41 W. Va. 368 | W. Va. | 1895
The following statement of the proceedings in this case is adopted from the petition for the writ of error, to wit: “On the 16th day of October, 1875, the petitioners, partners as J. W. Lee & Co., instituted an action of assumpsit
When the suit is on a joint and several demand, a judgment against all would be void as to those not served with process, but valid as to those served, or appearing to answer the action. In either case a motion to quash an execution on such judgment should not be sustained in favor of the defendants served with process, or appearing to answer the action, as in one case the judgment would be binding, and in the other the proper proceedings would be in error, either by motion under the statute, or appeal. 1 Freem. Judgm. § 136; Hoffman v. Birch, 22 W. Va. 537; Poe v. Machine Works, 24 W. Va. 523.
All contracts with partners arc joint and several, and each partner is liable to pay the whole, and in what proportion the others are contributors is a matter merely among themselves. 2 Tuck. Bl. Comm. 141; Courson v. Parker, 39 W. Va. 524 (20 S. E. 583). Such being the case, a creditor has the right to sue one or all, and take judgment against one or all. In the case of St. John v. Holmes, 20 Wend. 609, it was held: “Judgment against a firm will not be vacated because it was unauthorized by one of the
While the courts of some states still hold to the doctrine of the entirety of a judgment, the courts of this state never have done so; and they are fully sustained by the voice of justice, reason, and authority. For why should a defendant against whom a judgment is proper and just have the right to vacate it, and escape its payment, because it is void as to some one else? When the person against whom it is void has reason to. and complains, it will be time enough for the court to interfere in his behalf. As to all others it is mere harmless error, and in no wise prejudicial. As was said in Poe v. Machine Works, supra, a judgment “being void in toto as to the one, it was never a joint judgment, but only a judgment against the one as to whom the court had jurisdiction. Gray v. Stuart, 33 Gratt. 357.”
The judgment complained of is reversed, and case remanded to be further proceeded in according to law.