Klinger v. Brownell

Dewey, J. This was an action of covenant against several defendants on a joint contract. One of the defendants appeared to the action, but did not plead; as to him, the plaintiff entered a nolle prosequi. A suggestion of “not found” was made as to. another defendant. The rest of the defendants made no appearance, and an' interlocutory judgment was entered against them for the default; and afterwards, on the execution, of a writ of inquiry, there was final-judgment, th'ough the record does not show that any of them had notice of the suit. * T. Johnson, for the plaintiffs. This judgment is erroneous. When judgment goes against a defendant for default of appearance, the record must show, in some manner, that process was served upon him. 4 Blackf. 2. A plaintiff who has instituted a joint action founded on a contract cannot, in general, enter a nolle prosequi as to one defendant, and take judgment against the rest. There are some exceptions to this rule, but the case presented by the record is not embraced within any of them. No reason is shown why the joint covenant, on which the action was founded, was not as obligatory upon the defendant as to whom the nolle prosequi was entered, as upon those against whom judgment was rendered. Palmer v. Crosby, 1 Blackf. 139, and n. 3. Per Curiam. The judgment is reversed, and the proceedings subsequent to the judgment by default inclusive set aside, with costs. Cause remanded, &c.