21 Iowa 494 | Iowa | 1866
When a plaintiff sues a firm by giving the individual names and serving all with notice, he may take the property of either partner under his execution, without scirefacias. Hamsmith v. Espy, supra; Jones v. Jones, 13 Iowa, 276; Levally et al. v. Ellis et al., Id., 544.
In the case under consideration, it was entirely competent and proper to introduce in evidence, and consider the pleadings and other records in the cause wherein the judgment was rendered, under which the sale of the property in controversy was made. Those pleadings and records disclose, beyond controversy, the fact that this plaintiff was sued as an individual, and as one of the persons composing the firm of Myers & Markham,- was served with notice as such individual, appeared and answered as such, and after the rendition of the judgment, made payment thereon in the same character. Whether the judgment entry against “ Myers & Markham ” shall be re yarded as a clerical mistake, as in McCoun v. Holmes <& Chinn, supra ; or as an abbreviation of the full names of the respective partners, or as an entry of judgment against the firm, it is not material definitely to determine. In view of the entire record of that case, there can be no serious question that the judgment, as between these parties, was a lien upon the property sold under it, and as a consequence, that the sale thereof was valid. Especially so, after the recognition of the rights of the purchaser at the sale, by the surrender of possession to him, and the accepting of a lease from, and the payment of rent to such purchaser, by the execution defendant, the defendant Townsend having acquired his title upon the faith of such recognition and acts.
It will be remembered that this plaintiff bases his right to set aside the sale solely upon the ground that the judg
Affirmed.