White v. Gardner

158 Ill. App. 399, 1910 Ill. App. LEXIS 160

• Court: Appellate Court of Illinois
• Decided: November 10, 1910
• Docket: Gen. No. 15,405
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court.

It is well settled in this state that in actions ex contractu against two or more, the plaintiff must recover against all of the defendants or none, except in certain cases where a defendant interposes a defense personal to himself, such as infancy, coverture, lunacy, bankruptcy, and the like. No such defense was interposed Lucht in this case. Here the error alleged in the 'finding of the jury appeared on the face of the record. The general rule is that where errors are patent on the record they are open to revision in a court of review without any motion in arrest of judgment or exception taken in the trial court. Bennett v. Butterworth, 13. How. U. S. 669. But in this case Gardner moved in arrest and excepted to the denial of his motion. When a defendant moves in arrest of judgment without assigning any specific reasons, and excepts to the denial of his motion, he is at liberty to urge any sufficient reason in the Appellate Court. W. C. St. R. R. Co. v. Coit, 50 Ill. App. 640.

In Farrelly v. Hogshead, 97 id. 244, it was held that the objection here made to the judgment could not be raised for the first time in the Appellate Court. If the correctness of the rule stated in that case be conceded, the judgment in this case must still be reversed, for the question whether the plaintiff was entitled to a judgment on the verdict against Gardner alone was presented to the trial court by his motion in arrest and saved for review here, by that motion and his exception to its denial.

The judgment will be reversed and the cause remanded.

Reversed and remanded.