Fuller v. Robb

26 Ill. 246

• Court: Illinois Supreme Court
• Decided: April 15, 1861
• Status: Published

Opinion

Caton, C. J.

In an action of assumpsit against several, the plaintiff must recover against all or none, unless some of the defendants make a personal defense, as infancy, lunacy or bankruptcy. Here, after judgment had been entered against both defendants, on the application of Robb, the court set aside the judgment as to him alone, to let in a general defense, and upon a trial of the issues which he presented he obtained a verdict and judgment, leaving the judgment still in force as to Tinkham. The court should have set aside the judgment as to both defendants, and then a successful defense by either would have entitled both to judgment. As Tinkh? n has a right within five years to bring the record here and obtain a reversal, so may the plaintiff bring it here and obtain a reversal for an error committed on the motion of one of the defendants.

The judgment as to both defendants must be reversed, and the cause remanded, with leave to the defendants to plead anew.

Judgment reversed.