Tay, Brooks & Backus v. Hawley

Rhodes, C. J., delivered the opinion of the Court:

The plaintiffs sued Hawley & Shiverick, and the process having been served only upon Hawley, they recovered a judgment, which, after reciting that Shiverick had not been served with process, adjudged that plaintiffs recover of both of the defendants the sum of money therein mentioned, and that the plaintiffs have execution against the joint property of both defendants, and the separate property of Hawley. The present action was brought upon that judgment, against Hawley alone. The defendant, in his answer, sets up the non-joinder of Shiverick, alleging that the judgment sued upon is a joint judgment against both him and Shiverick.

[95]The statute, in terms, authorizes the entry of a judgment of the character of the one presented in this case, where suit is brought on a joint contract, and one or more, but not all, of the defendants are served with process. (Practice Act, Sec. 32.) The section provides that “if the action be against defendants jointly indebted upon a contract, he may proceed against the defendants served, unless the Court otherwise direct”—that is to say, unless the Court requires the other defendants to be served before proceeding to trial and judgment. If he does “proceed against the defendant served,” the section provides that he shall take judgment against all of the defendants, to be enforced against the joint property of all the defendants, and the separate property of those served. By the terms of the statute, the plaintiff proceeds only against the defendants served, and judgment is entered against them, but not against those who were not served. The defendants not served are not bound by the judgment, nor are they personally liable for its satisfaction; but the statute provides that the property in which they are jointly interested with the other defendants, may be taken in execution for the satisfaction of the judgment. This provision of the statute will hereafter be noticed.

When cases involving this or similar provisions of the statutes of other States have been under consideration, it has been repeatedly held that the statute changed the common law rule, which is that in an action upon a joint contract the plaintiff must recover against all or none. (People v. Frisbie, 18 Cal. 402; Lewis v. Clarkin, Id. 399.) The language of those cases clearly indicates that, under the statutory rule, the plaintiff may recover upon a joint contract against one, or any number less than all, of the joint debtors; that is to say, he may take judgment in the usual form against those served, and, in addition, the judgment may be enforced against the joint property of all the joint debtors. But the judgment is against those only who were served with process.