Warner v. Ford , 17 How. Pr. 54 ( 1858 )

Mason, Justice.

This being an action as shown by the affidavits, where there is only a joint liability of the defendants, the plaintiff could not proceed and enter a several judgment against the defendant who did not appear. (Parker agt. Jackson and others, 16 Barb. R. 33; Harrington agt. Higham. and others, 15 Barb. R. 524; Ladue agt. Van Vechien, 8 Barb. B. 664; Crandall agt. Beach and others, 7 How. P. R. 271; 5 Sand. S. C. R. 210 ; 13 How. P. R. 511; 11 How. P. R. 197; 2 Whittaker's Pr. 68 ; 3 Sand. S. C. R. 752.) It being clear that there cannot be several judgments against the defendants, the question recurs whether the plaintiff -was right in taxing the costs of the demurrer in the judgment against A. P. Ford ? I think these costs were properly taxed against all the defendants, and such I understand to have been the practice both before and since the Code.

The rule is so declared by Judge Bronson, in Henman agt. Booth, (20 W. R. 666, 668,) and Justice Birdseye, in Gatlin agt. Billings and others, (13 How. P. R. 511, 515, 516.) The principle of these cases controls the case before us. The principle is laid down in 2d Tidd's Practice, 899. The rule was held in Smith agt. Harris, (12 Ill. R. 462.)

And I do not see that it could make any difference if the contract on which the suit is brought were joint and several, when the plaintiff sues them jointly, for he is entitled to joint judgment. As the defendants have assumed a joint liability, the plaintiff is entitled to insist upon a joint judgment, and it does not lie with one of the parties to say that joint liability shall be severed by his putting in a separate defence, and if the other parties who do not wish to defend, desire to be relieved from costs, they should pay the demand.

Suppose the summons and complaint in this case, had only been served on Norman Ford, and he had put in the same answer which he did, and the plaintiff had demurred, and judgment had been given for the plaintiff the same as it was, the plaintiff would have been obliged to take judgment against all of the defendants. (Crandall agt. Beach, 7 How. P. R. 271, 272.) It is only necessary, however, to decide in this case, that when the defendants’ liability is joint and but one judgment can be entered, the defendants are equally liable for the whole costs when one has suffered a default and the other has defended the action unsuccessfully.

This motion must be denied, with $10 costs.