Farrell v. Calkins

10 Barb. 348

• Court: New York Supreme Court
• Decided: January 15, 1851
• Status: Published

Opinion

By the Court, Mason, P. J.

It seems to me, that there can not be any doubt in this case, from the return of the justice herein, that the justice did render a judgment against all of the defendants. The summons was against all three of them; and it was personally served on the defendant Mervin Calkins, and by copy on the defendants Mortimer Calkins and William Sprague. The defendant Mervin Calkins, alone appeared, and the plaintiff declared against all of the defendants ; and the defendant Mervin Calkins, alone put in his answer ; and the cause was adjourned by consent of parties; and on the adjourned day, a further adjournment was sought in behalf of Mervin Calkins, who was sick at the time and unable to come to court, but which was refused; and I conclude that the witnesses were sworn against all of the defendants, and that the proof was given against all; for it appears that the judgment was rendered against all. This seems to me quite apparent from the face of the return itself. The suit is entitled against all the defendants. The complaint is against all, and the return shows that the judgment was rendered in the suit for $25 damages, and $4,10 costs, without any intimation that it was rendered against one defendant alone; and as the defendants are all included in the suit, and in the complaint, and without any intimation that any of the defendants are left out of the proceedings at any stage, it seems to me, that there can not be a doubt, that this return shows a judgment against all. And as this was an action of tort, the justice erred in proceeding to judgment against those not personally served, and the county court should have reversed the judgment of the justice as against all of the defendants. It is not a cause where the county court could sever the judgment. (Richards v. Walton, 12 John. 434. Arnold and others v. Sandford, 14 Id. 417. Holbrook v. Murray, 5 Wend. 161. Van Deusen v. Brower, 6 Cowen, 50. Sheldon v. Quinlen, 5 Hill, 441.) The rule is well settled in these cases, that an entire judgment against several defendants, whether rendered in an action of tort, or upon contract, can not be reversed as to one defendant, and affirmed as to others. If I am right in the construction which I have put upon this return of the justice, then it follows, that the justice erred in rendering this judgment, and that the county court should have reversed his judgment. The judgment of the county court, and that of the justice, must he reversed; and I see no reason, why the appellants should not have their costs on this appeal.

Judgment accordingly.

(a)

A motion for re-argument was made in this case, on the ground that the code had changed the rule laid down by the court in their opinion in this case; that an entire judgment against several defendants, could not be reversed as to one defendant, and affirmed as to others; but the motion for re-argument was denied, the court adhering to the opinion as above expressed.