Richards v. McNemee , 87 Mo. App. 396 ( 1901 )

BROADDUS, J.

This case was instituted in a justice’s court, appealed to the circuit court, where plaintiff obtained judgment from which the defendants appealed. the plaintiff and all the defendants are residents of Oklahoma Territory. In the trial before the justice, the plaintiff obtained judgment agamst defendants MeNemee and Adams, the defendant Meeks not having been served in any manner.

In the circuit court, defendants filed by way of amendment a written denial of plaintiff’s cause of action and of the alleged partnership of the defendants, and a plea that plaintiff’s action abate because the contract sued on was a joint and not a joint and several contract and could not be maintained as defendant Meeks was not before the court. This answer was sworn to by defendant MeNemee. As the principal question before, this court is whether the so-called affidavit denying the partnership is such as the statute requires in order to put the plaintiff upon proof as to its existence, it 'is necessary to quote from the same, to-wit:

“Eor amended answer to tbe allegations of tbe plaintiff’s petition, defendant denies1 each and every allegation therein contained, expressly denying upon his oath that he ever was a partner with Otto Meeks and J. E. Adams under the firm name of the Wild West Show or any other name whatever and expressly denies that he ever was or now is partner with the defendant J. E. Adams under any name whatever,” to which is attached, or supposed to be attached the following writing:

“State of Missouri, Jasper County. } ss.

“Lloyd McNemee, defendant herein, being duly sworn upon his oath, states that he has read the above answer affidavit, denying partnership and plea in abatement and that the facts therein are true.

“Lloyd McNemee.

“Subscribed and’sworn to before me this fourteenth day of March, 1900.

“E. W. Norton, Clerk, by J. W. Gray, D. 0.”

This was held by the circuit court to be insufficient to put the plaintiff upon proof of defendants’ alleged partnership and denial of defendants’ offer to negative, by evidence, the existence of the same. The respondent in his brief cites several cases to support his contention that the affidavit filed is not sufficient under the statute, viz: Haysler v. Dawson, 28 Mo. App. 531, and Meyer Bros. v. Ins. Co., 73 Mo. App. 166. The first case is not authority here for the, reason that the sufficiency of the affidavit was not before the court. There was no affidavit of any kind in that case. In the latter case the court held that the affidavit was not in compliance with the statute and uses this language: “The statute provides that where a corporation is sued it shall not be necessary to prove the fact of such incorporation unless the opposite party shall put such fact in issue by affidavit filed with the pleadings in the cause.”

The ruling in Meyers Bros. v. Ins. Co., supra, which is the only case to which our¡, attention has been called, in which the sufficiency of an affidavit of the kind in question has been, decided, is to the effect, that it is not sufficient to merely swear to a pleading filed in the case, which denies the partnership or incorporation. To answer the terms qf the statute, the affidavit, of itself, must contain all the necessary denials. Now in this case, there was a general denial of the plaintiff’s cause of action, also of the partnership and a plea in abatement. It not being an affidavit in compliance with the rule so laid down, it must be held insufficient to have put the plaintiff upon proof of the alleged partnership.

It is shown by the record that the court and attorneys on both sides, in the circuit court, proceeded upon the theory that 'the affidavit was sufficient to put the plaintiff upon proof of partnership and allowed plaintiff to introduce his evidence tending to maintain that issue; and it was not until the defendants tendered evidence on their side to disprove the allegation of partnership that the question was raised at which time the court held that the partnership must stand admitted for want of the affidavit upon the part of defendants that the statute required, and defendants’ evidence was rejected. The appellants complain of this action of the court and say that they were prejudiced thereby. It was harmless error, at most, as the evidence only tended to show what was admitted by the pleading of the defendants.

This was a suit for services of employees of the Great Oklahoma Wild West Show, and the contract for hiring was made in the territory of Oklahoma; and it is contended that as said territory was under the common law governing contracts, the plaintiff was not entitled to recover as the defendant Meeks was not notified and did not appear and, therefore, all the parties not before, the- court, the court should have sustained defendants’ motion to abate the suit. In support of this contention defendants offered in evidence a decision of the Supreme Court of the territory, reported in the Pacific Reporter, supplemented by the evidence of a Mr. Green, who practices law in said territory, that the reports of cases for Oklahoma in said Beporter were authority there. The case referred to is Cox v. Gille Hardware Co., and reported in 58 Pacific Be-porter, page 645, and holds that as to contracts the territory is governed by the common law.

Appellants claim that as “neither the rights nor the liabilities under joint obligations are the same as under a joint and several liability, it is not a question of applying a remedy.” However this may be, the remedy, substantially, is the same in Oklahoma as in Missouri. In the Oklahoma case the judge cites the code governing practice in that territory, to-wit: The statutes of 1893, section 3957, which provides that if service can not be had upon all the defendants the plaintiff may proceed against the ones served without prejudice to the rights of any of the parties in interest. Our own statutes are to the same effect. See section 583, p. 246, Revised Statutes 1899. The proceedings in that respect in this case were not only in compliance with the practice where the contract was made, but also of the practice of the forum where the case was tried.

If the foregoing conclusions are correct there was no error in giving or refusing instructions or in the admission or rejection of evidence. It is true the trial was conducted in an irregular manner, but the judge was misled by the attitude of the parties. Yet, he was right upon all the questions of law.

Cause affirmed.