People v. Harrison

• Decision Date: 30 June 1876
• Parties: THE PEOPLE, for use of Oliver Miller et al.v.DEMPSEY HARRISON, Admr.
• Court: Illinois Supreme Court

82 Ill. 84

1876 WL 10136 (Ill.)

THE PEOPLE, for use of Oliver Miller et al.

v.DEMPSEY HARRISON, Admr.

Supreme Court of Illinois.

June Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Clay county; the Hon. JAMES C. ALLEN, Judge, presiding.

Mr. RUFUS COPE, for the appellant.

Mr. W. B. COOPER, and Messrs. HITCHCOCK & FINCH, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

Abraham Miller was appointed guardian of certain minors in Clay county, and to secure the faithful discharge of his duties he entered into a joint and several bond, with Joseph Maxwell and Solomon Miller as his sureties.

Subsequent to the execution of the bond, and after a default on the part of the guardian to comply with the terms and conditions thereof, Maxwell died. A suit was instituted upon the bond against the guardian, Solomon Miller, one of the sureties, and the administrator of the estate of Maxwell. Service was had upon Miller and the administrator, but the suit was dismissed as to the latter, and judgment rendered against Solomon Miller.

The judgment not having been paid, a claim was presented in the county court for allowance, against the estate of Maxwell. From the decision of the county court an appeal was taken to the circuit court, where a trial was had, in which the court denied the allowance of the claim, upon the ground that the former action against the guardian and surety upon the bond, which resulted in a judgment against the surety, was a bar to a recovery in this proceeding against the estate of Maxwell.

It may be regarded as well settled, that a recovery against one of several persons, who are jointly liable for the payment of a debt or the discharge of a legal liability, releases the others, and forms a complete bar to a recovery at law against them. Wann v. McNulty, 2 Gilm. 355; Thompson v. Emmert, 15 Ill. 415; Moore v. Rogers, 19 Ill. 347; Mitchell v. Brewster, 28 Ill. 163.

But the question presented by this record arises not upon a joint contract, but the obligation is both joint and several, and hence the rule in relation to a joint undertaking does not apply.

Contracts which are joint and several may be regarded as furnishing two distinct remedies: one by a joint action against all the obligors, the other by a several action against each. Freeman on Judgments, sec. 335. If this be correct, an action against all the obligors on the joint liability would not be a bar to an action against each one on the several...