Cellulose Package Mfg. Co. v. Calhoun

SHAW, J.

The defendant appeals from an order denying his motion for a new trial.

The action is based upon a judgment recovered by the plaintiff in the superior court of Cook County, Illinois, against George Calhoun and J. W. McGrath. In the Illinois court .both of said defendants appeared by attorneys and demurred to the declaration," the demurrer was overruled, they were ruled to plead, but failed to do so, whereupon the judgment was rendered against them. The court below made findings that McGrath was never served with process in the Illinois action and that the attorneys who entered an appearance for him in that action had no authority to do so, that the contract there sued on was the joint contract of Calhoun, Mc-Grath, and one Kindt, that under the law of Illinois a separate judgment could be entered against either of the parties to such a joint contract without entering judgment against all, and .that under that law the judgment sued on was valid as

[515]

against Calhoun but void as against McGrath. Upon this finding judgment was given against Calhoun alone.

The appellant claims that, under the authorities, if a joint judgment is rendered against two or more, and it appears from the record, or is shown

aliunde,

that such judgment is invalid as to one of them for want of jurisdiction over him, the joint judgment is void as to all. This theory is based upon a rule prevailing in some jurisdictions to the

effect

that if it is shown that the judgment rendered upon a joint contract is void as to one joint contractor, it is a nullity and void as to all. No proof was made that this is the law of Illinois, where the judgment was rendered, nor is any decision of the courts of that state cited which so holds. The extent of their decisions is that it is error to give judgment, in such an action, against one such joint defendant alone, and that a judgment so given will be reversed on appeal because of such error. None of them holds that such judgment would be void on collateral attack against the person served. This alleged rule that a joint judgment on a joint contract is invalid entirely, if shown to be invalid as to one of the joint defendants, is discussed by Mr. Freeman in an elaborate note to the case of