delivered the opinion of the court:
We pass no opinion upon the merits of the controversy presented by this record, inasmuch as the judgment of the Appellate Court must be reversed on account of the character of the judgment itself.
The judgment, rendered by the circuit court, was a money judgment in behalf of appellee, the O. S. Richardson Fueling Company, against the four defendants below, appellants here, to-wit, John Seymour, Richard A. Seymour, Elwyn W. Seymour and Antoine E. Cartier. The money judgment thus rendered was a unit as to all the' defendants, and upon appeal the judgment must be reversed as to all the defendants, if reversed as to any one of them. The judgment of the Appellate Court reversed the judgment as to Elwyn W. Seymour, and affirmed it as to the three other defendants below, the appellants here, John Seymour, Richard A. Seymour and Antoine E. Cartier.
An entire judgment against several defendants can not be affirmed as to one and reversed as to the others. (Hays v. Thomas, Breese, 180). Where the judgment is entire, there must be a total affirrhance or reversal. (Richard V. Walton, 12 Johns. 434). In Arnold v. Sandford, 14 Johns. 417, it was said: “Where the judgments are distinct, we may reverse in part and affirm in part as in cases of damages and costs; but when the judgment is entire, there must be a total affirmance or reversal.”
In Earp v. Lee, 71 Ill. 193, we said (p. 197): “It is also urged that, although the judgment may be erroneous as to a part of the defendants, still it is correct as to Atkins, and that it should not be reversed as to him. In the first place, a judgment at law is a unit, and is erroneous in whole or is valid as to all the defendants.” (See also Tompkins v. Wiltberger, 56 Ill. 385; Mack v. Brown, 73 id. 295). In Jansen v. Varnum, 89 Ill. 100, we said: “At law a judgment must be a unit as to all the defendants. It cannot be reversed as to a part of them and affirmed as to the others.” (See also Glos v. O'Toole, 184 Ill. 585). In West Chicago Street Railroad Co. v. Morrison, 160 Ill. 288, this court, speaking through the late Justice Baker, said (p. 295): “It is also a rule applicable to trespass, as well as to all other actions at law, either for torts or upon contracts, that the judgment is a unit as to all the defendants against whom it has been rendered, and can not be reversed as to one or more of them and affirmed as to the others, but if erroneous as to one is erroneous as to all.—1 Chitty’s Pl. 86; McDonald v. Wilkie, 13 Ill. 22; Jansen v. Varnum, 89 id. 100; Ragor v. Kendall, 70 id. 95; Claflin v. Dunne, 129 id. 241.” In Claflin v. Dunne, supra, we said (p. 248): “It is claimed that, although the judgment may be vacated against Horace B. Glaflin, it should be sustained as to the other defendants. We do not concur in this view. The judgment is a unit as to all the defendants, and, if erroneous as to one, it is erroneous as to all.”
The same rule is laid down in the text books. For instance, Black, in his work on Judgments (vol. 1,—2d ed. •—sec. 211,) says: “When we inquire as to the proper disposition to be made of a joint judgment against several defendants, which is void as to one of thém^when it is brought before a court of review by writ of error or appeal, we find the authorities more nearly harmonious. In general, they agree that it cannot be affirmed as to one defendant and reversed as to another, but must be reversed as an entirety. And conversely, if in favor of defendants, invalidity as to one will vitiate it as to all.”
In Wait’s Law and Practice (vol. 3,—7th ed.—p. 664,) it is said: “The rule is well settled that an entire judgment against several defendants, whether rendered in an action for tort or upon contract, cannot be reversed as to one defendant and affirmed as to the others.—Farrell v. Calkins, 10 Barb. 348.”
It follows that, under these authorities, the judgment of the Branch Appellate Court, which reversed the judgment of the circuit court as against Elwyn W. Seymour and affirmed the same as to the three other defendants below, is erroneous. It is true, that where a plaintiff sues a number on a contract, he may take judgment against a part of them only where a personal defense is interposed by any one of the defendants. In other words, the rule that, where a money judgment is a unit as to all the defendants, the judgment must be against all or none, does not apply where a personal defense is established as to o.ne or more of the defendants. For instance, where one of the joint defendants proves a discharge in bankruptcy, the judgment may be rendered against the other defendants without joining the bankrupt.
In Felsenthal v. Durand, 86 Ill. 230, we said: “In actions on contract against several, when all are served, with process, the judgment must be against all or none, unless some of the defendants make a personal defense— as infancy, lunacy, bankruptcy, and the like.”
In Byers v. First Nat. Bank of Vincennes, 85 Ill. 423, we said (p. 425): “We are aware of no case that holds that a plaintiff may sue a number on a contract, and take judgment against only a part of them, where no personal defense is interposed by any one of the defendants. It has been repeatedly and uniformly held by this court, that.the judgment must be against all or none, unless a personal defense is established as to one or more of the defendants.” (See also Faulk v. Kellums, 54 Ill. 188; Robinson v. Brown, 82 id. 279; Stevens v. Catlin, 152 id. 56). In 15 Encyclopedia of Pleading and Practice (p. 549,) it is said: “The rule, that joint contractors must be sued jointly, is subject to several well-defined exceptions. Thus, where a joint contractor has become bankrupt, an action may be brought against the other joint contractors without joining the bankrupt.”
In the case at bar, the judgment of the Branch Appellate Court does not show the ground, upon which the judgment was reversed as to Elwyn W. Seymour and affirmed as to the other appellants. But, pn looking into the record, we find what is recited in the statement preceding this opinion, that a plea of discharge in bankruptcy was filed by Elwin W. Seymour, and that the fact of discharge, as set up in said plea, was established by proof. It was, therefore, error for the trial court to render judgment against all of the four defendants. Appellee, plaintiff below, could have dismissed or discontinued the case as to Elwyn W. Seymour and taken a judgment against the three other defendants, John and Richard A. Seymour, and Antoine E. Cartier. But appellee did not pursue this course. On the contrary, it took judgment against the four defendants below without reference to the personal defense of bankruptcy or discharge in bankruptcy, made by Elwyn W. Seymour.
In speaking of the rule here announced, Black in his work on Judgments (vol. 1,—2d ed.—sec. 206,) says: “The rule, however, is subject to one important exception. Though the obligation in suit is joint or joint and several, yet .if one defendant pleads matter which goes to his personal discharge, such as bankruptcy, orto his per-0 sonal disability to contract, such as infancy, or any other matter which does not go to the nature of the writ, or pleads or gives in evidence matter which is a bar to the action as against himself only, and of which the others could not take advantage, judgment may be rendered for such defendant against the rest. * * * The reason of the distinction is obvious, and it is this: that such a special personal defense does not falsify the averment of an original joint promise, but, admitting it, avoids it by the averment of matter subsequent.” In some of the States, it is held that, in an action upon a joint and several contract, “the plaintiff may enter a nol. pros, against one of the defendants and proceed to judgment against the others.” (1 Black on Judgments,—2d ed.—sec. 206).
Appellee, upon the trial below, might have discontinued the suit as to Elwyn W. Seymour, but the court could not do that for it, nor require it to do that, nor was the court bound to instruct appellee that it ought to do that. (Davis v. Johnson, 41 Ill. App. 22).
In the present case, the Appellate Court made no findings of facts in its judgment. It is to be presumed, therefore, that its reversal of the judgment as against Elwyn W. Seymour was for error of law on the part of the trial court in not rendering judgment in favor of Elwyn W. Seymour because of his discharge in bankruptcy, as pleaded and proven. Where the Appellate Court thus reverses the trial court for an error of law, it should reverse the judgment, and remand the cause. (Siddall v. Jansen, 148 Ill. 537; Hogan v. City of Chicago, 168 id. 561).
The cases of Iroquois Furnace Co. v. Elphicke & Co. 200 Ill. 411, and Manistee Lumber Co. v. Union Nat. Bank, 143 id. 490, have no application here, because those cases were tried before the court without a jury, while the case at bar was tried before the court and a jury.
The case at bar was submitted to this court and taken under advisement by the court at the February term, 1903; but uo final judgment or order has yet been entered in the case by this court since the hearing thereof, and since the same was taken under advisement. At the April term, 1903, of this court, it was suggested to the court that, since this cause was taken under advisement, to-wit, on March 11, 1903, Richard Seymour, one of the appellants herein, departed-this life. Thereupon, at the April term, 1903, of this court, a motion was made by the appellee that the judgment or final order efitered by this court should be so entered nunc pro tunc as of a date prior to the first day of March, A. D. 1903, or prior to the day of the death of said appellant, Richard. Seymour.
In Danforth v. Danforth, 111 Ill. 236, this court held that, where a hearing of a cause has been regularly had and judgment is delayed by the court taking the case under advisement, and one of the parties dies before the announcement of judgment, the court may direct the same to be entered as of the preceding term, at which the cause was taken under advisement. Accordingly, the motion, .made by the appellee, will be allowed, and the judgment hereinafter ordered to be entered will be entered nunc pro tunc as of the February term, 1903, when the present cause was taken.
For the reasons hereinbefore set forth, the judgment of the Branch Appellate Court reversing the judgment of the circuit court as to Elwyu W. Seymour, and affirming the same as to the three other appellants, is reversed, and the judgment of the circuit court is also reversed and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.