91 Mich. 146 | Mich. | 1892
On the 4th day of June, 1887, the relator brought suit in the Clinton circuit court on a joint and several promissory note made by Vannes G. Danforth and Asahel B. Danforth, joining the two makers as defendants. The two defendants appeared separately, and on the 22d day of August, 1887, the
The plaintiff was certainly not entitled as a matter of right, at this late day, to have this judgment, voluntarily entered against Yannes G. Danforth, set aside; and the mandamus cannot be granted. It is plain that the petitioner has mistaken her remedy. Had she sought to review the decision of the circuit judge on the issue as to Asahel B. Danforth, the result .might have been different, and without doubt the circuit judge may yet grant a proper application to set aside the judgment as to Asahel B. Danforth, and grant a new trial.
We think it proper to state that, in our judgment, both the court and counsel have mistaken the practice, which is settled by How. Stat. § 7355. This section
“It shall not be necessary for the plaintiff to include-in the same record a judgment against all the parties to such hill or note, but judgment may be entered against any of the parties thereto, whenever the plaintiff would-be entitled to the same if the suit had been commenced against such parties only; and if the trial or hearing of such cause be put off by any of the parties to such bill or note, or if a default shall have been obtained against part of the defendants, the plaintiff may proceed to. the hearing or trial against the other parties in the same manner as' if the suit had been commenced against the other parties only, and the action shall thereby he severed.”
The note in question was joint and several, and entitled the plaintiff to proceed against either of the makers in a several action, or join the two; and under this section she had the right to take judgment against on& before the other.
This section was construed by the Court in Storey v. Bird, 8 Mich. 316, and in Maynard v. Penniman, 10 Id. 153. In Storey v. Bird it was held that the statute did not make it obligatory on the plaintiff to proceed to-judgment against one defendant before the case could be brought to trial as to the other, but that the statute-leaves it optional to plaintiff to do it or not, as he may think most for his interest. The Court say:
“ The sole object of the section is to prevent unnecessary delay against a part of defendants by reason of a defense interposed by others. The plaintiff might have-*149 proceeded against Hale alone, but it was for him to elect whether he would do so or not.”
In Maynard v. Penniman it was said:
“ While the plaintiff may, under this statute, have a joint judgment, or may have several judgments, at his option, against the parties to the bill or note, in the event that all the defendants shall have pleaded issuably to the declaration, and in case part have pleaded and part made default, yet in the latter ease, and in case a part of the defendants put off the trial as to themselves, the plaintiff may proceed to judgment as to the others, and thereby sever the action, if he so elect. This is -optional with himself.”
We think the cognovit should properly be treated as a ■default, within the meaning of this section, and that the plaintiff had the right to take a judgment against the ■defendant Yannes G. Danforth without impairing her right to proceed against the other defendant.
The writ of mandamus is denied.