Downer v. Dana , 22 Vt. 22 ( 1849 )

The opinion of the court was delivered by

Bennett, J.

This is an action of debt upon a jail bond; and the important question arises under the defendants’ plea, that there is no such record of judgment, as is alleged in the declaration. The case is one of some difficulty, and has now been argued, at this and previous terms, before all the members of the court; and I will now proceed to pronounce the opinion of a majority of the court.

It has been argued for the defendants, that the several judgments rendered against Solomon Downer and Dana, at the September Adjourned Term of the county court, 1838, were absolutely void; but I am not prepared to assent to that proposition. The court had jurisdiction of the subject matter of the action, and of the parties. The judgments were no doubt erroneous, and might have been reversed upon error. The question, however, now is as to the effect, which the review entered by Solomon Downer shall have upon the judgment against Dana.

The action against Dana and Solomon Downer was upon a joint contract; and, upon common principles, the recovery must have been had against both defendants, or neither of them. A defence interposed by one of them would enure to the benefit of the other. Though one suffer a default, yet if the other interpose a successful defence, no damages can be assessed, or costs taxed, against him. Though co-defendants may sever in their defence, yet there can legally be but a single assessment of damages, and that must be against all of them.

If the co-defendants sever in their pleas, and an entire judgment is rendered against all, it is obvious, that a review entered by one of them must vacate the judgment as to all, and have the effect to carry the cause over to the next term of the court, as to all of them. The question, then, is-, shall the separate and erroneous assessment of damages against Dana prevent the review of Solomon Downer from having the like effect 1 I think it should not. It seems but reasonable, that the review should operate to open the entire cause of action- against all the defendants. If the review did not have the effect to vacate the judgment against Dana and carry the cause over as against both, there could legally be no recovery against Solomon Downer at the next term; and if Dana should fail to satisfy the judgment against him, the plaintiff could have no remedy against Solomon Downer. The review should have the same effect, as if there had been but a single assessment of damages.

The statute of 1835, which- has been referred to, does not help the plaintiff. It was not made to reach a case like this. Both Dana and Solomon Downer were parties to the note.

On the whole, then, a majority of the court think, there is no valid judgment, upon which the jail bond can be supported; and the judgment of the county court is affirmed.