Kelly v. Bandini

50 Cal. 530 | Cal. | 1875

By the Court :

The judgment against the deceased, Bandini, was not void, even though it be admitted that his co-defendant, Beiner, was not served with the summons, and that the court acquired no jurisdiction as to him. However the rule may have been at common law, it is clear that in this State a valid judgment may be rendered against one of several defendants sued upon a joint contract and duly served with the summons, even though the other defendants are not before the court. Section 32 of the Practice Act, in force when that judgment was rendered, provides that “if the action be against the defendants jointly indebted upon a contract, he (the plaintiff) may proceed against the defendant served, unless the court otherwise direct.” It is clear, therefore, that though Beiner was not served, the plaintiffs might have proceeded to judgment against Bandini alone; and being entitled to a several judgment against him, the fact that Reiner was improperly united in it did not vitiate it as to the former.

The judgment, however, in the present action is erroneous, in that it omits to provide that it shall be paid in the due course of administration. The cause is, therefore, remanded, with an order to the court below to modify the judgment accordingly.