JUDGMENTS.

[Marion Circuit Court,

September Term, 1897.]

Day, Price and Marvin, JJ.

(Judge Marvin, of the Eighth Circuit, taking the place of Judge Norris.)

#### Isaac E. Osbun v. Samuel H. Bartram.

Several Judgment in an Action on a Claimed Joint Liability in Advance of Trial or Inquiry is Erroneous.

Although the common law rule that a several judgment cannot be rendered on a joint liability has been modified by sec. 5312, Rev. Stat., to authorize such judgment in case where a several judgment is proper, it is error for the court to render a several judgment against one party to a claimed joint liability, upon default, in advance of a trial, or inquiry and finding, as to the relative rights and liabilities of the other parties defendant.

Error to the Court of Common Pleas of Marion county.

The facts as they appear from the record in this case, are as follows: S. H. Bartram, defendant in error, was plaintiff in the lower court, and brought suit on a joint claim in his favor, arising on a joint contract of lease, against Osbun and four other persons; and in his petition stated a joint cause of action against all of them, with a prayer for a joint judgment. Summons was issued and served on all the defendants ; all of them answered, in some form or other, except Osbun, who did not answer or demur but made default, and was in default for answer at the time of the rendition of the judgment against him. Afterwards, on January 18,1897, and before any trial on the merits was had, or any inquiry or investigation was made in the matter, as to the rights or liabilities of any of the defendants, the court on motion of the plaintiff for that purpose, rendered a several judgment on default, for the full amount of the claim, *260against Osbun individually. The court overruled amotion to vacate and set aside the judgment, but it was allowed to stand, and was entered on the record and now stands as a valid and subsisting judgment against Osbun, who prosecutes error and seeks a reversal of the judgment on the grounds that it was erroneously given and entered.

Day, J.

The single question presented by this record is: was it error for the ■court to render a several judgment against one party to a claimed joint liability, in advance of a trial, or inquiry and finding, as to the rights and liabilities of the other parties defendant ?

It was the rule of the common law that where a joint contract or joint liability was the subject of an action, the recovery, if one was had, must be against *all*or *neither*of the defendants ; and that rule is still in force, except in so far as it has been modified by statutory provisions. It has not been entirely abrogated, but has been modified, and to an extent only, by the provisions of secs. 5311, 5312 and 5313, Rev. Stat. The provision of sec. 5312 is as follows: “In an action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.”

The provisions of this section do modify the rule of the common law and authorize a several judgment, on a joint liability; but only when it is proper to render a several judgment. The court must notice the situation and conditions obtaining, in any given matter, in order to determine the proper action to be taken therein; and the question as to whether it is proper to render a several judgment against one of a number of defendants, where a joint claim is asserted against all, can only be ascertained by an examination of the facts. Clearly the 'modified rule requires a trial, or, at least some kind of an inquiry and ascertainment, by the court, of the relative rights and liabilities of all the defendants, as a condition precedent to the rendering of a several judgment against either of them.

The decision of the Supreme Court in Auclcer v. Adams & Ford, 23 O. S., 543, is exactly in point and is decisive of this case. The third .syllabus is as follows : 3. “Where a joint suit against all the obligors in a bond is the only remedy of the plaintiffs thereon, it is error, under the provisions of section 371 of the code, for the court to render a several judgment against one or more of the defendants, leaving the action to proceed against the other.” Judge Mcllvaine for the court on page 550-51 discusses the quéstion presented by this record. He says : “There can be no doubt that the cases wherein it is improper to render a several judgment against one or more of the defendants, leaving the action to proceed against the others, are limited, as a general rule at least,to actions founded on joint contracts.” * * *

“This construction of the section harmonizes more fully with the general system of practice introduced by the code, and especially . with the provisions of secs. 38 and 77 of the code. So that, the rule would seem to be, that the court, in its discretion, may render a judgment against one or more of the defendants leaving the action to proceed against the others whenever it appears that the plaintiff might have demanded a several judgment on the contract if he had elected to sue the defendants separately. On the other hand in all cases, where the subject matter of the action is such that the plaintiff could not have *261prosecuted several actions, his only remedy being to demand a joint judgment in a joint action, he cannot have a several judgment against any of the defendants until the liability of each and all the defendants has been determined upon final trial of all the issues in the case. Upon such final trial, if all the defendants are found to be liable, then judgments should be rendered against all; and if some only are found to be liable and others not, the judgment should be against those found to be liable, and in favor of those who are found to be not liable.”

*Charles F. Garberson,*for plaintiff in error.

N *H. &*/. *H. Bartram,*for defendant in error.

We are of opinion there was error in the action of the court below, in rendering a several judgment against the plaintiff in error, on default and before a trial was first had, to ascertain and determine the relative rights and liabilities of all the defendants; and for that reason alone the judgment is reversed and remanded for further proceeding in accordance with law.