#### Michael Gorman, Appellant, *v.*Dennis Dewey, Respondent.

(County Court, Franklin County,

September, 1898.)

Justice’s Court —Nonjoinder of a maker of a note must be pleaded by answer and not by demurrer.

Where the plaintiff brings an. action in Justice’s Court1 against only one of two living and unreleased makers of a note, the remedy of the defendant is by pleading the nonjoinder in abatement; and where he merely demurs, the objection is waived, as section 2939 of the Code of Civil Procedure does not constitute such an objection a ground of demurrer.

This is an appeal from a judgment rendered by Xorman I. Arnold, a justice of the peace of the town of Eran hi in, dismissing plaintiff’s complaint upon demurrer.

The action was brought before the magistrate upon the complaint which alleged as follows:

*“*In Justice’s Court, before X. I. Arnold, justice of the peace:

MICHAEL GORMAN, Plaintiff, against

DENNIS DEWEY, Defendant.

- “ The plaintiff for a complaint in the above-entitled action for a complaint therein alleges: That heretofore and before the commencement of this action, to-wit, on the 5th day of October, 1882, the defendant made, executed and delivered to Thomas Gorman his certain promissory note in the words and figures as follows, viz.:

“ "Wilmington, X. York, *Oct.*5, 1882.

*“*One year from date for value received we promise to pay Thomas. Gorman or order $65.25 with use,

*“*Dennis Dewey,

her

“ Catharine X Dewey.

mark,

“Witness:

“ Mary Gorman.

*644“ That there has' been paid to apply on said note and is indorsed thereon as follows, viz.: March 10j 1886, $10.— January 24, 1888, twenty dollars. January 15,1890, $10, and January 10', 1892, $10. That said note has been sold and transferred to the plaintiff herein for value, and he is now the owner and holder thereof. That there is now due and owing upon said note, and unpaid the sum of $64.93, both principal and interest, which said sum.the defendant neglects and refuses to pay although often requested so to do, and the aforesaid sum of $64.93 is due from the defendant to plaintiff. Wherefore the plaintiff demands judgment against the defendant for the sum of $64.93 besides costs of this action.

“Dated *January*13, 1898.

“ Michael Gorman,

*“Plaintiff.”*

On the return day of the summons, namely, on the 13th day of January, 1898, after the filing of the said complaint with the justice, the defendant demurred thereto upon the following grounds: Eirst, “ That the summons in the action is against Dennis Dewey as defendant.” Second, “ That the complaint in said action alleges two defendants, to-wit, Dennis Dewey and Oatharine .Dewey.” Third, “That this action, if brought at all, should be against the makers alleged in the complaint, to-wit,- Dennis Dewey and Oatharine Dewey,” to which demurrer plaintiff’s counsel objected. The demurrer was sustained by the magistrate and the complaint and said action thereupon were dismissed, and judgment rendered against the plaintiff for costs amounting to $1.95.

Plaintiff appeals.

Cantwell & Cantwell, for appellant.

M. T. Scanlon, for respondent.

Beman, J.

It appears from the complaint herein that the obligation upon which this action was brought was a joint note, made and executed by Dennis Dewey, defendant, and Catharine Dewey. The summons was against Dennis Dewey only. Ordinarily this action would not lie in its present form as it is a well-settled rule of law that where a promissory note is made by joint debtor’s,- all of the parties who are living must be joined in the action. It is not necessary, however, that all of the joint makers of a promissory *645note be served with process, as judgment may be taken against those not served. Provided a summons has been served on one or more, judgment may be rendered against all the defendants jointly. Code of Civ. Pro., § 1932.

Should any of the joint makers of a promissory note be dead the action may be brought against the survivor or survivors and in such case summons would issue against the survivors only; but to justify the magistrate in rendering judgment against one of several joint debtors under such'circumstances it would be necessary that the complaint should state, explicitly that the joint makers not made defendants are dead or otherwise released from their obligation under the contract. In this case it did not appear by the complaint' that the defendant Catharine Dewey was dead or that she should not be made a party to the action.

The defendant’s remedy, however, in such case is not' by demurrer but rather by an answer alleging nonjoinder of parties in abatement. Where one of several joint debtors is sued alone he must plead nonjoinder in abatement and cannot take advantage of it on the trial. This is the language of Chief Justice Savage in rendering the decision of the court in Gay v. Cary, 9 Cow. 44. He only reiterates, however, the decision, of the court in Williams v. Allen, reported in 7 Cow., page 318. This was the rule of pleading before the Code of Civil Procedure, and has not been changed since the enactment of that statute. 2 Johns. Cases, 382; 1 Chitty on Pl. 29:

Where a party desires to raise an objection to a pleading in Justice’s Court by demurrer it must be done under section 2939 of the Code of Civil Procedure, and the only grounds where a demurrer would lie are these: First, where the pleading is not sufficiently explicit to be understood; or, second, where it does not state facts sufficient to constitute a cause of action or counterclaim as the case may he. In this case the defendant did not avail himself of the rule of law which permitted him'to plead nonjoinder of the defendant Catharine Dewey in abatement. He, therefore, waived that objection. His demurrer to the complaint not coming within any of the provisions as provided by section 2939, above cited, was not sufficient in law to raise any objection to the substance or form of the complaint, for the reason that it did not cover any of the grounds provided by law.

The proceedings on the part of the defendant before the magistrate simply amount to an appearance and he raised no valid or *646legal objections to plaintiff’s complaint, not having pleaded the nom joinder of the defendant Catharine Dewey, and not having 'demurred under any of the provisions of the Code of Civil Procédure he waived any and. all real or apparent defects in the pleading, thereby rendering the acts of the magistrate in sustaining the demurrer .and dismissing the action, irregular and without authority of law.

The only conclusion that it is possible for the court to arrive at, considering all the proceedings in this pase, is,' that .the magistrate erred in sustaining defendant’s demurrer and dismissing plaintiff’s action. He should have' overruled the demurrer and permitted plaintiff to proceed to prove his case against the defendant.

From' these considerations, and with these views, the judgment should be reversed, with costs.

Judgment reversed, with costs.