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Opinion of the Court.

HIRAM GOULD

v.

MARY E. STERNBURG, Admx., etc.

1. JUDGMENT-in joint action on contract, must be against all the defendants. There is no warrant in law for rendering separate judgments for different amounts against defendants severally, when sued in a joint action upon a contract, and all are served with process.

2. While it is true that, on a joint and several contract, an action lies against each defendant separately, yet where the plaintiff treats the contract as joint by suing the makers jointly, the rule of recovery in actions upon joint contracts must govern.

3. Where a judgment by default against two defendants was set aside as to one, and a trial had and a judgment rendered as to him for a less sum than the judgment against the other: Held, that the proceedings were erroneous, and that the default should have been set aside as to both, and on the trial the damages should have been assessed against both, and judgment rendered thereon.

WRIT OF ERROR to the Circuit Court of Will county; the Hon. JESSE O. NORTON, Judge, presiding.

This was an action of assumpsit, brought by Mary E. Sternburg, administratrix of the estate of Philip A. Sternburg, deceased, against Hiram Gould and Amasa Richardson, upon two promissory notes. The facts appear in the opinion.

Mr. W. H. RICHARDSON, and Mr. H. L. RICHARDSON, for the plaintiff in error.

Mr. R. E. BARBER, for the defendant in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The record in this case shows that a joint action was brought against Richardson and Gould upon two promissory notes executed by them, the declaration containing two counts, one upon each note. Both the defendants were served with process, and, at the December term, 1859, of the Will

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Opinion of the Court.

circuit court, final judgment was rendered by default against both defendants for the sum of $485.26. Subsequently, the default was set aside as against Gould, and he pleaded. Issues were joined upon his pleas, and afterward, at the January term, 1867, the plaintiff in the meantime having entered a nolle prosequi as to one count of the declaration,-a judgment was rendered against Gould alone, for the sum of $322.40.

Gould brings the case here by writ of error, and assigns for error the entry of such judgment against him.

We know of no warrant in the law for rendering separate judgments for different amounts against defendants severally, when sued in a joint action upon a contract, and all served with process. In such case, there can be but one judgment for one amount, and it must be against all the defendants, unless one or more of them be discharged from the suit. The proper course here would have been to have set aside the judgment by default against Richardson as well as Gould, and then, on trial of the issues tendered by Gould, to have assessed the damages against both defendants, and have rendered a joint judgment against them. Wight et al. v. Meredith et al., and Same v. Hoffman, 4 Scam. 360, 362.

It is contended that, because the notes were joint and several, the separate recoveries were allowable. But, in order to that, separate suits must have been brought.

The plaintiff was at liberty to proceed against the parties jointly, or each separately.

Having elected to bring a joint action, and treat the contracts as joint ones, the rule of recovery as in an action upon a joint contract must govern.

The judgment against Gould is reversed and the cause remanded.

Judgment reversed.

Opinion of the Court.

CHARLES SEABURY

v.

AMOS M. Ross et al.

REPLEVIN-damages against plaintiff, beyond nominal damages, must be proved. Where the plaintiff fails in an action of replevin, in the absence of proof of actual damages, the defendant is entitled to nominal damages only.

APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

This was an action of replevin, brought by Charles Seabury, against Amos M. Ross and D. D. Ross, before a justice of the peace, for a mare, and taken by appeal to the circuit court. A trial was had, resulting in a verdict for the defendants, and finding that Amos M. Ross was the owner of the property, and assessing the damages at $117. The defendants remitted $67, and judgment was rendered in favor of the defendants for $50 damages. There was no proof of any damages. To reverse this judgment the plaintiff appealed.

Mr. H. B. HOPKINS and Messrs. CRATTY BROTHERS, for the appellant.

Messrs. CLARK & KETTELL, for the appellees.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This judgment must be reversed, for the reason that there is no evidence in the record authorizing the damages assessed by the jury. The effect of the mere finding against appellant is, to authorize nominal damages only. If damages were sustained beyond that amount, it was incumbent on the

Opinion of the Court.

appellees to prove them. The jury, in the absence of evidence, had no right to assume that appellees had sustained other than nominal damages.

We perceive no other error in the record.

Judgment reversed.

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THEODORE H. SEAVEY

V.

WILLIAM L. ROGERS.

1. PRACTICE-trial without issues being made up. It has been held, that where both parties appear and go to trial upon the merits, without replication to pleas or rejoinder to replications, the judgment will not be reversed for the want of formal issues of fact being made before trial. 2. SAME trial in such case must be by consent. But where a cause was tried, in the absence of the plaintiff, upon a plea of set-off, which was unanswered, it has been held that it was error, as there was no issue of fact to be tried, and no waiver on the part of the plaintiff.

3. SAME where plea is unanswered. Where the plaintiff fails to reply to the defendant's pleas, the law requires the defendant to take a rule on the plaintiff to answer them, and, on failure to comply with the rule, the proper practice is for the court to dismiss the suit for want of prosecu

tion.

WRIT OF ERROR to the Superior Court of Cook county.

This was an action of assumpsit, brought by Theodore H. Seavey, against William L. Rogers. The proceedings in the court below are stated in the opinion of the court.

Mr. SAMUEL APPLETON, for the plaintiff in error.

Mr. E. B. PAYNE, for the defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought by Theodore H. Seavey against William L. Rogers, in the Superior Court of Cook county.

Opinion of the Court.

The record shows that the suit was commenced Nov. 28, 1871. At the January term, 1872, the defendant failed to plead, and a default was taken. On the 6th day of February defendant filed two pleas, general issue and set-off. On the 26th day of March, on motion of defendant, the default which had been entered at the January term was set aside.

On the 17th day of June, and at the June term of the court, the plaintiff was, in open court, called, but did not appear. A jury was called, the defendant introduced his evidence, and a verdict was rendered in favor of defendant, against plaintiff, for $2000. On the 23d day of June, plaintiff entered a motion to set aside the judgment rendered on the 17th, which motion the court overruled.

The plaintiff brought the case to this court by writ of error, and assigns various errors for a reversal of the judgment.

The only point made by the plaintiff, however, that we regard as tenable, is the one raised by the fourth assignment of error, which is as follows: The court erred in allowing the case to go to trial without issue joined.

No replications were filed to defendant's pleas, and there was no issue formed for trial by the court or a jury.

It is insisted by the defendant, that where parties go to trial without a formal issue on a plea, such an irregularity can not be taken advantage of after verdict, and that this case comes within the principle of that doctrine. In support of this position, the following authorities are cited: Armstrong v. Mock, 17 Ill. 166; Kelsey v. Lamb, 21 Ill. 559; Bunker et al. v. Green, 48 Ill. 243; Beesley et al. v. Hamilton, 50 Ill. 88; Barnett v. Graff, 52 Ill. 170.

In the first case cited, the parties appeared and went to trial without a formal issue on the fourth plea. The third plea, however, upon which issue was taken, was, in substance, like the fourth. In that case it was held, proceeding to trial without formal issue will be considered, after a verdict, as a waiver of either the issue or the plea.

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