102 Ind. 251 | Ind. | 1885
James R. Malone, one of the appellees, filed a complaint against a great number of defendants, among1 whom are Levi Z. Leiter and the appellants Marshall Field, Lorenzo G. Woodhouse, Henry Field, Henry J. Willing and. Joseph N. Field, who are described as composing the firm of’ Field, Leiter & Co. It is alleged that Malone was sheriff of Porter county from November, 1879, to November, 1880; that, on the 23d day of January of the year 1880, John V. Farwell, Charles B. Farwell, William D. Farwell, Simeon Farwell and John K. Harmon, composing a copartnership in the firm name of J. V. Farwell & Co., commenced an action in the Porter Circuit Court upon a note against Joan M.,, John H. and Edwin M. Trevor, and supplemented such action with proceedings in attachment against the defendants therein; and at their suit a summons and writ of attachment were issued against the Trevors, and delivered to Malone, as sheriff, which summons was duly served by reading,, and the writ of attachment by seizing and taking into custody .a general stock of goods in store, household goods and live-stock; that this action was pending from the 23d day of January to the 10th day of June, 1880, when it was finally determined; that prior to the final judgment therein, all of the defendants being creditors of the Trevors, filed necessary papers and became parties to the suit and proceeding in attachment of J. V. Farwell & Co.; that upon the final trial of such action, judgments were rendered in favor of the creditors for the amount of their respective claims against the Trevors, but the finding and judgment of the court were against the attaching creditors upon the issues involved in attachment proceedings, and the attached property was ordered released from the levy; that afterward fifteen separate executions were issued upon the order of the creditors on,
The affidavit upon which the notice of publication was ordered was not- so defective as to render the notice ineffective. It states that there is a cause of action in the plaintiff against the defendants, shows that it is connected with a contract, and alleges that the defendants are non-residents of the State of Indiana. These are the essential facts which authorize notice by publication, and as they are embodied in the-affidavit they gave the court jurisdiction to order the publication of the notice. The statute does not contemplate a full statement of the facts constituting the cause of action in the-
Evidence was offered in support of the allegation that the affidavit in garnishment was not verified, and this was met by opposing evidence that it was duly subscribed and sworn to. There was, therefore, an issue of fact and evidence fully supporting the finding of the court upon that issue, and the general rule is that 'in such cases the finding of the trial court will not be disturbed. Lexington, etc., R. R. Co. v. Ford Plate Glass Co., 84 Ind. 516, see page 517. This general rule should apply to a case like this where the affidavit has accomplished its purpose and has given the garnishee notice and secured him a trial:
The appellee insists that the plea in abatement, having been filed with the general denial, and forming the second paragraph of the same answer, can not be considered. The foundation of this position is that matters in abatement can not be pleaded with matters in bar, and this unquestionably was the
The creditors of Bartholomew were all before the court, ■except Higginbotham and McWilliams; had they been in court we should not have the slightest hesitation in approving the decision of the trial court, for the fact that Leiter was' not a member of the firm to which Bartholomew was indebted did not deprive the plaintiff of his rights. If in making him a party the plaintiff did do an unnecessary thing, it did Bartholomew no injury.
It is true that McWilliams became a member of the firm of Marshall Field & Co. after Bartholomew became its debtor, but this does not change the case, for the question is, was he one of his creditors at the time the process in garnishment was served ?
The first question we encounter on this branch of the case is, did the general denial entitle Bartholomew to take advantage of the fact that two of his creditors were not before the court? We think that it did put the appellee to proof that Bartholomew was the debtor of the parties against whom the attachment proceedings were directed. The only ground upon which the appellee had a right to proceed against Bartholomew was that he was the debtor of those against whom the
The question which next confronts us is whether Bartholomew was indebted to the parties named in the complaint and affidavit of garnishment. That he was indebted to Marshall Field & Co. is conceded, but it is insisted that he was not indebted to the firm of Field, Leiter & Co., and that he can not be made liable upon a claim against the latter firm. The contention is that the firm of Marshall Field & Co. is a legal entity entirely distinct from the firm of Field, Leiter & Co., and that a debtor of the one firm can not be garnished upon a claim against the other. We should not be inclined to yield to this argument if the members of the two firms were the' same, for if all the parties interested were before the court the garnishee would be fully protected, and that is all he need ask. It is not for him to make questions upon the regularity of the proceedings; it is enough for him if the court has jurisdiction of the subject-matter, and all of his creditors are before it. All that he requires is such a judgment as will protect him in case he is sued by his creditors, and if the court has jurisdiction of the subject-matter and of the persons of the defendants, its judgment will afford him protection. But the case before us is one in which the plaintiff proved the debt due him to be owing by the firm of Field, Leiter & Co., while-the debt due from the garnishee was to Marshall Field &
We have not passed unnoticed the proposition of appellee .that Higginbotham was a dormant partner, and, therefore, not a necessary party, but we find no evidence of this fact. The plaintiff and the witness Deckover testify that they did not kno w that Higginbotham was a partner, but this does not prove that he was a silent member of the firm. The only inference that can fairly be deduced from the evidence is that McWilliams and Higginbotham were both members of the firm to which Bartholomew was indebted.
We have given the argument of appellee upon th'e proposition that partners are jointly and severally liable full consideration, but we can not think that it meets the questions which the record actually presents. The debtor of the appellee was the firm of Field, Leiter & Co., while the creditor of the garnishee was the firm of Marshall Eield & Co., and in order that the garnishee might be fully protected it was necessary to have all members of the latter firm before the court. It was not enough to have in court all the members of the firm of Field, Leiter & Co., but it was also necessary to have in court all the persons who were members of the firm of Marshall Field & Co. at the time the summons was served on the garnishee.
We must reverse the case for the error pointed out, and it is not necessary to notice the other questions argued, as the reversal opens the whole cause as to all the appellants.
Judgment reversed.