Griffin v. Samuel

6 Mo. 50 | Mo. | 1839

Statement of the case made* and. opinion of the Gofert delivered by

Napton, Judge.

The defendant in error sued the’ plaintiff, in error, by petition in debt, in the Circuit Court of Monroe County. The petition is as follows:

Jameson Samuel & Churchill Samuel, formerly trading under the name and style of Jameson Samuel Co., plaintiff), state that the;, are the legal owner., of a bond, against the defendants, Isaac N. Griffin [signed by said Griffin by the name and description of I. N. Griffin] and Henry Kinote which said note was executed to the said plaintiff by the name and description of Jameson Samuel & Co., and is to the following effect.

Pour months after date*we or either of us do promise to pay Jameson Samuel & Co., the sum of four hundred and seven dollars & 89 cents, for value received bearing ten per cení interest from the date without defalcation or discount, given under our hands and sea’s this 7th day of May 1838. '

J. & I. N. Griffin ns.

II enry Kinote, ns.

Yet the debts remains unpaid &c.

A summons issued on the above, and the return of the officer was that he had executed the writ upon Henry If ¡note, but that Isaac N. Griffin was not found. The record of the same term states, that defendants came by attorney, and filed the:r demurrer to this petition, and also their plea, which demurrer and plea are set forth in so many words in the record. The demurrer .commences “and the said defendants, &c.” and,, proceeds alternately using the singular and plural without much regard either to legal or gram, matical accuracy, and is finally signed by counsel as counsel for defendant and without specifyng the name of the defendant. I notice these inaccuracies, because the question arising in this court has made it material. The plea of non est factum commences also in the plural and is signed for one defendant only, but does not specify for which defendant. At the second term after the return term of the writ, the demurrer was withdrawn, and the cause was submitted to the Court, as a jury, on the issue of non est fae-tmai; and the finding of the Court was that the defendants were indebted to 1he plaintiff the debt in the petition mei3¡~ tioned, and assessed their damages. Judgment went for the plaintiff. The objections urged in this court to the judgment of the Court below,, are first; that the bond'offered in evidence' materially varied from the bond desciibed in the petition, and secondly; that the court erred in giving judgment against one of the defendants, Isaae N. Griffin, who was not served with process. The first objection is that the parties Were Isaac N. Griffin and Henry Kinote, and the note v offered in evidence is signed by J. & I. N. Griffin and Hen-ry Fin°te- ®ur statute allows the obligee to sue as many of the obligors as he thinks proper [Rev. Co. 1835 p. 459.] There can be no doubt then that Isaac N. Griffin and partner, who together signed their partnership name of S. & J. N. Griffin, had signed their names separately and. plaintiff could have sued either or both at their option. I do not see how the particular mode of signing by the partnership name can affect this privilege. If a different construction be assumed, the operation of the Statute is avoided so far as partnership notes are concerned. The second objection taken to the judgment of the Circuit Court is that it went against Griffin & Kinote, when-it appeared by tbe ieturn of the sheriff that Kinote only was served. The appearance of the defendants, both by demurrer and plea, is, upon the face of the record, general, though sometimes the word “defendant,” and at others the word “defendants,” u,-ed; for if a party wishes to appear and plead in such a r \ ,. ... j c , . . . way as not to commit his fellow defendant,' ins name must giTen* We hold that the appearance in this case cured the want of service.

A bond, «üdy a partner in the Srm^aykbe described, in debt^ag^the «nTo/the^ gatners; our miitmg Ptba obligee to ofethoBobU-ny jury^fhX a defective ver diet, itsjudg-juent will nut fte animan court, unless made in\lieS S> an•cs^'ihe judgment ¡md ■«verrulcd. gors as he thinks proper-Tko want oí service of a -writ is cured by apy. in anee and do fence. If the circuit court,

The verdict in this case, found by the Court setting as a iuryj was not resPons’-ve to the issue- This might have, been taken advantage of by motion in arrest, but there hav-jng been n0 g^ motion, this Court will not interfere with-the judgment of the Circuit Court. Davidson vs Peck, 4 Mo. Rep. p. 438. Judgment affirmed.