9 Haw. 306 | Haw. | 1893
Error to the Circuit Court of the First Circuit.
John S. Walker, now deceased, recovered judgment against the plaintiff in error and eight others, in assumpsit upon a note. The words of the note are, “We jointly promise,” etc. The judgment is “that the plaintiff do recover against the defendants,” etc. It is assigned as error, “that said judgment was erroneously made and entered as a joint and several judgment [against] the defendants and not as a joint judgment only.” The defendant in error pleaded in mdlo est erratum.
Counsel for defendant in error contends that the writ should be dismissed for the reasons, that the executrix is not made a co-defendant with the executor; that there is no allegation in the petition that the judgment is not satisfied ; and that the writ was not issued within six months from the rendition of judgment.
The fact that there is an executrix as well as an executor of the will of the plaintiff below, now deceased, was not brought to the knowledge of the Court in any way which would justify us in noticing the fact, if fact it be. There is nothing but the defendant’s statement of the fact unsupported by affidavit.
It should be alleged in the petition that the judgment was not fully satisfied, this being a statutory prerequisite for the issuance of the writ, but, whatever may be the effect of an omission to so allege, it is too late for the defendant to take advantage of it after issue joined upon the merits, although the Court might of its own motion dismiss the writ if it appeared by the record that the judgment had been satisfied. This does not appear in this case.
The judgment was entered February 25th, 1893. The writ was issued August 25th, 1893. The statute allows the writ to be issued “within six months from the rendition of judgment.” We think that this writ was issued within the time prescribed by the statute. In
There is one point which should be touched upon though not called to our attention by counsel. In both the petition and the writ the plaintiff in error and defendant below, is described as “JohnF. Bowler and others.” This makes John F. Bowler sole plaintiff in error (the words “ and others ” being surplusage), but the record shows' that there were eight other defendants below. All of the defendants below should be named in the writ, and all should join in error unless sufficient cause be shown for the non-joinder. Simpson vs. Greeley, 20 Wall., 152; Miller vs. McKenzie, 10 Wall., 582.
It may be added that objections like the foregoing which do not go to the question of the error assigned should be raised by demurrer, special plea or motion to quash or dismiss, although the Court may, of its own motion, dispose of the writ, even after joinder in error, for defects apparent upon the record.
The question of parties not having been argued by counsel, avg will dispose of this case upon its merits.
At common law, in an action against several defendants jointly, the general rule Avas that judgment coAild be entered only for or against all; and since judgment could not be entered against parties not served with process, it could not be entered at all in a joint action unless all the defendants AA'ere seiwed. But by
Judgment affirmed.