Conklin v. Fox

3 Mont. 208 | Mont. | 1878

Blase, J.

The respondents bring this action on an account for goods sold and delivered to three persons, who are described in one part of the complaint as copartners. The summons was served upon Fox, one of the defendants, and judgment was entered against him alone. The complaint alleges that “said defendants are indebted to these plaintiffs in the sum of * * * upon an account for goods * * * sold and delivered to said defendants by these plaintiffs at their special instance and request.” * * * The separate answer of Fox denies the allegations of the complaint, and denies also that he is indebted on his individual account, or in any manner, to the respondents. '

The errors which are complained of can be determined by the consideration of one question — Can this judgment be entered against the appellant under the pleadings? The complaint alleges that the defendants are copartners, but it does not state that they are indebted as such copartners to the respondents. The evidence supports the judgment. There is no controversy respecting this branch of the case. Under the Code of Civil Procedure of this Territory, “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” § 231. “ In an action against ■several defendants the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper.” Code Civ. Pr., § 232. We are satisfied that we may treat as immaterial the allegations of the complaint concerning the copartnership, and that a cause of action is stated against the defendants. The proof showed that too many persons had been joined as defendants, but this fact does not appear upon the face of the complaint, and the answer of the appellant did not plead it. The appellant thereby waived his objection to the misjoinder of the parties defendant. e< If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same.” Code Civ. Pr., § 86; Parchen v. Peck, 2 Mon. 567.

The action of the court in entering the judgment is sustained by the following authorities: Pomeroy on Rem., §§ 289, 290; Rowe v. Chandler, 1 Cal. 168; Rutenberg v. Main, 47 id. 213; Claflin v. Batterly, 5 Duer, 327. In McIntosh v. Ensign, 28 N. Y. 169, Mr. Justice Weight says: “A plaintiff is not now to be nonsuited because he has brought too many parties into court. If he could recover against any of the defendants upon the facts proved, had he sued them alone, the recovery against them is proper, although he may have joined others with them in the action against whom no liability is shown.” The sections of the Code of Civil Procedure, supra, embody the principle which is maintained by these authorities. The allegations of the pleadings have been liberally construed, and substantial justice has been done between the parties. Code Civ. Pr., § 98.

Judgment affirmed.