Cooper v. McNeil & Higgins Co.

43 Ill. App. 350, 1891 Ill. App. LEXIS 359

Opinion

Waterman, P. J.

The rule that in actions 'ex contractu the judgment must be against all who are served or appear, or none, has always 'existed in this State. Kimmel v. Shultz, Beecher’s Breese, 169; Russell v. Hogan, 1 Scam. 552; Hoxey v. Macoupin County, 2 Scam. 36; McConnell v. Swailes, 2 Scam. 571; Tolman v. Spaulding, 3 Scam. 13; Frink v. Jones, 4 Scam. 170; Wight v. Meredith, 4 Scam. 360; Dow v. Rattle, 12 Ill. 372; Fuller v. Robb, 26 Ill. 246; Gribbin v. Thompson, 28 Ill. 61; Briggs v. Adams, 31 Ill. 486; Faulk v. Kellums, 54 Ill. 188; Kimball & Ward v. Tanner, 63 Ill. 520; Byers v. First Nat. Bank of Vincennes, 85 Ill. 423; Felsenthal v. Durand, 86 Ill. 230; Waugh v. Suter, 3 Ill. App. 271; Goodale v. Cooper, 6 Ill. App. 81; Aten v. Brown, 14 Ill. App. 451; Brown v. Tuttle, 27 Ill. App. 389; Ward v. Stanley, Oct. term, 1891.

Having failed to obtain judgment against W. D. Cooper, none could in that action be rendered-against H. F. Cooper. The declaration charged them as jointly liable; the judgment upon the trial established that they were not.

Thereafter in that action it was error to render judgment against the co-defendant.

The judgment of the Superior Court is reversed.

Judgment reversed..

Judge Gary took no part in the consideration of this case.