#### Pattie M. Beals v. Vernon H. Smith, Acting Circuit Judge of Clinton County.

*Bills and notes*— Joint *makers*— Cognovit—Several *judgments in joint action.*

1. Where *one oí*two makers of a joint and several promissory-note files a *cognovit*in a suit brought against both, the plaintiff may proceed to judgment against such maker without impairing his right to prosecute the suit thereafter against the remaining defendant.

2. A *cognovit*filed by one of two makers of a joint and several promissory note, *in*a suit brought against both, may properly be treated as a default as to the defendant filing it, under How. Stat. § 7855, which provides that, if a default is obtained against part of the defendants in a suit on a promissory note, the plaintiff may proceed to the hearing or trial against the remaining defendants in the same manner as if the suit had been commenced against them only, and that the action shall thereby be severed.

*Mandamus.*

Argued April 5, 1892.

Denied April 7, 1892.

Eelator applied for *mandamus*to compel respondent to set aside certain judgments. The facts are stated in the opinion.

*De Long & O’Hara,*for relator.

*William H. Castle,*for respondent.

Montgomery, J.

On the 4th day of June, 1887, the relator brought suit in the Clinton circuit court on a joint and several promissory note made by Vannes *G.*Danforth and Asahel B. Danforth, joining the two makers as defendants. The two defendants appeared separately, and on the 22d day of August, 1887, the *147«defendant Yannes G. Danforth signed.' a *cognovit.*On the 10th of September, 1887, Asahel B. Danforth entered his appearance a.id filed a separate plea. The issue, as to him, was not brought to trial until April, 1888, but •on the 30th of November, 1887, judgment was rendered against the defendant Yannes G. Danforth. When the issue as to Asahel B. Danforth came on for trial, in April, 1888, he interposed a plea *puis*darrien, setting up the former recovery against Yannes G. Danforth as a bar to further proceedings. A judgment was entered against this defendant also, which was, however, subsequently set aside, and the case came on for trial a second time in June, 1891, before the respondent without a jury At the trial the circuit judge seems to have been of the opinion that the plaintiff was entitled to recover, but subsequently entered the judgment for defendant on the ground that the former judgment against Yannes G. Danforth constituted a bar to a recovery against Asahel B. Danforth. The plaintiff thereupon moved the court to set aside both judgments and for a new trial. This motion having been denied, a *mandamus*is sought to compel respondent to enter the order.

The plaintiff was certainly not entitled as a matter of right, at this late day, to have this judgment, voluntarily entered against Yannes G. Danforth, set aside; and the *mandamus*cannot be granted. It is plain that the petitioner has mistaken her remedy. Had she sought to review the decision of the circuit judge on the issue as to Asahel B. Danforth, the result .might have been different, and without doubt the circuit judge may yet grant a proper application to set aside the judgment as to Asahel B. Danforth, and grant a new trial.

We think it proper to state that, in our judgment, both the court and counsel have mistaken the practice, which is settled by How. Stat. § 7355. This section *148follows sections which provide for the bringing of a joint-action against the several makers, guarantors of payment, ndorsers, or acceptors of a bill or note, and which provide that in Buch actions judgment may be rendered for the plaintiff against one or more of the defendants, and in favor of one or more of the defendants against the- . plaintiff, according as the rights and liabilities of the-respective parties shall appear, and is as follows:

> “It shall not be necessary for the plaintiff to include-in the same record a judgment against all the parties to such hill or note, but judgment may be entered against any of the parties thereto, whenever the plaintiff would-be entitled to the same if the suit had been commenced against such parties only; and if the trial or hearing of such cause be put off by any of the parties to such bill or note, or if a default shall have been obtained against part of the defendants, the plaintiff may proceed to. the hearing or trial against the other parties in the same manner as' if the suit had been commenced against the other parties only, and the action shall thereby he severed.”

The note in question was joint and several, and entitled the plaintiff to proceed against either of the makers in a several action, or join the two; and under this section she had the right to take judgment against on& before the other.

This section was construed by the Court in *Storey v. Bird,*8 Mich. 316, and in *Maynard v. Penniman,*10 Id. 153. In *Storey v. Bird*it was held that the statute did not make it obligatory on the plaintiff to proceed to-judgment against one defendant before the case could be brought to trial as to the other, but that the statute-leaves it optional to plaintiff to do it or not, as he may think most for his interest. The Court say:

> “ The sole object of the section is to prevent unnecessary delay against a part of defendants by reason of a defense interposed by others. The plaintiff might have-*149proceeded against Hale alone, but it was for him to elect whether he would do so or not.”

In *Maynard v. Penniman*it was said:

> *“*While the plaintiff may, under this statute, have a joint judgment, or may have several judgments, at his option, against the parties to the bill or note, in the event that all the defendants shall have pleaded issuably to the declaration, and in case part have pleaded and part made default, yet in the latter ease, and in case a part of the defendants put off the trial as to themselves, the plaintiff may proceed to judgment as to the others, and thereby sever the action, if he so elect. This is -optional with himself.”

We think the *cognovit*should properly be treated as a ■default, within the meaning of this section, and that the plaintiff had the right to take a judgment against the ■defendant Yannes G. Danforth without impairing her right to proceed against the other defendant.

The writ of *mandamus*is denied.

Morse, C. J., McGrath and Grant, JJ., concurred. Long, J., took no part in the decision.