Byers v. the First Nat'l Bank of Vincennes.

• Citation: 85 Ill. 423,1877 WL 5756
• Parties: ALEXANDER BYERS et al.v.THE FIRST NATIONAL BANK OF VINCENNES.
• Decision Date: 30 June 1877
• Court: Supreme Court of Illinois

85 Ill. 423

1877 WL 5756 (Ill.)

ALEXANDER BYERS et al.

v.THE FIRST NATIONAL BANK OF VINCENNES.

Supreme Court of Illinois.

June Term, 1877.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Richland county; the Hon. J. C. ALLEN, Judge, presiding.

Messrs. PRESTON, SANDS, HAYWARD & SMITH, for the plaintiffs in error.

Messrs. WILSON & HUTCHINSON, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

In this case the First National Bank of Vincennes, Indiana, sued out a summons against Alexander L. Byers, Robert Byers, George W. Boody and Jacob Beaird, returnable to the April term, 1875, of the Richland circuit court. It was returned served on all of the defendants. They all failed to plead. The court rendered judgment by default against Alexander Byers, George W. Boody and Jacob Beaird, for $5145.83, and $200 for attorney's fee, and also for costs of suit. No judgment was rendered against Robert Byers, nor was there any disposition of the case as to him. It is a rule of practice, that in all actions on contract, if a recovery be had, it must be against all of the defendants, un less a defense is interposed by one or more personal to themselves. Of this character of defense are coverture, infancy, bankruptcy, etc., and, under our practice, the personal defense must be pleaded and proved. We are aware of no case that holds that a plaintiff may sue a number on a contract, and take judgment against only a part of them, where no personal defense is interposed by any one of the defendants. It has been repeatedly and uniformly held by this court, that the judgment must be against all or none, unless a personal defense is established as to one or more of the defendants.

But it is urged that defendant in error and its agents, etc., were restrained from prosecuting this action to judgment, and that, therefore, the judgment is right.

The restraining order was issued under the provisions of section 5106 of the Revised Statutes of the U. S., which provides. that “no creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor's discharge shall have been determined; and any such suit or proceedings shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge, provided there is no unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge.” Section 5118 provides, that “no discharge shall release, discharge or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise.”

Now, these two sections must be read together, and as the only purpose of the former is, that the formerly acquired property of the bankrupt shall not be subjected to the payment of his debts by means of judgments recovered subsequently to the filing of his petition, or that he shall not be needlessly subjected to actions and costs, and, possibly, that the bankrupt may claim protection against such actions and suits through his discharge, if he obtains one, it would not be a strained construction to hold, in cases where, under the law, a suit must be brought and a recovery had against all of the joint contractors, unless some have died or been discharged, that a judgment in such cases may be rendered against all, and an order made staying execution until the question of the bankrupt's discharge is...