Gruikshank v. Gardner — 2 Hill & Den. 333

Majority

p. 333

J. & S. Gruikshank vs. Gardner.

Headnote

A judgment in assumpsit was recovered in this court against J. & S., both of whom brought error coram, nobis, and assigned for error that the former, being an infant, appeared in the suit in which the judgment was rendered by attorney. Issue having been taken on the question of infancy, it was found in favor of the plaintiffs in error. On a motion by the defendant in error in arrest of judgment as to S., who was an adult; held, that the motion could not prevail, and that the judgment in the first suit must be revoked as to both defendants.

In assumpsit against an infant and another jointly, there may be a severance before judgment, and a recovery against the adult; yet after judgment against both, there can be no severance on writ of error.

In trespass there may be such severance as to an infant or any other co-defendant; but if the infant appear by attorney, and judgment pass against him and the other defendants, it will be reversed as to all.

Motion in arrest of judgment. Gardner commenced a suit in this court against J. & S. Gruikshank, who appeared therein by the same attorney and interposed a joint plea of non-assumpsit. The cause was referred by rule of court, and the referees reported in favor of the plaintiff, whereupon a judgment was entered against the defendants for the amount reported due, with costs. S. Gruikshank, and J. Gruikshank by his next friend, then sued out a writ of error from this court, in the nature of a writ of error coram nobis,^[1] and jointly assigned for error that J. Cruikshank appeared in the said suit by attorney, whereas at the time of his appearance and when judgment was given he was an infant. Gardner joined in error, denying the alleged infancy, and on a trial of this issue before Grid-let, C. Judge, at the Oneida circuit, in April, 1841, the jury found for the plaintiffs in error. Gardner, the defendant in error, now moved in arrest of judgment as to S. Gruikshank, who was an adult.

p. 334

C. P. Kirkland, for the defendant in error.

M. T. Reynolds, for the plaintiffs in error.

By the Court,

The single question is whether, upon the state of this case, the judgment must be revolted both as to the adult and infant, or whether it may not be revoked as to the latter and retained as to the former.

It is supposed by the counsel for the defendant in error, that Richard v. Walton, (8 John. R. 434,) and Duncan v. Sandford, (14 John. R. 417,) which are both precisely in point against a partial revocation, proceeded without due regard to the distinction established by Hartness v. Thompson, (5 John. R. 160,) viz. that, in assumpsit against an infant and another jointly, there may be a severance in the court below, the plaintiff recovering against the adult, while the infant shall have a verdict for him, on the ground that his privilege is personal to himself. It is urged as a consequence of the latter doctrine that they may be severed on a writ of error. But the cases of reversal as against all for the infancy of one, have none of them gone on that distinction that I can find. Nothing is clearer than that an infant or any other party may be severed in trespass; and yet from a very early period of the law it has been uniformly held, that in such action the appearance of an infant by attorney and judgment against him and others, is ground of reversal as to all, and that such a consequence cannot be avoided under the notion of a right to sever in the court below. (1 Rol. Abr. Error, (E), pl. 9. Aylet v. Oates, Sty. 121,-5; Aleyn, 74, S. C., nom. Oates v. Aylet. King v. Marlborough, Cro. Jac. 303.) These cases never' have, that I am aware of, been questioned. They all expressly denied the doctrine of severance on error now contended for, though they admitted it as to the court below. And they have been twice followed both in principle' and circumstance by this court. It is unnecessary to enquire whether the latter case of Alexander

p. 335

v. Hoyt, ( 7 Wend. 89 , 93,) necessarily conflicts with that line of decision. I think it does not; but if it were otherwise, we should, I think, be bound to overrule it.

Motion denied.

Cases cited

Alexander v. Hoyt 7 Wend. 89 N.Y. Sup. Ct. at 93 p. 335