REHEARING.

A rehearing having been grauted in this case, the defendant in error urges that the writ should'he dismissed, on. the ground that but one of the defendants against whom judgment was recovered has sued out the writ; and if the. application to dismiss fail, that the judgment of the court he so reformed as to operate an entire reversal of the' judgment below, as well in favor of tlic other defendants as of tlic one' wiio lias' prosecuted the writ of error. These grounds were not taken or argued at the hearing; hut as they are. important and have been presented in other eases, it is deemed proper to take, them into consideration.

The judgment against the, plaintiff iu error and two others was founded on a contract,'and it is contended that this court liad not jurisdiction to hear the cause unless all Ihe parties in the court below were before it.

It seems, according to the authorities, to be a settled principle at common law that a writ of error must be brought iu the name of all the parties against whom the- judgment is given. (2 Saunders, 101 [f;] Cro. Eliz., 648, 649; Id., 892; 1 Ld. Raym. R., 328; 1 Str. R., 233, 234, 606; 1 Wils. R., 88; 3 Burr. R., 1792; 6 N. Ham. R., 546; 11 Mass. R., 384; 2 Bibb. R., 392 ; 2 Kelly R., 287. 408, 439; Minor R., 275; 1 Port. R., 277.)

This is the rule as to the suing out writs of error, and it might easily he supposed that if it he necessary to briug the suit in the names'bf all, its subsequent prosecution by all would be deemed equally essential; but it seems otherwise. Por though the writ be taken out by the real plaintiff iu error iu the names of all, yet if Ílie other defendants are willing to abide by the judgment, whether because they are in interest of the plaintiff or desire to be exempted from the damages and costs of an affirmance, as from any other reason, they refuse to appear and assign errors, they may he summoned and severed, and the judgment that one alone may prosecute the writ which is brought jointly in the. names of all. (Cro. Eliz., 892; 1 Str. R., 234; 2 Saunders, 101 [f;] 6 N. Ham. R., 546; 11 Mass. R., 384; 2 Arch. Prac., 232, 233; 1 Da. R., 366; 2 Bibb. R., 302; Minor R., 183.)

So far, then, there appears to be no substantial difference between bringing up a writ of error iu tlic name of one of (he parties and iu the names of all. If it he brought in the names of all it cannot be Unis prosecuted, unless all be willing to join in the assignment of errors ; and if they refuse, the parties who wish to prosecute the appellate proceeding can do so by summoning the others and being severed from them. If a writ of error can he prosecuted by a less number than the whole of the parties against whom judgment lias been recovered, it seems rather idle that this liberty cannot he obtained until the writ is *28brought and some oí the parties refuse to assign errors. If one can prosecute the writ after summons and severance, why not before? One of the grounds why the writ must be brought in the names of all the parties is that the writ may agree with the record. But this is disregarded when one party alone is permitted to conduct the prosecution; and if it cease to operate after summons and severance, it may well be disregarded in a system of procedure where summons and severance are unknown,' and which permits parties to institute proceedings separately, if by law they may afterwards conduct the proceedings in their separate capacity.

Another reason for suing out a writ in the names of all the parties is that if one alone he permitted to bring his writ, every defendant may sue out a writ and the plaintiff he unreasonably delayed. (3 Burr. It., 1792, and the authorities before cited.) This is an admirable reason, and possibly the rules of procedure should he so framed as to compel all parties to unite in an appeal or writ of error, or to abide the judgment of the court, where the appeal is prosecuted by others. But if, after summons and severance, one of the defendants alone be permitted to prosecute the writ, the rule either fails, and each party may prosecute his own writ, or if the rule be made effectual, it is not on the-ground that all join, for a severance has taken place. If there be an affirmance, and that concludes all the defendants, or if a reversal operate to the benefit of all, these results depend in no degree on the fact that the writ was originally in the names of all the parties; for a severance had been made, and the proceeding was conducted to judgment by some, of the defendants only.

Another reason for the rule that the parties must join in the writ is that the judgment is entire and cauuot be reversed as to one and affirmed as to the others. (6 H. Ham. R., 547.) This reason also fails. The rule seems to be well settled that if a judgment be reversed as to one, it is so as to ail. (Cro. Jac., 303.) And after summons and severance it can be reversed as to all, at the instance of one who prosecutes, just as effectually as if all the parties bad united in the prosecution of the appellate proceeding. The reasons for the writ being- taken in the names of all the parties lose their force when we consider that it is hut a matter of form, as the writ may be afterwards prosecuted by some of the defendants only, and with some of the most important results which -would have proceeded from a prosecution conducted in the names of all. (2. Str. R., 234.)

It lias been the practice in this State for parties who may consider themselves aggrieved to prosecute appeals or writs or error either in the names of all orín their own separately, if the others refuse to join, without the delay or the formalities of summons and severance; and there appears no sufficient reason for a change, especially where the rule to be substituted is obnoxious to the objections of delay, circuity, and expense, with nearly, if not entirely, the same ultimate effects of the present rule.-

Wc proceed next to examine the grounds for the reformation of the judgment, so that tlie reversal may extend to all the defendants and not to the plaintiff in error alone. We have adverted to the general rule that, a judgment being an entire tiling, a reversal as to one of tire defendants operates a reversal as to the whole, although it may be erroneous as to one alone. (Cro. Jac., 289; 2 Arch. Prac., 259.) This rule is subject, however, to several exceptions; as where there be more than one judgment, and they are distinct and independent of each other, the reversal of one will not affect the other. (2 Str. R., 807; 2 Bac. Abr., Error, m. p.; 2 Arch. Prac., 259.) Or if there he but one judgment, and it consists of distinct and independent parts, it may be reversed as to one part and be good for the remainder. (2 Arch. Prac., 259 ; 4 Burr. R., 2010; 6 Tex. R., 200.)

Before proceeding to apply these rules to the case under consideration, we will advert to the doctrines or practice of equitable jurisprudence as to the parties by whom an appeal may lie taken, and its legal effects when decided; and it will be seen that they differ widely from the rules governing writs of error at common law.

*29Mr. Daniel, in his treatise on Chancery Practice, thus expresses the rales as deduced from the authorities: “Iu tlio case of a rehearing or appeal, all parties “interested iu supporting the decree or order appealed from aro entitled to be “hi-t'.'i ■ hi¡t n-> party except the appellant can bo heard iu support of the ap-“pe: . Tf, íl:-E" tore, any party who is iu.: included -is a copetitiouer ill a “pe ' ■ n of ••■■rearing is desirous of appe- Km;, he m ut present a separate “pe " >n; oiíi lovise he will be precluded f mu all ¡it of the appeal, “ev t hough > he result of it should be to show that the. decree was completely “w ’ii.v, as "i!! against him as against the appellant.1’ Thus, where abill was qUnissm! on the appeal of one defendant, on grounds equally applicable to other defendants, who did not join in the appeal, it was held that the latter could have no beuolit of tlio order, although it rendered the decree useless; and ihe author cites Cooper’s Reports, 25.>. Ill 2 Smith’s Chan. Prac., p. 30, the rule is staled to tile same effect. No party except the appellant can be heard in support of the appeal; others in the same interest must either appeal themselves or leave their case, so far as it accords with the appeal, to he sustained by the appellant’s counsol.

In I Da. R., 3UG, it is said that all against 11-110111 a judgment is rendered must unite in a writ of error to reverse it; and if any of them desire to he exonerated from costs and damages incident to an affirmance, they may have a severance. But any one of several against whom a joint decree is rendered may appeal, and hy his appeal bond become responsible for the whole decree, and take it all up hy his appeal.

Where a party is aggrieved by a branch of a decree affecting his interests, lie may appeal from that portion of the decree, but will have no right to question another portion which lias no bearing ou his interests. (11 Wench R., 227; 2 Leigh R., 84.)

It must be recollected that writs of error and appeals are employed indiscriminately in our practico to bring up canses for revision, whether they belong to the common law or the chancery jurisdiction; and it appears from the authorities that the rules for bringing up causes for revision in equity are the reverse of those at law. In the latter all parties must join in the writ, on the various grounds which have been previously stated, and if a severance takes place, and judgment he reversed at the instance of one, it shall Inure to the benefit of all defendants; hut in tlio former every party aggrieved may prosecute his appeal separately, and its benefits will result, at least directly, to the appellant only.

The statutory provisions regulating- the rig-lit of appeal declare that any party to a civil suit, believing himself aggrieved hy any final judgment or decree of Die District Court, may appeal, &c., (Acts of 1S4S, p. Ill,) and that the clerks- of the several District Courts shall grant writs of error upon any final judgment, order, or decree rendered in their court upon the petition of any party interested. (Acts of 1846, p. 400.)

It appears from these provisions that any party considering himself aggrieved by a final judgment may prosecute his appeal or writ of error. But it may be contended that this does not change the rule at common law; that by the latter every party dissatisfied with a judgment might bring his writ of error, though this were required to be in the name of the parties. This would be a plausible construction were not appellate .process from decrees in equity as well as judgments at law regulated by the same provision, and were not the rules as t o the parties in whose names the appeal must be brought essentially different in one jurisdiction from those of the other.

Where the judgment is an entire tiling, as, for instance, where it is on a joint obligation, it would doubtless be extremely convenient were all the parties to join* or he compelled to abide by the result of the appeal. But this reason of ■convenience does not pervade, at least entirely, our system of procedure. By the 45th section of the act to regulate proceedings iu the District Courts, (Acts of 1S4G, p. 374,) the plaintiff is authorized to discontinue as to defendants not served; but the defendants as to whom there is discontinuance are not exon-? *30crated from liability, bnt may be proceeded against as though no such suit had been brought and no such discontinuance entered as to such defendants. If, for instance, the plaintiff in error had not been served with process, the suit might have been discontinued as to him, and judgment recovered against the others; and if he had been afterwards sued, the judgment would have been entered against him alone, though on a joint contract; or we may suppose it to be on a joint contract with others. The provision authorizes, in effect, separate judgments whore the contract may bo entire ; and whore judgment to be recovered in one of the suits against some of the defendants, and in the second suit there be judgment for the defendants, yet both would stand. The exemption of the parties in the latter from obligation would not affect the liability of the parties under the first judgment. This would remain valid, and could bo enforced by the process of the law.

It is plain, then, that though it may bo convenient to have but one judgment on a joint contract, yet there may be several, and against separate parties and distinct, and the reverse of each other; nor does the rule that a judgment is an entire thing, and cannot therefore be reversed as to one and affirmed as to the other, hold universally. Where one of the defendants against whom judgment has been obtained releases error, the others may prosecute the writ; and though the judgment be erroneous, it will he affiimed as to the .one who released and reversed as to the, others. (Cro. Jac., 117; Cro. Eliz., 648, 649.) It appears, then, possible that a judgment, though entire, may be so parceled out as to be affirmed against one and reversed as'to the others.

There, appears, upon the whole, to bo some difficulty in establishing' any general rule as to the effect of a reversal of a judgment, where the appeal or writ of error is sued out by onR a part of the defendants. It seems unfair that those who refuse to unite in the prosecution ol an appeal should be exonerated from the costs and damages of an affirmance, and yet hare the benefit of a reversal of the judgment. There would be no injustice in compelling the performance of a judgment by those who do not complain and will neither yield assistance nor countenance in an attempt to procure its reversal. But notwithstanding these considerations, it appears to he the more convenient rule that where, a judgment is entire, where the judgments are not distinct and independent, or where the parties have not distinct and independent interests, (6 N. H. R.., 547; 10 Mass. R., 68,) and where tlie judgment operates to the prejudice of all the defendants, a reversal as to one shall operate a reversal as to the whole; and this may be regarded as the general rule, subject to such modifications as may meet the justice of a case under review, and which may be, in harmony with our system of procedure or with the rules of practice as recognized in either tlie common-law or equity jurisdiction. This rule is commended to our sanction from its convenience, and not because it has the conclusive force of law. The statute has not provided for the case. The rule of practice in chancery as to this particular matter is the reverse of that at law; and the incongruity of having a judgment reversed as to one and permitting it to stand as to the others is not more .palpable than in cases of two judgments under the operation of the 43th section of the act to regulate proceedings, &o., although the contract may be joint, and although it may well happen that the judgments may be the reverse of each other. But the rule would be convenient in practice; and in conformity there,with it is ordered that the judgment entered in tiffs case be set, aside, and that judgment be reversed as to all the parties, and that the citation as to all the defendants be set aside, and the cause be remanded for further proceedings.

The proper position, chronologically, of the opinion on the rehearing would have been nest after Howard and Wife v. North, decided at this term, — Rep.

The ground assigned for the reversal of the judgment rendered by default against the plaintiff in error and two others is the want of legal notice to this defendant in the court below of the pendency of the suit.

A citation ivas issued to eacii of the defendants, and by one of these the plaintiff in error was summoned to answer the petition of defendant here (who was plaintiff in the court below) exhibited against him, the two other defendants not being named in tlie citation. A copy of the petition served with the writ showed the suit was instituted against others as well as himself. The 9th section of ibe act to regulate proceedings in tlie District Courts (Laws of 1840, p. 360) requires tlie clerk to issue a writ or citation to each defendant; and the 10t.li section, among other requisites, declares that tlie writ11 shall state the “names of tlie parties to the suit.”

"Were, there no statutory provisions requiring the parties to he named in the writ, tlie omission of one or more of tiie defendants, under such circumstances as to preclude the probability of the defendants being misled as to the pendency of a parlicular suit or proceeding, would not he a fatal defect. If lie have notice of the action and of tlie time and place to set up his defense, the purposes of justice would he defeated by suffering an irregularity, which could not operate injuriously to (lie party, to paralyze further'pvoceedings in tlie cause.

In the case of Alexander et al. v. Brown (1 Pet. R., 684) the notice.stated the bond to be taken by virtue of an execution issued against William B. Alexander, whereas it was issued in fact against William B. and Richard B. Alexander. It was admitted that the bond was taken on this execution, and *27that this was the only execution in which the said William B. Alexander was a party. The notice was held sufficient, on the ground that the party could not mistake the case on which the motion was to ho made. The appellant refers to the case, and attempts to show that the principle governing that decision is not applicable to the cause under review. That the bond sued on here is joint and several, and the recital of the petition being exhibited against the defendant alone, would most likely mislead him, and induce the belief that a separate action had been instituted, and to which he was cited to respond.

Without inquiring whether the argument is well founded, or whether the citation, irrespective of the statute, would, under the circumstances of tills case, be fatally defective, it is sufficient to say that the statute requires the parties to he named iu tlic writ; and this provision being disregarded, the citation cannot be sustained. The defect might have been cured liad the defendant appeared and pleaded to the suit; hut having failed to do so, lie was not properly before the court, and the judgment is unauthorized, and must he reversed. (2 Tex. R., 422.)

It is ordered that tlic judgment ho reversed as to the plaintiff in error; that the citation he set aside, and that such further proceedings be had in the cause as may to law and justice appertain.