52 Wis. 456 | Wis. | 1881
The note upon which the action against Felt and the appellant, White, was brought, is their joint and several note. Edwards on Bills and Notes, 683. Hence the plaintiff, having failed to obtain service upon White in that action, could have proceeded to judgment against Felt alone, and might have brought a separate action on the note against White. The statute under which the present proceeding against the appellant was prosecuted (R. S., sec. 2795), has no application whatever to contracts or obligations which are several as well as joint, but only to those which are joint and not several. At the common law, if the plaintiff in an action on a joint obligation failed to obtain service of process on one of the joint debtors, and proceeded to judgment against those served, his remedy was gone against the debtor not served, because the obligation was indivisible, and had become merged in the judgment, and there was nothing left upon which he could
By the Gourt.- — -The judgment is reversed, and the cause remanded with directions to the circuit court to dismiss the proceeding.