12 Ill. 462 | Ill. | 1851
This was an action of assumpsit, originally commenced against Smith, Campbell, Corwith, Lodwick, Blakely, Rice, and Douseman, on a note signed “ Orrin Smith, Capt. for boat and owners.” Smith, Corwith, and Lodwick, demurred to the declaration ; Campbell and Blakely, filed a plea in abatement, alleging that Brisbois should have been joined as defendant, and Rice pleaded the general issue. An order was entered for a scire facias, against Brisbois, which was returned not found, and his name was suggested on the record, as a party defendant. There appears an order, reciting that the plea in abatement having been confessed, and Brisbois having been made a party by scire facias, and the said Blakely and Campbell having failed to answer further, a judgment by default was entered against them. After-wards the issue of fact made by Rice, was tried by the Court, who found in favor of the plaintiffs, and assessed their damages $2,118.68, upon which a motion for a new trial was made, which was overruled. And on the same day a judgment was rendered against all of the defendants who had appeared for the amount found due upon the note. The bill of exceptions shows that when the note was offered in evidence, it was objected to, because the letters “ U. S.” before the word Senator, had been erased. The plaintiffs offered evidence tending to' explain the erasure, and show that it was made at the time of the execution of the note, when the objection was overruled, and the note read in evidence, to which an exception was taken, as well as to- the overruling' of the motion for a new trial.
Upon this record, nineteen errors have been assigned,- all of which have been examined and considered by the Court, and we are of opinion, that none of them- can be sustained. We only feel called upon to notice a few of the most prominent errors as-signed, and which were most relied upon in the argument.
In relation to the alleged alteration of the note, it is only necessary to remark, that if it required'any explanation, the evidence on the subject was before the Court who tried the issue, and we think it was sufficient, to justify the conclusion, that the letters-' were erased at the time-of the execution of the note. Nor can we perceive any weight in the objection, that the plea in abatement was never disposed of. The record recites, that the plea was confessed, and we see that the name of Brisbois was inserted’ in the declaration, as a defendant, and a scire facia'sissueá. to him.In this, the plaintiffs strictly pursued the course pointed out by the third section of our abatement act. Upon the filing of the plea in abatement, the plaintiffs forthwith- sued out a scire facias against Brisbois, and inserted his name in the declaration. By doing this, they, in effect,- confessed1 the plea in abatement, and1 avoided its effect, and it was not necessary to- take any further notice of it. The defendant who had not been originally sued, was now made a party to the record, and although the scire facias was not served upon him, still that could not impede the progress of the suit. That such should be the effect, is expressly provided in the fourth section.
The provisions of the fifteenth section, which were so confidently relied upon, do not apply to cases of this kind. They only apply to cases, where the suit had originally been com-menced properly, but in consequence of subsequent events, as-the death or marriage of the party, a change1 upon the record-has become necessary. Such cases are provided for by section five and those succeeding it, which require an order of the Court to make the new parties,^ and in these cases the suit cannot proceed till the new parties are served with process, or voluntarily appear to the action. And there is a manifest propriety in this. In the first case, there is already a party before the Court to be proceeded against, and who can not only defend his own rights, but who must necessarily, to the same extent defend the interest of the absent party, who, however, cannot be affected by, or made a party to the judgment rendered, until he is made a party to it by another scire facias actually served upon him, and he has an opportunity of making a defence. In the latter case there may be no party in Court to proceed against, and no one to defend the interest which he should represent.
Another objection was, that no formal judgment of respondeos ouster was entered,' upon the overruling of the demurrer. In the first place, the necessity for this was superceded by the express declaration of the demurrants, entered upon the record, that they would abide by their demurrer. But if this were not so, the objection is fully answered by the decision of this Court, in the case of Bradshaw v. Morehouse, 1 Gilman, 395. There, where the same objection was made, this Court said, “The mere omission of the Court to render a formal judgment of respondeos ouster, could not prejudice him. He was not denied the right of answering over to the declaration, but was at perfect liberty to do so. Refusing or failing to do it, the Court could only proceed to dispose of the case for want of a plea.” How much more so in this case, where the parties had expressly notified the Court that they would not answer over, but would abide by their demurrer.
Another objection is, that the damages were not assessed as against the parties who were in default for the want of a plea. When a suit is brought on an instrument in writing for the payment of money, and no issue is found, but a default is entered, the Court may either direct the clerk to assess the damages, or they may be assessed by the Court, without the intervention of the clerk.
Where an issue is found by one defendant, and a default is entered against others, the Court or jury who tries the issue, must assess the damages against the parties defaulted. In this case, the Court tried the issue, which was found against the defendant, when nothing remained to be done, but to compute the amount due upon the note, which was necessarily the amount of damages, to be assessed against all of the defendants, and for this amount judgment was entered against them. In this, there was neither error nor irregularity.
The last objection which we deem it necessary to notice is, that a general judgment for costs was entered against all of the defendants served; whereas each should be held liable for the costs which he had made. It would, no doubt, appear to be unjust, to tax a party who had made no defence, with a large bill of costs, which an obstinate co-defendant had made, without hope of success and against his remonstrance. But this judgment is entered in the form which has, in such cases, been universally adopted in this State, from its first organization, and we do not feel at liberty to change it. With us, a general judgment for costs is entered, without specifying the amount. They are subsequently taxed by the clerk, and if any party is dissatisfied with the taxation, he may replevy the fee bill, as is authorized by the statute, and thus bring the matter before the Court, for its decision. We express no opinion, whether the clerk could tax against each defendant, separately, the costs which he had occasioned, and issue a separate fee bill against each for their collection. When that question is brought before us we will examine it more attentively than we have done. It is enough for the present, that this judgment is in the proper form.
The judgment of the Circuit Court must be affirmed with costs.
Judgment affirmed.
