Merrifield v. Western Cottage Piano & Organ Co.
87 N.E. 379
Ill.
1909
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

Appellant contends that the stay order entered by the trial court June 29, 1907, applied to all the defendants in that court, while appellee contends that it clearly applied only to defendant T. W. Burrows, and the Appellate Court so held. If the order be construed as setting aside the default only as to defendant Burrows, then it was erroneous, as the default should have been set aside as to all the defendants or none. (Gould v. Sternburg, 69 Ill. 531, and cases cited Puller v. Robb, 26 id. 246.) It is conceded that the execution as issued ón February 8, 1908, against two of the defendants below and not against the third defendant, Burrows, was erroneous, as the execution must conform to and follow the judgment. Hobson v. McCambridge, 130 Ill. 367; Kinkade v. Gibson, 209 id. 246; 1 Freeman on Executions,—3d ed.—sec. 42; Herman on Executions, sec. 56; 8 Ency. of Pl. & Pr. p. 418.

The appellant contends that the appeal to the Appellate Court of all the defendants in the court below from the order of February 18, 1908, which vacated the order setting aside the default as to T. W. Burrows and overruled the motion to recall the execution, was perfected by the filing of their bond and its approval by the clerk, in accordance with the order. An appeal allowed by the trial court is, in contemplation of law, pending in the appellate tribunal the moment the appeal bond is executed and filed with the clerk of the court, as provided in the order of the appeal. Reynolds v. Perry, 11 Ill. 534; Owens v. McKethe, 5 Gilm. 79; Simpson v. Alexander, 5 id. 260.

Appellant contends that said order of February 18 was a final and appealable one, while appellee contends that it was interlocutory and not appealable. However that may be, the appeal was allowed as prayed, and after the filing and approval, of the appeal bond that question was transferred to the Appellate Court for its decision.

Appellant contends, as has been stated, that the stay order applied to all of the defendants in the court below and that therefore the appeal affected all of these defendants, while appellee insists that the order of February 18, 1908, and the appeal therefrom, only affected defendant Burrows, and did not in any manner affect or apply to the other defendants in the court below. Whatever the construction, so long as the question is fairly open to dispute the only proper course for the trial court was to refrain from acting until the appeal had been finally disposed of. As has been repeatedly held, when an action is brought on a jtiint contract the rule is that the judgment must be rendered against all the defendants or none, (Kingsland v. Koeppe, 137 Ill. 334,) unless a defense is interposed by one or more of the defendants personally, of such character as infancy, bankruptcy or the like, and then the defense must be alleged and proved. (Byers v. First Nat. Bank of Vincennes, 85 Ill. 423.) The execution on its face must appear to be against all defendants, notwithstanding that from death, bankruptcy or some other cause no levy can be made on the property of some. 1 Freeman on Executions, (3d ed.) sec. 42; Farmers’ and Mechanics’ Nat. Bank v. Crane, 15 Abb. Pr. (N. S.) 434; Stewart v. Cunningham, 22 Ala. 626; 2 Tidd’s Pr. *1120.

The issuing of the execution February 8, 1908, pending the stay theretofore granted by the court, if the stay applied to all the defendants below, was irregular and the execution might be quashed on motion. (1 Freeman on Executions,— 3d ed.—sec. 33.) This irregularity in issuing would not render the execution void, but voidable. (Oakes v. Williams, 107 Ill. 154; Shirk v. Gravel Road Co. 110 id. 661.) When an appeal is perfected the jurisdiction and control of the court below ceases and the appeal becomes a stay of all proceedings to enforce the execution of the judgment or decree. (Smith v. Chytraus, 152 Ill. 664; Cowan v. Curran, 216 id. 598; Bowar v. Chicago West Division Railway Co. 136 id. 101; Barnes & Co. v. Typographical Union, 232 id. 402.) The trial court should not have permitted the amendment of the execution pending the appeal from the order of February 18, 1908, in the Appellate Court.

Our attention is called by appellee to the case of Sheets v. Wynkoop, 74 Pa. St. 198, where it was held that under a special act in that State the court could stay the execution as to one of the defendants and allow it to remain against the other joint defendants. But the reasoning in that decision plainly shows that this conclusion was only reached because of the special statute in question. The same may be said as to Brem v. Jamieson, 70 N. C. 566. We have no such statute in this State that controls in this case. Manifestly, the court was without authority to enter the order of February 25, 1908, amending the execution.

The judgments of the Appellate and circuit courts will be reversed and the cause remanded to the circuit court for further proceedings in harmony with the views herein expressed.

Reversed and remanded.