Roby v. Updyke , 61 Ill. App. 328 ( 1895 )

Mr. Justice Shepard

delivered the opinion of the Court.

This appeal is from an order of the Circuit Court overruling and denying the motion of appellant to vacate and set aside a judgment entered up by confession against the appellant alone on two certain promissory notes, alleged by the narr. and confessed by the cognovit, to have been made by appellant and one Sullivan by the name of Eoby & Sullivan.

Judgment was entered thereon on January 4, 1895. Thereafter, and on February 11, 1895, on the motion of appellant, leave was given him to plead in said case within five days, the judgment to stand as security, and execution on the judgment ivas ordered stayed for fifteen days, and by agreement of parties the cause was submitted to the court for trial without a jury, and was continued. The appellant, instead of pleading to the merits of the cause in accordance with the leave to do so, filed his motion therein on February 16, 1895, to set aside the judgment, and it is from the order denying that motion that the appeal was taken. By asking for and obtaining leave to plead in the cause, the appellant thereby waived all technical objections to the judgment.

The taking of judgment against but one of two persons who are joint promisors and are sued jointly, is at most a technicality. The appellant was liable severally as Avell as jointly, under the statute. Chap. 76, Sec. 3, Rev. Stat.; Marine Bank v. Ferry, 40 Ill. 255; Nat. Bk. of Oshkosh v. Jennings Trust Company, 44 Ill. App. 285.

And a joint action against all is no bar to a subsequent action against one alone. People v. Harrison, 82 Ill. 84.

But neither did the appellant on the hearing of the motion show any equity Avhy the judgment should not stand.

Because appellant has not shown any equitable reason Avhy the judgment should not have been rendered against him, we will not inquire whether it was technical error to enter judgment against him alone upon a declaration against himself and another jointly.

The judgment of the Circuit Court is affirmed.