Atwood v. Kennard, Motter & Co. , 22 Neb. 246 ( 1887 )

Maxwell, Ch. J.

The defendants in error, plaintiffs below, filed their .petition in the court below, alleging: .

“ The plaintiffs complain of defendants, and for cause of .action state that plaintiffs are an association of persons doing business as partners in the city of Omaha, state of Nebraska, under the firm name and style of Kennard, Motter & Co., and are not incorporated; that the defendants, Jacob S. Atwood'and Frank E. Sarsbaugh, were at all times hereinafter mentioned associated as partners and doing business in Lincoln, Nebraska, under the partnership name of Atwood & Sarsbaugh, not incorporated.

“Plaintiffs further complain and say, that on the 8th day of October, 1883, the plaintiffs, at defendants’ request, sold and delivered to defendants certain goods and merchandise in the amount and value of $46.50, which defendants agreed to pay; that on the 20th day of November, 1883, the plaintiffs, at defendants’ request, sold and delivered to defendants further goods and merchandise in the value of $50.00, which amount defendants agreed to pay.

“Thatno-part of said amounts have been paid, and there is now due and payable from defendants to -plaintiffs, on the causes of action above set forth, the sum of $96.50 and interest thereon from the 20th day of January, 1884, at the rate of seven per cent per annum.”

In his answer, Jacob S. Atwood says:

1st. That at the commencement of this action said Jacob S. Atwood and said Frank E. Sarsbaugh were not partners doing business in Lincoln or elsewhere.

2d. That at the commencement of this action the said Atwood and Sarsbaugh had no place of doing business as said alleged partners in said state of Nebraska or elsewhere.

3d. That plaintiffs’ said cause of action is founded on a joint liability against the said defendants, and neither the said alleged firm of Atwood & Sarsbaugh imr the said Frank E. Sarsbaugh. have been served with summons in this suit, and neither the said firm of Atwood & Sarsbaugh nor the said Frank E. Sarsbaugh have been made or entered at any time an appearance in this action.

4th. That the court has no jurisdiction over the persons of the said firm of Atwood & Sarsbaugh, nor of or over the person of the said Frank E. Sarsbaugh, and has no jurisdiction of the said so-called firm of Atwood & Sarsbaugh.

5th. Denies each and every allegation in plaintiffs’ said petition contained.

On the trial of the cause a judgment was rendered in favor of the plaintiffs below in the sum of $110.00. The defendant Atwood, plaintiff in error, thereupon filed a motion for a new trial, which motion was overruled, to which he duly excepted.

The following stipulations were entered into by plaintiffs and defendant:

“ It is hereby stipulated and agreed by and between the said plaintiffs and the said Jacob S. Atwood, defendant, that on the trial of the above entitled cause of action, the above named parties may use in evidence the depositions of F. E. Sarsbaugh and of Jacob S. Atwood, now on file in the said district court in the case of Peregoy & Moore against said Atwood & Sarsbaugh, subject to all objections for immateriality and irrelevancy.”

The questions before this court are substantially the same as were decided in Jacob S. Atwood v. Peregoy & Moore, and the case is to be decided upon substantially the same testimony as in that case.

There is no error apparent in the record thereof, and the judgment is affirmed.

Judgment affirmed.

The other judges concur.