Henry v. Gibson

• Decision Date: 28 February 1874
• Citation: 55 Mo. 570
• Parties: JAMES HENRY, Plaintiff in Error, v. WILLIAM GIBSON, MICHAEL COLLINS AND THOMAS R. SHAW, Adm'r of JOSEPH ALEXANDER, deceased, Defendants in Error.
• Court: Missouri Supreme Court

55 Mo. 570

JAMES HENRY, Plaintiff in Error,

v.WILLIAM GIBSON, MICHAEL COLLINS AND THOMAS R. SHAW, Adm'r of JOSEPH ALEXANDER, deceased, Defendants in Error.

Supreme Court of Missouri.

February Term, 1874.

Error from Daviess Common Pleas.

James McFerran, for Plaintiff in Error.

I. The mere filing of the petition entitled against the other parties, without summons, service, or appearance, did not constitute the commencement of a suit against them. Hence, no dismissal as to them was necessary. (See 52 Mo., 332; 34 Mo., 326; 32 Mo., 423.)

II. The judgment being taken by agreement of the parties with a stay of execution for a definite period, the defendant is estopped from setting up the pretended irregularity.

M. A. Low, for Defendants in Error.

I. Plaintiff instituted suit against all of the defendants by filing his petition against them.

II. It was irregular to take judgment against one defendant without finally disposing of the case as to the other defendants, for there can be but one final judgment in a cause. (2 Wagn. Stat., 1053, § 8; Dow vs. Rattle, 12 Ill., 303; Davidson vs. Bond, 12 Ill., 84; Davis vs. Tiernan, 2 How. [[[[[Miss.], 786; Dennison vs. Lewis, 6 How. [Miss.], 517; Hughes vs. Evans, 4 Sm. & M., 737; O'Hara vs. Lanier, 1 B. Mon., 100; Warren vs. Lewis, 1 B. Mon., 119; Appleton vs. Jacoby, 9 Dana [Ky.], 206.)

SHERWOOD, Judge, delivered the opinion of the court.

The plaintiff filed his petition in the Common Pleas Court of Daviess county, and alleged in such petition that the three defendants above named were indebted to him on a certain promissory note therewith filed, and judgment was prayed against them. Summons was, however, sued out and served on only one of the defendants, Joseph Alexander, who appeared, and by his consent, judgment was rendered against him alone; but the judgment was by a mere clerical mistake, entitled as if against all the defendants. At a subsequent term, Alexander filed his motion to set aside that judgment and quash the execution issued thereon, on the ground that the judgment was rendered against Alexander alone, without dismissing as to the other defendants. The execution was issued only against Alexander, and in every respect conformed to the judgment rendered. The court sustained this motion, set aside the judgment and quashed the execution, and in so doing it committed manifest error. No suit had ever been brought against any one except Alexander, nor judgment rendered, nor execution issued against any party besides him.

The mere filing of the petition, alleging the...