O'Hara v. Lannier

40 Ky. 100, 1 B. Mon. 100, 1840 Ky. LEXIS 92

• Court: Court of Appeals of Kentucky
• Decided: December 9, 1840
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

If the warrant o-f attorney, by O’Hara and Yancey, to confess judgment, should be considered judicially, as in the record before us, it should be deemed void, because i-t purports-to have been given- before the institution of the suit in- whieh*the confession wa-s made, (1 Stat. Law, 412.)

But even if the warrant of attorney, though copied into the transcript, be not properly there,- still the judgment against O’Hara and Yancey alone, without regularly disposing of the suit as to Fant, who was sued jointly with them and was equally liable, as drawer of the bill, on which the suit was brought, was, in our opinion, erroneous. The warrant to confess judgment for O’Hara and Yancey, as acceptor and- endorser, cannot be construed as consenting to a judgment a-gainstthem alone, without regularly disposing of the suit as to their co-defendant, Fant: but must be understood as only authorizing an acknowledgment of the justice of the action, so far as-they themselves were concerned, or might have a right to resist it. There was, therefore, no more authority for the* judgment against them alone, than there would have been had they made default instead of expressly authorizing a confession of the action.

It is true that, after taking the judgment, without noticing the co-defendant, Fant,- it might have been erroneous,, at .a subsequent term, to prosecute the same action against Fant; because the cause of action being merged in the judgment as rendered, transit in rem judicatum, the legal effect of such a judgment, pretermitting a joint defendant, might be a virtual discontinuance as to him, as was suggested by this Court in the case of Elledge at al. vs Bowman, (5 J. J. Mar. 595.)

Warrantof attorney by 2 of 3 who-are jointly liable and sued jointly, cannot be construed to be a warrant to confess judgment, without judgment is also rendered againsttke third def’t. or otherwise regularly disposing of the suit as to him. Cates <§■ Lindsey for plaintiffs; Owsley for defendant.

But nevertheless, as O'Hara and Yancey did not take the whole burthen of the action on themselves, and consent to the exoneration of the principal co-obligor, it was an error to their prejudice, to render judgment against them without prosecuting the action against him, either to judgment against him, at the same time, or to such a legal result as to have discharged him by express judgment of abatement or in bar.

And though the confession may have operated as a release of all errors before judgment, it could have no such effect as to the judgment itself.

Wherefore, the judgment of the Circuit Court is reversed and the cause remanded.