Chapman v. Arrington

3 Stew. 480

Opinion

By JUDGE TAYLOR.

If the course pursued by the court below would have been regular in ordinary cases,, it would not have been in this. The object of the statute of 1823, is to secure the indorser from injury, if the money can be made out of the property of the payor. For this reason, this court, at the last term, in the case of Phillips v. Jordan,

a .affirmed a judgment of the Circuit court of Shelby county; in which a discontinuance as to the payor, ordered by the plaintiff, because the writ was returned not found as to him, was determined to work a discontinuance of the whole action.

But it is unnecessary to resort to the statute, for the rule of decision in this case. By the common law, if several be joined in an action, and some'appear and plead, and there he judgment by default against others, this judgment cannot be rendered final against those who do not plead, and continued as to the rest. So, where defendants sever in their pleadings, judgment as to all must be rendered at the same time ; otherwise, there might be several different trials in the same action.

As to the assignment of error, which embrace other parts of the proceedings in the court below, there is nothing in them which would authorise a reversal of the judgment.

It is believed, that a correct construction of the 3d section of the act of 1812, entitled “ an act concerning the assignment of bonds, notes, &c., and for other purposes,” authorises a final judgment by default, to be rendered against an indorser, without the intervention of a jury. That section declares, “That in all actions founded on any writing, ascertaining the' plaintiff’s demand, or sum sued for, if judgment by default, nihil elicit, or by non sum infamat-us, or on demurrer be enter-ed thereon, the court where the same shall be pending, sh-ail? and may, lawfully, enter judgment for the debt or demand, and interest thereon, to be calculated by the clerk of such court, up to the time of rendering judgment, without the intervention of a jury,” &c. The judgment by default is an admission of the cause of action laid in the declaration. In thik case, that describes a promissory note, executed by Hill, to Chapman, and assigned by him to Arrington, as the-foundation of the suit. Prima facie then, Chapman, as-assignor, is responsible to Arrington, for the sum specified on the face of the note, and the judgment by default is-evidence, that he can prove nothing to resist this legal inference. •

The act of 1828, which authorised the payor and indorser to be sued in the same action, was not repealed until the 80th January, 1829 — the writ against Chapman, in this case, was issued the 21st of that month — so that the third assignment cannot'be sustained.

•^bether a writ was served on Hill, or not, is immaterial; he appeared and pleaded to a declaration filed against him and Chapman, jointly : therefore, we will not, now, loot back to the writ.

The declaration contains a sufficient cause of action, and as no step was taken below, to obtain advantage of any defects in it, even if such existed, they could not, under our statute, be examined into here.

For the reason that final judgment was rendered againt one defendant, while the suit was still pending and undetermined, as to the other, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Page38.