Woodward v. Newhall, 1 Pick. (Mass.) 500; Taylor v. Beck, 3 Rand. (Va.) 316; Cole v. Pennel, 2 Rand. (Va.) 174; Steptoe v. Read, 19 Gratt. (Va.) 1; Baber 7. Cook, 11 Leigh (Va.) 606; Rohr 7. Davis, 9 Leigh (Va.) 30; Minor 7. Bank, 1 Pet. (U. S.) 46. See also Kuhn 7. Embry, 35 La. An. 488; Murdy 7. McCutcheon, 95 Pa. St. 435.

The rule does not apply in an action against several on a promissory note, where one of the defendants pleads that he signed the note as surety only and that the payee extended the time of payment without his consent or knowledge. Ritchie . Gibbs, 7 Ill. App. 149. A plaintiff cannot sever his action, either as to persons or amounts,and have several judgments for several sums at different stages of the case. Brewer v. Christian, 9 Ill. App. 57.

In an action against several defendants, all of whom were served and defaulted, it was held that the clerk had no authority to enter judgment against one only. Long v. Serrano, 55 Cal. 20. See also Munn . Haynes, 46 Mich. 140.

And generally where there are several defendants all served, final judgment against one or more cannot be entered without disposing of the case as to all. Bissell v. Cushman, 5 Colo. 76. 1. Moore v. Ester, 79 Ky. 282; Huot 7. Wise, 27 Minn. 68; Boswell Gates, 56 Iowa 143; Stapp v. Davis, 78 Ind. 128; Rowe v. Chandler, 1 Cal. 167; Roberts v. Pepple, 55 Mich. 367; Parker v. Jackson, 16 Barb. (N. Y.) 33; Harrington v. Higham, 15 Barb. (N. Y.) 524; Crandall 7. Beach, 7 How. Pr. (N. Y.) 271; Hoffman . Bircher, 22 W. Va. 537; Van Ness . Corkins, 12 Wis. 186. See also Gray v. Stuart, 33 Gratt. (Va.) 351; Renfro v. Willis, 67 Ala. 488; Lee v. Basey, 85 Ind. 543.

It would seem to be the better opinion that where the liability is joint, a judgment cannot be entered against defendants who are in default until the issues are disposed of as against defendants who have answered, nor against defendants who are in court, while other defendants have not been served with summons and have not appeared. Slade v'. Street, 77 Ala. 576; Maynard v. Powder, 75 Ga. 664; Stapp v. Davis, 78 Ind. 128; Lenoir v. Moore, 61 Miss. 400; Wootters v. Kauffman, 67 Tex. 488;

Catlin 7. Latson, 4 Abb. Pr. (N. Y.) 248; Niles 7. Battershall, 27 How. Pr. (N. Y.) 381; Fowler . Kennedy, 2 Abb. Pr. (N. Y.) 347; Sager v. Nichols, 1 Daly (N. Y.) 1; Brown v. Richardson, 4 Rob. (N. Y.) 603; Netso . Foss, 21 Fla. 143. Compare Ingraham v. Gildemeester, 2 Cal. 88; Hirschfield v. Franklin, 6 Cal. 607; Sears 7. McGrew, 10 Oreg. 48. See also Ash 7. Gine, 97 Pa. St. 493; Feder v. Epstein, 69 Cal. 456.

But where under the code, in an action against joint defendants on a joint liability, judgment may be entered against all defendants, it can be enforced only against the joint property of all and the separate property of those who have been served with process. Bowen . May, 12 Cal. 348; Freeman on Judg. (3rd ed.), § 45.

Under the New York code, where the pleadings show that the plaintiff is entitled to judgment against one of joint defendants, such judgment may be entered before trial. Stedeker . Bernard, 102 N. Y. 327; s. c., 12 Daly (N. Y.) 212.

Where the petition in an action. against two defendants expressly alleges a partial liability only on the part of each to answer plaintiff's demand, a judgment against one for the whole amount is erroneous. Thompson . School District, 71 Mo. 495. See also Munn 7. Haynes, 46 Mich. 140.

Where a portion of the plaintiffs in an action were compelled to withdraw therefrom upon their refusal to file a prosecution bond it was held proper to enter judgment against them for costs. Lafoon . Shearin, 95 N. Car. 391.

If an action of assumpsit be brought against two defendants jointly, and a writ of enquiry of damages be awarded against them at rules, and one of the defendants only appears and sets aside the office judgment against him and pleads non assumpsit, and issue is joined, and on this issue the jury find a verdict for both the defendants, and the court without having the writ of enquiry of damages executed against the other defendant overrules a motion for a new trial, and on this verdict enters up a judgment in favor of both defendants, this judgment and verdict will be set aside by the appellate court. Enos v. Stansburg, 18 W. Va. 477.

In an action to set aside an alleged fraudulent conveyance, against the grantor and grantee therein by a judgment creditor of the grantor, a general verdict was returned against both defendants. On motion, a new trial was awarded the grantor and denied the grantee, and, without judgment, the case was continued. At the subsequent term, the cause as to the grantor was tried by the court, and a finding and judgment rendered in his favor. Over the objection of the grantee, the court rendered a judgment against him, upon the verdict of the jury, setting aside such conveyance as fraudulent. It was held held that such judgment was erroneous. Love v. Geyer, 74 Ind. 12.

Where, in an action against several as copartners, it appeared that one only was liable and that he had answered denying the allegations of the complaint without pleading the misjoinder of the others, it was held that judgment was properly rendered against him alone. Conklin v. Fox, 3 Mont.

20S.

A judgment rendered against several defendants may be valid as to part of them and void as to others. Gray v. Stuart, 33 Gratt. (Va.) 351.

In Alabama, if one of the joint obligors dies pending the suit, a judgment rendered against the parties to the action "or such of them as are now surviving," is valid against the survivors. Downs v. Allen, 22 Fed. Rep. So5.

Where plaintiff sues to recover the value of services rendered, and defendant admits the rendition of the services, but denies the value to be as great as claimed, and avers that it does not exceed a certain specified amount, it is error to render a judgment in plaintiff's favor for such amount, and continue the cause for trial, to determine the further value of such services; and a judgment so entered, if acquiesced in by defendant is final, and a bar to further proceedings. Weaver v. Carnahan, 37 Ohio St. 363.

1. Joyce v. O'Toole, 6 Bush (Ky.) 31; Ruby v. Grace, 2 Duv. (Ky.) 540. But it has been held in Alabama, that an appeal was unnecessary, on the ground that the error could not affect the person erroneously included in the judgSavage v. Walshe, 26 Ala. 619. Construction.-Where the summons

ment.

and complaint were each entitled "M., G. & C. Zwickey, plaintiffs," etc., and the judgment was entitled "Michael Zwickey, George Zwickey, and Casper Zwickey, plaintiffs," etc., it was held that the court will presume that the plaintiffs so named in the complaint are identical with those named in the judgment. Zwickey v. Haney, 63 Wis. 464.

Where the name of each defendant is set out in the margin and the recitals are "came the parties by attorneys" and a judgment is rendered against all the defendants, each being specially named in the judgment, the necessary construction is that all appeared. Owings v. Binford, So Ala. 421.

The fact that the clerk in entering up an order uses the term "defendants," does not purport to affect defendants. not served. Dawson v. Bridges, 19 Ill. App. 280; McBride v. Bryan, 67 Ga. 584.

Where pleas of abatement to the jurisdiction were filed by several defendants, one ants, one of whom was a railway company, and both were tried, but in giving judgment the court, while reciting only that the railway company had pleaded in abatement ordered that the declaration of said plaintiffs be quashed and that the said defendants go thereof without day; and that said defendants do recover of and from the plaintiffs its costs and charges by it in its defence in this behalf expended, it was held that the word "defendants" in this judgment referred only to the railway company. Barnes . Mich. etc. R., 54 Mich. 243

v.

A judgment by a justice of the peace upon a note bearing ten per cent. interest does not bear that rate of interest when different from the statutory rate unless it appear in the judgment that the note sued on bore such rate. Ramsey v. Jones, 5 Lea (Tenn.) 500.

Where a judgment entry in summary proceedings against a sheriff for failure to return an execution recited that "defendants not being represented in court, and the presiding judge having been of counsel," the clerk selected an attorney of the court to preside on the trial, “and issue being joined upon the plaintiffs' motion for a judgment against the defendants, thereupon came a jury," etc. it was held that the judgment did not show that any of the defendants appeared and joined issue. Warwick v. Brooks, 70 Ala. 412.

1

1. State v. Bank, 6 S. & M. (Miss.) 218; Harrison 7. Great Northern R., 11 C. B. 542; 21 L. J., C. P. 16; Beaty v. Warren, M. & G. 158; 4 Scott N. R. 4

725.

2. Schermerhorn 7. Schermerhorn, 5 Wend. (N. Y.) 513; Smith v. Smith, 4 Wend. (N.Y.) 468; Bowdre v. Hampton, 6 Rich. (S. Car.) 211; Stoughton v. Mott, 15 Vt. 169. Compare Brown v. Searle, 104 Ind. 218; Martindale v. Price, 14 Ind. 118; Bank . Lefevre, 14 Ohio 206; 14 Am. L. Rev. 494. When a verdict is rendered for substantial instead of nominal damages, which only should be recovered, the court may not sustain a motion for judgment for defendant notwithstanding the verdict. Carl v. Granger Coal Co., 69 Iowa 519.

Where under the instructions and special findings a verdict for plaintiff should have been for defendant, judgment for defendant may be entered on the special findings. Felton v. Chicago etc. R., 69 Iowa 577.

3. Fitch . Scott, 1 Root (Conn.) 351; State v. Commercial Bank, 6 S. & M. (Miss.) 218; Ward v. Phillips, 89 N. Car. 215; Bellows . Shannon, 2 Hill (N. Y.) 86; Sullenberger . Gest, 14 Ohio 204; Oades . Oades, 6 Neb. 304; Moye . Petway, 76 N. Car. 327; Pim . Grazebrook, 2 C. B. 429; 3 D. & L. 454; Atkinson 7, Davies, 11 M. & W. 236; 2 D. N. S. 778; 12 L. J., Ex. 169; Berwick . Duncan, 3 Ex. 644; Cook . Pearce, 8 Q. B. 1044.

Where a verdict in an action for an injury caused by the negligence of two defendants apportions the damages, the apportionment may be disregarded and judgment rendered against each for the full amount. Post. Stockwell, 34 Hun (N. Y.) 373

Where a party believes himself entitled upon the answers to the interrogatories to a greater sum than that awarded by the general verdict, he should move for judgment upon the answers to interrogatories, for such sum as they show him entitled to re

cover. Brinkley . Weghorn, 71 Ind. 497.

A motion for judgment notwithstanding the finding will not lie upon a special finding of facts by the court, which does not contemplate a general verdict. Bibbler v. Walker, 69 Ind. 362.

In Pennsylvania, a judgment non obstante veredicto cannot be entered where no question of law has been reserved at the trial. Enquirer etc. Co. v. Rice, 106 Pa. St. 623; Buckley v. Duff, 111 Pa. St. 223.

For cases where judgment has been rendered non obstante veredicto see Chapman . Holding, 60 Ala. 522; Snyder . Robinson, 35 Ind. 311; Lough . Thornton, 17 Minn. 253; Morris . Zeigler, 71 Pa. St. 450; Glading 7. Frick, SS Pa. St. 460.

In Equity. The verdict of a jury as to issues of fact framed by the court in a suit in equity, has not the dignity of a like verdict in an action at law. It is advisory only. It is the duty of the court in such case to sift the entire evidence, and to found its decree thereon, as may be warranted by all the facts elicited. McGan v. O'Neil, 5 Colo. 58. See also Adams . Hunt, 74 Ala. 338.

Motion for Judgment.-As to motions for judgment and notice thereof, see Leslie v. Merrick, 99 Ind. 180; Heinrich v. England, 34 Minn. 395; Gay v. Hults, 56 Mich. 153: Douglas v. Haberstro, 8 Abb. N. Cas. (N. Y.) 230; Hammond. Morgan, 101 N. Y. 179; Craddock 2. . Scarborough, 54 Tex. 346; Brockway v. Newton, 49 Wis. 406; Rollins v. Kahn, 66 Wis. 658.

A judgment by default without notice in a case where the defendant was entitled to notice is not absolutely void for that reason. Schobacher v. Germantown Mut. Ins. Co., 59 Wis. 86.

4. The judgment roll or record will be fully treated under the title RECORD.

Reference should also be had, however, in general, to the following titles: APPEAL, vol. 1, p. 623; BILL OF EX

Y.) 677; Kissam v. Hamilton, 20 How. Pr. (N. Y.) 375; Perkins v. Dunlavy, 61 Tex. 241. Divorce. But where plaintiff in a suit for divorce on the ground of adultery died pending the trial, after it had been entered upon, but before the jury had retired, it was held that if all the issues were found by the jury in favor of the plaintiff, judgment of divorce should be entered as of the first day of the term, while the plaintiff was still alive. Webber v. Webber, 83 N. Car. 280.

1. Stapler v. Hoffman, 1 Demarest (N. Y.) 63; Lawrence v. Hodgson, 1 Y. & J. 368; Fishmongers Co. v. Robertson, 3 C. B. 970; 4 Dowl. 656; Heathcote v. Wing, II Exch. 345. Not though the delay was occasioned by the party against whom the entry would be made. Treeman . Trannah, 12 C. B. 406; 21 L. J. Rep. (N. S.) C. P. 214. Compare Aydelotte Brittain, 29 Kan. 98.

Ordinarily the court will not order a judgment as of a prior term to enable a debtor to plead a discharge in bankruptcy. Hall v. Brown, 59 N. H. 198.

It has been held that unless the statute permits, a court cannot, even with the consent of the parties, enter as of a past term a judgment rendered at chambers in vacation. Puget Sound Agricultural Co. v. Pierce County, 1 Wash. 75.

2. Nabers 7. Meredith, 67 Ala. 333; Whitwell . Emory, 3 Mich. 84; Hyde v. Ceveling, 10 Mo. 359; Gibson v. Chouteau, 45 Mo. 171; In re Limerick, 18 Me. 183; Smith v. Hood, 25 Pa. St. 218; Perkins v. Dunlavy, 61 Tex. 241; Gray v. Brigwardello, I Wall. (U. S.) 627. Compare Long . Long, 85 N. Car. 415.

The superior court in Massachusetts has power, under its rules, upon petition of a party to an action pending therein, and after notice to the adverse party, to order the record of a former action between the same parties to be completed, 12 C. of L.-6

81

and the judgment therein made up and entered; the judgment, when so recorded, takes effect from the date of the original judgment; and it is within the discretion of the court to allow the plaintiff in the pending action, in whose favor the original judgment was rendered, to file an amended declaration therein, counting upon that judgment. King v. Burnham, 129 Mass. 590.

3. Whorley . Memphis etc. R., 72 Ala. 20; s. c., 74 Ala. 264; Franklin v. Merida, 50 Cal. 289; Dreyfuss 7. Tompkins, 67 Cal. 339; Hagler v. Mercer, 6 Fla. 721; Howell v. Morlan, 78 Ill. 162; Shephard v. Brenton, 20 Iowa 41; Belkin v. Rhodes, 76 Mo. 643; Evans v. Fisher, 26 Mo. App. 541; Forbes v. Mavra, 63 Miss. 1; McDowell v. McDowell, 92 N. Car. 227; Chichester v. Cande, 3 Cow. (N. Y.) 39: s. c., 15 Am. Dec. 238; Hammer 7. McConnell, 2 Ohio 31; Whittaker v. Gee, 63 Tex. 435.

But it has been held that the omission to enter a judgment of record cannot be supplied by an order in vacation. Hale . Finch, 1 Wash. 517.

An entry nunc pro tunc must appear to have been done by order of the court. Waldo v. Beckwith, 1 N. Mex. 97.

I

4. Metcalf v. Metcalf, 19 Ala. 319; Herring v. Cherry, 75 Ala. 376; Draughan v. Tombeckbee Bank, Stew. (Ala.) 66; s. c., 18 Am. Dec. 38; Ex parte Jones, 61 Ala. 399; Hegeler v. Henckell, 27 Cal. 491; Swain v. Naglee, 19 Cal. 127; Adams v. Re Qua, 22 Fla. 250; Cairo etc. R. v. Holbrook, 72 Ill. 419; Robertson v. Pharr, 56 Ga. 245; Hyde v. Curling, 10 Mo. 359; Hansbrough . Fudge, So Mo. 307; Fletcher v. Coombs, 58 Mo. 430; Belkin v. Rhodes, 76 Mo. 643; Briant v. Jackson, 80 Mo. 318; Carter v. McBroom, 85 Tenn. 377.

It may be shown by the written opinion of a judge when the law requires the filing of such a paper. State 7. Mayor, 24 Ala. 701. But not when