Bacon v. Bicknell

By the Court, Oole, J.

We are of the opinion that it was not necessary for the court to vaóate the order staying proceedings before it proceeded to try the cause. Proceeding to try the cause was practically setting aside the order. The order was granted by the court itself, and when it proceeded to try the cause, it revoked the order so far as Bicknell was concerned. It is not analogous to the cases cited by the counsel, which hold that even an improvident or irregular order must be obeyed until set aside on a direct application for that purpose. The reason of this rule of practice is, that where an order is made by a court or officer intending to operate upon another court, officer or party, the latter cannot assume to judge of the correctness of the order without questioning collaterally a judicial act. Gould vs. Root, 4 Hill, 554 . The court here had its own order before it, and by its action as effectually revoked or superseded it as though it had directly vacated it. The objection is certainly very technical, and ought not to prevail in this court, inasmuch as it appears that *526 Bicknell had due notice of trial, and could not have been prejudiced by the course taken.

An objection is taken to the form of the judgment, which we think is well founded. The note sued on is undoubtedly a joint one, and the judgment is against Bicknell alone. By chap. 92, Laws of 1862, it is in effect provided, that in actions against persons jointly indebted upon a contract, in which an order staying proceedings as to one has been made, the plaintiff may proceed as to the other defendants as if the summons had not been served upon the party obtaining the stay, and, if he recover judgment, the same shall be entered and enforced as provided in subd. 1, sec. 11, chap. 124, R. S. That clause declares that, in an action against several jointly indebted on a contract, the plaintiff may proceed against the parties served, and, if he recover, shall take judgment in form against all the defendants jointly indebted, so far as to enforce it against the joint property of all. Since the statute requires the judgment to be, in form, against both Bicknell and Curtis, it was erroneous to take it against one alone. This is not a mere formal defect which may be overlooked, but is a matter of substance. Nelson vs. Bostwick, 5 Hill, 37 . It changes the form of theft, fa., and may prejudice Biclcnell in the collection of the money.

The judgment of the circuit court must, therefore, be modified so as to be in form against both the makers of the note.