Kimball & Ward v. Tanner

Citations

• 63 Ill. 519

Syllabus

<p>1. Pbactice—where there are two defendants. In an action on a contract against two defendants, where both were served with process, only one of them pleaded. Upon issue joined, a trial was had before the court by consent, and judgment was formally rendered against one defendant without any notice of the other. A motion for a new trial was then made, after which the court ordered the other defendant to be called and entered his default and assessed the damages against him, and then overruled the motion for a new trial and rendered judgment against both defendants: Held, that such practice was irregular. The default of the defendant who had filed no plea should have been entered before the rendition of judgment against his co-defendant, and then upon the trial judgment should have been entered against both in the first place. The contract, so far as indicated by the pleadings, being indivisible, the judgment should have been against both defendants or neither of them, and the defendant who had pleaded could not, by such action of the court subsequent to the rendition of the judgment against him, be deprived of the benefit of the error -which had been committed, and his motion for a new trial should have been allowed.</p> <p>2. An entire judgment against two defendants must be reversed or affirmed in tato. There can not be a reversal as to one and an affirmance as to the other.</p>