Sawin, Administrator v. Kenny

We think the court below decided correctly. By the Code of Practice of Arkansas, which was in force when this judgment was rendered, it was provided, that, 'Where two or more persons are jointly bound by contract, the action thereon may be brought against all or any of them, at the plaintiff's option' (sect. 4480, Gantt's Dig., 1874); that 'judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants' (sect. 4701); and that, 'though all the defendants have been summoned, judgment may be rendered against any of them severally, where the plaintiff would be entitled to judgment against such defendants if the action had been against them alone' (sect. 4704). This, under the act of June 1, 1872 (17 Stat. 187, sect. 5; Rev. Stat. 914), furnished a rule of practice for the courts of the United States in that State. Clearly, in this case, if the action had been brought against Sawin alone, judgment could have been entered against him on this verdict. He, in his answer, acknowledged his liability upon the contract, which is the foundation of the action, and offered to confess judgment for $2,500. After that, as between him and the plaintiffs, the only question was one of amount. Substantial justice has, therefore, been done between these parties; and, by the operation of these remedial provisions of the code, the sacrifice of substance to mere form and mode of proceeding has been prevented. Judgment affirmed.