Baxter, Reed & Co. v. C. W. Rollins & Co.

110 Iowa 310 | Iowa | 1900

Given, J.

The defendant Ressa Sehleiter is repeatedly named in the record as Ressa Gaines, from which we infer that she has married pending ¡this a-ption;-but, for convenience, we will continue to use the name by which the action was brought against her.

The defendants Alice Sehleiter and Ressa Sehleiter move to dismiss the appeal upon the ground that no notice thereof was served upon the defendants O. W. Rollins & •Co. It will be observed that judgment was rendered on ■default against the defendant O. W. Rollins, and that judgment was rendered on the verdict in favor of O. W. Rollins & Co., Alice Sehleiter, and Ressa Sehleiter, to which plaintiff excepted. The notice of appeal is entitled, “Baxter, Reed & Co., Plaintiff, v. C. W. Rollins, Alice Sehleiter, and Ressa 'Schleiter, and Ressa Gaines, nee Schleiter, Defendants.” It is addressed to “Alice Schleiter, Ressa Gaines, nee Schleiter,” and to their attorneys named, and to the clerk of the district court, and notifies them that plaintiff appeals-“from all rulings and orders of said court made in said case to which plaintiff took exceptions.” Service was accepted by “E. R. Duffle, attorney for defendants Alice Schleiter and Ressa Gaines,” and by “T. E. Brannan, clerk of the district court of Ida county, Iowa.” The defendant C. AV. Rollins & Go.,is not mentioned in the notice, nor was service accepted for or made upon that defendant. Plaintiff’s counsel contend that service of notice on one partner in an action against a firm confers jurisdiction 'to render judgment against the firm, and cites Saunders v. Bentley, 8 Iowa, 516; Walker v. Clark, 8 Iowa, 474; Gregory v. Harmon, 10 Iowa, 445; Hale v. Van Saun, 18 Iowa, 19. These casos hold to the effect that, in an action against a firm, service of original notice, addressed to the firm, on one of its members, was a service on the firm. The cases are not in point, as this notice is not addressed to the defendant firm, and does not purport to show an appeal as to it. The plaintiff excepted to the judgment in favor of the firm, and could have had the same reviewed on errors assigned, as between plaintiff and said firm, if the firm had been served with notice of appeal; but, no such notice being served, the judgment is a final adjudication, as between them, that the-defendant firm is not indebted on the note sued upon. Where a party to the record is not served with notice of appeal, the appeal cannot be prosecuted as to him, and no relief based upon a reversal of the judgment against him can begranted in the appellate court. Hunt v. Clark, 46 Iowa, 291; Hunt v. Hawley, 70 Iowa, 183.

The relief asked against Alice and Ressa Schleiter i& -to charge them, as members of the firm of O. W. Ro-llinS & Oo., with the alleged indebtedness of that firm on the note sued upon; and we now inquire whether 'that relief can be granted without reversing the judgment in favor of C. W. Rollins & Co. Section 3468 of the Code contains the following: “Actions may be brought by or against a partnership as such, or against all or either of the individual members thereof, or against it ■ and all, or any, of the members thereof.” Plaintiff could have brought an action against Alice and Ressa Schleiter, or either of them,- to charge them with, this partnership -debt, without joining the firm; but, to maintain such action, the plaintiff would have to show that the alleged indebtedness existed. In such a case it would be a complete defense to show that, as between the plaintiff and the alleged debtor, it had been finally adjudicated that there was no indebtedness as. claimed. As the case now stands, the plaintiff can never assert this-indebtedness against O. W. Rollins & Go., and therefore cannot assert it against Alice and Ressa Schleiter, as members of that firm. The relief asked cannot be granted without reversing the judgment in favor of C. W. Rollins Co., and this we cannot do, as that company is not made a party to this appeal. The motion to dismiss the appeal is sustained. — Dismissed.

Granger, O. J., not sitting.