
    Seth C. Keyes v. William Moultrie and Thomas Palmer.
    When an action, in form, against two persons jointly liable, is commenced by'a service of the summons on one defendant alone, and a notice of appearance, by the latter as attorney for both, is' served, and he puts in an answer'for' himself only, and a trial is had on the merits, and a judgment dismissing the complaint is rendered ; and on proof, that notice of appearance for both defendants was served by mistake and without authority, a motion is made to have the judgment, which has been entered, recite, that the defendant not served did not appear in the. action, although such relief may be granted, it is error to vacate the judgment, and all
    ■ proceedings had subsequent to the day preceding the trial, and to grant a new-trial to the plaintiff.
    When a judgment for such a cause, is thus modified in its recitals, a plaintiff who has relied on such notice of appearance, as authorized and valid, should.be relieved from all proceedings had on the faith thereof, which would be valid if such notice was authorized, but which are invalid, or may be avoided, if it was unauthorized, and from such proceedings only.
    When the action has been tried on its merits, as if both defendants had appeared, if no error was committed at the trial, the plaintiff should not have a new trial, merely because the unauthorized notice is allowed to be corrected, and the recitals in the judgment made to state the truth in that behalf If error was committed at the trial, the judgment would be reversed on the plaintiff’s appeal, as well with the recital of the non-appearance of Palmer in it, as if it recited the fact of his actual appearance.
    (Before Duer, Ch. J., Bosworth, Hoffman, Slosson, and Woodruff, J.J.)
    Heard, Nov. 21;
    decided, Nov. 28, 1857.
    This action comes before the Court at General Term, on an appeal by the defendant Moultrie, from an order made by Mr. Justice Hoffman on the 24th of October, 1857.
    The complaint states as a cause of action, that the defendants made their joint note, payable to their own order fifteen days from the 6th of October, 1856, for $1,000, and endorsed and delivered.it to the plaintiff, and that they have paid only $300 on account of it. That, to secure the residue, the defendants agreed that Moultrie' should execute his bond for $1,000, and a mortgage of a house and lot belonging to him, to secure the same, and deliver the said bond and mortgage to the plaintiff; that the latter should thereupon advance to the defendants $500 in cash, and they should give their joint note to him for $2,000.
    
      That the plaintiff having an opportunity, as he supposed, to negotiate said bond and mortgage, requested that they should be drawn, payable to Palmer as obligee and mortgagee, and that he should assign them to the purchaser thereof. That they were, thereupon, so drawn and delivered to the plaintiff, both defendants agreeing that Palmer should assign them to such person as should purchase them, and the plaintiff thereupon, on the 3d of January,-1857, paid to the defendants $300, on account of said $500.
    That being unable to negotiate the said bond and mortgage, the plaintiff returned them to Moultrie about the 27th of January, 1857, requesting new ones to be drawn directly to himself, which Moultrie promised to do. On the 31st of said January, the plaintiff demanded of the deféndants the bond and mortgage, and their note for $200, and tendered $200 cash (residue of the $500), and they promised to send to him the new bond and mortgage, and their note for $200, and take the $200 in money and the old note of $1,000. That, on the 31st of January, Moultrie wrote to the plaintiff that he had changed his mind, and refusing to deliver the said bond and mortgage. It demands judgment that the defendants pay the plaintiff the amount due him as aforesaid, and that Moultrie execute and deliver to the plaintiff' the bond and mortgage agreed on, and that the defendant Moultrie be in the meantime enjoined from disposing of or encumbering said house and lot, etc. This action was commenced in February, 1857.
    Moultrie, being an attorney, served notice of appearance, as attorney for himself and Palmer. Palmer was not served with the summons. Moultrie put in an answer for himself alone. The action was tried before Mr. Justice Hoffman, June, 1857, without a jury, and he gave judgment, dismissing the complaint.
    The plaintiff made a case, and appealed from the judgment to the Gfeneral Term. The judgment, as entered, did not show that Palmer had appeared in the action. The Judge amended it, on an ex parte application, so that it stated such to be the fact. Thereupon the defendant Moultrie moved before the same Judge, (on affidavits showing that his clerk, who drew the notice of appearance which was served, by mistake and without authority, and without Moultrie being authorized to appear for Palmer, drew it as an appearance for both, defendants, and on other papers,) that the recital in the judgment, that Palmer had appeared in the action be stricken therefrom. The said Justice) on the 24th of October, 1857, after hearing both parties on such motion, made an order that such recital be stricken out, and “that upon a withdrawal of the appeal; all proceedings herein, from the day prior to the commencement of the trial hereof to the present time, be vacated and set aside, and that the cause stand as if no trial had been had, and that the injunction be restored as. heretofore, and continued in force till the further order of the Court, and that the plaintiff take such steps to bring in the defendant Palmer as he may be advised.”
    It is from this order that the present appeal has been taken by the defendant Moultrie.
    
      William Moultrie, in person, appellant.
    
      D. D. Field, for respondent.
   By The Court. Bosworth, J.

In this action the plaintiff could recover against both defendants upon the note, although he might fail to establish a right to have a bond and mortgage executed and delivered to him, as prayed for by the complaint. (Marquat v. Marquat, 2 Kern. 336.)

He could not, on the default of Palmer to answer, take a several judgment against him for the amount due on the note, and then proceed and litigate with Moultrie the right to recover a judgment for the same debt against him.

A several judgment against one of several defendants, before a trial of the action against the others, is only proper when, according to the cause of action stated in the complaint, the liability of the defendants is several. (Code, § 136, subs. 2 and 3.)

The plaintiff having received a notice of the appearance of the defendant Palmer, it was unnecessary to serve the summons on him. (Code, § 139; Rule 7 of the Supreme Court; Mahaney v. Penman, 4 Duer, 605, and note to p. 606.)

Moultrie, by whom the notice of appearance as attorney for Palmer, as well as for himself, was given, cannot complain that the plaintiff "relied and acted upon it as an authorized notice, nor to his being relieved from any proceedings that have been taken in consequence of it, and which, have become nugatory, by reason of -Moultrie’s being allowed to correct his notice so as to convert it into a notice of appearance for himself alone, and to have other subsequent proceedings amended, so as to show by the record that Palmer has not been served with the summons nor appeared on the action.

If all 'the allegations of the complaint are true, the plaintiff has a right to have the bond and mortgage, which were executed, assigned to him by Palmer, or, in lieu of it, a bond and mortgage executed directly to him by Moultrie, and the joint note'of the two for $200, or a judgment against both for $1,000, if the $200 .tendered by the plaintiff shall not be required to be paid or advanced by him to the defendants. '

Viewing the defendants as alleged joint debtors, although the plaintiff might proceed upon a service made on one only, and take such a judgment as is authorized by the Code (§ 136, sub. 1), yet he is not obliged to do so. He has the right, by suing all the defendants, to have the whole litigation determined by a single trial.

And when he has been misled, by the service upon him of - a notice of appearance of the defendant not served, and that notice has been given by the defendant who was served, as attorney for the other defendant, the one giving- the notice cannot complain that the plaintiff is relieved from proceedings had on the faith that the notice so given was authorized and legal, and which would be valid if such notice was authorized, but are invalid, or may be avoided, if it was unauthorized.

But, the fact that Moultrie had no right to give the notice, does not entitle the plaintiff to any relief, except from proceedings which have become nugatory merely because such notice was unauthorized. As the plaintiff was defeated on the merits, no other results have occurred than would have happened, if the notice had been authorized and still appeared of record as. a subsisting and valid proceeding.

If the plaintiff, on the proofs made, was entitled to a judgment against both defendants, either for the money lent, ■ or for any part of it, or to' the further judgment that Moultrie execute the bond and mortgage, or to the latter relief, and to that only, the judgment was erroneous:

If it is not erroneous he should not be relieved from the judgment, and be allowed a new trial, except for cause and on terms. He has had a trial on the merits, and the decision on that could not be affected by the fact, that Palmer had, or had not appeared. The trial proceeded as if he had appeared—and upon all the evidence given, the Court decided, that the plaintiff was not entitled to any relief.

If there was no error in that decision, the judgment would be affirmed on appeal. But although free from error, and although it would be affirmed on appeal, the order of the 24th of October, 1857, allows the plaintiff to abandon his appeal, and have a new trial, without payment of the costs of the trial or of the appeal.

This has been allowed, as far as we can see, because Moultrie served notice, by mistake of his clerk, that he appeared for Palmer. This fact could not have varied the legal effect of the evidence given on the trial.

Nor can we see that the plaintiff can lose, or be deprived of the right to have the judgment reversed on any ground which would be error, if such notice had been authorized; by reason of an amendment of the record, so that it will show that Palmer was neither served with the summons nor appeared in the action.

So if the judgment shall be held to be erroneous, and a new trial shall be granted, the plaintiff can serve Palmer with the summons, before proceeding to trial, and obtain a personal judgment against him, as well as against Moultrie.

If no error was committed for which the judgment should be reversed, there should not be a new trial.

All of the order subsequent to that part of it which directs, “that the said recital in the amended judgments be stricken out,” is erroneous and must be reversed. An order to that effect will be entered.  