31 Iowa 460 | Iowa | 1871
The firm of Bowen & Co., against whom tbe action was brought and judgment finally rendered, was composed of
Upon the death of a member of a firm the partnership is dissolved, and actions upon claims against the firm should thereafter be brought and prosecuted against the surviving partner. Upon the. dissolution of a firm, the artificial person created by the partnership ceases to exist, and there cannot, for that reason, be a suit maintained or judgment rendered against it after its existence 'has terminated. This is a familiar doctrine of the law, and is not controverted in this case. But it is insisted that the judgment is simply erroneous, irregular, and is not void; that the irregularities are not.of a character to affect the validity of the judgment. Without passing upon the question as to the effect of the.death of Leuduman upon the judgment subsequently rendered, whether it is for that reason void or voidable, we will consider it as voidable only, and upon that view determine the case. It cannot be disputed that, if application had been made to the district court within proper time, a new trial would have been awarded, on account of the irregularity in rendering judgment after the dissolutijn of the firm by the death of Leuduman. It is admitted by defendants’ counsel that the judgment was irregularly rendered. Such an irregularity cannot be pre- ■ sumed to be without prejudice and injustice to the defendants in that- suit, in fact, it will rather be presumed, in the absence of a contrary .showing, that injustice did result therefrom. The judgment -is without authority of law, ..and must be regarded as an-encroachment upon the -rights of those affected by it. The court rendering it, therefore, if an application had been made within the proper time, would have set it aside, .and ordered ,a new trial.'
It is not disputed that, when this suit was instituted, the time for making application for a new trial in the court wherein the judgment was rendered had expired, and that the illegality in the proceeding could not have been corrected by appeal. And it clearly appears that, at the time of the rendition of the judgment, plaintiff was absent in the actual military service of the Union, and had no knowledge thereof. He remained absent in the service of the country, and ignorant of the judgment, until about the time this action was commenced. It was brought with proper diligence after he was informed of the rendition of the judgment.
Plaintiff is without relief unless it be given in this action. His answer filed in the case wherein judgment was rendered, sets up a meritorious defense; the evidence in this case shows that it was made in good faith. “We express no opinion as to the weight or effect of that evidence in support of the defense. In our opinion, the plaintiff is entitled to the relief claimed in his petition. The judgment .of the .court below will be reversed, and a proper decree will be entered in this court, directing a new trial of the action at law.
[Reversed.