| Ill. | Nov 9, 1896
delivered the opinion of the court:
While obtaining leave to strike out the common counts may be regarded as tantamount to a dismissal of those counts, a mere permission by the court to amend the other counts by striking out certain allegations and by inserting others in their stead did not, of itself, amount to an amendment of such counts. (Ogden v. Town of Lake View, 121 Ill. 422" date_filed="1887-09-27" court="Ill." case_name="Ogden v. Town of Lake View">121 Ill. 422; Wisconsin Central Railroad Co. v. Wieczorek, 151 id. 579.) The additional counts then not being in fact amended, there was no error in refusing to allow the defendant to file the pleas tendered while the motion for a new trial was pending. Issues had already been formed upon the declaration as it then stood, and the application to file further pleas was an appeal to the discretion of the court, and a refusal to allow them to be filed was not such abuse of discretion as can be assigned for error. Besides, the additional counts not having been in fact amended, there was nothing in the record to which the pleas tendered could apply. The common counts being out of the record, the case must be decided solely in view of the issues formed on the additional counts.
The proposition most strenuously insisted upon is, that the judgment should be reversed on account of the non-joinder of Samuel Sinsheimer as a party defendant. The rule is a familiar one that in actions ex contractu all parties jointly liable should be joined as defendants. But if a party who should have been joined is omitted it is well settled that the other defendants can take advantage of the non-joinder only by plea in abatement. If, however, it expressly appears on the face of the declaration or some other pleading of the plaintiff that the party omitted is still living, as well as liable jointly with the other defendants on the contract, the other defendants may demur, or move in arrest of judgment, or sustain a writ of error. (Hamilton v. Buxton, 6 Ark. 24; McGregor v. Balch, 17 Vt. 562" date_filed="1845-03-15" court="Vt." case_name="McGregor v. Balch">17 Vt. 562; Cabell v. Vaughan, 1 Wms. Saund. 261, note; Chitty’s Pl. 53; Gould’s Pl. 258; Andrews’ Stephens’ Pl. 48.) If there was a liability on the part of this defendant, ther. it also appears on the face of this declaration that Samuel Sinsheimer was jointly liable with him as a member of the firm which is alleged to have purchased the goods sold.
It is a rule of law, in general, that a person is. presumed to be alive until he is proved to be dead, unless seven years have elapsed since he was heard- of, in which case there is a presumption of death. When, from the declaration, it appears there can be no presumption of death the presumption of life results. In a note to Chitty (p. 47) it is stated: “In general.a person is presumed to be living until it be proved that he is dead, unless seven years have elapsed since he was heard of. (2 East, 313; 6 East, 85; 1 Saund. 235a, n. 8.) But this seems an exception; sed quœre. See 2 Taunt. 256, 2 Anstr. 448, 3 id. 811, from which it should seem that if it appears in a declaration, or in a scire facias at the suit of the king on a bond, that there were other joint contractors, though it be not averred that they be living, the declaration and scire facias will be deemed insufficient.”
Gould on Pleading (p. 260, sec. 115,) says: “But in an action on contract, if it appears from the face of the declaration, or of any other pleading on the part of the plaintiff, that a person not made defendant in the suit was a joint contractor with the defendant, and that such person is still living, (as he must be presumed to be unless the contrary is alleged,) the non-joinder of him is a good ground of demurrer or motion in arrest of judgment, and (if judgment be given for the plaintiff) may assign for error, for in this case the pleading of the plaintiff himself shows that he has no right to recover in the suit as it is brought, and as the mistake appears on the record by his own showing, there is no need of the defendant’s pleading it.” The same author, on page 256, in discussing the relation of the plaintiff to a declaration, again states: “If in an action of debt, covenant broken or assumpsit brought by A alone, it appears from his own pleading that the contract was made with himself and B jointly, and that B is still living, (as he is presumed to be unless the contrary appears in the declaration,) the defendant may demur without reciting the contract, or may, after verdict, move in arrest of judgment or reverse a judgment against him on a writ of error, for in this case, as it appears from the plaintiff’s own showing that he alone has no right of action, the defendant is not under necessity of showing the mistake by pleading the fact which has occasioned it.”
In Cummings v. People, for use, etc. 50 Ill. 132" date_filed="1869-01-15" court="Ill." case_name="Cummings v. People">50 Ill. 132, it was said (p. 135): “It is admitted, if the defendants in error had not alleged in their declaration that the defendants therein, together with Argo, executed the bond, the defendants would have been required to plead his nonjoinder in abatement. But the fact appears on the face of the declaration. A plea, therefore, was not necessary to bring it before the court. Why inform the court by plea of a fact which the plaintiff himself places on the record? This defect in the declaration could have been reached by general demurrer or by motion in arrest of judgment, and can now be availed of on error. Plaintiffs, by their own showing, inform the court there is another joint obligor, who has not been joined in the action. It was patent of record, and no plea was necessary to bring the fact before the court.”
It was not required of defendant to plead in abatement the non-joinder of his co-partner, as the fact appeared on the face of the declaration. All persons who are partners in a firm at the time when a contract' is made must be joined in an action to enforce payment, unless there be a legal excuse for not joining them. (Page v. Brant, 18 Ill. 37" date_filed="1856-11-15" court="Ill." case_name="Page v. Brant">18 Ill. 37; Pettis v. Atkins, 60 id. 454; Dement v. Rokker, 126 id. 174; Edwards v. Dillon, 147 id. 14.) The rule is, the plaintiff must join as parties defendant all who are jointly liable upon the contract, and if he does not he cannot recover against any. (Page v. Brant, supra.) The fact of non-joinder appearing on the face of the declaration, the defendant may avail himself of that fact, on error, to defeat a right of recovery.
It was error for the circuit court of Cook county to enter judgment against the defendant, and the Appellate Court erred in affirming that judgment. This view of the case renders it unnecessary to discuss the other questions raised.
The judgments of the circuit court of Cook county and of the Appellate Court for the First District are each reversed, and the cause is remanded.
Reversed and remanded.