Harrington v. Bowman, Jr. , 102 Fla. 339 ( 1931 )

I agree to the conclusion reached but think the court's judgment should rest upon the following principle; when more than one person are joined as defendants in an action ex-contractu whether the contract be in writing or verbal and whether it be joint or joint and several the plaintiff's recovery must be against all the persons joined who were brought before the court by service or appearance. Against such defendants who were served or appeared it is essential to plaintiff's recovery that he establish a joint liability. 33 C. J. 1111.

The above I conceive to be the rule at common law and there is no statute in this State changing it.

Now of the three persons named in the declaration as defendants only two were served with process and appeared. The third was not served and did not appear but the plaintiff elected to proceed against the two served thereby electing to make the contract a joint one as to them. The two defendants served pleaded to the merits setting up as a defense matter available to them particularly and did not present by either plea or motion the question that the contract sued upon was a joint and not a joint and several obligation of the three persons named as defendants. The cause proceeded therefore against the two as upon a joint obligation as to them. A motion in arrest of judgment therefore was obviously wrong and not the correct procedure by which the two defendants served might present the point that there was defect of parties defendant. Neither Section 4501 C. G. L. nor Section 4496 C. G. L. is applicable.