Clinton County IL Archives Court.....Bond, Amy Davidson V Benjamin 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 6:32 am

Source: Reports Of Cases
Written: 1850

Amy Davidson, administratrix, etc., et al., plaintiffs in error, v. Benjamin 
Bond et al., defendants in error.

Error to Clinton.

A party may have his judgment reversed, if judgment below was ex parte, and 
the errors which render it inoperative are patent.(a)

It is error to render judgment against a part of the defendants, while the 
cause remains undisposed of as to the others.(b)

The record in this case shows that William Russell, now deceased, in his life 
time, by his attorney, filed in the office of the clerk of the Circuit Court, 
of Clinton county a precipe and declaration in assumpsit, on the sixteenth day 
of June, 1846, against several defendants. A summons was issued, returnable at 
the September term, 1846, of that court, which was returned served, on four of 
six defendants, on the return day of the summons, and returned not served on 
the other two. On the following day, an appearance was entered for four of the 
defendants, and subsequently a default for failing to plead was entered, and 
judgment was rendered against four of the defendants without making any order 
as to the other two.

The plaintiffs below sued out this writ of error, to procure a reversal of 
their own judgment.

G. Trumbull, for plaintiffs, made the following points:

The court erred in rendering judgment at the return term of the process 
against the defendants in the judgment, they not having been served with 
process ten days before the commencement of the term of court, and the ten 
days' notice not having been waived by the defendants against whom the 
judgment was entered: Gore v. Smith, Breese, 206; R. S. 1845, p. 413, sec. 5; 
Teal v. Russell et al., 2 Scam., 321; Tidd's Prac., 1188.

It was error to render judgment against part of the defendants, and make no 
order as to the other defendants who were served with process: Ladd et al. v. 
Edwards, Breese, 139; O'Connor et al. v. Mullen, 11 Ill. Reps., 116.

That a plaintiff may reverse a judgment for his own errors, see Capron v. Van 
Norden, 1 Cond. Reps., 370; 2 Scam., 321; Jones et al. v. Wright et al., 4 
Scam., 338; 2 Tidd's Prac., 1134.

S. Breese, for defendants in error.

Caton, J. On the return day of the summons it was served on all of the 
defendants. During the term to which the summons was returnable, the 
appearance of four of the defendants was entered. At the same term a default 
was entered and judgment rendered against the four defendants whose appearance 
had been entered, and no notice taken of the other two defendants who had been 
served with process. This was unquestionably erroneous. At the common law, in 
action upon a joint contract or obligation, the judgment must be rendered 
against all or none of the defendants, and this has only been changed by our 
statute by allowing the plaintiff to take judgment against a part of the 
defendants, who alone had been served with process. This case should have been 
continued until the next term, when all of the defendants might have been 
proceeded against.

Here there was an error, for which the defendants might, at any time within 
five years from the rendition of the judgment, bring the case to this court 
and have the judgment reversed. And while this is the case, it is not an open 
question in this court, since the decisions in the cases of Teal v. Russell et 
al., 2 Scam., 319, and Jones v. Wright et al., 4 Scam., 338, that the 
plaintiffs may bring the record here and rid themselves of a judgment which, 
while it presents a bar to their obtaining a regular one, still affords them 
no sufficient security.

Inasmuch, however, as their intestate was chargeable with the error which 
renders the judgment defective, they must pay the costs of getting it 
reversed: Jones v. Wright et al., 4 Scam., 338.

Let the judgment be reversed at the cost of the plaintiffs, to be paid in due 
course of administration.

Judgment reversed.

-----------------------
(a) A party may reverse a judgment in his own favor: Tuller v. Robb, 26 Ill., 
246; Thayer v. Finley, 86 Ill., 262; Hartman v. B. & O'F. R. R. Co., 64 Ill., 
24.

(b) See Tolman v. Spaulding, 3 Scam., 13, and note (a); Dow v. Rattle, post, 
273, and note. When all the defendants are served, some before and some after 
ten days before the return term, the cause must be continued as to all: Evans 
v. Gill, 25 Ill., 116. When all the defendants are served with process, 
judgment must be against all or none: Faulk v. Kellums, 54 Ill., 188; Logan v. 
Burr, 3 Bradw., 458; Waugh v. Suter, Id., 271; Ward v. Tanner, 63 Ill., 519; 
Felsenthal v. Durand, 60 Ill., 230.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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