McIntyre v. Sholty

Citations

• 139 Ill. 171
• 29 N.E. 43

Syllabus

<p>1. Wbit of ebbob—parties thereto. All of the plaintiffs or defend-' ants in the original judgment who are alive must join in a writ of! error, and it is competent for one to join the others without their con-' sent, for the reason that the writ must agree with the record, and also-to prevent multiplicity of suits.</p> <p>2. If the parties whose names are thus used by a co-plaintiff or co-defendant choose to abide an erroneous judgment, and refuse to appear, and assign errors, they must be summoned and severed, and after severance the writ may be prosecuted in the name of such co-plaintiff or, oo-defendant.</p> <p>3. It is a general rule, that no person can sue out a writ of error who is not a party or privy to the record, or who is not shown by the record, to be prejudiced by the judgment.</p> <p>i. No creditor of any one, whether a corporation or individual, against whom a judgment has been recovered, has a right, in the name. of such corporation or individual, to prosecute a writ of error. Nor can > bail be used to reverse a judgment against his principal.</p> <p>5. Same—by plaintiff in name of defendant. A writ of error may be brought by a plaintiff to reverse his own judgment, in order to enable; him to bring another action; but he can not maintain the writ in the.’ name of the defendant in the judgment without the consent of the latter.</p> <p>6. Where a judgment is recovered in the names of the widow and heirs of a deceased person, for the use of a third person, against the administrator of such decedent, one of such plaintiffs will not have the right to prosecute a writ of error in the name of the defendant without his consent, and if he does bring such writ, the defendant whose name is used may have the same dismissed, on his motion.</p> <p>7. Same—in the name of heirs or administrator. Where a judgment is recovered against a party in his lifetime, his heir, after his death, will be entitled to sue out a writ of error to reverse the same, as he is a privy