Page:North Dakota Reports (vol. 1).pdf/495

 Conceding that two separate judgments should have been rendered on the verdict—one against the surviving defendants, and another against the administrator—payable out of the estate in due course of administration, still the error in rendering only a single judgment is one of form, and not of substance, and is therefore not reversible error. The rights of the parties under the law are settled by the judgment rendered in the same manner in which they would have been settled had two separate judgments been entered. On the judgment against the survivors executions could have been issued forthwith, while the judgment against the administrator merely fixes the fact and the amount of the liability as the statute provides, the claim to be paid only in due course of administration. Compiled Laws, § 5802. Our statute provides that “the court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected. by reason of such error or defect.” Id. § 4941. Acting under a statute precisely the same, the court in Decker v. Trilling, 24 Wis. 610, held in accordance with our views on the same question, saying: “It is a beneficent statute, designed to reach to just such a case as this. It is a matter of no consequence to a party separately liable to a judgment that some other person is included with him in the same judgment. It.does not injure him in the least, but must be regarded as beneficial, rather than otherwise.” See, also, Eaton v. Alger, 47 N. Y. 345. In California, in the case of Bank v. Howland, 42 Cal. 129, the single joint judgment against all was merely modified by inserting a clause directing that the judgment, so far as it affected the administrator, should be payable out of the estate in due course of administration. As to the surviving debtors it was affirmed. This case appears to be an authority warranting the entry of only a single judgment against all the defendants, provided it is restricted in its operation so far as the representative is concerned, so that it can be enforced only through the administration of the estate, and not by execution. This was held proper in Lawrence v. Doolan, 68 Cal. 309, 5 Pac. Rep. 484, 9 Pac. Rep. 159. See, also, Eaton v. Alger, 47 N. Y. 345; Grocer Co,