delivered the opinion of the Court.
The principal question in this case is, whether the judgment by default was an erroneous one. The.declaration contained two counts; in the first of which the plaintiffs alleged themselves to be entitled to the possession of -die lot described; and in the second, that Sarah Jane Campbell, one of the plaintiffs, was entitled to an equal undivided half of said lot. The second count is defective.' When taken in connection with the commencement of the declaration, as it must be to make it complete, it amounts to a statement, that the plaintiffs, Campbell, McNiff & Barnes? complain of the defendant, because one of them, Campbell, has a cause of action against him. it requires no investigation into the details of pleading, to arrive at the conclusion that such a complaint is not tolerated by its principles, or sanctioned by authorities. The countis contradictory on its face. Campbell, McNiff & Barnes, can have no right to complain of the defendant, Neidenberger, because Campbell has sustained a wrong, unless McNiff & Barnes are in some way connected in interest with the injured party, and this connection must of course appear in the complaint. The count being defective, and so materially, that a general demurrer would have been sustained, how has the defect been remedied by the subsequent proceedings?
There was a judgment by default, and a general judgment in favor of all the plaintiffs, for the recovery of the possession of the entire premises. The statute of jeofails does not reach the case. That statute, as it now stands in the Revision of 1845, (p. 827,) does not embrace judgments by default. Judgments of this character were properly omitted at the last revision by the Legislature^ although the act concerning Practice, as it was in 1835, had inadvertently included them. (Rev. of 1835, p. 468.) Nor does the seventh section of the seventh article of the Practice Act apply- That section provides, that where there are several counts in a declaration, and entire damages are given, the verdict shall be good, notwithstanding one or more of such counts shall be defective. This section was doubtless designed to meet a principle settled by the English courts, that, whére one count in a declaration was bad, and after a judgment by default, there was an inquiry of damages, and the *362damages were assessed generally on the whole declaration, such judgment must be reversed. 1 Chitty PI. 188; 1 Moore, 126. In the present case, there has been no inquiry of damages. Nominal damages were assessed by the court. The provision evidently applies only to verdicts.
The declaration then was bad on general demurrer, or in arrest of judgment, or upon error, unless the amendment permitted by the Court of Common Pleas has remedied the defect. That an amendment would have been proper under ordinary circumstances, may be conceded; but the court refused to permit the judgment by default to be set aside, either at the instance of the defendant, who was a mere tenant, or of the landlord, who desired to defend the action and had not been notified of its pendency, prior to the judgment by default. Amendments are to be allowed for the furtherance of justice. Where one party has taken a false step and seeks to retrace it, he should not be allowed to do so, unless his adversary, who has been guilty of a similar laches, be allowed the same privilege. Leaving out of consideration the application on the part of Audille Lux and Edward Lux, who were the landlords, one of whom was a widow and the other a minor heir, we think the amendment allowed by the court should not have been permitted, unless the defendant had also been allowed to set aside the judgment by default, and have the case tried on its merits. Both parties were in default, and if either required the assistance of the court to enable him to stand rectus in curia, that assistance should not have been extended to the one, without also being given to the other, whose application was also before the court, and was in due time, and accompanied with the necessary affidavits. This principle was fully recognized by this court in the case of See vs. Bobst, (8 Mo. Rep. 506,) and certainly loses none of its force when applied to the circumstances of the present case. It was the duty of the tenant to have given notice to his landlord of the suit in ejectment, (R. C. p. 687,) and this notice, it seems from the affidavits filed, was not given. Every equitable consideration, therefore, which the tenant might claim to induce a hearing of the case upon its merits, notwithstanding the default, applies with stronger force to the application of the landlord.
But, it is said, that as the writ of habere facias possessionem was served on the tenant, and he, to avoid an ouster, attorned to the plaintiffs, this attornment must be considered as a waiver of error on his part. Were this so, it certainly would not be a waiver on the part of the landlord. But the writ of hab.fac. poss. was served during the term at which the judgment was rendered. This is probably the practice in St. Louis *363county, and may be a proper one in that county, where the terms of the courts continue for several months together. But the duty of the courts to alter, amend, set aside or annul a judgment, cannot be changed or affected by such a practice. A judgmentis within the breast of the court, as law writers have expressed it, during the term. Hence in the county circuits it has not been the practice to permit executions to go out during the term at which the'judgment was rendered. The necessity of a different practice in St. Louis, should not he allowed to create technical obstacles to interfere with this power, which the courts every where possess over their own judgments.
Believing, therefore, that the judgment in this case was an erroneous one, and that the amendment designed to cure the errors should not, under the circumstances, have been permitted, we shall reverse the judgment, and remand the case for trial.
The other Judges concurring,judgment reversed and cause remanded.