#### Augustus G. S. Wight et al. v. Thomas Meredith et al.

Error to Ogle.

1. Parties, Joint — -judgmentjoined. Where an action ex contractu is instituted against two defendants, and both are served with process, and one makes default, and the other procures a change of venue, it is error to take judgment against the defendant in default, before a disposal of the defence interposed by his co-defendant.

2. Ps.h.CTiCK — joint parties — one defaulting. On entering a default against one of two defendants in a suit, the court should stay all further proceedings as to him, until the trial of the issue tendered by the other defendant. On the trial of that issue, the jury may be directed to assess the damages against the party in default. If the finding on the issue be for the plaintiff, a joint judgment could be rendered, (a)

3. Same — joint tmdertaking no severaljudgment. Where an action ison ajoint undertaking by two or more defendants, and all of them are before the court, the plaintiff is entitled to a recovery against all, or not at all. In such case the jndgment to be rendered must be joint and not several, (b)

4. Venue — effect of change. A change of venue removes the whole cause, and the court to which the same is transferred, after a default by one of the parties, and a plea by another, may, when the issue is found against the plea, or a decision is made against it, properly render a judgment against both the defendants. (c)

5. Joint Judgment — proper, several takers, reversal of one reverses all. Where several judgments have been rendered in different courts, in a case where, from the character of the cause .of action, but one judgment, and that a joint one, could rightfully be rendered, neither of the judgments can be sustained, but both must be reversed.

The proceedings in this cause, in the Jo Daviess circuit court, were had before the Hon. Dan Stone at the May term, 1839. The proceedings in the Ogle circuit court were -had at the September term, 1841, before the Hon. Thomas Ford, when the cause was submitted to a jury, and a verdict and judgment rendered for the plaintiffs for $3459.04. The defendants brought the cause to this court by writ of error.

E. D. Baker and A. T. Bledsoe, for the plaintiffs in error,

cited Breese 128, 139; 1 Scam. 552; 2 Scam. 36, 319, 571; 3 3 Scam. 191.

M. Brayman, for the defendants in error.

(a)

Cases Citing Text. Plaintiff cannot sever his action either as to persons or amount, and have several judgments forseveral sums at different stages of suit. Brewer v. Christian, 9 Bradw. 57, 59.

(b)

In action ex contractu judgment must be joined against all defendants served or none, unless personal defence is interposed. Howell v. Barrett 3 Gilm. 433; Gould v. Sternburg, 69 Ill. 531; People v. McFarland 9 Bradw, 275, 279.

(c)

Statute requiring all parties, on one side to join in application for change of venue, does not require defendant who has been defaulted to join in application. Hitt v. Allen 13 Ill. 592, 594,

Treat, Justice,

delivered the opinion of the court: [*361] Meredith & Spencer brought an action against Wight & Jackson in the Jo Daviess circuit court. The declaration was in assumpsit, on a promissory note executed by the 'defendants as *374partners. Both of the defendants were served with process. Wight pleaded non assumpsit. The default of Jackson was entered, and final judgment rendered against him for the amount of the note. At the same time the court, on the application of Wight, awarded a change of venue to Ogle county. In the circuit court of that county a trial was had, and judgment rendered against Wight for the amount then due on the note.

The rendition of those judgments is now assigned for error by Wight & Jackson, who bring the record before this court by writ of error.

The action was on a joint understanding by the defendants, and both of them being before the court, the plaintiffs were entitled to a recovery against both, or not at all. In such case the judgment to be rendered must be joint and not several. It was clearly erroneous to render final judgment against Jackson before disposing of the defence interposed by his co-defendant. On entering the default of Jackson the court should have stayed all further proceedings as to him, until the trial of the issue tendered by Wight. On the trial of that issue the jury might be directed to assess'the damages against the party in default. If the finding on the issue should be for the plaintiffs a joint judgment could be rendered. Kimmel v. Shultz, Breese 128; Russel v. Hogan, 1 Scam. 552; Hoxey v. The County of Macoupin, 2 Scam. 36; Teal v. Russell, 2 Scam. 319; McConnel v. Swailes, 2 Scam. 571; Tolman v. Spaulding, 3 Scam. 13; Wells v. Reynolds, 3 Scam. 191; Frink v. Jones, ante 170.

If the proper practice had been, pursued by the court the change of venue would have removed the whole case, aud the circuit court of Ogle county might properly have rendered a judgment against both of the defendants. As it is, several judgments have been rendered in different courts in a case where, from the character of the cause of action, but one judgment, and that a joint one, could rightfully be rendered. Consequently neither of the judgments can be sustained, and both must be reversed. From the confusion in which the case is involved this court will not remand the cause, but leave the parties to litigate their differences in a new proceeding.

The judgments rendered in this cause are reversed with costs.

Judgment reversed.