Alvey v. Wilson

9 Kan. 401 | Kan. | 1872

The opinion of the court was delivered by

Valentine, J.:

Two cases have been submitted to us, each entitled “C. P. Alvey v. John Wilson, C. B. Brace and A. L. Baker,” and each involving the same questions of law and fact. Therefore we shall write but one opinion for the two cases, and we shall hereafter speak of both cases as though they were only one.

This action .was commenced originally before a justice of the peace by the defendants in error, Wilson, Brace and Baker, against said C. P. Alvey and one Henderson Cavender, as partners, on a promissory note which reads as follows:

“$141.72. Garnett, Eeb. 3d, 1870.

“ Six months after date for value received I promise to pay to the order of Wilson, Brace & Baker one hundred- and forty-one and 72.100 dollars, with interest from date.

“Alvey & Cavender.”

The plaintiffs allege in their bill of particulars that the said Alvey and said Cavender executed said note as partners under the name of “Alvey & Cavender.” Cavender set up as a defense to the plaintiffs’ action that he did not execute said note at all, and that he did not belong to the firm of Alvey & Cavender. The plaintiffs then dismissed their action as against Cavender. Alvey made default, making no appearance of any kind in the justice’s court. ■ After the plaintiffs dismissed their action as against Cavender they amended their bill of particulars, with leave of the. court, so as to allege that Alvey alone executed the note under the name of “Alvey & Cavender.” But they gave no notice of the amendment to Alvey. The court then proceeded to trial against Alvey alone, and rendered judgment in favor of plaintiffs and against Alvey for the amount of the note. Alvey took the case to the district court on petition in error, and the district court affirmed the decision of the justice. He now brings the case to this court and asks a reversal here.

We think the justice erred in rendering judgment upon the plaintiffs’ amended bill of particulars without Alvey having any notice of the amendment. (Civil code, § 136.) But the error was, under our statutes, entirely immaterial aud unsubstantial. Any evidence that could have been introduced under the amended bill of particulars, and that would have proved the same, could have been introduced under the original bill of particulars and would have proved the original bill as against Alvey. And the very same judgment that was rendered under the- amended bill of particulars could have been rendered under the original bill. The plaintiffs did not get anything more under the amended bill of particulars than they were entitled to under the original bill. Nor did the -defendant < lose, anything.,.by ..reason,. of-the amendment. “In all cases of joint obligations and joint assumptions, of •copartners, or others, suits may be brought and prosecuted against any one or more of those who are so liable.” Ch. 21, Gen. Stat., 183, § 4. See also, ch. 14, (p. 116,) § 15, and ■civil code, §39. And where several persons are sued as defendants, “judgment may be rendered for or against any ■one or more of the several defendants:” Code, § 396. The ■dismissal of the action as against Cavender was not erroneous. The plaintiffs had a right to so dismiss, and to proceed against Alvey alone, and to take judgment against him alone. See Silvers v. Foster, ante, p. 56, and statutes there cited. Probably no evidence was necessary in this case; (justice’s act, § 84;) but if it was we would infer from the record that it was given. We have referred to certain sections of the code of ■civil procedure because such code applies to .proceedings before justices of the peace, when applicable, and where it is not ■otherwise provided by law: Justice’s act, § 185.

As only one error is shown to have been committed' by the justice, and as that error is entirely immaterial, the judgment of the justice should have been affirmed; and therefore the judgment of the district court must be affirmed. (Civil «code, § 140.)

All the Justices concurring.