Lewis Hale, Michael Ferral and Thomas M. Crowell, Plaintiffs in Error, vs. Richard Crowell's Administratrix, 2 Fla. 534

Opinion by Chief Justice Douglas : This suit was instituted in the late Superior Court of Leon County, by Lewis Hale, Michael Ferrall, and Thomas M. Crowell, against Richard H. Bradford, Edward Bradford and Richard H. Crowell, upon the joint bond of the defendants, (in the Court below,) for the sum of thirteen hundred dollars, payable to the plaintiffs. Process was sued out against and duly served upon all of the said defendants, and the declaration filed in the case is in the usual form in debt, charging all the defendants jointly. Judgment by default for want of plea, was rendered against Richard H.

Crowell only, for the said sum of thirteen hundred dollars debt, and one hundred and ninety-four dollars and seventy cents, making together the sum of fourteen hundred and ninety-four dollars and seventy cents and costs, &c.— Whether on motion of the attorney for the plaintiffs or not, the record does not state; but it shows that he was present, and he seems to have acquiesced in it, for immediately after it was entered, the suits against Richard H. Bradford and Edward Bradford were dismissed “ by consent of parties, by their attorneys.” Since the rendition of said judgment, the defendant, Richard II.

Crowell, has departed this life, and this suit is prosecuted by the plaintiffs in error, (who were also plaintiffs in the Court below,) to reverse their own judgment, on the ground that it was improvidently taken by their attorney, and tends greatly to their injury. The error assigned is, that the bond sued on was the joint bond of three persons, and the judgment was taken by default against one only of the joint obligors, and the proceedings were dismissed, as to the other joint obligors. The defendant in error appears by her counsel, but makes no objection.

That a party may resort to a Court of Error, to obtain the reversal of his own judgment, if it has been so rendered that he may sustain injury by it, is a principle too well settled to be now contested. Johnson v. Jebb, 3d Burr Reps., 1772. 2 Eng. Comm. Law cases, 255, is a leading case upon this subject, and it was likewise so held by this - Court, in the case of Ward and May v. Bull and Shine, 1 Florida Reps., 275, where a number of authorities in point are cited, but a number more might be added; it is also laid down in 2 Tidd’s Pr., 1134, and 1 Archbold Pr., 232.

The only question is, whether this is a case proper for the application of the principle, and we think it is. In Capron v. Von Noorden, 2 Cranch, 126, 1 Peters’ Cond. Reps., 370, Mr. Capron (who was plaintiff below) sued out a writ of error, and assigned for error that the record did not show that the Circuit Court had jurisdiction, the parties not being described so as to show they were within the provisions of the act of Congress. “The only question submitted to the Court was, whether the plaintiff could assign as error his own omissions and irregularities in the pleadings.

The defendant did not appear, but the citation being duly served, the judgment was reversed.” The rule that a party shall not take advantage of an error for his benefit does not apply to errors of the Court, as where it pronounces a wrong judgment. Cross v. The United States, 1 Gallison’s Reps., 26. In the case of Teal v. Russell, et al., 2 Scammon, 319, 321, it was held that where an action is brought against several, and a plea is filed as to one, and the default of the others is entered, it is erroneous to take final judgment against them until the plea is disposed of.

The Court say, “ it was clearly erroneous in the Circuit Court to render a judgment against McClure and Russell, during the pendency of the plea filed by Peyton. If issue had been joined on that plea, the proper course would have been to have sworn a jury, as well to try the issue joined as to assess the damages, as to those who had suffered the default.

Until the plea filed by Peyton was disposed of, no judgment could regularly be entered against the other defendants; and although the judgment against McClure and Russell was in favor of Teal, yet the law is well settled that the plaintiff may have his own judgment reversed. Judgment reversed.” In Jones et al., v. Wright, et al., 4 Scammon, 338, 339, Catron, Justice, delivering the opinion of the Court, said : “ This suit was brought against Wright and Jackson on a promissory note, process was served on both the defendants, and Jackson .appeared and pleaded the general issue.

At a subsequent term, without noticing this plea, a judgment by default was taken against him, the damages assessed, and execution awarded. Afterwards Wright appeared, and filed a plea, on which issue was taken, and a jury called, when the plaintiff submitted to a non suit as to him. Execution had been issued against Jackson, and returned ‘ nulla bona.’— To reverse this judgment against Jackson, the plaintiffs have pros'ecuted this writ of error, that they may commence their action anew.” The question was, whether the plaintiffs could obtain a reversal of their own judgment, and after citing Capron v.

Van Noorden, 2 Cranch, 126, Teal v. Russell, et al., 2 Scam., 321, Johnson v. Jebb. 3 Burr, 1772, and 2 Tidd’s Practice, 1134, the Court proceeded : “ Without going further into the authorities, it is clear that a plaintiff may obtain a reversal of his own judgment, for irregular)* ties which may have intervened in the Court below, in order that he may commence another suit, and obtain a regular and valid judgment, as well as where errors have been committed against him.”— And Beecher v. Shirley, reported in 8 Coke, 58, and Croke James, 211, also sustains this principle.

Another question presented for our consideration is, what was the effect of rendering judgment against Richard H. Crowell only, and then dismissing as to the two Bradfords. R is to be recollected that Crowell could not have pleaded a non-joinder of parties, because when the judgment against him was rendered they were parties to the suit, and such a plea would have been contradicted by the record. In Sadler et al. v. Houston and Gillespie, 5 Stewart and Porter, 206, -service of the writ was effected on both the defendants. “ There does not,” said Ch. J.

Lipscomb, “ appear to have been any appearance, unless we can infer the presence of the defendants, from the manner in which the clerk has entered the judgment.” The case is first stated of Houston and Gillespie against both defendants; he then goes on to say, “ the parties appeared by their attorneys, and the said plaintiff dismissed Ms suit against the said Mary Sadler, and the said defendant saith nothing in bar, &c., concluding a judgment of nihil dicit in the usual form.

The error assigned is in entering up judgment against one only, after having discontinued against the other defendant, who had been in Court as co-defendant.” “ That such a discontinuance is error and fatal, has been ruled (said the Chief Justice) by a series of decisions in this Court, and it will be only necessary to refer to the cases. The case of Smith v. Hill, 1 Stewart and Porter, 62. Adkins v. Allen, ibid, 130. Brahan v. Johnson, ibid, 189. Roberts v. Johnson, 2 Stewart, 13, and Thompson v. Saffold, et al., 2 Stewart, 494.

The principle (he says) is acknowledged in all these cases, and we are fully satisfied of its soundness.” And if it is thus conclusive, where the suit was dismissed as to some of the joint obligors, or contractors, before judgment'against the others, “ a fortiori,” it must be so, where the judgment is first rendered against one obligor, and the suit is afterwards dismissed as to the others. In King’s administrators’s v.

Anthony, 2 Blackford, 131, the Court held, that “if the plaintiff in an action against two, proceed to judgment against one alone, and the record do not contain a return of the writ that the other had not been found, and a suggestion of such return, the judgment will be reversed in error.” In Jenkins v. Hart’s Commissioners, 2 Rand. 447, the Court held, that in a joint action upon a joint contract, (the very case at bar,) the plaintiff must have judgment against all the defendants, or he can have judgments against none. In the case of Newman v.

Graham, 3 Mum., 187, 188, the Court of Appeals of Virginia, upon the authority of the case of Leftwick v. Berkley, 1 Hen. & Mum., 62, held, “that in an action of debt against one obligor only, if the declaration describe the bond as joint, and do not state the other ob-ligor to be dead, it is.a fatal error, though not.pleaded in abatement, and is not cured by verdict.” That case is analagous to the case at bar in this, that the defendant did not crave oyer of the bond, but a copy of it was nevertheless annexed to the transcript of the record by the clerk, as in this case.

But there is an essential difference between them in this : the bond in that case (as shown by the copy) was joint and several — while in this, it is joint only : in that, the defendant appeared and pleaded — in this, there was judgment by default. The Court decided the case according to the showing of it, which the plaintiff had made in his declaration, and so we deem it proper to decide this. A nolle prosequi, or dismission, is simply an agreement not to proceed further in the suit, as to the particular person, or cause of action. 2 Saunders’ Reps., 207, note 2, and authorities there cited. Holker et al. v.

Parker, 7 Cranch, 436, 2 Peters’ Cond. Reps., 560, is cited as an authority to show that plaintiffs should not be permitted to suffer, on account of the errors or mismanagement of their attorney. But the case of Beecher v. Shirley, 8 Coke, 58, and Croke James, 211, above cited, is an authority more directly in point.

That was a suit upon a bond; the defendant, Shirley, pleaded payment, and it was found for him; but the Court being in doubt upon a point of law which arose in the case, after divers motions, the plaintiff, Beecher was content that a discontinuance should be entered, but by the negligence of his attorney, a judgment was entered, which it became necessary for him to remove by writ of error, before the obligee could recover on the original contract. He sued out a writ of error, which was sustained, and the judgment was reversed. That is precisely the case before us.

Here an erroneous judgment, improvidently taken, as appears by the attorney of the plaintiffs, stands in the way of a recovery, (or is calculated at least to embarrass the plaintiffs very much in a suit) upon the original contract; the plaintiffs having been injured by the unskilfulness of their attorney, there is manifest error in the record. The judgment of the Court below is, therefore, reversed, but at the costs of the plaintiffs. Per curiam.