#### Bank of the State vs. Kerby et al.

Debt against three on a joint and several promisory note; nil debet by one, issue, verdict and judgment in his favor : no judgment as to the other two. Held, that, inas-muohas the plea of the one enured to the benefit of the others, the judgment was,in effect, in favor of all, and the writ of error was properly sued out against all.

Nil debet, not sworn to, under our statute, (Digest, p. 819, see. 103, 105,) does not put in issue the execution of the note.

Nor is the law different where a party executes a note by making his mark.

Writ of Error to Washington Circuit Court.

The Bank of the State of Arkansas brought an action of debt, in the Washington Circuit Court, against Henry P. Kerby, William Munkers, and William Buchanan, upon a promisory note executed to the Bank by Kerby, as principal, and the other two defendants as his securities, for $410 64, due 23d September, 1844. (The cause was tried at the November term, 1847, before Sneed, judge.) The defendants were all regularly served with process. Defendant Buchanan did not appear; Kerby appeared and filed a separate plea of the statute of limitation, and Mun-kers filed separate pleas of the statute of limitation, and nil de-bet, not sworn to. To Munkers’ plea of limitation (that the cause of action did not accrue within two years, &c.) a demurrer was sustained; issue was taken to his plea of nil debet, the issue submitted to a jury, verdict in his favor, and judgment of the court “ that the said William Munkers go hence fully acquitted of *346the .debt in the plaintiff’s declaration mentioned, and that he recover of said plaintiff all his costs in this behalf expended.” No judgment as to the other defendants.

The plaintiff took a bill of exceptions, from which it appears that, upon the trial of the issue to Munker’s plea of nil debet, the note sued on being the only evidence introduced by the plaintiff, the court, on the motion of Munkers, charged the jury as follows : “ If plaintiff did not prove that defendant Munkers made his mark, which appears in said note between his Christian and surnames, they must find for Munkers.

“Where defendant does not himself write his name to a note, but makes his mark, if unattested by a witness, the plea of nil debet puts in issue the execution of the note, and, before plaintiff can recover thereon, the execution thereof must be proven by extrinsic evidence.” To which instructions plaintiff excepted.

The plaintiff sued out of this court a writ of error, in substance, as follows:

“ The State, &c.-: To the Cleric, &c.-. Because, in the record and proceedings, and also in the giving of judgment, in a suit, which was in said circuit court, before, &c., between The Bank of the State of Arkansas, plaintiff, and Henry F. Kerby, William Munkers, and William Buchanan, defendants, of a plea of debt,, manifest error has intervened, to the damage of the said plaintiff, as he alleges: you are, therefore, commanded that, if final judgment be therein given, you send to the supreme court, under your official seal, the record and proceedings aforesaid, together with this writ, on, &c., at, &c.; that the record and proceedings aforesaid being inspected by the supreme court, it may cause to be done therein what, according to law, ought to be done, and that, &c. Witness, Luke-E. Barber, Clerk,” &c.

D. Walker, counsel for defendant,

filed a motion to quash the writ of error on the grounds that it appeared, from the record, that there were three defendants regularly served with process in the court below, and issue and judgment thereon as to one of *347them only, and, the judgment being against one of said defendants only, the writ of error was improperly sued out against the other two, who were not parties to the judgment.

LincolN, contra,

moved the court to amend the writ of error by striking therefrom the names of Kerby and Buchanan, against whom there was no judgment in the court below, and to permit the case to proceed as to Munkers. On which motions, the following opinion of the court was delivered.

Scott, J. (On motion.) The defendants base their motion, in this case, to quash the writ of error, upon a supposed variance between it and the judgment of the court below, as shown by the transcript, and refer to the cases of Miller vs. Heard & Co., 1 Eng. 73. Gascjuetl et al. vs. Be try, ib. 246. Jackson vs. Wight, ib. 287, and the State for the use of Robertson, Mss., as presenting authority conclusive of this question. All these cases proceed upon a settled rule of the common law courts, which our statute but re-enacts, which is not only that no person not a party or privy to the record can sue out a writ of error, but the writ must be brought in the names of all the parties against whom the judgment was given; and this, notwithstanding the death of some of the parties, in which, when the survivors brought the writ, the deceased party had still to be named and his death alleged. And the reason of this common law rule was two-fold: that is to say, that the writ of error might agree with the record, and at the same time prevent vexations and delay in suing out successive writs of error. And although one of several defendants might be unwilling to join in suing it out, still it had to be sued out in the name of all, and those who refused to appear, and assign errors, had to be summoned and severed, and were thereby cut off from the right afterwards to sue out a writ of error. And even in case where one defendant in tort was acquitted, though he need not be joined, because it could not be said that the judgment was to his damage, nor that he could ever vex the plaintiff with another writ of error, still the suit *348had to be described in the writ of error according to the record, and uniformly, where the writ failed to correspond with the record, it was quashed. 2 Saunders 101 c. Carth. 8. 1 Lord Raym. 71. Saund. 101 f.

■ So the same two-fold reason required that the wait of error should set out all the names of those in whose favor the judgment was rendered; for, besides the consideration of conformity and agreement with the record, although a party in whose favor a judgment might be rendered would not generally be aggrieved, and could not therefore sue out a writ of error, yet his rights were to be passed upon, and moreover it often happens that it was necessary for him to reverse a judgment, even when it appears to be rendered in his favor, as where there is an error in the judgment prejudicial to him, or where the judgment was for a less amount than he had a right to demand: and besides, the common law regarded a judgment as an entire thing, and would not reverse it as to a part and affirm it for the residue, (2 Saund. 101«.,) or reverse a judgment as to one and affirm it as to another, (4 Randolph, 386); and thus the other reason of the rule, in regard to vexation and multiplicity of actions, as well as that contemplating conformity to the record, had place. 2 Tucker's Lectures, 234 — Illustrating in all this two favorite principles of the common law, harmony in the proceedings, and disfavor to multiplicity of actions.

In this case the writ of error agrees with the record in the names of all the parties to the suit below, but it is insisted that, inasmuch as the judgment in that suit was, in its terms, only in favor of one of the defendants, and that no judgment appears to have been rendered as to the other two defendants, that this variance between the writ of error and the judgment is as fatal as if the variance arose from the omission of any one or more parties to a suit where the judgment, in its terms, embraced all the parties. If the proceeding in error contemplated exclusively' an examination for “errors in the giving oí judgment” in the court below, and had no eye to errors in any other part of the “record and proceedings” of the court below in the suit, this po*349sition would be more tenable: but contemplating, as it does, a correction of errors as well in the “ record and proceedings of the suit” below as in the giving of judgment in that suit, the objection has less force. And besides, when the name of a party to the judgment would be omitted, the object of the law, in preventing multiplicity of action and speedily putting an end to litigation, would be thwarted; and, moreover, errors, if examined in such a case, would be looked into in the absence of a party whose rights are concerned; and in that case also, as no notice would have been served on such omitted party to join in errors, if willing, or, to be severed, if unwilling to hear errors assigned, the process could not be amended by inserting such omitted names in the writ of error, and thereby bring new parties on the record, although the law authorizes amendment in any “process, pleading, or proceeding, in form or substance, for the furtherance of justice,” as held in Gasquett et al. vs. Berry, 1 Eng. 249. While, on the other hand, if the writ of error conformed to the suit below in the names of all the parties, although the judgment in that suit should not in its terms extend to all the parties to the suit, the object of the law before mentioned would be sub-served; and, moreover, all the parties, whose rights are affected by the judgment below, either in its terms or its legal effect, being before the court of errors, any want of agreement between the writ of error and the record, if such did exist, could be remedied by amendment within the reason of the refusal to amend in the case of Gasquett, &c. vs. Berry, and therefore the alleged variance in this case, if it did not for other reasons, seem to savor more of form merely than substance, could not be regarded as sufficient to authorize the quashal of the writ, especially when the other side applied for leave to amend by striking out one or more of numerous parties all regularly before the court. But the supposed variance in this case is evidently more seemingly so than in fact.

The transcript certainly does, in its terms, show only a judgment in favor of William Munkers; he alone of the three defenders is adjudged to go hence acquitted of the debt in the *350plaintiff’s declaration mentioned, and have and recover from the plaintiff all bis costs in that behalf expended, and there is in terms no judgment that either of the other defendants go hence or that they recover their costs. But what is the legal effect of this judgment so, in its terms, rendered in favor of Munkers only? Does it not inevitably, at the same time that it dischai-ges Munkers, also discharge the other two defendants from the plaintiff’s action, and send them away without day ? It is not like a case where a verdict only has been found, but no judgment rendered upon it: there the plaintiff may move to set it aside, or to arrest the judgment; in a word, he may still move as his action is not yet at an end. Not so, however, in the case before us, where the sentence of the law has been actually pronounced, imperfectly, it is true, in the terms in which it has been pronounced, but nevertheless the conclusions of the law from the premises of law and fact, have been by the court actually pronounced, and therefore it cannot be said that judgment has not been given. Nor can it be said, in any just sense, that the judgment pronounced was a mere interlocutory judgment, for surely no judgment, that at once dismisses a defendant from court, discharges him from the plaintiff’s action, concludes his rights in respect of the subject matter in controversy, and adjudges his costs, can be considered as interlocutory merely. Campbell vs. Sneed, 5 Ark. Rep., 498. And such a judgment, in an action in form ex contractu, with certain exceptions that we shall point out, although in its terms in favor of one defendant only, is necessarily in legal effect and substance a judgment in favor of all: resulting from the doctrine correctly laid down in the case of Bruton et al. vs. Gregory, 3 Eng. 180, where the court say, “ If two are sued jointly, one of whom makes default and the other appears and interposes a successful defence to the action, there can be no doubt but that the plea of the one appearing will enure to the benefit of the other, and that he will also be entitled to his discharge.” This, of course, with the qualification and exception that the matter of discharge was subsequent to the making of the contract; such, for instance, *351as a decree of discharge in bankruptcy; and a like exception would obtain in case the suit were against two executors and the plaintiff should fail against one of them on the plea of “plene administravitand so also in debt against several on a penal statute at the suit of a common informer, 2 Tucker's Lectures, 213. Nor can this conclusion be avoided on any-Hypothesis that, although this be true, such successful defence could not have this operation until the sentence of the law to this express purport be actually pronounced by the court, for here the sentence of law, in inevitable legal effect, has been actually pronounced. No one will pretend that the legal effect of a judgment in creating a lien upon land, is less so, because the judgment, in its terms, did not so declare; and when the direct effect of the judgment pronounced upon the plaintiff’s action is considered, the proposition is plain. That direct effect was to put an end to that action; from that moment the plaintiff could proceed no farther; the very term “ action,” implies a state of action or motion: after the judgment that was rendered the plaintiff could move no farther: the “remedy he sought to recover,” was adjudged against him. He could proceed no farther against any of the defendants; in a word, his action was at an end, and the condition of things was completely within the legal idea of a final judgment, erroneous and imperfect it is true, but not the less final in its legal effecls upon the remedy sought by the plaintiff. And so far as the want of completeness of the judgment was concerned in its legal effects, it was purely formal and not substantive; for how could the want of a formal judgment of discharge* affect the two defendants ? The plaintiff could demand nothing of them, they could never afterwards be adjudged in default, for nothing further could be required of them, they having answered the legal purpose for.which they had been summoned in court. They had been summoned there to hear what the plaintiff could legally allege againt them, make defence if they chose, and abide the sentence of the law, with the privilege to plead separately, and the right to require that, if either should make successful *352defence to tbe plaintiff’s action, that defence should enure to the benefit and discharge of all. Such successful defence was made? and the sentence of the law as to its sufficiency was declared, and when that was done, all the defendants in contemplation of law instantly departed the court, for the law required their presence no further, nor did their own interest require it, for nothing further could be done against them, and nothing further substantially in their favor, other than was already done. It is true they might have claimed a judgment for costs in their favor; but this being for their own advantage, and against the plaintiff, they could waive it at their own election, and the plaintiff, being paralysed, could do nothing. The finality of a judgment on the merits, while it has especial reference to the concluding of the essential rights of the parties in respect to the subject matter in controversy, has no connexion with the correctness or completion of such judgment in respect of form or incident, otherwise but few judgments at law would be final. In a more general sense, it has more immediate reference to the giving or refusing of the remedy sought, whether incidentally in the progress of the cause, or at its termination. Sir William Blackstone says “final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for.” And this court, in the case of Dyer vs. Hatch, 1 Ark. 345, in putting its face strongly against such a practice as vexatious and abhorrent to the law’s disfavor of multiplicity of action, plainly intimates that the entering up of final judgment for costs, upon the decision of incidental questions or motions in the progress of a cause, creates the foundation for suing out writs of error to reverse such judgments which seem to, be considered as distinct from and independent of the final judgment on the merits, which would not be in any way affected by an error in any such independent final judgment on incidental questions. If it be true then, as we have shown by the reference to 2 Saunders, 101 v., that a judgment is an entire thing, and that an independent final judgment may be rendered for costs, it will follow that, if the court below were now to go *353on and render a judgment of discharge in favor of tbe two defendants whose names are not specified in the judgment already rendered, and a judgment in their favor for costs, such would be an independent final judgment, and would be no completion or finishing of the judgment already rendered, and could make it no more final or complete than at present.

In the light then of these views, it is our opinion that there is no variance between the writ of error, in this case, and the transcript of the proceedings and judgment of the court below sent up, and the motion to quash must be therefore refused.

Lincoln, for the plaintifF,

relied upon sec. 103, 105, Digest, p. 812, to show that the court below erred in the instruction to the jury.

D. WalkeR, contra.

Scott, J.

The instructions given by the court below to the jury, were clearly erroneous. The declaration was founded upon a note in writing charged to have been executed by the defendant, of which forfeit was made. The plea was nil debet, but was not verified by affidavit, consequently the execution of the writing was not put in issue. Digest, p. 812, sec. 103, 105. The judgment of the court below must be reversed, and the cause remanded to be proceeded in according to law.

Walker, J. Did not sit.