Nixon v. Downey & Wolverton, 42 Iowa 78

Nixon v. Downey & Wolverton

42 Iowa 78 | Iowa | 1875

Miller, Ch. J.

i okiginal vioo^'partnei'ship. This judgment must be reversed. There was no evidence whatever tending to show that any partnership had existed as alleged in the plaintiff’s petition, Indeed, the verdict of the jury finds that no such partnership existed, but it is rendered against a party who had never been served with notice of the action, or made an appearance therein. The original notice was served only on Wolverton. A service upon one partner during the existence of the partnership, gives the court jurisdiction over each member in an action against the firm. Saunders v. Bently, 8 Iowa, 516; Walker v. Clarke, Id., 474; Gregory, Tilton & Co. v. Harmon, 10 Id., 445; Stephens v. Parkhurst & Pence, Id., 70. But the fact of partnership is necessary to this result. The service of notice upon an alleged partner, *80when no partnership in fact exists, does not give the court jurisdiction over the alleged partner not served with notice and who does not appear to the action.

The court instructed the j ury, that if no partnership existed between the defendants, but that the defendant Downey alone made a contract with the plaintiff, substantially as alleged in the petition; that plaintiff had performed on his part, and that Downey failed to perform, they should find a verdict against Downey. As we have seen, Downey had not been served with notice of the action, and had made no appearance therein or filed any pleading, the court had no jurisdiction of him and this instruction was erroneous, and the ruling of the court refusing to set aside the verdict of the jury was. also error.

2 pmhding • aiioged partner-II. It is urged by appellee that the answer of Wolverton shows that he answered for Downey as well as for himself. -^11 examination of the answer shows clearly that Wolverton answers for himself alone. It cannot be construed into a joint answer of both defendants. But if it could be thus construed, it would not bind Downey, for there is nothing to show that he authorized Wolverton to answer for him, and not being partners no implied authority to do so would exist.

III. The record shows that on the trial of the issue, Downey was called and examined as a witness on behalf of Wolverton, and this is urged by appellee’s counsel as an appearance in the action.

3. juKTSDicanoe::aw?te-ai" nessAn appearance may be made in several modes under our statute (Code, section 2626), among which is, “by an appear - ance; even though specially made, by himself or attorney, for any purpose connected with the cause.” Under this clause it is claimed appellant’s examination as a witness was such an appearance as gave the court jurisdiction over him-. It would hardly be claimed that every witness examined in the trial of an action makes “ an appearance for any purpose connected with the cause.” They do not appear for any purpose connected with the action within the meaning of the statute. ‘ The appearance *81contemplated in the clause of the statute above referred to is an appearance by a party or his attorney iu which' the action of the court is invoked in respect to some matter connected with the" case or some pleading or paper is filed therein intending to affect the status of the case.

The record does not show that Downey, either by himself or by counsel, asked the action of the court in any matter, or for any purpose connected with the action, or that he filed or procured to be filed any paper of any kind whatever therein, or that he employed counsel for any purpose connected with the cause. It shows only that he was examined as a witness for Wolvei’ton. This was not an appearance within the meaning of the statute

Reversed