6 Nev. 155 | Nev. | 1870
By the Court,
Respondents originally brought their action against Winters and * O’Neale, as partners, upon a number of joint obligations: O’Neale answered, denying the partnership, and setting up the fact that his co-defendant had been adjudged a bankrupt, under the Statute of the United States, and praying a stay of proceedings until final adjudication thereunder. Proceedings were stayed until the final discharge of Winters, when he came in and pleaded such discharge in bar of the suit. During this interim, O’Neale had agreed upon certain facts with plaintiffs, which admitted the allegations of the complaint.
So the ease stood for trial, with O’Neale’s admission and Winters’ answer, when plaintiffs asked and obtained leave, against the objection of both defendants, to file an amendment to their complaint, in which the discharge of "Winters was set up, a judgment prayed against O’Neale-, and a dismissal as to Winters. To the amendment both defendants declined to answer. The plaintiffs offered proof of the discharge, and took judgment as asked.
To this O’Neale objects and appeals, taking the ground that the allowance to the amendment, and proof thereunder, was error, and injurious error to him; because the judgment should have been joint, unless Winters had insisted upon his discharge in defense. His position is substantially, that plaintiffs had nothing to do but take judgment against both defendants under the pleadings and admissions; unless Winters insisted upon, and made proof of, his discharge.
It is admitted in the brief of appellants’ counsel, and is undoubtedly a correct proposition, that had Winters been discharged in bankruptcy before suit brought, plaintiffs need not have joined him as defendant. And had the objection of nonjoinder been made, it could have been defeated by proof of the fact of the discharge. Ths result obtained is practically the same. The fact of discharge arose after suit brought, but was still an existent fact before the trial; the plaintiffs pleaded it, as it in reality existed ; and' for the same purpose and to the same effect as they would have introduced proof in answer to a plea of nonjoinder as suggested. As has been said, this might have been unnecessary, but yet was no injury, being merely an irregular method of obtaining a legal right.
Again; it may be laid down as a general proposition, that a party to the record may admit any adverse allegation, and thus dispense with proof. The appellant would limit the proposition, by confining the effect of the admission to the party making the allegation ; but it is not always possible so to limit the result. Of course, if the admission be not of a conceded fact, any person other than the party originally making the allegation admitted could make proof in opposition; but not otherwise, no matter what the effect of the admission. So in this case, the answer of Winters stood of record, and the amendment of plaintiffs was practically but an admission of its allegations. They had the right to make such admission, and if the admission was true, as in this case it was, its natural effect must follow against all parties to the record.
But, say counsel for appellant, it does not appear that Winters would have insisted upon his defense pleaded ; and unless he did, judgment should have been joint, and plaintiff had no right to assume that he would so insist. In the last proposition is the error
It follows then that the District Court did not err. Wherefore its judgment is affirmed.
