Hickman v. Anderson

Court of Appeals of Kentucky

Hickman v. Anderson

32 Ky. 223, 2 Dana 223, 1834 Ky. LEXIS 62

DecidedMay 8, 1834

StatusPublished

This text of 32 Ky. 223 (Hickman v. Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hickman v. Anderson, 32 Ky. 223, 2 Dana 223, 1834 Ky. LEXIS 62 (Ky. Ct. App. 1834).

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Opinion

Judge Underwood

delivered the Opinion of the Court.

Anderson brought an action of debt against Hickman and McGrnder jointly. The writ being executed on both, McGrnder appeared, and filed the plea of non est factum, upon which an issue was formed. Thereafter, Anderson withdrew his replication to McGruder’s plea, and dismissed the action as to him, but took judgment bv default against Hickman. ‘

[224]*224The judgment must be reversed. If the plaintiff (now defendant,) had submitted the trial of the issue to a jury, and the jury had found for McGruder, then, as he would have been discharged from all future liability on the note, and might have pleaded the judgment rendered, in bar of any future action founded upon it, he might have taken his judgment against Hickman, with propriety, according to the principle of the case of McGowan vs. McCoun, 3 Marshall, 153. But as McGruder was not discharged, it was error to take judgment against Hickman. If he had been sued separately, he might have pleaded in abatement, the non-joinder of McGrutier. The voluntary dismissal of the suit as to Mi Grader, ought not to place Hickman in a situation where lie could not take advantage of the non-joinder of the joint obligors in the same action. The principles of the case of Shields vs. Perkins, 2 Bibb, 229, settles this.

Judgment reversed, with costs, and cause remanded.

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Judge Underwood

delivered the Opinion of the Court.

Anderson brought an action of debt against Hickman and McGrnder jointly. The writ being executed on both, McGrnder appeared, and filed the plea of non est factum, upon which an issue was formed. Thereafter, Anderson withdrew his replication to McGruder’s plea, and dismissed the action as to him, but took judgment bv default against Hickman. ‘

[224]*224The judgment must be reversed. If the plaintiff (now defendant,) had submitted the trial of the issue to a jury, and the jury had found for McGruder, then, as he would have been discharged from all future liability on the note, and might have pleaded the judgment rendered, in bar of any future action founded upon it, he might have taken his judgment against Hickman, with propriety, according to the principle of the case of McGowan vs. McCoun, 3 Marshall, 153. But as McGruder was not discharged, it was error to take judgment against Hickman. If he had been sued separately, he might have pleaded in abatement, the non-joinder of McGrutier. The voluntary dismissal of the suit as to Mi Grader, ought not to place Hickman in a situation where lie could not take advantage of the non-joinder of the joint obligors in the same action. The principles of the case of Shields vs. Perkins, 2 Bibb, 229, settles this.

Judgment reversed, with costs, and cause remanded.

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Bluebook (online)

32 Ky. 223, 2 Dana 223, 1834 Ky. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickman-v-anderson-kyctapp-1834.