This action was instituted by the • defendant in error, as the treasurer of Adams county, for the purpose of collecting certain taxes alleged to be due the county from the plaintiff in error. The petition alleges that the рlaintiff in error, during the years 1874, 1875, and 1876, was a member of a partnership then existing in said county, and that taxes for said years were levied upon personal property owned by said firm. That said taxes have become delinquent and, excepting certain payments which are set out in the petition, have not been paid. That said partnership has been dissolved, and there is no property belonging thereto out of which the money can be mаde. The action is brought against the plaintiff in' error only as one of the members of said late firm.
To the petition the plaintiff in error demurred upon thе following grounds, to-wit:
“ 1st. That there is a defect of parties defendant, as shоwn by the petition ”; and, “ 2d. That said petition does not state facts sufficient to constitute a cause of action against said defendant and in favor of said plaintiff.”
The demurrer was overruled; the defendant (plaintiff in error) refused to plead further, and judgment was entered against him, and he brings the cause into this court by petition in error.
The only question presented to this court for consideration is, whether or not an action can be maintained аgainst one of several joint debtors alone, or whether the actiоn
In Bliss on Code Pleading, § 91, it is said: “At common law, where there is a joint obligаtion or undertaking, in an action upon it, all who thus join must be made defendants, аnd in determining whether it is joint the rule is that several persons contracting together with the same party for one and the same act shall be regarded as jointly, and not individually or separately, liable, in the absence of any express words,.to show that a distinct as well as entire liability was intended to fasten on the promisors. Thus, contracts.made by partners with third persons are joint, and all must be joined in an action; and so with promissory notes and othеr instruments or agreements made by more than one, when the agreement is gеneral, as ‘ we hereby agree/ or ‘ hereby promise/ or ‘ bind and obligate ourselves/ etc. Implied obligations are joint when the facts from which thе promise is implied apply equally to more than one. Partnership dеbts and debts of joint stock companies are always joint; and inasmuch as express words are necessary to make a several agreement, and especially one that is joint and several, the absence оf such words makes it on the face of it joint.”
' This being the rule of the common lаw, it is evident that thé rule remains in this state unless changed by statute, for the reason оf the rule exists the same as heretofore. The obligation being joint, it denоtes but a single indivisible claim, and so all the obligors constitute, as it were, one person owing a single debt, and no one owes any part of it. Hencе the necessity of bringing all before the court, and no others. Id., § 92.
Our statute has nоt changed this rule. The law of this state upon this question is a literal copy оf the law of New York, which has also been adopted by the states of Ohiо, Wisconsin, Minnesota, North Carolina, South Carolina, Florida, Oregon, and pеrhaps others. This question has.
Reversed and remanded.