Henry v. Gibson

Sherwood, Judge, delivered the opinion of the court. The plaintiff filed his petition in the Common Pleas Court of Daviess county, and alleged in such petition that the three defendants above named were indebted to him on a certain promissory note therewith filed, and judgment was prayed against them. Summons was, however, sued out and served on only one of the defendants, Joseph Alexander, who appeared, and by his consent, judgment was rendered against him alone ; but the judgment was by a mere clerical mistake, entitled as if against all the defendants. At a subsequent term, Alexander filed his motion to set aside that judgment and quash the execution issued thereon, on the ground that the judgment was rendered against Alexander alone, without dismissing as to the other defendants. The execution was issued only against Alexander, and in every respect conformed to the judgment rendered. The court sustained this motion, set aside the judgment and quashed the execution, and in so doing it committed manifest error. No suit had ever been brought against any one except Alexander, nor judgment rendered, nor execution issued against any party besides him. The mere filing of the petition, alleging the indebtedness of all the makers of the note, did not of itself make them parties to the action; as with the exception of Alexander, there was no, summons issued or served on any one, nor any voluntary appearance (2 Wagn. Stat., p. 1006, §1); and even if there had been as to the others the issuance and service of summons or a voluntary appearance, the judgment being ■taken by Alexander alone by agreement, would have been tantamount to a virtual dismissal as to those against whom no judgment was rendered. But conceding that there was an error or irregularity in the proceedings, it did not lie in the mouth of Alexander to assert [572] it by seeking to vacate a judgment, to tbe rendition of which he had yielded his assent. There is nothing in the point, that the plaintiff requested the court to render a final judgment against him when his motion for a re-hearing was overruled and his cause was dismissed for want of prosecution, as this judgment was evidently asked in order that the cause might be in the proper condition to ask redress in this court. ' Judgment reversed and cause remanded. All concur