126 P. 797 | Okla. | 1912
This was a suit by Henry Schaeffer against C. H. Beach and W. C. Heaton, as partners, to recover the price of some whiskies and other saloon supplies. No service was obtained upon Beach. There was a verdict and judgment against Heaton individually. The proof showed a partnership between Beach and Heaton. Heaton brings the case here, and assigns only one error, which is as follows:
"The court erred in rendering judgment upon the verdict of the jury finding in favor of plaintiff and against the defendant W. C. Heaton only." *632
It is Heaton's position that the judgment should have been taken against both himself and Beach. He relies on sections 5008 and 5619, Comp. Laws 1909. Section 5008 provides that:
"Every general partner is liable to third persons for all the obligations of the partnership, jointly with his copartners."
Section 5619 provides that:
"Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows: First, if the action be against defendants jointly indebted upon contract, he may proceed against the defendants served unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served; and if they are subject to arrest, against the persons of the defendants served."
It is reluctantly concluded that defendant's contention is correct. The common-law doctrine as to partnership obligations survives in this state, except so far as it has been modified by section 5619, Comp. Laws 1909, quoted above. That section enables a creditor to obtain judgment against joint obligors by service against only one, so far as the judgment affects joint property, thus changing the rule at common law that all the joint obligors must be summoned (4 Minor's Inst. 650; 1 Tidd. Pr. 420), but prevents the judgment from being enforced against the individual property of the obligors not served. The statute does not permit an individual judgment to be rendered in a suit against a partnership. The theory is that, the debt being a joint one, the judgment must be joint.
In Sayre Commission Co. v. Keen,
"It seems quite clear that the court below went too far in rendering its judgment generally against the firm and against the individual members also."
This language extends, not only to the partners not served, but to those served, and seems to imply that on a joint contract an individual judgment could not be entered.
The case of Brown v. Williams,
A consideration of the statutes quoted and cases cited, together with the case of Symms Grocer Co. v. Burnham, Hanna,Munger Co.,
The exact point has been decided in other jurisdictions. InBrawley v. Mitchell,
"To enter judgment against the defendant served, only, is not a mere formal error, but it is a matter of substance. This was so held in Bacon v. Bicknell,
In Blackburn v. Sweet,
In Peabody v. Oleson,
"The above section only provided a method of suing a partnership in addition to the remedy then existing. It made the service of summons upon one partner sufficient to bring the partnership into court and bind its property by the judgment. In such case no personal judgment could be obtained against the partners not served; and, as to them, the judgment rendered could bind only their interests in the partnership property. The judgment should be against the partnership, and in a proper manner the individual property of the member or members served might be reached for the purpose of satisfying it. Craig v.Smith,
Many states have by statute made all contracts which were joint at common law both joint and several, and under such statutes an individual judgment can be rendered against one partner on a partnership debt. Our statute with reference to partnership debts makes them the joint debts of the partners. The rule is otherwise as to joint obligations not of partnership character. Outcalt v. Collier,
It is urged that, as the defendant was shown by the evidence to be a partner, this court should correct the judgment and permit it to stand. The trouble is that it is a jury case, being an action to recover money. The defendant has not waived a jury. There is no verdict against the partnership, but only an individual member of it. This court cannot render a judgment where there has been no verdict.
The case should be reversed and remanded.
By the Court: It is so ordered. *635