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97 Ill. App. 414

McDonald v. Judson

Appellate Court of Illinois

Decided July 18, 1901

Appellate Court of Illinois · decided 1901-07-18

<p>1. Proceeding for Mandamus — A Common Law Action. — The proceeding for a writ of mandamus is a common law action, and except as may be otherwise provided by statute, it is governed by the rules of common law procedure.</p> <p>2. Practice — At Common Laio — Taking Judgment Against a Part of the Defendants Only. — At common law, in a suit where it is permitted to take judgment against a part only, of the defendants, the taking of such judgment operates to discontinue the suit as to all other defendants.</p> <p>3. Same — Two Several Judgments in One Action. — Two several judgments in one action could not be taken at the common law, and there is no provision of our statute regulating proceedings for mandamus which in any way modifies this rule.</p> <p>,4. -Same— In Proceedings for Mandamus. — Under the statute there is no provision regulating the proceedings in applications for mandamus, and the procedure after pleading is to be the same as in other cases at common law.</p> <p>5. Same — Illustration of the Rule as to Several Judgments in Mandamus Proceedings. — A party filed a petition for a writ of mandamus against a number of defendants as directors of a corporation. The defendants served with process demurred to the petition and upon their demurrer being qverruled, all the defendants answered but two of them, who elected to abide by their demurrer, and judgment was rendered against them awarding the writ and for costs. Held, upon appeal, that the awarding of the judgment against the defendants abiding by the demurrer was in effect a discontinuance of the proceeding.</p>

Cited by 1 later decisions — most recently December 1909

1 state decisions

Relies on Davis v. Taylor · Callaghan v. Myers · Vieths v. Skinner

Good law ✅— No negative treatment on recordhow we know

Reversed and remanded · Decided 1901-07-18

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Mr. Justice Sears

¶1delivered the opinion of the court.

¶2The only question presented which it is necessary to determine in disposing of this appeal, is as to the sufficiency of appellant’s plea, i. e., as to the effect of the judgment rendered on February 17, 1900, upon the suit as pending against appellants.

¶3Counsel for appellants contend that the effect of this judgment against two of the defendants was to work a discontinuance as to the other defendants. We regard this contention as sound.

¶4The proceeding for a writ of mandamus is a common law action, and except as may be otherwise provided by statute, it is governed by the rules of common law procedure. Bolton v. The People, 95 Ill. App. 285, and cases therein cited.

¶5At common law, in a suit where it is permitted to take judgment against a part only, of the defendants, the taking of such judgment operates to discontinue the suit as to all other defendants. Davis v. Taylor, 41 Ill. 405; Callaghan v. Myers, 89 Ill. 566; Vieths v. Skinner, 47 Ill. App. 325.

¶6Without considering the propriety of the judgment which was rendered against the defendants Mackenzie and Eollins alone, a question which is not presented by this record, it is enough for the decision of this case that the judgment against them, while it stood of record, operated to preclude the appellee from a further maintenance of this suit against the other defendants. Two several judgments in the one action could not be had at the common law, and we find no provision of our statute regulating proceedings for mandamus which in any manner modifies this rule. On the contrary the statute in terms provides that the procedure after pleading shall be as in other cases at common law. Sec. 4, Chap. 87, R. S.

¶7It is urged by counsel for appellee that the judgment of February 17, 1900, against Mackenzie and Eollins, is not a final judgment, but interlocutory only. To this we can not assent. The judgment is that the peremptory writ of mandamus issue against the defendants named, which is precisely the judgment in this proceeding, to which a petitioner is entitled when he prevails in his suit. The record discloses that the writ did afterward issue in conformity with the judgment.

¶8It is difficult to perceive in what respect this judgment lacks the essentials of a final judgment.

¶9We are of opinion that it was error to enter the judgment against appellants. Therefore the judgment is reversed and the cause is remanded.

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