47 Colo. 478 | Colo. | 1910
delivered the opinion of the court:
The action is against two defendants, The Boston-Colorado Coal Company and Addison S. Pfatt. The complaint alleges an indebtedness due plaintiff from the coal company for goods and merchandise sold to it, which debt Pratt afterwards assumed and agreed to pay. The record fails to disclose what disposition of the action, if any, was made as against the defendant coal company; but it does show that a judgment by default was rendered against defendant Pratt in a sum approximating $12,000.00. It is to this judgment that Pratt prosecutes-this writ. A number of errors are assigned to rulings of the trial court which together with the objections and exceptions
Angust 29, 1905, the defendant coal company filed its verified answer in which, among other things, it alleged a discharge of the indebtedness sued on before the action was begun. On the following day, August 30th, the default of defendant Pratt was entered and on September 7th final judgment on the default was rendered against him. The complaint on its face shows that in this action on contract there might have been a judgment against the original debtor, the coal company, and in favor of defendant Pratt. A judgment also might have been rendered against both defendants. There could not, however, be a judgment against defendant Pratt unless there was also one against his co-defendant, the original debtor. This is so because Pratt’s liability, if any, was secondary, not .primary, and if the original debtor, the coal company, could not be held, Pratt could not. No argument of such a self-evident proposition could make it plainer than the statement of the proposition itself. The rule of law seems to be well recognized that where an action, upon contract is brought against two defendants and one of them is in default, whose liability hinges upon that of his co-defendant whose answer is on file denying the liability, it is improper, to render judgment against
We are at liberty then to read it in considering the assignment of plaintiff in error that the court improperly rendered judgment against defendant Pratt, while his co-defendant’s answer was on file and the issues thereunder raised undetermined.
Because of this prejudicial action by the trial court the judgment must be reversed and the cause remanded for a new trial. In thus disposing of the case we are not to be understood as expressing an