Hooper & Frazier v. J. L. Farwell & Co., 3 Minn. 106

Hooper & Frazier v. J. L. Farwell & Co.

3 Minn. 106 | Minn. | 1859

By the Gov/rt

— Flandrau, J.

Both Hooper and Frazier, the Defendants in the Justice’s Court, were personally served with the process, Hooper alone appeared and swore that he had no interest in the matter, and was not and never had been *108a partner* of the Defendant, Frazier. The Justice rendered judgment against Frazier alone for the amount of the Plaintiffs’ claim. Whether he had any right to render such judgment, or should have found for the Defendants, is of no interest here, and will not be considered, as the appeal brings the case into the District Court, in the exact condition it was in before the trial below, and the District Court proceed to try it “in the same manner as near as may be, as in actions originally commenced in that Court.” Stats. of Minn., New Ed., page 517, See. 189. The issues are the same unless changed by the Court. 15. iSee. 140. It was the suit of J. L. Farwell & Co. against Hooper & Frazier, that came up by the appeal, and not J. L. Farwell & Co. against Frazier alone, as contended by the Counsel for the Plaintiff in Error. The very reason of the bringing of the appeal was because Hooj>er was allowed to go clear and the' judgment rendered against Frazier alone, which Frazier succeeded in showing the District Court was wrong, and procuring the judgment to be rendered against himself and Hooper jointly, as it would have been below had the proof been the same as Frazier made it in the District Court.

The error which the Counsel for the Plaintiff in Error has fallen into, is that the judgment in the Justice’s Court against Frazier alone was a dismissal of the action as to Hooper, so as to place him beyond the jurisdiction of the Court, or rather to discharge his person from the jurisdiction acquired by the service of the original process upon him, and that the appeal was consequently confined to Frazier, and the District Court had jurisdiction of his person alone. He then claims that Frazier, by proving the demand .to be against himself and Hooper jointly, the Plaintiffs must be non-suited, as the action is against Frazier alone. This is quite an ingenious way of avoiding a judgment, but the theory is not tenable. The appeal brought the case into the District Courtj and that Court became possessed of it, and obtained jurisdiction of the parties just as fully as had the Court below, at the time of the first joining of issue.

Suppose Hooper liad never been served at all, the demand being against him as a joint contractor with Frazier, the Court *109would have become possessed of jurisdiction over his person the moment the summons was served upon Frazier, {Stats, of Mmn., New NS., $>. 533, See. Id,) and could have rendered a judgment against him jointly with Frazier, upon which the joint property of Hooper with Frazier could, have been seized and sold. Ib.p. 539, Seo. 57, subd. 1. Now when the cause came into the District Court the Plaintiff was still urging his demand against the two jointly, and had one at least of them in Court; if he succeeded in establishing a joint-demand against the two, under section 57 above cited he was certainly entitled to his judgment against them both, whether Hooper was served or not. This is all that he has obtained, and the Plaintiff in Error has nothing to complain of. Such would have been the result had the suit been brought in the District Court and Frazier alone served.

If Frazier thought the Justice had committed an error in law in rendering a separate judgment against him, his proper course would have been to have asked to review it by a writ of certiorari, but'he seems to have felt aggrieved by the judgment not having been rendered against them both, which he corrected on appeal, the only mode by which that could have been done.

We think there was no error in the District Court, and that the judgment should be affirmed.