20 Fla. 536 | Fla. | 1884
There is no error alleged in the entry of the final judgment for damages and costs, and the plaintiffs evidently desire that it should stand.
We have here an appeal from an order dissolving the attachment, treating it as a final judgment upon the attachment proceedings. Is it a final judgment from which an appeal will lie ?
The statute says if either party shall feel aggrieved by a final judgment, sentence or decree, he may appeal. This suit was commenced by summons, and the writ of attachment was obtained as an ancillary proceeding for the purpose of securing a lien upon the defendant’s property, to satisfy the judgment when obtained. The dissolution of the attachment put an end to that .proceeding, but did not affect the progress of the suit upon the cause of action. Nothing further could be done under the attachment proceedings. The judgment dissolving the attachment having extinguished the plaintiffs’ lien, the defendant was entitled to the return of the property seized. It was not merely interlocutory ; nothing remained to be done to extinguish the lien. That litigation was terminated, and settled all the rights of the parties involved in it. “A decree or order is final, and withiu the provision allowing an appeal, which is conclusive as to its subject or object.” Baker vs. Lehman, Wright, Ohio, 522; Ware vs. Richardson, 3 Md., 505; Perkins vs. Sierra Nev., S. M. Co., 10 Nev., 405.
It was held in Harrison vs. Thurston, 11 Fla., 307, that a refusal to dissolve in a suit commenced by attachment, was not a filial judgment from which an appeal would lie, because something remained to be done to put an end to the suit. [It is respectfully submitted that the second head-note to the reported case does not refer to anything
Our conclusion is that the judgment of the court dismissing the attachment is such a final judgment, determining the rights of parties, that an appeal will. lie. Without this, the plaintiff would be without remedy, however erroneous the judgment might be; and it is clearly the policy of the law that an appeal should not only be effective to correct an error, but also effective to save the rights of parties. It is also clear that an appeal in a case like the present, postponed until after judgment upon the cause of action, would not save the lien of the attachment, though it. may be found that the Judge committed an error in dissolving the ancillary writ.
Concluding that the appeal here is effective to remove the record of the judgment dissolving the attachment to this court for review, and that the writ of error is not efficient to bi’ing up the matters involved in the appeal, to conserve the rights of the plaintiff if they are aggrieved, the writ of error must be dismissed, and the cause retained on the appeal.
It remains to be considered whether the bond is sufficient, having been signed and sealed in the partnership name.
The doctrine of the English common law was that a bond signed by one partner in the course of partnership business, without an authority under seal, binds only the partner who signs and seals it, although'it is signed and sealed in the name of the firm. The old authorities assert that no prior authority or subsequent ratification, either verbal or by writing without seal, is sufficient to give va
Chancellor Kent, in his Commentaries, Vol. 3, 48, says : “ The more recent cases have very considerably relaxed'the former strictness on this subject; and while they profess to retain the rule itself, they qualify it exceedingly in order to suit the exigencies of commercial associations. An absent partner may be bound by a deed executed on behalf of the firm by his co-partner, provided there be either a previous parol authority, or a subsequent parol adoption of the act.” Skinner vs. Dayton, 19 Johns., 512; Anderson vs. Tompkins, 1 Brock., 462; Cady vs. Shepherd, 11 Pick., 405, 406; Bond vs. Atkin, 6 Watts & Serg., 166; Gram vs. Seton & Bunker, 1 Hall., N. Y., 362; Milton vs. Mosher, 7 Met., Mass., 244; Herbert vs. Hanrick, 16 Ala., 581; Smith vs. Kerr, 3 N. Y., 144; Drumright vs. Philpot, 16 Ga., 424; Swan vs. Stedman, 4 Met., 548; Ely vs. Hair, 16 B. Monroe, 230; Story on Part., §121, note 2.
In Ball vs. Dunsterville, 4 Term R., 313, it is decided that if A execute a deed for himself and his partner, by the the authority of his partner and in his presence, it is a good execution though sealed but once. Gibson vs. Warden, 14 Wall., 244, 247; Purviance vs. Sutherland, 2 Ohio St., 478. In Kasson vs. The Estate of Brocker, 47 Wis., 79, 85, an appeal bond was signed Kasson & Royes, as principals in the matter of a claim prosecuted by them ; it was held that a bond signed by one partner in the partnership name will bind all the parties consenting to such signature, and will bind their heirs. To the same effect see
The written deposition of Jeffreys that he authorized and ratified the signing of the bond was sufficient to bind him to the act of Stribling, his. partner, and the bond was the deed of both partners.
It is therefore considered that the writ of error in this case be dismissed ; that the judgment of the court dissolving the attachment was a final judgment from which an appeal would lie, and the judgment dissolving the attachment is reversed with costs.