dissenting.
While not disagreeing with the majority of the court as to the construction of the amendment of 1895, where it applies, I do not concur in their conclusion that it applies in the case at bar. It is said in Faulk v. Kellums, 54 Ill. 190 : “ The rule is inflexible that in actions on contract against two or more, judgment must go against all or none, for as a contract is indivisible, so is the judgment thereon, * * * and such is the universal rule at common law.” In construing this amendment, the Appellate Court of the Third District say, in Deatherage v. Eohrer, quoted in the opinion, supra: “ When a statute is clear in meaning and purpose, it is not within the power or province of the court to extend its application to a case not within its terms, and especially when such extension would work a repeal of a well established principle of the common law.”
In this State, previous to the passage of the amendment of 1895, all makers of promissory' notes were liable, both severally and jointly. Section 2 of the amendment then did not change the law in this respect. But previous to the amendment, all the makers had to be included in one suit, except that a single maker might be sued separately. Any number of makers less than the whole number could not be • sued together as several promisors. Section 2 of the amendment changes the law in this respect, and authorizes the plaintiff at his option, to include “ all or any (of the makers) severally,” in the same suit. But this is an option to be exercised by the plaintiff. In the present case he has not used that option. He declares against the makers jointly only, not jointly and severally. The averment in the declaration is, “ that the defendants made their promissory note * * * and thereby promised to pay, * * * by means whereof the defendants became liable to pay * * * according to the tenor and effect thereof, * * * and being so liable the defendants in, consideration thereof promised, ” etc.
Section 3 of the amendment provides that “in any suit mentioned in the preceding ■ section, a separate judgment may be entered,” etc. It applies only to such suits as are-embraced in section two—that is, to suits where the plaintiff lias exercised the option to include any or all of the makers severally. The plaintiff not'having included the makers severally as well as jointly, section three does not apply in this case.
It will be observed, too, that section three is not mandatory or self-acting. It is not an autocrat or an automobile. It does not declare that separate judgments shall be entered, but it does provide that they may be entered. In practice, some party moves the court to enter a judgment and moves for such judgment as he desires, or thinks himself entitled to. There is nothing in this record to show that any one asked for separate judgments.
It is correctly said in the opinion, supra, that the motion to set aside.the verdict and for a new trial was a unit. If it was a unit,- it should have been treated as a unit. It should have been decided in bulk and not in parcels.
Plaintiff was entitled to have the action of the court upon his motion as made, and then to a review of the decision of the court if adverse to him, in a court of review.
In the case at bar, the court .gave to the jury the following instructions:
“ 11. If you find from all the evidence that defendant Kirby did not sign the note in question, then it will be your duty to find in favor of said Kirby, but that will not preclude your finding for the plaintiff against the other defendants, for the amount the evidence shows is due as principal and interest on the note introduced in evidence.
12. Tour verdict may be in one of the following forms :
We, the jury, find the issues for the plaintiff and assess his damages at-dollars—;—cents.
We, the jury, find the issues for -the defendant Kirby, and. we find for the plaintiff against the defendants W. S. Jolly, J. F. Wilson and Mary C. Jolly, and assess plaintiff’s damages at-dollars---cents.
We, the jury, find the issues"for all the defendants.”
The jury returned a verdict:
“We, the jury, find the issues for all the defendants.”
’ Whéreúpon the plaintiff moves to set aside the verdict and far a new trial. The court denied the motion as to Kirby, and granted it as to the other defendants, and then gave judgment for defendant Kirby, against plaintiff, for costs, leaving the case undisposed of as to the other defendants. The jury rendered a verdict for all the defendants. If the jury found that Kirby did not execute the note, their verdict was a true one, under the declaration, for in such case it was not a joint note of the four alleged makers as declared on.
If the court was satisfied as to the finding of the jury that Kirby did not execute the note, and that it was not a joint note, the motion to set aside the verdict and for a new trial should have been overruled as a unit. Then a general judgment, entered upon the verdict for costs against the plaintiff, would have been a logical and correct legal entry.