Davis v. Cohn

85 Mo. App. 530, 1900 Mo. App. LEXIS 481

• Court: Missouri Court of Appeals
• Decided: November 5, 1900
• Status: Published

Opinion

BLAND, P. J.

— This is a suit begun before a justice of the peace to recover costs adjudged against Wolf Cohn, and Louis Cohn, co-partners as W. Cohn & Bro.; Max Rubenstein, Max Bieber and G. Rubenstein, co-partners as M. Bieber & Company; Max Lipschitz and Morris Lipschitz, co-partners as M. Lipschitz & Company, and Joseph Romansky, in favor of respondents by the circuit court in and for Menard county in the state of Illinois. Max Lipschitz, Morris Lipschitz, M. Bieber, G. Rubenstein and Joseph Romansky appeared and defended the action. The other defendants were not served and did not appear. At the trial the justice found for defendants Morris Lipschitz, G. Bubenstein and Joseph Romansky, but against Max Lipschitz and M. Bieber who appealed to the circuit court. At the trial respondent read in evidence the Illinois judgment for costs, and testified that they had'paid the same on fee bill issued against them, being costs which accrued on their part in the prosecution of the Illinois suit to judgment, and rested. At this stage of the case the appellants ashed an instruction in the nature of a demurrer to the evidence, which was refused. They then introduced testimony tending to prove that prior to the institution of the Illinois suit the firm of Max Lipschitz & Company had been dissolved by mutual consent, and that Max Lipschitz had no knowledge whatever of the institution of the suit and did not authorize any one to appear to the suit for him. The other partner Morris Lipschitz testified that he did not employ or authorize any attorney to appear for himself or the firm. There was no service of notice on the appellants of the pendency of the Illinois suit, but their appearance was entered by the filing of the answer by attorneys at law. Countervailing evidence was offered in rebuttal. The jury found that appellants had authorized the answer, or had ratified the action of the attorneys in entering their appearance.

No statute of Illinois regulating court procedure was ofered or read in evidence. It is therefore to be presumed that the common law rules of practice prevail in that state. At common law a judgment is an entirety, good as to all, or bad as to all. Smith’s Adm’r v. Rollins, 25 Mo. 408, and cases cited. The obligation of the defendants is joint, not joint and severable, and the plaintiff in a suit on the judgment must recover against all of the defendants or none. 1 Freeman on Judgments, sec. 439; Pratt v. Dowd, 56 Me. 81. Two of the defendants were not served with process from the justice’s court and four of them were discharged by him on the ground that they had not been served with process from the Illinois court, nor had their appearance therein been entered with their knowledge or consent. No excuse was offered in the circuit court for not bringing in all the defendants in the judgment. Unless they were dead or heyond the jurisdiction of the court, the cause could not have been proceeded with without first bringing them in or on a showing that they could not be brought under the jurisdiction of the court. The finding of the justice in favor of some of the defendants operated to discharge the others, for a defense good as to one or more defendants was good as to all. Ereman on Judgments, supra. As to domestic judgments it has been repeatedly held in this state that, under our code of procedure, in a collateral proceeding the fact that the judgment is void as to one defendant does- not of itself vitiate it as to others. State ex rel. v. Tate, 109 Mo. 265, and cases cited; Kleiber v. Railway, 107 Mo. 240. Put no such rule prevails at common law. It was incumbent on respondents to produce a judgment valid as to all of the defendants and to show a right to recover against all. To this they signally failed, wherefore the judgment is reversed and the cause remanded.

All concur.