Wight v. Meredith

Citations

• 5 Scam. 360

Syllabus

<p>Error to Ogle.</p> <p>1. Parties, Joint — -judgmentjoined. Where an action ex contractu is instituted against two defendants, and both are served with process, and one makes default, and the other procures a change of venue, it is error to take judgment against the defendant in default, before a disposal of the defence interposed by his co-defendant.</p> <p>2. Ps.h.CTiCK — joint parties — one defaulting. On entering a default against one of two defendants in a suit, the court should stay all further proceedings as to him, until the trial of the issue tendered by the other defendant. On the trial of that issue, the jury may be directed to assess the damages against the party in default. If the finding on the issue be for the plaintiff, a joint judgment could be rendered, (a) </p> <p>3. Same — joint tmdertaking no severaljudgment. Where an action ison ajoint undertaking by two or more defendants, and all of them are before the court, the plaintiff is entitled to a recovery against all, or not at all. In such case the jndgment to be rendered must be joint and not several, (b) </p> <p>4. Venue — effect of change. A change of venue removes the whole cause, and the court to which the same is transferred, after a default by one of the parties, and a plea by another, may, when the issue is found against the plea, or a decision is made against it, properly render a judgment against both the defendants. (c) </p> <p>5. Joint Judgment — proper, several takers, reversal of one reverses all. Where several judgments have been rendered in different courts, in a case where, from the character of the cause .of action, but one judgment, and that a joint one, could rightfully be rendered, neither of the judgments can be sustained, but both must be reversed.</p>