142 Iowa 694 | Iowa | 1909
'The petition describes the plaintiff as a- copartnership doing business at Cincinnati, Ohio. It sets forth a cause of action in its favor against the defendant for goods sold and delivered to the amount of $513.83 to the defendant. The defendant answered by a general ■denial. The cause came on for trial on May 26, 1908, before the court without a jury. 'At the trial the plaintiff read in evidence the deposition of Frank Hartkemeyer. On direct examination, this witness testified as follows.: “Q. What relation, if any, do you bear to the plaintiff in this action, Frank Hartkemeyer & Co. % A. I am the sole owner of the business.” On cross-examination he testified as follows: “Q. You are the plaintiff in this action ? A. Yes, sir. Q. Of Frank Hartkemeyer & Co. ? A. Yes.” At the close of plaintiff’s evidence, the defendant moved for judgment on the ground that the plaintiff had no interest in the cause of action, the substance of the argument being that Frank Hartkemeyer, and not Frank Hartkemeyer & Co., was the owner of the alleged cause of action against the defendant. The court overruled the motion. The defendant offered no testimony in defense. The court thereupon on the same day entered judgment against the defendant for the full amount of the claim, in favor of F. Hartkemeyer.
On May 2Yth the defendant filed a substituted answer. His’argument in this court is based somewhat upon such substituted pleading; but, inasmuch as it was not filed until after the judgment appealed from’ was entered, we can not consider it.
The argument of appellant is that plaintiff’s evidence shows conclusively that F. Hartkemeyer had become the ■owner of the cause of action sued on, and- that therefore
Hpon this view of the facts, the defendant could not be prejudiced by the entry of the judgment in the real name of the party in interest. Inasmuch as the defendant took the ground in the lower court that the cause of action belonged to- Hartkemeyer, and not to Hartkemeyer & Co., he is hardly in a position to complain because the court took him at his word. The attorney for the nominal plaintiff assumed to appear for F. Hartkemeyer also, and the defendant has taken his appeal from the judgment by serving notice upon the attorney, as the attorney both of F. Hartkemeyer & Co. and F. Hartkemeyer. Under the circumstances appearing on the record, we think there can be no doubt but that the judgment as entered is binding as an adjudication both upon F. Hartkemeyer and F. Hartkemeyer & Co.
The judgment below must therefore be affirmed.