Worden, J.
This was a suit by Comstock and Aber against the appellants, and Andrew Downing, upon a promissory note.
It is alleged in the complaint that the defendants wei*© partners, trading under the name and style of A. Downing & Co., and that they, as such partners, made their note to A. Downing, who indorsed it to the plaintiffs.
Downing made default. At the March term of the Court, 1859, Rose and Peck appeared, and filed an answer, alleging, in substance, that Downing, one of the members of the firm, caused one Irons, tlie clerk and agent of the firm, to make and deliver the note to said Downing, wlio indorsed it to the plaintiffs for his private and individual debt, and not for any debt of the firm, and that the plaintiffs had full knowledge of all the facts.
At the same term of the Court, after the answer of Rose and Reo/c was filed, the plaintiffs, without replying to the answer of Rose and Peek, had Downing called and defaulted, and the damages assessed by the Court, and took final judgment against him for the amount duo on the note, and costs.
[3] No other steps were taken in the cause at that term of the Court. Rose and Recle were not further noticed, nor was their answer; nor was the cause continued as to them, or otherwise disposed of, unless the taking of judgment against Downing put an end to the cause as to them.
At the next term of the Court, the plaintiffs appeared, and asked leave to file a replication to the answer of Rose and Peck, to which they, by counsel, objected, and moved the Court to strike the cause from the docket, on the ground that as the plaintiffs had, at the previous term, taken final judgment against Downing, they were discharged, and the cause at an end. Pending this motion, Downing appeared, and, on affidavit filed, moved the Court to set aside the judgment which had been rendered against him by default, at the previous term. It is evident from the affidavit of Downing, that there was no very substantial ground for setting aside the default as to him, but the plaintiffs saying that they “ confessed the errors alleged,” the default was set aside.
Thereupon, the Court overruled the motion to strike the cause from the docket, as to Rose and Peek, and gave the plaintiffs leave to reply to their answer, to which exception was duly taken. A replication was filed, denying the matters set up in the answer of Rose and Peale, and thereupon Downing was again defaulted. Rose and Peek applied, on affidavit filed, for a continuance, but the motion was overruled. The cause was tried by the Court, as to Rose and Peak. The Court found for the plaintiffs, assessing damages against Downing, as well as Rose and Peck, and rendered final judgment against all the defendants.
Rose and Peck, only, appeal.
The first question arising upon the record, relates to the effect of taking the first judgment against Downing; and the solution of this question, in our opinion, settles the whole case.
It may be observed that that judgment was rightfully enough taken, so far as any question as to joint liability is concerned.
[4] Rose and Peck had pleaded matter which, at most, defeated the action as to them only. Hie matter thus pleaded, while it showed that Rose and Peck were not liable as makers of ^10 no^e> showed that Downing was solely liable thereon. It was a case where a several judgment against Downing was proper. Had issue been taken on the answer of Rose and Peck, and found against the plaintiffs, they still would have been entitled to have damages assessed against Downing on his default, because the matter pleaded did not defeat the liability of Downing. Herein the case differs from that of Sutherlin et al. v. Mullis, at the present term, post, p. 19. The case is more like that of Hubbell v. Woolf, 15 Ind. 204. See, also, Parker v. Jackson, 10 Barbour, 33, a case quite in point here.
The -plaintiffs, by failing to reply to the answer of Rose and Peck, and by taking final judgment on the default, against Downing, we think, clearly abandoned the suit as against Rose and Peck. Whether the judgment, for all purposes, merged the note, we need not decide, but the taking of final judgment against Downing alone, under the circumstances, operated as a discontinuance of the cause, as to the other parties, and put an end to the suit. The-code provides that •“every material allegation of new matter in the answer, not specifically ‘controverted by the reply, shall, for the purposes •of the action, be taken as true.” 2 R. S. 1852, § 74, p. 44. The matters set up in the answer of Rose and Peck, not being controverted, must have been, for the purposes of the action, taken as true; and the effect thereof, as a bar to the action against them, was admitted by the plaintiffs in taking judgment against Downing alone.
We have, however, a statutory provision that should, perhaps, be specially noticed. It is provided that “in suits against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.” 2 R. S. 1852, § 369, p. 121.
The case does not come within this provision, for two reasons:
[5] First. — The cause was not continued, or left to proceed, by the order of the Court, iii the exercise of its discretion, as to the defendants Rose and Peale. On the contrary, no order was made by the'Court in this respect. The plaintiffs could not, of their own volition alone, take judgment as to one, and leave the cause to procéed as to the others. This can only be done by the exercise of the discretion vested in the Court; and the exercise of such discretion can only be shown by an order of the Court, to that effect. Bacon v. Comstock, 11 Howard’s Prac. R. 197.
No such order having been made, the cause can not be regarded as having been left to proceed against any of the defendants; on the contrary, it was terminated as to all of them.
Second. — This is not a proper case for such an order, which can only be made in cases where a several judgment is proper. Now, although a several judgment against Downing was proper, under the facts shown, yet it could not be as against Rose and Peale; for if they were liable at all, they were only liable jointly with Downing, and a several judgment against them could not be rendered; hence it would be useless to continue the cause, or let it proceed, as to them.
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Worden, J.
This was a suit by Comstock and Aber against the appellants, and Andrew Downing, upon a promissory note.
It is alleged in the complaint that the defendants wei*© partners, trading under the name and style of A. Downing & Co., and that they, as such partners, made their note to A. Downing, who indorsed it to the plaintiffs.
Downing made default. At the March term of the Court, 1859, Rose and Peck appeared, and filed an answer, alleging, in substance, that Downing, one of the members of the firm, caused one Irons, tlie clerk and agent of the firm, to make and deliver the note to said Downing, wlio indorsed it to the plaintiffs for his private and individual debt, and not for any debt of the firm, and that the plaintiffs had full knowledge of all the facts.
At the same term of the Court, after the answer of Rose and Reo/c was filed, the plaintiffs, without replying to the answer of Rose and Peek, had Downing called and defaulted, and the damages assessed by the Court, and took final judgment against him for the amount duo on the note, and costs.
[3] No other steps were taken in the cause at that term of the Court. Rose and Recle were not further noticed, nor was their answer; nor was the cause continued as to them, or otherwise disposed of, unless the taking of judgment against Downing put an end to the cause as to them.
At the next term of the Court, the plaintiffs appeared, and asked leave to file a replication to the answer of Rose and Peck, to which they, by counsel, objected, and moved the Court to strike the cause from the docket, on the ground that as the plaintiffs had, at the previous term, taken final judgment against Downing, they were discharged, and the cause at an end. Pending this motion, Downing appeared, and, on affidavit filed, moved the Court to set aside the judgment which had been rendered against him by default, at the previous term. It is evident from the affidavit of Downing, that there was no very substantial ground for setting aside the default as to him, but the plaintiffs saying that they “ confessed the errors alleged,” the default was set aside.
Thereupon, the Court overruled the motion to strike the cause from the docket, as to Rose and Peek, and gave the plaintiffs leave to reply to their answer, to which exception was duly taken. A replication was filed, denying the matters set up in the answer of Rose and Peale, and thereupon Downing was again defaulted. Rose and Peek applied, on affidavit filed, for a continuance, but the motion was overruled. The cause was tried by the Court, as to Rose and Peak. The Court found for the plaintiffs, assessing damages against Downing, as well as Rose and Peck, and rendered final judgment against all the defendants.
Rose and Peck, only, appeal.
The first question arising upon the record, relates to the effect of taking the first judgment against Downing; and the solution of this question, in our opinion, settles the whole case.
It may be observed that that judgment was rightfully enough taken, so far as any question as to joint liability is concerned.
[4] Rose and Peck had pleaded matter which, at most, defeated the action as to them only. Hie matter thus pleaded, while it showed that Rose and Peck were not liable as makers of ^10 no^e> showed that Downing was solely liable thereon. It was a case where a several judgment against Downing was proper. Had issue been taken on the answer of Rose and Peck, and found against the plaintiffs, they still would have been entitled to have damages assessed against Downing on his default, because the matter pleaded did not defeat the liability of Downing. Herein the case differs from that of Sutherlin et al. v. Mullis, at the present term, post, p. 19. The case is more like that of Hubbell v. Woolf, 15 Ind. 204. See, also, Parker v. Jackson, 10 Barbour, 33, a case quite in point here.
The -plaintiffs, by failing to reply to the answer of Rose and Peck, and by taking final judgment on the default, against Downing, we think, clearly abandoned the suit as against Rose and Peck. Whether the judgment, for all purposes, merged the note, we need not decide, but the taking of final judgment against Downing alone, under the circumstances, operated as a discontinuance of the cause, as to the other parties, and put an end to the suit. The-code provides that •“every material allegation of new matter in the answer, not specifically ‘controverted by the reply, shall, for the purposes •of the action, be taken as true.” 2 R. S. 1852, § 74, p. 44. The matters set up in the answer of Rose and Peck, not being controverted, must have been, for the purposes of the action, taken as true; and the effect thereof, as a bar to the action against them, was admitted by the plaintiffs in taking judgment against Downing alone.
We have, however, a statutory provision that should, perhaps, be specially noticed. It is provided that “in suits against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.” 2 R. S. 1852, § 369, p. 121.
The case does not come within this provision, for two reasons:
[5] First. — The cause was not continued, or left to proceed, by the order of the Court, iii the exercise of its discretion, as to the defendants Rose and Peale. On the contrary, no order was made by the'Court in this respect. The plaintiffs could not, of their own volition alone, take judgment as to one, and leave the cause to procéed as to the others. This can only be done by the exercise of the discretion vested in the Court; and the exercise of such discretion can only be shown by an order of the Court, to that effect. Bacon v. Comstock, 11 Howard’s Prac. R. 197.
No such order having been made, the cause can not be regarded as having been left to proceed against any of the defendants; on the contrary, it was terminated as to all of them.
Second. — This is not a proper case for such an order, which can only be made in cases where a several judgment is proper. Now, although a several judgment against Downing was proper, under the facts shown, yet it could not be as against Rose and Peale; for if they were liable at all, they were only liable jointly with Downing, and a several judgment against them could not be rendered; hence it would be useless to continue the cause, or let it proceed, as to them.
The judgment against Downing might, perhaps, be regarded as merging the note, so as to bar an action thereon against Rose and Peale. If so, we express no opinion as to the effect, in that respect, of the action of the 'Court in setting it aside. If setting aside the judgment would restore to the parties all the rights and liabilities upon the note, which attached before the judgment was rendered, still, it could not put Rose and Peak back into Court as parties to the suit, the cause having been, at the previous term, finally disposed of and ended. Rose and Peak were out of Court; and it was error to take proceedings against them in a cause, which, as to them at least, had been finally disposed of.
The Court below, in our opinion, erred in not striking the cause, as to Rose and Peal; from the docket, and in permitting a reply to be filed to the answer which they had [6] previously filed, and in, requiring them to enter upon the trial of the cause.
John P. Usher, for the appellants.
James II. Vavoter, for the appellees.
Mr. Usher, for appellants:
The noto being joint, the judgment against Downing was an extinguishment of the note and debt. It was merged in the judgment. Woodworth v. Spofford, 2 McLean, 168; Clinton Bank of Columbus v. Hart, 5 Ohio R. 33; 18 Johns. R. 481.
Per Ouriam. — The judgment against the appellants is re-Terse<^ "with costs. Cause remanded, &c. '