Ritchie v. Gibbs ( 1880 )

Higbee, J.

The record in this case shows that a joint action was brought by appellee against H. L. Dancy, James A. Doyle, P. M. Stagner and Jacob H. Bitchie.

The declaration counts on a promissory note for $411, executed by defendants to plaintiff on the 19th day of October, 1868, payable three years after date.

All the defendants except Dancy were served with process; Stagner and Bitchie filed pleas, and Doyle was defaulted.

Stagner filed a plea averring in substance that Dancy was principal in the note sued on, and that he and Doyle signed the same as securities only, and that after the maturity of the note, Gibbs the payee extended the time of payment to Dancy one year, in consideration that Bitchie would sign the same as additional security, and that Ritchie then signed the note, and the time for payment was extended to Dancy without the knowledge or consent of the securities, whereby they had become and were discharged from all liability on said note. .

Plaintiff below filed his replication to this plea, and the cause -was tried by a jury. The verdict of the juiy found for plaintiff against defendants, Doyle and Ritchie, and assessed his damages at $655.98, and that defendant Stagner was not liable.

The court overruled a motion for a new trial, and rendered judgment against Doyle and Ritchie for the damages assessed by the jury, and discharged Stagner, from which judgment Ritchie appeals to this court.

In an action on a contract against several defendants jointly, the judgment must be against all of the defendants who are served with process or appear to the action unless some of the defendants make a personal defense, as infancy, lunacy, bankruptcy, and the like. 1 Chi tty’s PI. 45 and 46; Kimnel v. Shultz, Breese, 169; McConnell v. Swailes, 2 Scam. 571; Giblin v. Thompson, 28 Ill. 61; Gartson v. Strawn, 54 Ill. 402; Felsenthal et al. v. Durand et al. 86 Ill. 230.

The plea upon which the jury found for the defendant Stagner was not a personal plea within the exception to the rule. The very act by which Ritchie became liable upon the note disci larged Stagner.

They were never jointly liable upon the contract, and were improperly joined in the action.

It is now contended that because the note was joint and several, a judgment could be rendered against a part and not all of the defendants. But this can only be done where separate suits are brought. The note is joint and several, and the plaintiff must proceed against all jointly, or each separately. Gould v. Steinburg, 69 Ill. 531.

The recovery in this case violates this well-settled rule of law.

The judgment is reversed and the cause remanded.

Reversed and remanded.