Westheimer v. Craig

Robinson, J., delivered the opinion of the Court. This is an action of assumpsit brought by the appellee against Moses Westheimer and Michael R. Kelly. The ⁴⁰⁶ declaration contains the ordinary money counts, and with it is filed a statement or hill of particulars, charging the defendants with having collected and fraudulently appropriated to their own use the proceeds of certain cheques drawn by the appellee. Kelly having failed to plead within the time prescribed by law, a judgment by default was entered against him, and the judgment so stands, the Court never having been called on to assess, nor the jury to inquire of, the damages.

The judgment by default, it seems, was entered upon a motion in writing, to which the name of the plaintiff’s attorney was signed by the deputy clerk at the request of said attorney. Westheimer, the other defendant, and now appellant, pleaded never indebted, and never promised, as alleged in the declaration, and upon the issues made on these pleas the case was tried, and verdict was rendered in favor of the plaintiff for $450. The defendant Westheimer then filed a motion for a new trial, and a motion also in arrest of judgment, and, these motions being overruled, he filed a motion to strike out the judgment, which the Court also overruled. .It is unnecessary, in the view we take of the case, to state at length the several grounds relied on in support of the motion in arrest of judgment. Briefly stated, the main grounds are: First, that being an action on a joint contract against joint debtors, the plaintiff could not recover separate judgments against each defendant; and, secondly, that no judgment could he recovered against Westheimer until the damages had been assessed in the judgment by default against Kelly.

In an action upon a joint contract at common law, if all the defendants were summoned or appeared, the judgment was entered, it is true, for or against all the defendants. This general rule was, however, subject to this exception: If one or more of the defendants pleaded infancy, or coverture, or dis ⁴⁰⁷ charge in bankruptcy, these pleas being consistent with the averment in the declaration of an original joint contract, the plaintiff could enter a nolle prosequi as to such defendants, and recover judgment against the other defendants. See 1 Black on Judts., sec. 206, and cases referred to; 1 Freeman on Judts., sec. 43, and cases. The rule of the common law in this respect, however, has been changed by the Code, and the statute now provides that in actions upon joint contracts against joint debtors, the plaintiff shall be entitled to judgment "as in actions ex delicto against such one or more of the defendants, as shall be shown by the evidence to be indebted to him.” Sec. 12, of Art. 50, of the Code.

And at common law it is equally true, that a judgment against one or more joint debtors upon a joint contract, merged or extinguished the debt as to other parties not joined in the action, and, if they were subsequently sued on the original contract, they could plead the former judgment in bar of the action. But this has also been changed by statute, and sec. 10, Art. 50 of the Code, provides that “a