How v. Dorscheimer

31 Mo. 349 | Mo. | 1861

Napton, Judge,

delivered the opinion of the court.

A confession of judgment, upon a statement which merely sets out a promissory note as the consideration of the indebtedness, is subject to be set aside at the instance of other judgment creditors of the judgment debtor. But the judgment confessed is not a nullity; it is good and valid between the parties, and the party applying to have it vacated must show that his rights are affected by letting it stand. (Bryan v. Miller, 28 Mo. 32; Gilman v. Hovey & Buchanan, 26 Mo. 288.)

The confession of judgment in this case was made by a partnership firm, Brown & Warren. The application to set it aside is made by a judgment creditor of Brown, one of the partners. The partnership property is liable to the partnership debts, and until the partnership debts are paid an individual indebtedness of one of the partners can not be made out of the partnership effects. It does not appear from any testimony in this case, that the judgment creditor of Brown could be at all injured or in any way affected by Dorscheimer’s judgment against the partners, Brown & Warren. If it can be satisfied out of the partnership effects of Brown & Warren, without the necessity of touching any individual property of Brown, the judgment creditor of Brown has no interest in it, one way or the other; for he could not touch the.partnership effects until the partnership debts were paid. So if Brown has no property beyond the partnership property, a judgment creditor of him alone could have no interest in defeating the priority of a partnership claim or judgment against him and his partner.' If, however, it appeared that the partnership claim would exhaust the partnership effects, and that the individual partner against whom there was a separate individual judgment had property outside of the partnership, the judgment creditor of the partner might call upon the court to postpone the judgment creditor of the firm after he had exhausted the partnership effects. But no such case was made out in the application submitted to the court below, and the judgment is therefore affirmed.

Judge Ewing concurs. Judge Scott absent.