East Baltimore Lumber Co. v. K'nessett Israel Aushe S'phard Congregation

Schmucker, J., delivered the opinion of the Court. The appellees, who were defendants below, have asked for a re-hearing of this appeal, and they urge in the brief filed in support of their motion, in addition to the grounds relied on in the argument of the appeal. First, that we should not have reversed the judgment as to all three of the defendants when we held that the plaintiff had practically abandoned its case against the defendant, Silberman, and that the record contained no legally sufficient evidence to hold the Hebrew Congregation, and Secondly, that we should have held in our opinion that, if any credit at all had been given to the contractor, McCall, for the lumber for the price of which the suit was brought, the-undertaking of the defendants was- collateral to that of the contractor and void under the Statute of Frauds because not in writing. The appellees were sued jointly as original promisors and ⁶⁹⁰ the record fails to show that they raised the question of misjoinder in the Court below.

There was but one verdict and judgment and having been rendered by a Court of law it would have been improper to affirm it in part and reverse it in part. In Hanley v. Donohue, 59 Md. 239 , this Court said : “At common law a judgment was regarded as an entire thing and being an entirety it has been repeatedly held that it could not be affirmed as to one or more defendants and reversed as to the others. It must either be affirmed as a whole or reversed as a whole. Cutting v. Williams, 1 Salk. 24; Parker v. Harris, 1 Ld.

Raym. 825; Lloyd v. Pearce, Cro. Jac. 425; Jaques v. Cesar, 2 Saund. 101; 2 Bac. Abr., 221 marg.” Hanley v. Donohue, was reversed in 116 U. S. 1 , upon the ground that an allegation in the declaration, that a judgment recovered in Pennsylvania against two defendants only one of whom had been served with process was binding upon that defendant in Pennsylvania, was admitted to be true by a demurrer to the declaration, but the proposition to which we have referred was not passed upon or reversed by the Supreme Court. As to the second proposition of the brief; — in holding, in our opinion already filed, that the question whether the defendants undertaking was an