31 Ill. 254 | Ill. | 1863
delivered the opinion of the Court.
This was an action of debt on an appeal bond in the penalty of twelve hundred dollars, brought by the plaintiff against the administratrix of the deceased obligor, and the surviving obligor. There was a trial by jury, and a verdict rendered for plaintiff for twelve hundred dollars debt, and eight hundred and twenty-seven dollars and thirty-six cents damages, on which the following judgment was entered : “ It is therefore considered by the court that the said plaintiff have and recover of the said defendants the said sum of twelve hundred dollars for his debt, and the said sum of eight hundred and twenty-seven dollars and thirty-Six cents for his damages; also his costs and charges by him herein expended, and that he have execution therefor.”'
The points made are, that the entry of the- judgment is erroneous in this, that it should have been for twelve hundred dollars, the penalty of the bond, to be discharged on payment of $827.36, the damages found by the jury.
This objection is well taken. Austin v. The People, 11 Ill. 452 ; Toles v. Cole, id. 562.
Another objection is, that the court awarded execution against the administratrix, when it should have been that she pay the same in due course of administration.
A good judgment could not be rendered in this ac.tion, inasmuch as there is a misjoinder of parties. The administratrix should not have been a party, and it was error to join her with the surviving obligor. The action survived against him alone. The very objection made, as to the form of the judgment, shows conclusively, the improper joinder, for while as against the survivor Eggleston, he is charged da honispropriis, as to the administratrix, she must be charged de honis testatoris, thus rendering different judgments necessary in the same case.
The rule is well settled, if a contract is several, or joint and several, the administrator of the deceased may be sued at law in a separate action, but he cannot be sued jointly with the survivor, because one is to be charged die bonis testaioris, and the other, de bonispropriis. 1 Ch. PL 50.
In some States, as in North Carolina by statute, an administrator of a deceased joint obligor may be sued jointly with the surviving obligor. Brown v. Clary, 1 Haywood, 107.
The judgment is reversed.
Judgment reversed.
