Hamner v. Ballantyne

16 Utah 436 | Utah | 1898

Zane, C. J.:

It appears from the evidence in tbis record that the defendant obtained a judgment in the district court against the firm of Blackburn & Co. for $366.28; that an execution issued thereon, reciting a judgment against the individual members of the partnership, of which the plaintiff was one, as well as against the company by its firm name; that Thomas H. Ballentyne, a deputy United States marshal, by virtue thereof, seized and levied upon the $242.85 in dispute, the individual property of the plaintiff Hammer, and paid it to the attorney of the defendant B. K. Bloch; that the plaintiff instituted this action against the officer for the trespass, before a justice of the peace, who rendered judgment against him for the amount so seized; that, upon appeal to the district court a similar-judgment was rendered by it, and upon appeal to this court it was reversed and remanded, because the writ was against the plaintiff as well as the company, and was fair on its face, and therefore protected him from damages in consequence of the wrong. It further .appears that the complaint was amended by the plaintiff, by leave of the district court, before another trial, by making B. K. Bloch & Co., the plaintiff in the first suit, defendant, and after-wards on the trial the suit was dismissed, on motion of the plaintiff, as to Ballantyne, and thereupon B. K. Bloch & Co., by their counsel, entered a motion to dismiss the suit, upon the ground that the voluntary dismissal as to the only defendant in the justice’s court deprived the court of jurisdiction to try the case. Counsel for the defendant concedes that the district court had authority to grant the amendment, and admits the new defendant voluntarily appeared, but insists that the jurisdiction of the district court depended upon the jurisdiction of the justice.' This position would have been correct had there been a want of jurisdiction of the subject-matter of the suit in the justice’s court. When the subject-matter of the suit is not within the jurisdiction of the justice, it is not within the jurisdiction of the district court on appeal. The appellate court gets jurisdiction by appeal, and, if the justice could have no jurisdiction of the subject-matter, none could be given to the district court by the appeal. Undoubtedly, the justice would have had jurisdiction of B. K. Bloch & Co., had the company been made defendant, and, as the justice’s court would have had jurisdiction in that case, the appellate court had jurisdiction when the company was brought in by the amendment, and appearance was entered. . The trial of the cause upon the appeal was but a continuation of the litigation commenced in the lower court. The justice’s court had jurisdiction of the parties to the case before it, and of its subject-matter, and the appeal gave the appellate court jurisdiction of both, and it acquired jurisdiction of B. K. Bloch & Co., by the amendment and appearance, and the dismissal of. the suit as against Ballantyne did not deprive it of jurisdiction of the case or of the party brought in.

With respect to another point raised, the plaintiff, Ham-ner, and two other individuals, were associated together and doing business by the common name of Blackburn & Co., and the defendant B. K. Bloch & Co., sued them by that name, and by that name obtained judgment ' against the firm. But the execution purported to be upon a judgment against the individuals composing the firm as well. The firm had a legal existence, and a name by which it was capable of doing business and of being sued, and to that extent it had, in law, a separate and distinct existence from natural persons. In law there were four persons; the one was artificial, and with a more limited capacity. Section 8191, Comp. Laws Utah 1888, subjects to suit and judgment such artificial person, but tbe judgment binds only tbe joint property of tbe natural persons associated together under tbe common name. Levally v. Ellis, 13 Ia. 544; Davidson v. Knox, 67 Cal. 143.

Tbe execution upon tbe judgment against tbe firm, so far as it purported to be against tbe individual property of its members, was absolutely void; but it protected tbe officer wbo, in good faitb, executed it, but not tbe plaintiff wbo, in person or by bis attorney, caused it to be issued and delivered to bim. Tbe levy did not pass tbe legal title to tbe money seized to the officer. He could not have held it, bad suit been brought against bim while it was in bis bands, without showing a judgment against tbe person whose individual property it was. But tbe writ, being against tbe owner, though void, so far as it could give any right to tbe money seized, its command executed in good faitb excused tbe trespass or wrong or tort, as termed in law, as to tbe officer, and protected bim from tbe consequences of the injury to tbe owner of tbe property, and from damages to the owner resulting from that injury. But tbe command of the writ did not protect B. K. Bloch & Co., or their attorney, for wrongfully causing tbe writ to issue, and for placing it in the bands of tbe officer, and in that way causing tbe plaintiff’s money to be seized, and for wrongfully taking the proceeds of such levy. They did not act under the writ, and it could not protect them for tbe part they took in tbe trespass or tort. Tbe law required them to know tbe judgment was not against tbe owner of tbe money, the plaintiff in this case, and therefore it could not shield them from tbe consequences of tbe unlawful act. Day v. Bach, 87 N. Y. 56; 9 Bac. Abr. 494; Kerr v. Mount, 28 N. Y. 658; Foster v. Wiley, 27 Mich. 244; Thomas v. Hinsdale, 78 Ill. 259; Cooley Torts (2d Ed.) p. 148.

On tbe trial of this case tbe plaintiff offered in evidence tbe judgment roll in tbe case of B. K. Biocb & Co. against Blackburn & Go., showing a complaint and judgment against tbe firm only, and an execution tliereon against tbe plaintiff and tbe other two members of tbe firm, as well as against tbe firm, and a return on tbe execution showing tbe levy on tbe money in question as tbe property of tbe plaintiff, and tbe payment of it to tbe attorney of B. K. Bloch & Co. Tbe defendant objected to its introduction on tbe ground that it was incompetent, irrelevant and immaterial. It was sufficiently authenticated, and it showed that tbe judgment was against tbe firm, not against tbe plaintiff; an execution against tbe defendant, who was not a party to tbe judgment; a seizure of his money, and tbe payment of it to tbe attorney of tbe defendant in this case. It was clearly competent, relevant and material, and we are of the opinion that tbe court did not err in overruling defendant’s objection to it. Tbe judgment is affirmed, with costs.

Bartoh and Miner, JJ., concur.