Johnson v. Lough

• Decision Date: 04 October 1875
• Citation: 22 Minn. 203
• Court: Minnesota Supreme Court
• Parties: PHLEMING D. JOHNSON <I>vs.</I> JAMES W. LOUGH & another.

22 Minn. 203

PHLEMING D. JOHNSONvs.

JAMES W. LOUGH & another.

Supreme Court of Minnesota.

October 4, 1875.

Plaintiff having recovered a joint judgment by default, in the district court for Scott county, against the defendants,

Lough and Pitman, in this action, on their joint promissory note, the defendant, Lough, moved in the adjoining county of Dakota, before Crosby, J., to vacate the judgment and all subsequent proceedings as to him on the ground that he had never been served with the summons in the action. The motion was granted, and plaintiff appealed

Henry Hinds, for appellant.

John L. Macdonald, for respondent.

CORNELL, J.

In an action founded on a joint demand arising on contract the only judgment that can be rendered is a joint one, either in favor of or against all the defendants. The cause of action being joint, a several judgment cannot be rendered. Our statute (Gen. St. ch. 66, § 52) provides the mode of procedure when only a part of the joint obligors, and not all, are served with the summons. It provides that the judgment may be entered against all the defendants jointly indebted, and declares, as its effect, that it may be enforced against the joint property of all, and the separate property of the defendants served. In case it is desired to subject to the judgment the separate property of the parties not served, § 256, ch. 66, provides for summoning them to show cause why they should not be bound by the judgment in the same manner as if they had been originally summoned. These sections are substantially those of the New York Code — § 52, in fact, being a literal transcript therefrom. There the practice under them, as well settled, is to enter judgment against all the joint debtors, issue execution in conformity with it, and endorse thereon a direction to the officer executing the writ to collect the amount thereof out of the joint property of all, and the separate property of those served with the summons, but not out of the separate property of those not served, naming them. Whitaker's Pr. 491, 502; Sterne v. Bentley, 3 How. Pr. 331; Merrifield v. Cooley, 4 Id. 272; Mech. & Farmers' Bank v. Rider, 5 Id. 401; Hooper v. Farwell, 3 Minn. 106.

The cause of action in this case was a joint promissory note against both defendants, Lough and Pitman. Conceding that Lough was never served with the summons, still, if Pitman was, the court thereby acquired jurisdiction over the persons of both defendants to enable it to render a judgment...