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Platner v. Johnson & Wheeler

3 Hill & Den. 476 Court N.Y. Sup. Ct. English

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p. 476
Platner vs. Johnson & Wheeler.

Headnote

Where the holder of a joint and several promissory note sues all the makers in one action, without naming other parties, he is not at liberty to sever and take judg ment against one.
In such case, a joint plea of the general issue, though verified by an afiidavit of only one defendant, is sufficient to prevent a default against him not only but all the rest.
Whether the same mode of verification be not allowable even where the right of severance exists, quere.
Though a plea served be defectively verified, the plaintiff cannot treat it as a nullity and proceed to a default, unless he have previously notified the opposite attorney of the defect.
K. Miller, for the defendants,
moved to set aside a default entered against one of them for not pleading. The action was upon a joint and several promissory note of which the defendants were the makers ; and each had been duly served with the declaration, to which a copy of the note was annexed agreeably to rule 1st of May term, 1840» ( 22 Wend. 644 .) Within the twenty days allowed for pleading, the defendants interposed a joint plea of the general issue, accompanied by an affidavit of merits as to both, made by one of them. The clerk
p. 477
of the plaintiff’s attorney signed an admission of due service ; 'but afterwards, and without returning the plea, caused a default to be entered against the defendant who had not sworn to merits
H. Hogeloom, contra.

This was not a joint action against different parties under the statute, but against several makers of the note whom the plaintiff has chosen to sue jointly. In such case there is no right to sever the action and take judgment against one of the defendants. (Bank of Genesee v. Field, 19 Wend. 643 , 4.) If there were such right, it is by no means clear that an affidavit by one of them would not be sufficient for the mere purpose of upholding the plea. It is very rare in such case that a defence complete for one defendant is not equally so for the other. In this case, however, the action must go on as it has begun ; and it would be too nice, in a matter of defence against a joint contract, to require that the plea should be verified by all the defendants.

Another fatal objection to the default is, that the plea was retained and the default entered without giving notice of the defect to the defendant’s attorney. ( Wirts v. Norton, 25 Wend. 699 ; City of Buffalo v. Scranton. 20 Wend. 676 .)

Motion granted.

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