delivered the option of the.court.
Appellant says: “The sole question, therefore, presented by this record for review is the propriety of the action of the trial court in sustaining1 the general demurrer of appellee to the first replication of appellant to the first additional plea of appellee to the declaration as amended, and its action, in pursuance thereof, in rendering judgment in favor of appellee and against appellant?”
Appellee presents the issue in the following language r “The question now before this court is," does the judgment obtained against Seelye alone, in the suit where he alone was made party defendant, constitute in law a bar to a second recovery upon the same cause of action in a suit' against all three partners, or does the fact that Eoss was. not a resident of the State of Illinois prevent the application of the well known rule that a former recovery against one of joint obligors constitutes a bar to a recovery against the other joint obligors ?”
Section 3, chapter 76, E. S. Hurd, declaring joint obligations to be joint and several, does not apply to partnership obligations. In Sherburne v. Hyde, 185 Ill., 580, the Supreme Court say at page 583: “But as we there-held (Sandusky v. Sidwell, 173 Ill., 493), section 3 of chapter 76 of the Eevised Statutes, declaring ‘all joint obligations and covenants shall he taken and held to he joint and several obligations and covenants,’ has no reference to contracts of a copartnership. (Coates v. Preston, 105 Ill., 470.) In other States, by statutes, suits may be brought against one of several partners on a partnership contract. But not so-in this State. Here all ostensible members of the copartnership must be joined. (Page v. Brant, 18 Ill., 37.)”
At common law in an action brought upon a joint contract, all of the joint obligors must he made defendants,, and as to those defendants not served, the plaintiff is obliged to outlaw them before he is permitted to proceed against those who are served. It was found that in the United States, under this rule, joint obligors, by residing in different States, could practically prevent any recovery upon their joint contracts. To remedy this defect the legislature as early as 1845 enacted what is now section 9 of the-Practice Act, which reads: “If a summons or capias is. served on one or more, but not on all the defendants, the-plaintiff may proceed to trial and judgment against the defendant or defendants on whom process is served, and the plaintiff may, at any time afterwards, have a summons, in the nature of scire facias, against the defendant not served with the first process, to cause him to appear iu said court and show cause why he should not be made a party to .such judgment,” etc. In no other way has the common law rule been, changed in this State. “A plaintiff cannot, in any case, bring his action against more than one and less than all of his joint debtors, but under this statute he may .sue all, whether partners or not, and take judgment against as many as are served or who appear, and the rest may be made parties to the judgment by summons in the nature of scire facias.” Sherburne v. Hyde, 185 Ill., 584.
In this case appellee in bringing her action against Seelye alone followed neither the common law rule nor the procedure laid down in said section 9. By taking judgment in that action she merged the joint contracts upon which she sued in the judgment, and thereby precluded herself from afterwards enforcing the same contracts against appellee.
But it is said that where joint obligors reside part in the State and part outside of the State in which suit is brought, to prevent a failure of justice and from necessity, it is permissible to proceed against those residing or found in the State without affecting the liability of the non-resident and non-served joint obligors (Yoho v. McGovern, 42 Ohio St., 16); and that under this exception, or rule, appellee is liable in the present action. In this State the reason for this practice is wanting, and therefore such practice is not in force with us. When appellant sued Seelye alone she had an equal right to have sued all of the copartners; but she elected not to do so, and is bound to accept the consequences flowing from her election. These conclusions are supported by Wann v. McNulty, 2 Gilm., 359; Davidson v. Bond, 12 Ill., 85; Thompson v. Emmert, 15 Ill., 416; Evans v. Gill, 25 Ill., 116; Travellers Ins. Co. v. Mayo, 170 Ill., 501; Sherburne v. Hyde, 185 Ill., 585.
The judgment of the Circuit Court is affirmed.
Affirmed.