Fairchild a. Durand.

and George H. Bartholomew were partners under the firm-name of Charles Durand & Co. They gave their promissory notes to the plaintiff, on which the action was brought. The summons was served on Bartholomew, on the 6th of June, 1856, and on the 23d of that month, copies of the summons were delivered to the sheriff of the county of New York to be served on the other defendants, but they could not be served on account of their absence. On the 2d of July, 1856, judgment was entered against Bartholomew for want of an answer, a transcript filed, execution issued with directions to levy op property of the defendants held jointly. Bartholomew was a resident of the city of New York when served, and is now a resi dent of Westchester county in this State. On the 6th of August, 1856, a summons was delivered to the sheriff for service, requiring the other defendants to show cause why they should not be bound by the judgment. This could not be served. On the 5th of January, 1859, a similar summons was issued, which was served upon the defendant Durand on the 22d of April, 1859.

The defendant Durand now presents his petition, entitling the action as against himself and Rice only, to have the action removed, setting forth the service upon him of the summons on the 22d of April; and that the plaintiffs are inhabitants of the State of New York, and of the southern district of that State, and the defendant Rice is an inhabitant and citizen of the State of Illinois, and resides at Chicago; and he, the defendant Durand, is an inhabitant and citizen of the State of Connecticut, and resides at New Haven in that State; that the matter in dispute exceeds the sum of $500, &c. He enters his appearance, and gives his bond as prescribed.

The rule stated by the plaintiff's counsel appears to be fully settled in the courts of the United States, that if there are several defendants, real parties in interest, each of them must be a resident of a different State from that of the residence of the plaintiff, to authorize a removal. (Commercial Bank a. Slocomb, 14 Peters, 60; Wilson a. Blodget, 4 McLean, 363; Ward a. Arredondo, 1 Paine's C. C. R., 410.) Hence, it is clear, that if the cause was now proceeding against all the defendants, without any judgment against Bartholomew, it could not be

removed.

Fairchild a. Durand.

Section 375 of the Code is, "that when a judgment shall be recovered against one or more of several persons jointly indebted upon a contract, by proceeding as provided in section 136, those who were not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.

"Section 136 directs, that if the action be against defendants jointly indebted upon contract, the plaintiff may proceed against the defendant served (unless the court otherwise direct); and if he recovers judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served, and if they are subject to arrest, against the persons of the defendants served."

Section 377 of the Code prescribes the form of the summons and time to show cause, under sections 375 and 376, and that it is to be served in the like manner as the original summons. Section 379 directs that the party summoned may answer, denying the judgment, or setting up any defence which may have arisen subsequently; and in addition thereto, if he be proceeded against according to section 375, he may make the same defence which he might originally have made to the action, except the statute of limitations.

The case of Oakley a. Aspinwall arose under the joint debtor act of 1830, and was first before the Superior Court in May, 1848. The result now seems to be, that a judgment against one of two joint debtors, the other not being served with process, is no evidence of the liability of the latter. The essential nature of the demand is not changed by such a judgment as against the party not served. (3 Kern., 500.)

Yet Mr. Justice Bosworth in the same case, Oakley a. Aspinwall (1 Duer, 48), pursues a line of reasoning showing, I think, conclusively, that under the sections of the Code now in question, the judgment is evidence presumptive at least of the liability, although every defence except the statute of limitations may be set up affirmatively by the party newly brought before the court. In truth, the rule as expressed by Chief-justice Bronson in Bruen a. Bokee (4 Den., 56), is the true interpretation of these provisions: "The plaintiff may sue on the judg

Fairchild a. Durand.

ment; and if the defendant who was not brought into court in the first action (by the original summons), does not, in pleading, deny his original liability, the judgment alone will be sufficient evidence to entitle the plaintiff to a verdict. He need not prove the original demand."

Section 380 also provides that subsequent pleadings and proceedings may be the same as in an action; and the issues may be tried, and judgment may be given, in the same manner as in an action. So section 381 keeps up the distinction, by preserving the analogy to an action.

In Sturgis a. Hocks & Titus (Special Term, January, 24, 1854), when a newly served defendant failed to appear, the judgment, approved on consultation, was, reciting the original judgment, service of summons, omission to appear, and adjudging that Titus was bound by the judgment so entered in the same manner as if he had been originally summoned.

I do not find that the view of the learned judge as to the Code has been shaken by the decision in Oakley a. Aspinwall, nor any thing else I have found.

It is true that the action cannot be said properly to have been commenced as regards the other defendants, until service of the summons ($127, 139).

But the theory of the Code then appears to me to be this: the action is one and single; the judgment on service upon a joint contractor is available as to joint property, thus far affecting the absent debtor. The proceeding under chapter 11 of Title 12 is a proceeding in that action, not a new action. (See the heading of Title 12.) It is the continuance of the same identical action, by means of provisions for bringing in at a subsequent period other of the defendants to that action; Bartholomew remaining upon the record a party to the cause. He is a citizen and resident of New York; and as the objection would be fatal to the removal before the judgment, it must be equally

so now.

There is, however, great force in the argument, that the action is finally at an end as to Bartholomew; even the right of appeal gone. And then the whole cause is really between the plaintiffs and these defendants.

But suppose the judgment was shown on the new proceedings to have been without ground of fact or law, is it clear that it

Leavy a. Roberts.

would be perfectly operative as to Bartholomew? See the cases 1 Hoff. Pr., 554, and note; and Lingan a. Henderson (Bland's R., 254).

The result of my examination of this question is, that the case is not within the act of Congress, and the application must be denied.

Order accordingly.

LEAVY a. ROBERTS.

New York Common Pleas; Special Term, December, 1858. Again, Special Term, May, 1859.

NEW TRIAL.-CUMULATIVE EVIDENCE.-CASE ON APPEAL.

It is only when a party was wholly free from negligence in preparing for the trial, that he is entitled to a new trial on the ground of newly discovered evidence.

If newly discovered evidence relates to any fact proved or controverted, whether bearing upon the issue directly or collaterally, it is cumulative, and not ground of new trial.

The rules governing motions for new trials on ground of newly discovered evidence should be strictly applied where the parties have been examined as witnesses on the trial.

Where an issue of fact is had by the court without a jury, and a decision rendered thereupon, notice of the decision, given by the prevailing party before the actual entry of judgment by the clerk, is not notice of judgment such as is necessary to limit the losing party's time to appeal.

The preparation and use of a case, on motion for a new trial on ground of newly discovered evidence, does not preclude the party from submitting a new and different case on appeal from a judgment subsequently entered, after denial of

his motion.

I. December, 1858.-Motion for new trial.

The object of the action was to recover from the defendant the value of certain mantels furnished and put up by the plain

Leavy a. Roberts.

tiff in houses owned by one Cronk. The defence was, that the mantels were not furnished for the defendant at his request, but were furnished and put up for and at request of Cronk. On the trial the plaintiff prevailed. On ground of newly discovered evidence, the defendant now moved for a new trial. The contents of his affidavit are sufficiently stated in the opinion.

Cummins, Alexander & Green, for the motion.

John Graham, opposed.

BRADY, J.-The motion for a new trial on the ground of newly discovered evidence must be denied, for two reasons,

viz. :

The evidence is cumulative, and the defendant has been guilty of a want of diligence.

The question presented and controverted on the trial was, whether the defendant was indebted to the plaintiff as charged in the complaint, upon a contract made between him and the plaintiff. The defendant, who was examined on his own behalf, after the examination of the plaintiff, denied that he had contracted as charged. The plaintiff then offered rebutting testimony, which being corroborative of the plaintiff's statement, was deemed controlling by the presiding judge. The defendant, in one of his affidavits used on this motion, states that he was not aware of the nature of the rebutting testimony at the time of the trial, not having taken any pains to inform himself-not imagining the possibility of such erroneous testimony on the part of the plaintiff and the witness Cronk; and, upon the allegation of a discovery of evidence bearing upon the question involved, asks a new trial, One of the witnesses, whose evidence is said to have been discovered, is the son of the defendant. Another witness, J. M. Grenell, was in court during the trial, attending there in behalf of the plaintiff; and the third, Buckbee, reveals certain acts and declarations by the plaintiff inconsistent with the claim made against the defendant. It also appears that Grenell was known to the parties in connection with the work and labor done by the plaintiff, and that the evidence of the defendant's son relates to an interview between the plaintiff and defendant, in which the plaintiff committed acts and made declarations inconsistent with the claim