
    JOHN LOEBER vs. JOHN A. MOORE ET AL.
    Scire Facias; Affidavit to Plea in; Judgment by Default; Practice.
    i. The affidavit required by Rule 121 of this court in cases of scire facias on judgment applies as well to a plea of nul tiel record as other pleas.
    .2. Where in an action against two or moré a judgment by default is taken, against one, and subsequently the declaration is amended and the case proceeded with against the remaining defendants, the amendment does not operate to set aside the judgment.
    .3. Where the defendant was personally served and filed a plea, notwithstanding which a judgment was taken against him as for want of a plea, upon which judgment, after the lapse of nine years, a scire facias to revive is.issued, judgment of revivor should follow unless the defendant files with his plea an affidavit under Rule 121 showing a defense to the action.
    4. Nor would error, however gross in the rendition of the original judgment, be a defense if it fall short of showing a want of jurisdiction of the subject-matter of the action or of the person of the defendant; such a defense should have been made either by appeal from the original'judgment or in some direct proceeding to set it aside.
    At Law.
    No. 17,756.
    Decided March 9, 1891.
    The Chief Justice and Justices James and Montgomery sitting.
    Appeal from judgment on scire facias. '
    
    
      Judgment affirmed.
    
    The facts are stated in the opinion.
    Mr. Wm. John Miller for plaintiff:
    The pleas of defendant Moore to the writ of scire facias ■are not supported by an affidavit of defensé under the 121st Rule of Practice, and hence the Court did not err in granting judgment in favor of plaintiff on the writ of scire facias.
    
    It was claimed below that error was committed by the court in granting the original judgment, because it was said that there was a variance between the promissory notes sued on and the declaration — in the words “order of" in the notes; and not in the declaration.
    It has been shown that the original judgment against defendant Moore (the maker of the notes), was rendered on the-8th February, 1879. No appeal was taken from that judgment, and no motion made to set aside the judgment, hence-that j udgment became final, and no matter what error (and we deny there was any error) there was in the declaration, or in. granting the original judgment, it having been rendered by a; competent court having jurisdiction of the person and subject-matter, cannot be reviewed upon a scire facias. Qauw vs. Lameraux, 36 Wis., 629; Ætna Life Ins. Co. vs. McCormick, 20 Wis., 283; Pettus vs. McClannahan, 52 Ala., 57; Bank of U. S. vs. Moss, 6 How., 31.
    Again, when a declaration sets out an instrument, and such instrument purports a consideration or shows upon its face that the assumpsit was for a consideration, the judgment will not be arrested because the declaration does not aver a consideration. Kimble vs. Lull, 3 McLean, 272.
    The plaintiff (appellee) also contends that upon a writ of scire facias to revive a judgment, and plea thereto of “ nul tiel' record” (and that is really deféndant Moore’s plea to the scirefacias), this court cannot go behind the original record of the-judgment. Henry vs. Brothers, 48 Pa. St., 71; Carr vs. Townsend, 63 Pa. St., 20; U. S. vs. Thompson, Gilpin, 614; Brown vs. Banner, 45 Miss.
    Mr. Leigh Robinson for defendant:
    This is a judgment by default against a defendant shown by the record to have been in no default whatever; a judgment: for want of a plea, when plainly there was one. It being manifest from an inspection of the record, that there was no-jurisdiction to enter such a judgment, and that the express ground of the judgment is contradicted by the record to which it refers, it follows that the alleged judgment is no judgment, but is intrinsically and absolutely void. Meloy vs. Grant, 4 Mackey, 488.
    It is erroneous to take judgment by default where a plea of non assumpsit is interposed. Covell vs. Marks, 2 Ill. (I Scam.), 390.
    This is true even though the plea interposed be itself defective and exceptionable. If defendant, when under an order to plead issuably put in a plea, though informal, which goes to the substance of the action, the plaintiff cannot sign judgment as. for want of a plea. Thellusson vs. Smith, 5 T. R., 152; Mackey vs. Mettler, 1 Iowa, 528; Canal Bank vs. Newbury, 7 Iowa, 4; Levi vs. Monroe, 11 Iowa, 453; Ser vs. Robst, 8 Mo., 507; Dewort vs. Mosser, 40 Pa. St., 302.
    The rule under which, in this jurisdiction, a plaintiff may-have judgment for want of a duly verified plea, has no application to a judgment by default for want of plea, as the present is. Meloy vs. Grant, 4 Mackey, 488.
    But the alleged judgment, if it ever existed, was either revoked or ignored as void by the subsequent amendment of the-declaration upon which it professes to be founded.
    Leave may be granted a plaintiff to amend his declaration! after verdict, the former verdict being at the same time set aside. Tomlinson vs. Blacksmith, 7 T. R., 131. Lord Kenyon, C. J.: “ It would be going too far to make the amendment without sending the cause to a new trial.” (Id., 133.)
    Leave may be granted to plaintiffs to amend the declaration after judgment, the judgment and verdict being set aside. Wilson vs. Bowen, 5 T. B. Mon., 35.
    A plea may be amended,.after replication, demurrer, joinder in demurrer and judgment in Supreme Court for defendant, but after the judgment has been set aside. Utica Ins. Co. vs. Scott, 6 Cow., 605.
    Where judgment by default is rendered on such defective declaration, it is competent for the coürt to amend the decíaration after judgment,but such amendment should not be permitted without giving defendant leave, on application, to plead. Neidenberger vs. Campbell, McNiff and Barnes, 11 Mo., 359.
    “The application of the plaintiff to be permitted to file an amended declaration, and of the defendant for leave to plead thereto, will amount to a mutual voluntary abandonment of all the previous pleadings on both sides.” Robinson vs. Keys, 28 Tenn., 144.
    “A valid subsisting judgment against one, merges his origijoint contract, he cannot recover against the other.” Maghee nal contract in the judgment, and as the plaintiff by taking judgment has put it out of his power to prove a subsisting vs. Collins, 27 Ind., 85.
    “A recovery against one of several persons who are only jointly liable for the payment of the debt, or the discharge of a legal liability, releases the others, and forms a complete bar to a recovery at law against them.” The People vs. Harrison Adm’r, 82 Ill., 84.
    “ The rule of the common law declared in this case to be that a judgment against one, upon a contract merely joint of several persons, bars an action against the others, and that the entire cause of action is merged in the judgment.” Mason vs. Eldred et al., 6 Wall., 231.
    A debt is not merged in a judgment until a valid judgment has been obtained upon it. Wixom vs. Stephens, 17 Mich., 518; Goodrich vs. Bodure, 6 Gray, 323; Maghee vs. Collins, 27 Ind., 83; 9 Moore, 413; 3 Lev., 234; id., 243.
    But the judgment against Moore and Cerf Solomon (even had the same been valid), being an entirety, if revoked as to one, is revoked as for the other; and, for the same reason, if it be void as to one it is void as to both.
    A judgment is an entire thing, and cannot be separated into parts. Hanley vs. Donoghue, 59 Md., 239. Hence it is true of every judgment, that “ it must either be affirmed as a whole, or reversed as a whole.” Id., 243. Hence, if a judgment against several persons be vacated as to one, it must be vacated as to all. Starbird vs. Moore, 21 Vt., 530. Hence, if in a judgment against two the court has no jurisdiction against one defendant, the judgment being entire and unqualified, is void against both. Wright vs. Andrews, 130 Mass., 149, 151.
    There can be no severance after j udgment of the defendants against whom that judgment has been rendered. It cannot be revoked as to one and retained as to another. Cruikshank vs. Gardner, 2 Hill (N. Y.), 334. Hence, if “a judgment rendered jointly against the maker and endorser of a promissory note,” is void as to the maker, it is erroneous against the endorser, for the reason that “ a judgment at law is an entirety, good as to all or bad as to all the defendants.” Cov. Mut. Life Ins. Co. vs. Glover et al., 36 Mo., 392. Hence in an action on a judgment against several, who sever in their defence, if the plea of one be adjudged good, and the judgment as to him pronounced void, it is void as to all because the judgment is entire. Holbrook vs. Murray, 5 Wend., 163. In any and every case where an entire judgment against several is erroneous as to one, it is equally erroneous as to all. Herman vs. Brotherson, 1 Denio, 537.
    It appears from the record that the ground on which the j udgment on the scire facias was asked and allowed was the want of a verified plea to said writ.
    Whenever a declaration avers that a material fact appears by a record, the proper plea is nul tiel record. Bohannon vs. Broadwell, 7 J. J. Mar., 32. On issue of nul tiel record, day should be given the party to produce the record; and if not produced, judgment of failure of recqrd. Brady vs. Commonwealth, 4 id., 517. When there is a plea of nul tiel record in a case, the issue upon it can only be tried by the court. Gray vs. Pingry, 17 Vt., 419. Therefore such plea ought not to conclude to the country, but praying judgment, &c. Eppes’ Adm’rs vs. Smith, 4 Munf., 466; 2 Chitty, 488.
    At common law, when the existence of a judgment is put in issue upon a plea or replication of nul tiel record, it must be proved by the production of the'record itself, which is inspected by the court wherein it is, if it be a record of the same court.” Freeman on Judgments, § 417 ; Tidd’s Pr., 943 ; Greenl. Ev., Vol. 1, 501 and 502.
    If the record produced shows that the court did not have jurisdiction of either the person of the defendant, or the subject of the controversy, it must be disregarded. Freeman on Judgments, § 459; Thompson vs. Emmert, 4 McL., 98.
    The plea of nul tiel record merely puts ip issue the existence ■of the record as stated. The plea, if pleaded alone, need not be signed. 3 Chitty PL, 995. Chitty gives a form for the plea of nul tiel record, concluding with a verification, but adds, in a note, that this is unnecessary. Id.
    
    On a previous page, the same writer says, where the declaration is founded on matter of record, which is traversed in the plea, a verification is unnecessary, as the plea is in the negative. Id., 556.
    In Wright vs. Weisinger, exception was taken to the form of a plea of nul tiel record, because it did conclude with a verification, but the court said :
    “ The rule is that in a plea of nul tiel record a verification is unnecessary, because the plea is in the negative. An unnecessary averment may be rejected as surplusage and does not vitiate.” 5 Sm. & M., 215.
    So, when to a plea of nul tiel record it was replied that there was “such record,” and the same concluded with a verification, the court said:
    “ It is true that in the replication there has not been that attention to form that a correct practice requires; but it contains all the substance necessary, and if the improper conclusion, which is surplusage, was stricken out, the issue, though informal, would be substantially good.” Cole vs. Driskill, 1 Blackf., 16.
   Mr. Chief Justice Bingham

delivered the opinion of the ■court :

The record shows that the plaintiff, on May 15, 1877, filed liis declaration against Cerf Solomon, Jacob Solomon and Michael Hannan, trading under the firm name of Cerf Solomon and John A. Moore, upon three promissory notes, transferred to the plaintiff for goods and chattels sold and delivered by the plaintiff to said firm of Cerf Solomon; that to this declaration the defendants other than Cerf Solomon filed their pleas in due season, but that the said Cerf Solomon filed none. The pleas of the defendant, John A. Moore, were filed June 5, 1877. To these pleas no replication was ever filed, nor was issue ever joined upon them.

On March 8, 1879, there appears in the record what purports to be a judgment against the defendants,- Cerf Solomon and John A. Moore, for the amount claimed in the declaration, reciting that the said defendants, “though served with •copies of the declaration, notice to plead and summons, hath not pleaded to the declaration,” in consequence whereof it is considered that the plaintiff is entitled to recover, and judgment is entered accordingly. This recital appears to be true an respect to the defendant, Cerf Solomon, but the reverse in •respect to the defendant, John A. Moore.

The notes were made by the defendant, John A. Moore, payable to the order of defendants, Cerf Solomon, Jacob Solomon and Michael Hannan, trading under the firm name of •Cerf Solomon.

The original declaration did not set out the notes as payable to order.

On the 25th day of July, 1879, the plaintiff, by leave of the court, filed an amendment to his declaration, in which the notes are described as payable to the order of Cerf Solomon, Jacob Solomon and Michael Hannan.

On the 7th of November the plaintiff dismissed the suit as to Michael Hannan, and submitting the cause to a jury, as against Jacob Solomon, obtained a verdict and judgment against him.

On the 1st day of February, 1888, the plaintiff caused to be issued against Cerf Solomon, Jacob Solomon and John A. Moore a writ of scire facias to revive a judgment recovered .against them on the 8th day of March, 1879, for $602.

The defendant, John A. Moore, on the 6th of March, 1888, filed his plea to this writ, and says “there is no such judgment against him in said cause upon which an execution cans or ought to move against him,” but to this plea did' not attach any affidavit.

On the 14th of March, 1888, the plaintiff filed a motion to-strike Moore’s plea to the writ of scire facias from the record, because not supported by affidavit, and (2) for judgment on the writ of scire facias for want of a duly verified plea; and (3)' for revivor of the judgment, a notice of which motion was duly served.

On the 28th day of April, 1888, this motion was sustained and judgment of revivor entered against Moore. From this, judgment and order Moore appeals to the General Term.

Rule 121 of this court is as follows: “In cases of scire facias on judgment and in actions on judgments from a State-court or a court of the United States, any plea thereto shall be treated as a nullity, unless an affidavit accompany the plea showing a defense to the action.”

It is insisted by the defendant Moore’s counsel that this rule does not apply to a plea of nul tiel record, and in support of this position a number of authorities are cited to the effect that such pleas should not conclude to the country, but by praying judgment of the court, etc.

We think that the rule being general, must be complied' with, and that the authorities cited do not apply to a case like-the one at bar in this jurisdiction, even though the issue be-one for the court, yet it involves a question of fact as well as-law, and the plea should be verified.

It is insisted that the judgment sought to be revived was invalid because taken while there was a plea by defendant,, although not verified, as though no plea had been filed. Also that the declaration was defective, and that the declaration subsequently to the judgment against Moore was amended. As to the latter claim it will be observed that no step was-taken or attempted against Moore after the amendment. The scire facias is to revive the judgment of March 8, 1877, against him.

We are of the opinion that the amendment could not have the effect to set aside the judgment, even though it should be admitted that it was error not to set it aside before amending the declaration.

The Circuit Court could not refuse to revive the judgment because of any errors appearing in the record prior or subsequent to the judgment, provided it appeared that the court, when it rendered judgment, had jurisdiction of the subject-matter of the action and of the person of the defendant.

The record showing that the defendant was personally served and that he appeared, and that the declaration stated a cause of action (defectively, it may be admitted) of which the court had jurisdiction, the defendant should have appealed from the original judgment or in some way proceeded directly to set it aside.

Having waited, he cannot in this proceeding be allowed b> show error, however gross, falling short of showing a want of jurisdiction in the court to render the judgment. Henry vs. Brothers, 48 Pa. St., 71; Carr vs. Townsend, 63 Pa. St., 20; U. S. vs. Thompson, Gilpin, 614; Brown vs. Banner, 45 Miss.

Judgment affirmed.  