47 P.2d 862 | Colo. | 1935
IN an action against Otis and Company, a copartnership, defendant in error was given judgment. After the expiration of the term at which judgment entered, and on return of execution wholly unsatisfied, the court, in the sum and of the date of the judgment against the company, entered judgment against a partner, one Sargeant. Thereafter plaintiff in error was garnisheed on an execution issued against Otis and Company and Sargeant, and answered as to the company it owed nothing, but that it owed Sargeant a certain sum. Judgment was entered against plaintiff in error, garnishee, according to its answer. Subsequent to the judgment against it, the garnishee sought to have the entry thereof vacated, contending that the judgment against Sargeant, plaintiff in error's creditor, was null and void, perforce also as to the garnishee. The garnishee's application to vacate the judgment was denied and it sues in error.
At all times important to the cause against Otis and Company, and when the action was instituted, Sargeant was a member of the copartnership, and was so named in the body of the complaint. On the theory of his membership he was served with summons and complaint. He did not answer or otherwise defend against the action. When the court was advised of the unavailing judgment against the company, and being duly moved thereto, it "Ordered that the plaintiff may have execution for the amount due under the verdict and judgment heretofore entered, against the separate property of Raymond Sargeant, and that judgment may be amended and corrected *160 to include the name of Raymond Sargeant nunc pro tunc as of April 2, 1933."
Whether the court rightly interpreted section 14 of the Code of Civil Procedure (C.L. 1921), comprehends the scope of the assignments. The section reads: "When two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; but the judgment in such cases shall bind only the joint property of the associates and the separate property of the party served."
[1-3] It is clear that Sargeant, served with process, was one of "two or more persons," associated and doing business under a "common name," Otis and Company. By that name, the "associates," which included Sargeant, were found to have transacted the business out of which the judgment resulted. Plaintiff in error argues that Sargeant, although he was a member of the copartnership and served with summons, was not a party to the action or subject to judgment therein. We think he was, as a partner. He and his partners had adopted and were using a common name, by which the Code provides "the associates may be sued." "By section 14 of the code, in the case of a claim against a partnership, the members may be sued by their firm name." Doty v. Irwin-PhillipsCo.,
[4] We do not regard the action taken against Sargeant as an amendment to a judgment "made after the term." The court had, and continued to have, jurisdiction of the partner who had been served. As to him it had not previously entered judgment. What it did as to Sargeant did not change the judgment theretofore entered against the partnership. The conditions warranting, as on this record, and until exercised, the court was empowered to proceed to final judgment against Sargeant. In Doherty Co. v. Youngblut,
Let the judgment be affirmed.
MR. CHIEF JUSTICE BUTLER and MR. JUSTICE BOUCK concur.
