John P. Lyon et al., Respondents, v. William P. Yates, impleaded, etc., Appellants

John P. Lyon et al., Respondents, v. William P. Yates, impleaded, etc., Appellants. (Argued September 25, 1874; decided January term, 1875.) In an action against several defendants, where judgment cannot be taken without application to the court, in case one or more of the defendants come in and defend, the others making default, proof against those in default may be taken at the same time, and upon the trial of the issues, and judgment may then be rendered upon the whole case. Whether such proof shall then be taken, or at a separate time, is a matter of practice to be regulated by the court having original jurisdiction. This was an action in the nature of a creditor’s bill, brought by plaintiffs as judgment creditors of defendant Eliason, to reach certain property or its avails alleged to belong to him, which were i,n the hands of defendant Yates. Eliason did not appear. The summons appeared to have been served upon him by publication. Yates appeared and defended. He claimed that the property in question belonged not to Eliason individually, but to the firm of Eliason, Greener & Co., of which defendants were members; that he bought out Eliason’s interest in the firm, and applied the property in question in payment of the firm debts. Upon trial at Special Term the case states application was made for judgment against. Eliason. Evidence was offered of declarations on the part of Eliason, to the effect that he owned the property. This was objected to by the counsel for defendant Yates. The court held it admissible as against Eliason, and overruled the objections, jHeld, no error; that Eliason being a necessary and actual party, it was necessary to prove the case as against him, and that it could be properly done upon the trial, and for the court then to give judgment on the whole case. Lott, Ch. C., while agreeing with these views, dissented from the conclusion of the majority, on the ground that evidence of some of the declarations of Eliason having been offered and received after plaintiff and defendant had rested, and while plaintiff was giving evidence in reply, without any express statement then being made that it was offered simply as against Eliason, it was to be presumed that it was then offered as against Yates, and so that the reception thereof was improper. E. H. Benn for the appellants. H. B. Smith for the respondents. [MAJORITY — Earl, C.,] Earl, C., reads for affirmance; [CONCURRENCE — Dwight and Reynolds, CC., Lott, Ch. C., Gray, C.,] Dwight and Reynolds, CC., concur. Lott, Ch. C., reads for reversal. Gray, C., not sitting. Judgment affirmed.