Opinion
Opinion filed November 7, 1933.
Judgment — Allowable against All Defendants Found Liable in Contract Action Although All Defendants Not Jointly Liable — Separate and Distinct Judgment Not Allowable in Joint Action — Necessity of Election as to Defendants under Certain Circumstances — Exhaustion of Jurisdiction of Court by Judgment on Certain Items of Specification Against One Codefendant — Appearance — Question of Jurisdiction of Subject-Matter Not Waived by General Appearance — Courts — When Question of Jurisdiction over Subject-Matter May Be Raised — Failure To Except to Judgment as Not Precluding Consideration of Question of Jurisdiction over Subject-Matter Properly Raised Below and Brought to Supreme Court by Bill of Exceptions — Judgment against Trustee Unauthorized Where Court Was without Jurisdiction in Rendering Judgment against Defendant.
1. Where action of contract is brought against more than one defendant, plaintiff may have judgment against such defendants as are found liable, notwithstanding it is found that all defendants are not jointly liable.
2. Separate and distinct judgment cannot be rendered in joint action.
3. Where it is claimed that defendants are all liable, but for different amounts, plaintiff must elect or court order which of them shall be discharged.
4. In action of contract against codefendants, where one of them admitted liability on certain items of specification and judgment was rendered against him alone for amount thus represented, jurisdiction of court over action was exhausted and it had no authority to proceed with trial and render judgment against other defendant for remaining items, and latter's motion to dismiss action against him and have judgment entered in his favor should have been granted.
5. Question as to court's jurisdiction, after rendering judgment against one codefendant alone on certain items of specification for amount thus represented, to proceed with trial and render judgment against other codefendant for remaining items, raised by motion to dismiss action against him and for judgment in his favor, held not waived by latter's subsequent entry of general appearance and participation in trial.
6. Objection to jurisdiction over subject-matter is never out of time, and neither waiver nor consent can confer jurisdiction where it is not given by law.
7. Failure to except to judgment does not preclude consideration of question of jurisdiction over subject-matter properly raised below and brought before Supreme Court by bill of exceptions.
8. In action of contract, where court had no jurisdiction to render judgment against defendant, judgment against trustee for amount of its disclosure of funds belonging to such defendant must be reversed and set aside for lack of jurisdiction.
ACTION OF CONTRACT against two defendants. Defendant Magoon, by his attorney, confessed judgment in municipal court of Bellows Falls, to plaintiff's claim as set forth in specification with exception of last two items therein, and judgment was entered accordingly by Almon I. Bolles, Municipal Judge. Motion of Defendant Morrison for judgment in his favor being denied, trial proceeded before said court as to said last two items in specification, and at close of all the evidence the motion was renewed and again denied. Judgment was rendered against defendant Morrison on such last two items of specification. Defendant Morrison excepted. Judgment entered against trustee by consent of his counsel for certain amount. The opinion states the case more fully. Action dismissed against defendant Morrison, and judgment for him to recover his costs. Judgment against trustee reversed, and trustee discharged.
Frank W. Morrison (of Uxbridge, Mass.) pro se and Edward C. Barry for the defendant.
Robert R. Twitchell for the plaintiff.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
Where an action in contract is brought against more than one defendant, the plaintiff may have judgment against such defendants as are found liable, notwithstanding it is found that all the defendants are not jointly liable. G.L. 1829. But separate and distinct judgments cannot be rendered in a joint action. Conti v. Johnson, 91 Vt. 467, 472, 100 A. 874; Metropolitan Washing Machine Co. v. Morris, 39 Vt. 393, 399. Where it is claimed that the defendants are all liable, but for different amounts, the plaintiff must elect or the court order which of them shall be discharged. Powers v. Thayer, 30 Vt. 361, 363; McKane v. Gordon, 85 Vt. 253, 261, 81 A. 637.
So, after defendant Magoon had admitted his liability upon certain items of the specifications, and judgment had been rendered against him alone for the amount thus represented, the jurisdiction of the court over the action was exhausted and it had no authority to proceed with the trial and render judgment against defendant Morrison for the remaining items. The latter's motion to dismiss the action as against him should have been granted and judgment entered in his favor to recover his costs. G.L. 2037, American Elec. Service, etc. Co. v. Harman, 103 Vt. 263, 267, 153 A. 217.
The question has not been waived by Morrison's subsequent entry of a general appearance and participation in the trial. An objection to jurisdiction over the subject-matter is never out of time, and neither waiver nor consent can confer jurisdiction where it is not given by law. Watson v. Payne, 94 Vt. 299, 301, 111 A. 462; Fillmore, Admr. v. Morgan's Estate, 93 Vt. 491, 493, 108 A. 840; Miner's Executrix v. Shanasy, 92 Vt. 110, 112, 102 A. 480. "No agreement or assent of parties will enable the court to render a judgment which the law does not warrant." Leonard v. Robbins, 13 Allen (Mass.) 217, 219; New York Trust Co. v. Brewster, 241 Mass. 155, 134 N.E. 616, 619. Neither does the failure to except to the judgment preclude our consideration of the point, since it was properly raised and has been brought before us by a bill of exceptions. Conn Boston Co. v. Griswold, 104 Vt. 89, 94, 157 A. 57.
The judgment against the trustee for the amount of its disclosure of funds belonging to Morrison must also be reversed and the trustee discharged. Since there was no jurisdiction to render judgment against this defendant, there was none to render judgment against the trustee. Washburn v. N.Y. Vt. Mining Co., 41 Vt. 50, 55.
As against defendant Morrison, the action is dismissed, and judgment for him to recover his costs. Judgment against the trustee reversed, and trustee discharged.