If a plea of a former proceeding under the statute (2 R.S., 512) be admissible as a bar to a subsequent proceeding for the same cause, it must state such facts as will show that the point now in controversy was then litigated and decided. It appears by the affidavit on which the former proceeding was based, and which was set out in the plea, that no demand of the rent had been first made by the landlord, nor three days' notice in writing given, requiring the payment thereof or the possession of the premises. This alone was such a defect of the landlord's title to maintain the proceedings, that the alderman was bound to give judgment for the defendants, dismissing the matter as prematurely instituted. The plea is therefore defective in not showing that the case was decided upon the merits, and was for that reason properly overruled by the alderman. I am also of opinion that the statute does not contemplate pleading in these summary proceedings.
The supreme court reversed the judgment of the alderman as to Arnold and Beman on the ground that the affidavit of *Page 234 Arnold controverted the fact of being in possession under Geisler and Weigand, the lessees. It will be seen on a critical examination of the affidavit that it does not controvert even that fact. The affidavit of the landlord was made on the 7th of February, and affirms that Arnold and Beman, the under-tenants of Geisler and Weigand, hold over, c. The affidavit of Arnold, made the day following, does not deny that he and Beman were, on the 7th of February, the under-tenants of Geisler and Weigand, but merely denies that they were so on the 8th of February, when his affidavit was made. They may well have been under-tenants of Geisler and Weigand on the 7th, and attorned to a stranger or surrendered their possession on the 8th. Their affidavit does not make an issue with that of the landlord, and the supreme court should not have reversed the judgment as to them. But as the landlord has not brought a writ of error to reverse that judgment, we cannot disturb it in the present action.
The main ground relied on in this court to reverse the judgment of the supreme court against Geisler and Weigand is, that the judgment of the alderman against Arnold and Beman being wrong, the judgment against all the defendants should be reversed. Now, if it appears that the judgment in question was not erroneous, the fact that it was reversed by the supreme court affords no reason for this court to reverse the judgment against Geisler and Weigand, which was clearly right. If this be not so, it must be upon the principle that the commission of one error by the court below, justifies this court in committing another.
In an action upon a joint contract against several it is well settled that a judgment cannot be reversed as to one, and affirmed as to others, even though there be some matter of discharge as to one (Richard v. Walton, 12 John., 434;Duncan v. Sandford, 14 John., 417; Cruikshank v.Gardner, 2 Hill, 333); and the same rule applies whether the judgment be in tort or on contract. (Sheldon v. Quinlen, 5Hill, 441; Harman v. Brotherson, 1 Denio, 537.) But in all the above *Page 235 cases there was error as to one party which led to a reversal as to all. In the present case, although the court below reversed the judgment as to two of the defendants, they did so erroneously, and we are called upon to adopt that error as good law, and therefore reverse the judgment as to the other defendants against whom it was right. This we are not required to do.
Both courts were right in holding that Geisler's affidavit did not put in issue the demand of the rent by the landlord, before commencing the proceedings. The landlord swears that it had been demanded of Geisler and Weigand. Geisler merely swears that it had not been demanded of him. A demand of it from either Geisler or Weigand was a good demand, and satisfied the averment that it had been demanded of Geisler and Weigand. The traverse of the defendant was not broad enough to cover the charge.
On the whole I think the judgment of the supreme court should be affirmed.
All the judges concurring,
Judgment affirmed.