17 Ill. App. 509 | Ill. App. Ct. | 1885
This was an action brought by appellee against the appellant and Edward Spellman and James Dolieny, before a justice of the peace, to recover for services rendered as a physician, upon the alleged employment of all of said defendants—judgment against all for $45.50—whereupon said defendants all appealed to the circuit court, and upon trial in that court a verdict was rendered against appellant alone, without the suit being dismissed as to the other defendants. Hpon this verdict judgment was entered against appellant, and it appeals. This was error. It is an elementary principle that in actions ex contractu against several defendants the judgment is a unit; it must he rendered against all or none.
This is the universal rule at common law. The exception is when the defense is personal, as infancy, or bankruptcy, or the like. Russell v. Hogan, 1 Scam. 552; Fuller v. Robb, 26 Ill. 246; Faulk v. Kellums, 54 Ill. 188.
Appellee’s instructions are both wrong. They tell the jury that they may find against any or either of the defendants who may have employed the plaintiff. If the defendants were not all liable on the alleged contract, then those not so liable should have been dismissed from the case, so that the verdict and judgment could have been against all the defendants against whom the action was pending.
Judgment reversed and cause remanded.