2 Tenn. 187 | Tenn. | 1812
This was an action of assumpsit, commenced in the county of Knox by Joseph Greer against Robert Miller and Thomas Greer. The defendants were both arrested, and the plaintiff filed his declaration against both, charging them with a joint assumpsit; to this declaration Miller filed a plea, upon which the plaintiff took issue. Greer, the other defendant, filed no plea; nor does the record show that any step whatever was taken against him by the plaintiff after filing the declaration. The cause was tried between the plaintiff and Miller, and a verdict and judgment in Miller's favor, from which the plaintiff appealed to the Circuit Court, where the cause was again tried between plaintiff and Miller, and the plaintiff recovered a verdict Miller filed reasons in arrest of judgment, which were sustained by the Circuit Court; from, which judgment this appeal was taken. And now the only question is, whether the Circuit Court erred in arresting a judgment against Miller? We are of opinion it did not.
By an Act of Assembly of North Carolina, which is in force in this State, all assumpsits and obligations made after passing that act in the year 1789 are to be considered *188 as joint and several; hence this case ought to be viewed in the same light as if the assumpsit had been joint and several by the express contract of the parties. Upon this contract, then, the plaintiff had his election to commence his suit against one or both of the parties, as he chose. Having elected to sue both, and charge them with a joint contract, he was bound to prosecute his suit afterwards against both, and obtain a judgment against as many persons as he had sued, that each might be contributory to the satisfaction of his demand; unless, in the progress of the cause, one of the defendants made such a defence as, upon legal principles, exonerated him without affecting the justice of the plaintiff's claim as against the other defendants. Thomas Greer made no defence; the cause, as it respects him, is left to the County Court without any decision. And to have a cause pending in the County Court against one defendant, and in the Circuit Court against another defendant, upon the same writ, seems to us, was incorrect.
The course which the plaintiff ought to have pursued appears to have been clearly pointed out by law. He ought to have taken a judgment by default against Thomas Greer, and at the same time that the jury was sworn to try the issue joined as to Miller they could have been sworn to inquire of damages as to Greer. And if the plaintiff was dissatisfied with the finding in the County Court he could have appealed, against both defendants, to the Circuit Court.
As this course has not been pursued, and the plaintiff has voluntarily lost sight of one of the defendants, left the cause, as to him, undecided, or discontinued in the County Court, we are well satisfied that the Circuit Court decided correctly in arresting the judgment as to the other defendant.
Let the judgment be affirmed.
NOTE. — See Tipton v. Harris, Peck, 414, and the editor's note to that case. — ED.
