Thomas v. Mohler

Cochran, J., delivered the opinion of this Court: Assuming that the action of the Court in striking out the judgment by default, and entering the judgment by confession, was correct, it is very clear that Mohler was a competent witness for Graff, the other defendant. That point was considered and expressly determined in the case of Barker vs. Ayers, 5 Md. Rep., 202 , and is not open to further question. The motion to strike out the judgment by default was addressed to the discretion of the Court. The -rule of the Court, exhibited in the record, and under which the motion was filed, is explicit in that particular, and wo cannot regard ⁴⁵ the exercise of that discretion in striking out the judgment as a matter proper to be reviewed here.

The appellant, however, does not seriously controvert this proposition, but insists that he was entitled to a joint judgment against these appellees, and that the subsequent entry of the judgment by confession against Mohler, was an infringement of that right. We do not concur in this view. That such would have been his privilege at common law, we do not doubt; the proof of his joint cause of action would have established Ms right to a joint judgment, which neither defendant could defeat hy the confession of a several judgment against himself; and this for the simple reason that such a judgment against one would merge the cause of action and deprive the plaintiff of all remedy against the other joint debtor. The case of Moale vs. Hollins,