Dresser v. Wood , 15 Kan. 344 ( 1875 )

The opinion of the court was delivered by

Valentine, J.:

1. service of howm°adSe;;

copyneea not wimtindorsements are required.

2. second sercation.

3. Finding of service.

This was an action brought by Dresser against John Branscom, Martha Branscom, and John W. Wood, to foreclose a certain mortgage. The real contest however is between Dresser and Wood. Each is the owner of a mortgage given by the Branscoms upon the same land, and each claims priority of lien. Wood’s mortgage was executed first; but as a mistake was made .in describing the mortgaged property, Dresser’s mortgage would seem to take precedence. *• Dresser’s mortgage was executed originally by the Branscoms to Warner, Mowry & Hawkins, partners in business, and was by them assigned to the plaintiff Dresser. Immediately after the Dresser mortgage was' executed, and while it still remained in the hands of Warner, Mowry & Hawkins, to-wit, on November 4th 1871, Keeler & Johnson, as attorneys-at-law, commenced an action in the name of Wood, but without his knowledge or consent, against the Branscoms, and against Warner, Mowry & Hawkins, to obtain a decree reforming the Wood mortgage, and making it the prior lien on the mortgaged property. The Branscoms were duly served with summons. Warner was also served with summons, but it is claimed by Dresser that' the service was void, and this is the first question raised in the case. The service was not made by the sheriff in person. But he deputized a person by the name of S. Newhouse to serve the same. The authority was indorsed on the summons in accordance with § 63 of the code, • (Gen. Stat. 642,) in the following words, to-wit: “I hereby deputize S. Newhouse to serve this summons. — E. T. Ellis, Sheriff.” Newhouse served the summons on Warner on the same day, November 4th, by delivering to him a copy of the summons with all the indorsements thereon, except the foregoing indorsement of authority to Newhouse to serve the summons. The copy delivered to Warner was not in any manner certified to be a copy. It is claimed by Dresser that the service of the summons was void because said copy was not certified, and because said indorsement was omitted therefrom. Now neither, as we think, was necessary. The statute provides that, “ The service shall be by delivering a copy of the summons to the defendant personally,” etc. (Civil Code, § 64.) The statute does not require that a oertified copy of the summons shall be delivered to , A . the defendant, nor does it require that a copy of anything more than the summons shall be delivered to him. The summons is the writ, as it is issued by the clerk. (Code, § 59.) It does not need anything more than what the clerk- puts in it, or on it, to make it a summons; and anything more is no part of the summons. Taking the statute as it reads, and these propositions seem clear beyond all doubt. And we know of no reason why we should not take the statute as it reads. This service then, on Warner, was a good service, and gave Warner notice of all the rights of Wood. And as a rule, notice to any one of two or more persons interested jointly as partners, is notice to all. The action from and after November 4th was actually pending as to the Branscoms, and as to Warner. Afterward' Wood filed an affidavit for service by publication, and actually got service by publication, not only upon.Mowry and Hawkins, but also upon Warner. It is claimed by Dresser that this second service on Warner invalidated the first, or was at least a waiver of the first. We do not think the claim is tenable. (Stevens v. Thompson, 5 Kas. 305.) Afterward the defendants Warner, Mowry & Hawkins appeared in the case, filing an answer denying generally all the allegations of the plaintiff’s petition. Afterward, when the case was called for trial the defendants Warner, Mowry & Hawkins did not appear. The court then found that personal service had been made on the Branscombs, and that service by publication had been made on the other defendants, Warner, Mowry & Hawkins, and did not mention the personal service made on Warner. The court then proceeded to hear the case, and rendered judgment as prayed for by plaintiff Wood. It is now claimed by Dresser that said finding of the court, that service by publication had been made on Warner, and not mentioning the personal service made on him, was an adjudication by the court that such personal service had never been made, or that the supposed personal service should be set aside. The claim is not tenable. Besides, Warner once made a direct motion to the court to set aside the personal service made on him, and the court overruled the motion. And it was not overruled, as the plaintiff in error now intimates, merely because it was connected with a motion to quash the summons, but it was .overruled, as the record clearly shows, because the court considered the service good. And further, if the court adjudicated the personal service on Warner out of existence, without even mentioning it, did not the court also adjudicate the appearance of Warner, Mowry & Hawkins out of existence? This latter will hardly be claimed.

.4. lís pendens, Service on one partner only.

service on partnersiúp firms.

5 Lachesomission to proceedings for service, for sixty days.

The petition was filed, and service made on the Branscoms and Warner, on November 4th 1871. The mortgage was assigned by Warner, Mowry & Hawkins to ^ ^ ' Dresser on November 27th, Dresser having no actual notice of the commencement of the action, or of Wood’s rights or claims. And service was not commenced to be made on the other two defendants, Mowry and Hawkins, until January 6th 1872. Hence, more than sixty days had elapsed after the filing of the petition, and before service was commenced to be made on Mowry and Hawkins, and hence the lis pendens provided for by § 81 of the code, (Gen. Stat. 645,) could not operate as against a purchaser from Mowry and Hawkins, provided they had owned the entire property in the thing transferred. But they did not own the entire property in the thing transferred. They, with Warner, owned the property jointly, as copartners. And Warner had been served with summons, and the action had been actually pending as against him for twenty-three days when the mortgage was assigned to Dresser. But it ip claimed by Dresser, that as the mortgage was held jointly, and not in severalty, by Warner, Mowry & Hawkins, no judgment could be rendered against all or any of them upon a, service made on Warner alone; and therefore, that no lis pendens could have existed when Dresser purchased the mortgage from Warner, Mowry & Hawkins. Now for the purposes of. this case we shall admit that no final judgment reforming the Wood mortgage as against them could have been rendered against Warner, Mowry & Hawkins, or against either of them, on the service made on Warner alone; but we do not think that it follows from this fact that no Us pendens could exist at the time when Dresser purchased the mortgage from Warner, Mowry & Hawkins, under which he claims priority. The service on Warner was unquestionably valid, so far as the question we are now considering is concerned. Indeed, there is no way, under our laws, by which a service of summons can be made 011 a C0Part'nership-firm except by making the servjCe on each individual member of the firm. And from the time that each individual member of the firm is so served, the action stands actually pending against such member. If the service were void as to each member, when served, it would evidently be void as to all of them when served, which cannot be admitted. But as the service is valid as to each member when served, it would seem to be clear beyond all doubt that no person could purchase or obtain any interest in the subject-matter of the action from such member, when so served, so as to defeat or affect any right of the plaintiff in the action in which such service was made. But to purchase anything from one' of the members of a copartnership-firm, is to purchase it from every member of the firm. For instance, take .the present case. Warner’s interest in the mortgage extended to every conceivable or inconceivable portion of the mortgage. No portion of the mortgage could be purchased without purchasing a portion of Warner’s interest therein. And as each and every partner who has any authority to make a sale of any portion of the partnership property, is, in fact and in law, an agent for that purpose for each and all of the other members of the firm, a purchase from such member, who is an agent, is a purchase from each and all of the other members who are principals. Therefore,-'a purchase from Mowry, or Hawkins, or both, would be a purchase from Warner.. And therefore we think it follows from the foregoing premises, that whenever any member of a copartnership-firm is served with a summons, a lis pendens is at once created to such an extent that no person can purchase from any member of the firm any portion of the subject-matter of the action so as to affect the rights of the plaintiff in the action. It would be unfortunate if such were not the law. If such were not the law, as soon as one member of a firm were served with summons, the other members might sell the subject-matter of the action to an .innocent purchaser, just as was done in this case, and then, if for any reason service should not be personally made or commenced by publication on every' other member of the firm within sixty days after filing the petition, any judgment that might thereafter be rendered might be wholly unavailing and ineffectual for the purpose of protecting or enforcing the rights of the plaintiff therein. And further: if it be true, that no judgment could have been rendered against Warner after he was served with summons, except upon the contingency that both the other members of the firm should also be served with summons, still it is no more true than that no judgment could be rendered against any or all of them except upon the happening of several other contingencies. Even after service is made upon all the defendants in any case, no judgment can be rendered except upon the hap-, pehing of a greater or less number of contingencies. The judgment usually depends upon the evidence; and connected with the evidence, are usually many contingencies. And the last contingency is not removed until the judgment is actually and finally rendered. It cannot therefore be maintained that every contingency that might defeat the rendering of judgment, must first be removed before a lis pendens can have any operation. We think a lis pendens was created by the service of the summons upon Warner. But it is claimed however by Dresser, that such lis pendens was destroyed by the subsequent failure of plaintiff Wood to commence to obtain service upon Mowry and Hawkins within sixty days after the filing of the petition. (Code, § 81.) But Dresser -purchased the mortgage in twenty-three days only after the petition was filed, and while the lis pendens was unquestionably (so far as this question is concerned) in full force and operation. And therefore Wood’s laches, in not commencing to obtain service on Mowry and Hawkins until sixty-three days had elapsed after the petition was filed, instead of within sixty days, as he had an undoubted right to do, could not have misled Dresser to his injury. We do not think that the three days laches of Wood destroyed the lis pendens already created and existing.

6 Action com-TOtauttoiity: ratification.

But it is also claimed by Dresser that said action was commenced without any authority from Wood, and therefore that ^le proceeding could not constitute a Us pendens. But the record shows that “some days after said acf¿on was commenced,” Wood ratified the same. How many days thereafter, is not shown. It evidently could not have been weeks however, or the record would have said “ weeks,” instead of saying “ days.” And it could not have been more than seventeen days at most, for the following reasons: -On November 4th the petition was filed and service made on Warner, and the Branscoms. On November 16 th Warner filed a motion to set aside the service, and quash the summons. And on November 21st, just seventeen days after the petition was filed, this motion was taken up for hearing, and Wood appeared in the court to contest the same. It is true, Wood’s appearance was by'counsel, but there is no pretense that this appearance was unauthorized. The court overruled the motion. Now, by way of digression, was not this an adjudication by the court that the service on Warner was good? And the court had jurisdiction both of the subject-matter of the motion, and of Warner, who made the motion. That is, the court had jurisdiction of Warner for the purpose of adjudicating upon this motion, for Warner voluntarily appeared for this purpose, and gave the court such jurisdiction. Warner excepted to the decision of the court upon this motion, and made a case for the supreme court. This decision was made on November 21st, and in six days thereafter, on November 27th, the mortgage was assigned by Mowry and Hawkins to Dresser. We suppose that no one will question the power of Wood to ratify and make his own whatever said attorneys had done for him in the way of bringing said suit. And we suppose no one will question the binding effect of the suit after its ratification. The suit was ratified by Wood before the mortgage was transferred to Dresser; and Warner, one of the mortgagees, well knew of the ratification; for only six days before the assignment was made he had had the contest with Wood over the service of the summons.

7 pleading deedge6¿fformer ju gment.

Dresser also claims that Wood did not sufficiently plead in this action the lis pendens of the other action. He set forth *n action in his answer to Dresser’s petition the rendition of the judgment in the other ac£jon> He also sets forth in his answer that at all times up to the rendition of said judgment, and since, Warner, Mowry & Hawkins were the owners of the Dresser mortgage. These facts, if true, certainly constitute a good lis pendens. Indeed, it is not necessary that they should all be true, or wholly true, in order to constitute a good Us pendens. Suppose, for instance, that instead of Warner, Mowry & Hawkins owning the mortgage up to and after the rendition of the judgment, as pleaded, they merely owned it up to and after the time when the suit was actually pending against Warner, as was the fact, still the Us pendens would be sufficient. We think the answer was sufficient. And besides, all the parties tried the case on the assumption that the question of whether a Us pendens existed or not, was properly raised by the pleadings in the case; and therefore, even if it should now be found that any one of the pleadings was technically defective in this respect, still we should not reverse the judgment of the court below merely for that reason. Parties must generally raise such questions before they come to this court. If any objection had been made in the court below, the pleadings would undoubtedly have been made sufficient if they were not already sufficient.

The judgment of the court below is affirmed.

All the Justices concurring.