Warfield v. Blue , 33 Ky. 485 ( 1835 )

Chief Justice Robertson

delivered the Opinion of the Court.

In a joint action of assumpsit against the administrator and one of the heirs of Walter Warfield — the suit having been abated as to the other heirs — Blue obtained a judgment against the heir, although the administrator succeeded on the general issue and an issue on the statute of limitations. And the question now to be decided, is whether such a judgment can be sustained.

As the heir was not expressly bound, and could only be sued with the administrator, his liability was necessarily accessory and joint only. And it is well settled that, when one defendant in a joint action, ex contractu, succeeds on a plea which would bar the action as to all, no judgment should be rendered against any other defendant.

Wherefore, as the action is joint, and the heir is only liable consequentially, and is only suable jointly with the administrator; and as the defence by the administrator applied to the entire cause of action, and he maintained that defence, it seems to us, that the separate judgment against the heir was unauthorized. Moreover, had a judgment against the heir been proper, it was erroneous to render judgment de bonis propriis, as was done in this case.

Wherefore, the judgment is reversed, and the cause remanded, with instructions to render judgment in bar of the action altogether.