Wolford v. Bowen

Canty, J. Plaintiff, in June, 1891, brought this action on a promissory note, alleging in his complaint that defendant Bowen made and delivered said note to plaintiff, thereby promising to pay plaintiff or order the sum of $4,000, and that prior to the delivery of the note, and for the purpose of giving it credit, the defendants Mary A. Thwing, J. E. Thwing, and R. P. Russell duly indorsed their names on the back thereof. The summons was then duly and personally served on all of the ■defendants, but none of them answered, and after the time to answer expired as to all of defendants, and when they were all in default for want of an answer, on July 30, 1891, on motion of plaintiff, judgment by default was entered against the defendants Bowen and J. E. Thwing, but not against defendants Russell or Mary E Thwing. Prior to this, on July 23, 1891, Mary E. Thwing paid. $807, and, nearly a year and one-half after the entry of this judgment, plaintiff, on an ex parte order of the court giving him [270] leave to do so, entered a second judgment against Russell alone for the whole amount of the original debt, interest, and costs, issued execution thereon, and credited the amount paid by Mary E. Thwing on the execution. Thereafter, on October 21, 1883, defendant Russell moved to set aside said judgment, on the grounds hereinafter discussed and on other grounds. The motion was denied, and he appeals. It is urged by appellant that the obligation of the defendants, as makers of the noie in suit, was joint, and that the cause of action was merged in the first judgment, whether it was against all or only a part of the joint debtors, and that no second judgment could be entered against Russell. We are of the opinion that the original obligation of the makers of the note was both joint and several. It is well settled that a note which reads, “I promise to pay,” signed by several makers, is joint and several. It is fairly to be understood from the complaint in this case that the promise in the note is in form in the singular, — the promise of Bowen alone. It is held that the other makers who signed their names on the back before delivery also signed this promise in the singular form. The principle is just the same, — the note is both joint and several. It is not necessary to decide whether or not the joint and several nature of the obligation of makers thus placing their names on the back of a note may also be put on the ground stated in Riley v. Gerrish, 9 Cush. 104, that the holder of the note may fill up the blank so as to charge such an indorser as a joint and several promisor. Whether we put it on one or the other of these two grounds, the note in question is joint and several. If a contract is both joint and several, the obligee may treat it as several. 1878 G. S. ch. 66, § 67, subd. 3, provides “Although all the defendants have been served with the summons, judgment may be taken against any of them severally, Avlien the plaintiff would be entitled to judgment against such defendants if the action had been against them alone.” It is true that section 265 of the same chapter reads as follows: ‘•In an action against several defendants the court may in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment [271] is proper.’’ Even if it should be held that the former section is controlled by the latter, and that the court should have ordered a. separate judgment against the defendants Bowen and J. E. Thwing, reserving the right to afterwards enter judgment against Russell, which we do not decide, still the failure to get such an order would be a mere irregularity, which the court in its discretion could cure and did cure by its subsequent order giving leave to enter judgment against Russell, and its subsequent order refusing to set this judgment aside. See Turner v. Holleran, 8 Minn. 451 (Gil. 401). The same may be said as to the irregularity of entering judgment against Russell for the whole sum originally due, and interest, and crediting on the execution the amount paid by Mary E. Thwing. It was in the discretion of the court below to order or hold that this irregularity in the entry of the judgment was cured by the credit on the execution, as no substantial rights were there involved, and the order denying the motion to set aside the judgment had the effect so to order or hold. These are all the points raised by appellant’s assignments of error, and the judgment appealed from should be affirmed. So ordered. Buck, J., absent, sick, took no part. (Opinion published 59 N. W. 195.)