
    CATLIN a. LATSON
    
      Supreme Court, First District;
    
      Special Term, March, 1857.
    Joint Debtoes.—Entby of Judgment.—Affidavit of no Answeb.
    Where a number of defendants are sued upon a joint liability, and some defend while one fails to answer, the defence put in prevents the plaintiff from taking any judgment against either of the defendants, until it has been disposed of on a trial.
    The former practice in England and in this State, in respect to the entry of interlocutory judgment against a defendant making default to plead, pending the trial of the issue against his co-defendant,—reviewed.
    It is not necessary to the regularity of a judgment against joint debtors, some of whom have answered and the others have not, that the judgment-roll should contain an affidavit of no answer as respects the latter. The provision of section 246 of the Code, relative to such, affidavit, does not embrace such a judgment. ,
    It is not usual, and is rarely proper, to try upon affidavits the question whether defendant has a good defence, arising on amotion, by defendant, after judgment to be let in to defend.
    But where it clearly appears that the defence suggested has no foundation in fact, that may be taken into view in disposing of the application.
    Motion- by one of several defendants to vacate a judgment as against him for irregularity; or to allow him to come in and defend on the merits.
    This action was commenced in the fall of 1853, by Albert L. Catlin against John W. Latson, William Fowler, and Calvin O. Billings, to recover the amount of two promissory notes made by Latson, each dated January 14,1852, for $407.65, and payable to the order of “ Fowler & Billings,” the one at ten, the other at twenty months after date. The defendants Fowler and Billings were then partners; the notes were endorsed by Billings, with their firm name of Fowler & Billings. All three defendants were duly served with the summons and complaint. Billings never appeared in the action. But the other defendants appeared and answered separately. The case was brought to trial in January last, and a verdict and judgment taken against all three of the defendants.
    It appeared on this motion that the issues joined on the answers of Latson and Fowler were tried, and that the damages were at the same time assessed as against Billings. But the judgment-roll, as filed, contained no affidavit that Billings had not answered.
    On the ground of the want of that affidavit as a,n irregularity, the defendant Billings now moved to set aside the judgment; and he asked also, upon the merits, to be permitted to put in an answer, which was presented on this motion, and to go to trial thereon.
    
      E. Person, for the motion.
    
      C. Bainbridge Smith, opposed.
   Birdseye, J.

—The defendants Fowler and Billings were jointly indebted upon their endorsement of these notes, if they were indebted at all on them. When sued, as joint debtors, one of them, by failing to appear or answer, admitted that, as to him, the plaintiff was entitled to the judgment asked for. The other put in a defence, which denied that the plaintiff was entitled to a j udgment on the j oint liability. Of course, this defen ce prevented the plaintiff from taking any judgment against either of the debtors, till it should be disposed of by a trial. As both the joint debtors had been sued, judgment could not be entered under section 246 of the Code, taken in connection with section 136. neither of these sections, in fact, has any thing to do with a case like the present. The only part of either which can be claimed to refer to it, even remotely, is the third subdivision of section 136; and that forbids the entry of judgment by default in this case. It provides that if all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone. To apply that direction to this case:—the endorsement being joint, and not joint and several, if either Fowler or Billings had been sued on it alone, the plaintiff would not have been entitled to any judgment against him. The non-joinder of the other joint contractor would have been good "ground of demurrer to the complaint, and would have formed a fatal objection to the maintenance of the action. (See per Parker, J., in the Mechanics’ & Farmers’ Bank a. Rider, 5 How. Pr. R., 413 ; Bacon v. Comstock, 11 Ib., 197; Jacques Greenwood, 1 Addotts’ Pr. R., 230.) It was, therefore, the duty of the plaintiff’s attorney, in the present case, to proceed with the action against both, until he was ready to take judgment against both, before taking judgment against either. (See the same cases.)

When the issue raised by the answer of the one joint debtor was disposed of, how was he to obtain and enter up judgment against the other, who had not answered ? The Code is silent on that subject, I think. If it speaks at all upon it, it does so in that section (469), which declares that the previously existing rules and practice of the court in civil actions, inconsistent with the Code, are abrogated; but that, where consistent with it, they are to continue in force, subject to the power of the courts to modify them.

How far, then, was the previous practice in regard to taking judgments against joint debtors, abrogated by the Code, and what is now the practice on that subject?

The plaintiff contends he has nothing to do but to bring the issue arising on the answer of one joint debtor to trial; and if the verdict is in his favor, to have the damages assessed against both. That has been done in this case. He contends that no affidavit need be made of the fact that the other defendant has not answered, and no interlocutory or intermediate judgment need be entered.

On the other side, it is contended that as soon as Billings made default in answering, an affidavit of that fact should have been made, and an entry made or order obtained, substantially like the former interlocutory judgmentand that that affidavit and order should have been annexed to the copy pleadings furnished to the court at the trial, so as to have resembled the old circuit-roll, and should have been contained in the judgment-roll.

The English practice was that the plaintiff, when entitled to interlocutory judgment, should sign it upon the roll, with the clerk of judgments. (1 Tidd's Pr., 512.) And at the trial, if such a judgment had been previously entered as to some counts of the declaration, and an issjie had arisen upon the other part; or, in an action against several defendants, if some of them let judgment go by default, and others plead to issue, it was said that there ought to be a special venire, as well to try the issue as to inquire of the damages;—tarn ad triandúm quam ad inquirendum ;—and that the jury who tided the issue should assess the damages for the whole, or against all the defendants. (2 Tidd’s Pr., 802-3; 2 Bos. & P., 163.)

The practice was the same in this State. (1 Burrill's Pr., 372; 17 Johns. R., 270 ; 6 Cow., 599.) And formerly, though notice of trial might be given before the entry of interlocutory judgment against the defendant suffering a default; yet the interlocutory judgment, as well as the default for not pleading, must have been actually entered, before the cause was brought to trial and the damages assessed at the circuit. (See 2 Wend., 624; 5 Ib., 106.) By section 1 of chapter 271 of the laws of 1833 (passed soon after these decisions), the entry of interlocutory judgment was dispensed with; and the only thing required was to enter simply the default for not pleading. This was done merely by filing proof of the service of the capias, or declaration and notice to plead, and entering a common rule in the rule-book with the clerk, reciting the filing of such proof, and ordering that the default for not pleading be entered. Bo affidavit of the failure to plead was required. The files of the court showed that no plea had been put in.

This machinery of the rule-books and common rules, which was continued in force down to the Code (see Rule 65 of the law rules of 1847), was abolished by the Code. No substitute was provided for the entry of a default in not pleading. The affidavit of no answer provided by the Code (§ 246) was only to be used in the entry of final judgment. It was not extended to a case like the present. It may be very proper that such an affidavit be made; but it was not required in the former practice, and the Code does not prescribe it now. The absence of it cannot be deemed an irregularity; but if it were, in such a case as the present, it is clear the plaintiff ought to be permitted, under section 174 of the Code, to supply the defect.

It may not be amiss to remark here that the last clause of seetion 244 of the Code seems to he intended as a substitute for and an abrogation of the former practice, as to an interlocutory judgment and assessment of damages upon some counts of the declaration, and an issue or trial as to the others. By that provision, where the answer admits part of the plaintiff’s claim to be just (which was the whole effect of the former interlocutory judgment for plaintiff on some counts of the declaration), the court may, on motion, order the defendant to satisfy that part of the claim, and may enforce the order as it enforces a provisional remedy.

The defendant Billings also moves to be let in to answer on the merits. He has been in default for not answering, upwards of three years. Still, even this delay might be excused, if he showed that he had a good defence, and had failed to set it up, for some sufficient reason or excuse. The answer he proposes to put in sets up the defence of usury as to both the notes ; and as to one of them, the want of a notice of protest to himself, but not to his firm, who were the endorsers.

The usury is alleged to have been paid by Latson. It is not usual, and is rarely proper, to try the question whether there be a defence, upon affidavits. But in the present case, two of the defendants, who must have known all the facts out of which any defences available in the action could arise, and one of whom, Latson, must have been the victim of the alleged usury, have put in answers, not merely ignoring the usury, but setting up a state of facts entirely inconsistent with it. And the affidavits of the plaintiff on this motion establish conclusively that the notes now in suit were given in settlement of a former suit in the Hew York Common Pleas, against Latson, for money lent and for coal sold him; which suit was settled and discontinued, on the eve of trial, and on the condition of giving the notes now sued on. If so given, none of the transactions relating to the alleged usury could have taken place.

Under these circumstances it would be, in my judgment, going quite too far to permit the defendant to set up such defences as these, and thereby prolong still farther a litigation, which has already extended through more than three years. Doubtless it is unfortunate that the defendant Billings should be subjected to the costs of so long and expensive a litigation; but I know of no method of severing the costs or the judgment, so as to relieve him, and visit him only with the costs of a simple default. And it is not to be overlooked that he says, in his affidavit for this motion, that he relied upon his co-defendant, Fowler, to defend this suit for him, and for that reason did not himself appear and answer. Having lain by for the purpose of taking the benefit of Fowler’s defence, he cannot well complain of having to bear his share of the expense of it.

Motion denied, with $10 costs.  