{
  "id": 5292704,
  "name": "John Joyce v. Lucinda Spafford",
  "name_abbreviation": "Joyce v. Spafford",
  "decision_date": "1901-05-06",
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  "first_page": "554",
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      "cite": "94 Ill. App. 554"
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    "id": 8837,
    "name": "Illinois Appellate Court"
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      "cite": "1 Scam. 552",
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  "last_updated": "2023-07-14T20:05:08.743041+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "John Joyce v. Lucinda Spafford."
    ],
    "opinions": [
      {
        "text": "Me. Presiding Justice Adams\ndelivered the opinion of the court.\nThe case presented by the record is this: An action against two defendants jointly, service of process on both and appearance of both; an undisposed-of demurrer of one to the declaration, and final judgment by default against the other. The rule that if two or more be sued jointly and are served with process, or appear, the judgment must be against all or none, is fundamental, inflexible, and recognized by numerous decisions. Russell v. Hogan, 1 Scam. 552; Wight v. Meredith, 4 Scam. 360; Gould v. Sternburg, 69 Ill. 531; Sherburne v. Hyde, 185 Ib. 580, 582; Waugh v. Suter, 3 Ill. App. 271.\nIii Sherburne v. Hyde et al., supra, Hyde and Grace were sued jointly; process was not served on Grace, one of the defendants, and the court say:\n\u201c Had Grace appeared to the action, or been served with process, it is settled law that the judgment must have been against both or neither.\u201d\nMany other cases to the same effect might be cited. The only case relied on by counsel for appellee is Roby v. Opdyke, 61 Ill. App. 328. That was an appeal from an order overruling a motion to vacate a judgment by con fession, and the court say :\n\u201c But neither did the appellant, on the hearing of the motion, show any equity why the judgment should not stand.\u201d\nAnd, for that reason, the-court declined to interfere with the judgment.\nIn Berg v. Com. Nat. Bk., 84 Ill. App. 614, 618, the court say:\n\u201c It has been repeatedly held that in cases of judgments by confession, a court of law exercises a purely equitable jurisdiction, and that it will not disturb such a judgment, upon a motion to vacate it, unless the moving party shows that he does not owe the amount of the judgment,\u201d etc., citing cases.\nTo the same effect is Gilmore v. German Savings Bank, 89 Ill. App. 442. The decision in Roby v. Opdyke has not the least application to the present case. We think that if the appellant should apply for leave to plead, on specifically stating facts, by affidavit, constituting a defense to the action, he should be allowed so to do.\nThe judgment will be reversed and the cause remanded.",
        "type": "majority",
        "author": "Me. Presiding Justice Adams"
      }
    ],
    "attorneys": [
      "Edward Marshall, attorney for appellant.",
      "Matz, Pis her & Boyden, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "John Joyce v. Lucinda Spafford.\n1. Judgments\u2014 Where Two or More Defendants Are Steed Jointly.\u2014 Where two or more defendants are sued jointly and are served with process or appear, the judgment must be against all of them or none.\nAssumpsit, on a joint guaranty. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1900.\nReversed and remanded.\nOpinion filed May 6, 1901.\nStatement.\u2014Appellee sued the appellant and Patrick McMahon jointly, in an action of assumpsit, on their joint guaranty. Both defendants were served with process and appeared. Appellee filed her declaration, declaring against the defendants jointly, and also an affidavit of her claim, under section 36 of the practice act. The defendant McMahon filed a demurrer to the declaration May 8,1900, and the same day John Joyce, the appellant, pleaded the general issue, and filed with his plea the following affidavit:\n\u201c State of Illinois, I County of Cook, f\nIn the Superior Court of Cook County.\nTo the May Term, A. D. 1900.\nSpafford )\nVl \u00cd Joyce et al. )\nSaid John Joyce, defendant, makes oath and says that he verily believes that he has a good defense to this suit, upon the merits as to hold of plaintiff\u2019s demand.\n(Signed) John Joyce.\nSubscribed and sworn to before me this 7th day of May, A. D. 1900.\nO. S. Hamilton,\n[Notarial Seal.] Notary Public.\u201d\nMay 23, 1900, at the May term of the court, the court, on motion of the plaintiff\u2019s -attorney, entered judgment by default against the defendant Joyce, for failure to verify his plea, assessed the plaintiff\u2019s damages at the sum of $1,271.50, and rendered final judgment against him for that amount, from which judgment Joyce prayed and was allowed an appeal. June 2, 1900, also at the May term of the court, Joyce, by his attorney, moved the court to vacate the judgment, and set aside the order allowing an appeal, and filed, in support of said motion, the affidavit of his attorney, in substance that the affiant drafted the affidavit filed with Joyce\u2019s plea and wrote the word whole instead of the word \u201c hold,\u201d which appears in said affidavit, but that affiant\u2019s stenographer inadvertently spelled the word whole \u201c hold.\u201d The court overruled the motion.\nEdward Marshall, attorney for appellant.\nMatz, Pis her & Boyden, attorneys for appellee."
  },
  "file_name": "0554-01",
  "first_page_order": 578,
  "last_page_order": 580
}