Wellington v. Claason , 18 How. Pr. 10 ( 1859 )

Ingraham, J.

It was never denied, under the old practice, where several defendants were included in an action on contract, that any one not served, might enter a voluntary appearance, notwithstanding the plaintiff did not serve the process upon him. Both at law and in equity, such voluntary appearance was allowed, with the exception that in equity it must appear that some claim was made against the defendant so appearing. (8 Paige, 45 ; 9 lb., 226.)

In Tracy a. Reynolds (7 How. Pr. R., 328), Mr. Justice Hains recognizes this rule, where he says a party uninvited could not intrude himself upon the court and the plaintiff, unless he had some right to protect, which rendered such appearance necessary.

I do not understand this rule to be altered by the Code. Section 139 recognizes the right of a defendant to make a voluntary appearance without service of a summons, and authorizes the plaintiff to proceed on such appearance, as if the defendant had been served with process.

I concur in the opinion of Chief-justice Bosworth in 2 Duer, 660, that such appearance is proper, and cannot be disregarded.

Applying these authorities to the present case, I think the defendant Claason had a right to appear and put in an answer. The action was on contract, and was against both the defendants as partners. They were to be made jointly liable, and the joint property of the firm could be taken to pay the recovery against one defendant. No partner is required to be silent and suffer the partnership property to be sold without making a defence, if such defence exists, merely because the plaintiff elects to serve a summons only on his co-partner, and not on himself. Such a rule would allow one partner who may have a difficulty with his co-partner, by collusion with a plaintiff to place the partnership property at risk, when by his appearance, the partner not served could protect it against an unjust claim.

I think the plaintiff should have allowed and recognized the appearance of the defendant now moving, and should have received the answer.

But as soon as the answer was received, and the plaintiff ascertained the defence was infancy, he might have obtained leave to discontinue as to such infant without costs—and such permission should now be granted.

Ro costs can be allowed to the defendant in the action other than the costs of making this motion.

The motion is granted unless the plaintiff within ten days discontinues as to the defendant E. J. Claason, and pays costs of motion, $7.