Kempner v. McMahan , 35 N.M. 313 ( 1931 )

OPINION OF THE COURT Plaintiff and appellant, H. Kempner, brought an action in the district court of Dona Ana county. He submitted no proof except a deposition which, upon objection, was disallowed by the court and was withdrawn by the plaintiff. So the case stands upon the pleadings, with no proof on either side. A jury had been impaneled for the trial of the case.

[1] The complaint was filed on July 21, 1928; on April 26, 1929, a motion for judgment by default was filed against V.C. Collier, individually, and V.C. Collier Co., a partnership composed of V.C. Collier and one W.E. McMahan, the latter having appeared and answered for himself. This answer of McMahan does not undertake to answer for or in behalf of the partnership. This motion for default was not acted upon until final judgment on October 7, 1929, when judgment by default was rendered against said Collier and denied as to said V.C. Collier Co. In this the court below committed error. The partnership was sued as such, and process was served upon each of the partners. No appearance or answer was filed for or on behalf of the partnership, which was consequently in default at the time of the motion for the default judgment. There seems to be in the mind of counsel for appellee a misapprehension of the holding in Good v. Red River Valley Co.,12 N.M. 245, 78 P. 46, from which he makes a quotation and draws the inference that a plaintiff may sue the individual partners as individuals, or he may sue the partnership as such, but that he may not sue both. This is not the holding in the case of Good v. Red River Valley Co., and indeed we could not so hold in the face of the statute which directly provides that a partnership may be sued as such, and service of process may be made upon one of the partners which will bind both the partnership assets and those of all partners served with process or appearing.

[2] Appellant moved to strike the answer of the defendant McMahan for want of proper verification. This the court refused, and permitted the same to be properly verified. The defect in the verification consisted in the omission of the date by the notary of the signature and verification. We can see no objection to the action of the court in permitting the verification.

[3] Appellant urges that the answer of McMahan tendered no issuable fact; it being upon information and belief concerning matters, it is argued, which were necessarily within the knowledge of defendant. Defendant admitted the partnership of himself and Collier. It appears that the business of the firm was that of buying and selling cotton in the Mesilla Valley at and around Las Cruces, N.M., and that they shipped to appellant at Galveston, Tex., various lots of cotton aggregating 846 bales upon sight drafts and bills of lading attached. Appellant alleges that, upon the arrival of said cotton in Galveston, he had the same reweighed, graded, and classed, and found he had overpaid defendant the sum of $1,885.87, for which sum he brought action. How it could be said that the defendant could have any knowledge of what took place in Galveston, we cannot understand. This situation certainly admitted of a denial upon information and belief, as the court below held.

It follows that the court was in error in refusing to grant a default judgment against V.C. Collier Co., and for that reason the case will be remanded, with directions to enter said judgment, and it is so ordered.

SADLER and HUDSPETH, JJ., did not participate.