White v. Bischow , 9 Teiss. 155 ( 1912 )

ST; PAUL, J.

Plaintiff sues Joseph Bisehow and Elias Pailet in solido for the sum of $1000.00, subject to a credit of $378.00', being the amount recovered by petitioner through attachment proceedings against Bischow.

On the trial of the case it developed that the obligation sued on was not a solidary but a joint obligation, and that the $378.00 credited thereon had been collected through the seizure and sale of' property belonging to Bischow.

There was judgment against Pailet for one half of the original amount of the obligation, to-wit, $500.00 with interest etc., and Pailet appeals.

He urges that there was error in comdemning him for more than $311.00, and he contends that, construing the petition in the light thrown upon it by the note on file, plaintiff asks for a judgment against him for only one half, of the balance due upon the note, say one half of $622.00, or $311.00; so that he cannot be condemned for more than that sum.

But we do not see it that way. The petition clearly asks for judgment against him for $622.00; upon an erroneous theory, it is true, but nevertheless that is the amount of .the judgment prayed for. Hence a judgment for $500.00 does not exceed the amount of the demand.

Nor do we think that appellant is entitled to have the credit arising from the sale of Bischow’s property imputed equally upon his own share of the obligation and that of Bischow.

The obligation being a joint one for $1000.00, plaintiff" was entitled to collect $500.00 from Bischow and $500.00 from Pailet. She did collect $378.00 from Bischow, or out of his property, and the credit was properly imputed to Bischow’s share of the obligation.

Plaintiff was still entitled to collect $122.00 more from Bischow, and the full amount of $500.00 from Pailet.

February 19th, 1912.

The judgment appealed from condemned the latter for that sum and no more, and we fail to see wherein appellant can complain of it.

Judgment affirmed.