (7th ed.), p. 41; and Hamilton v. Dewey, 22 Ill. 490, where a plea in abatement commencing and concluding substantially as this does was held a good plea. The substance of said plea by Andrew Goldberg was that at the time of the commencement of this suit said defendant was and from thence hitherto had been, and still is, residing in the county of Cook in the látate of Illinois, and not in the county of DeKalb, and that he was not found or served with process in said action in the county of DeKalb,* but was found and served with process in said action in the county of Cook; that the cause of action upon which the suit was brought arose in the county of Cook, and not in the county of DeKalb; that the action is not a local action; that his co-defendant, Isaac Goldberg, before and at the time of commencement of the said action was and from thence hitherto has been, and still is, residing in Lake county, in the State of Illinois, and not in the county of DeKalb: that process was served bn said co-defendant, Isaac Goldberg, while he was in the county of DeKalb on a matter of business, and had been there a very short time, and intended to and did remain in said county but a very short time, and not while said Isaac Goldberg resided in said county of DeKalb, and that process was not served upon said Isaac Goldberg within the county of Lake in said State of Illinois, where said Isaac Goldberg resided. Section 2 of the Practice Act enacts, that it shall not be lawful for any plaintiff to sue any defendant out of the county where he resides or may be found, except in local actions, and except that in every species of personal actions at law where there is more than one defendant, the plaintiff commencing his action where either of them resides may have his writ issue to any county where the other defendants, or either of them, may be found. The demurrer confessed this plea in abatement. It is, therefore, admitted that plaintiffs did not commence this action where either of the defendants, resided. Not having done so, plaintiffs were not entitled to a writ directed to the county of Cook. Sandusky v. Sidwell, 173 Ill. 493, was a like case. That was a suit against George H. Sidwell and George T. Sidwell. George T. Sidwell filed his plea to the jurisdiction of the court, alleging that the cause of action arose in Cook county and not in Vermilion county, where the suit was brought; that the action was not a local action; that both he and his co-defendant at the time the suit was begun resided in Cook county and not in Vermilion county'; that process was served on George H. Sid well while he was on a public train passing through Vermilion County, and not within the county of Cook where he resided, and that the other summons was served on said George T. Sid well in the county of Cook, and not within the county of Vermilion. This was held to be a good plea, and that case is decisive that the plea in the case at bar should have been sustained. The judgment against Andrew Goldberg must, therefore, be reversed. A money judgment in an action at law is a unit. It cannot be affirmed as to one defendant and reversed as to another, but if erroneous as to one defendant it must be reversed as to all defendants. Seymour v. Richardson Fueling Co., 205 Ill. 77; Cummings v. Smith, 114 Ill. App. 35. It follows that this judgment must be reversed as to both defendants. Plaintiffs in error ask us to reverse the judgment without remanding the cause, on the ground that a strong preponderance of the evidence shows that the dealings of Harney Brothers were not with both defendants, but only .with Andrew Goldberg, the defendant who was served in Cook county. The bill of exceptions does not state that it contains all the evidence. For that reason we must assume that if the evidence in the record before us is not sufficient to make a case against both defendants, yet other evidence was heard to justify the judgment, but for the plea to the jurisdiction. The judgment is therefore reversed and the cause remanded for further proceedings in conformity with this opinion. Reversed mid remanded.