Byers v. First National Bank

Citations

• 85 Ill. 423

Syllabus

<p>1. Practice—judgment must ie taken against all defendants served, in actions ex contractu. It is a rule of practice, that in all actions on contract, if a recovery be had, it must be against all the defendants served, unless a defense is interposed by one or more ¡personal to themselves, such as coverture, infancy, bankruptcy, etc.; and such personal defense must be pleaded and proved.</p> <p>2. Where several persons were sued in an action ex contractu, and all served, and no defense interposed by any of them, it was held error to render judgment against part of them only.</p> <p>3. Bankruptcy—effect of stay on pending suits. An injunction issued in proceedings of bankruptcy before a discharge, restraining a creditor and Ms attorneys from prosecuting an action in the State courts, does not de-</p> <p>prive the State court of jurisdiction, and a judgment rendered hy the latter court against him is not erroneous.</p> <p>4. Same—law construed, as to staying suits in State courts. The provision in the bankrupt act, that no creditor whose debt is provable shall be allowed to prosecute to final judgment any suit, etc., until the question of the debtor’s discharge is determined, was not intended to prevent a plaintiff from having judgment against such debtor when he is sued jointly with others in an action ex contractu. In such case, judgment may be rendered against all, and an order made staying execution as to the bankrupt until the question of his discharge is determined.</p> <p>5. Same—staying judgment. Where judgment is rendered against one pending proceedings in bankruptcy, in a suit on a contract against him and others, the court, on a proper application by any one interested in the assets of the bankrupt’s estate, should enter an order staying execution against the bankrupt until the question of his discharge is determined. On such appli-. cation, the proper practice requires that a petition setting out the order of the district court be presented, together with