Citation Numbers: 12 Idaho 400, 85 P. 1108
Judges: Ailshie, Stockslager, Sullivan
Filed Date: 6/13/1906
Status: Precedential
Modified Date: 1/2/2022
This is an appeal by the defendants Dernham, Kauffman and Scott, from the judgment rendered by the trial court in the ease of A. T. Spotswood et al., against John B. Morris, as administrator of the estate of Benjamin F. Morris, deceased, et al. This is the same case reported ante, p. 360, 85 Pae. 1094, and reference is made to that case for the facts on this appeal. The title to the case is given in the complaint as follows:
“A. T. Spotswood and Fred Veatch, Partners as Spotswood & Veatch, Plaintiffs, v. John B. Morris, as Administrator of the Estate of Benjamin F. Morris, Deceased; Harriet F. Morris, Administratrix of the Estate of Benjamin F. Morris, Deceased; Henry Dernham, William Kauffman, John P. Vollmer, Wallace Scott and Bobert Schleicher, Trading and Doing Business as The Denver Townsite Company, a Voluntary Unincorporated Joint Stock Company, Defendants."
In the decision by this court on the appeal above referred to, the court held that the Denver Townsite Company was a limited partnership, regulated and controlled by its articles of association, and the plaintiffs refer to it in the title of the case as “The Denver Townsite Company," a voluntary unincorporated joint stock company. While it was contended finally by counsel for respondents that said association was only a general partnership, the case apparently was not tried upon that theory. Service of summons was never made upon the defendants Dernham, Kauffman and Scott, and there was no appearance in the ease for them; but regardless of that fact, a judgment was entered against them, which would have been proper had they been general partners with the other defendants, and in the determination of this matter it may be considered that the service on one partner was a sufficient service on all of them. If that be true, the appeal of Vollmer, Schleicher and the administrator of the Morris estate was an appeal for the entire partnership, and the judgment of the trial court against them must be set aside and the action dismissed on the same grounds for the same reasons given in
It seems clear to me from the record in this case that the clerk inadvertently entered judgment against all of the de7 fendants, when the theory on which the case was commenced seems to have been that service of summons must be made on each of the defendants. The judgment, as entered, recites the fact that James E. Babb and Daniel Needham appeared as attorneys for the defendants, when, as a matter of fact, they did not appear for said Dernham, Kauffman and Scott, unless it be held that by appearing for the administrator of the Morris estate and Yollmer and Schleicher, they thereby appeared for all the defendants. But, as above stated, I. do not understand that the case was tried upon the theory that the Denver Townsite Company was a general partnership, and the papers show that Messrs. Babb and Needham only appeared for a part of the defendants. While the judgment itself does not name any of the defendants, it does recite as follows: “AYherefore, by virtue of the law and by reason of the premises aforesaid, it is ordered and adjudged that said plaintiffs have and recover from said defendants the sum of $2,683.33,” etc. If Messrs. Babb and Needham appeared for all the defendants, the judgment must be set aside as to all of the defendants, and if they only appeared for the administrators of the Morris estate, Yollmer 'and Schleicher, the court had no jurisdiction to enter judgment against the other defendants, and the judgment must be set aside, and it is so ordered. The case is remanded to the trial court, with instructions to dismiss the action. Costs are awarded in favor of the appellants.