134 Iowa 484 | Iowa | 1907
Considerable confusion exists in the record, and we have had not a little difficulty in getting at a fair understanding of the questions sought to be raised on the appeal. As originally brought the suit was to recover upon two promissory notes each dated February 8, 1897, aggregating ' $700. executed in the name of the defendant Brass Works to plaintiff as payee, and in each the time of maturity was fixed at four months after date. Recovery was sought, not only as against the Brass Works, but as against the individuals made defendants, viz.: F. T. Green, J. H. Green,
It is argued by counsel for appellant, however, that plaintiff was not entitled to recover as against the individual defendants, because their liability, if such there was, arose out of the statute, whereas they were declared against as co-partners and were so found to be by the court. The argument is devoid of any merit. It is not of any moment that the defendants were designated in the petition as copartners. It is evident that they were being proceeded against as stockholders, and liability was charged against them because of the defective organization of the corporation, and in virtue of the statute. This was the view taken by the trial court in ruling upon the motion and entering judgment.
V. Error on the. part of the trial court in permitting a “ dismissal of plaintiff’s counterclaim against the objections of defendant” is contended for. We are at a loss to know what is meant by this. If the dismissal by plaintiff of the second count of his petition is the matter referred to, there was no error. Such is directly authorized by Code, section 3764. Code, section 3766, cited by counsel, will be found on second reading to have application only to. the right of a defendant to proceed on a counterclaim notwithstanding the dismissal by plaintiff of his caíase of action.
Upon the whole record, we are satisfied that the judgment should be, and it is, affirmed.