Harper v. Bangs

18 How. Pr. 457

• Court: New York Supreme Court
• Decided: October 15, 1859
• Status: Published

Opinion

Ingraham, Justice.

The 136th section of the Code allows the plaintiff to proceed against such of the joint debtors as are served, and, on recovery, to enter up judgment against all who are jointly indebted.

The 375th section provides for the service of the summons to show cause why they should not be bound by the judgment, or any who were not served with the summons in the original action.

By this section, such summons may be served when a judgment shall be recovered against one or more of several persons jointly indebted upon a contract. There is nothing in the summons or affidavit which warrants the granting of this motion. The plaintiff states he recovered judgment against three of the defendants, and served a summons on the fourth, who was not originally served, but who was a defendant in that action. This is in conformity with the 375th section, that contemplates that the judgment should only be considered a judgment against those served, as it says, where judgment is recovered against one or more of the joint debtors. It is sufficient to state what this section requires, and, when the affidavit is made in conformity with it, there is no reason to set it aside.

If the judgment was not properly entered up against all the defendants, it should have been shown by affidavit.

Motion denied with $10 costs, without prejudice to a renewal of the motion on affidavit.