126 Va. 66 | Va. | 1919
delivered the opinion of the court.
This is an action of assumpsit brought by the Miners’ Bank of Commerce against the Coeburn Lumber and Planing Mill Company as maker, and certain other pei’sons as endorsers, upon a negotiable promissory note.
The declaration alleges, inter alia,, that “the Coeburn Lumber and Planing Mill Company, a partnership composed of E. T. Kiser, J. C. Perkins, Rhoda Perkins and A. B. Quillen, made a certain note in writing dated February 19, 1917, and subscribed their partnership name thereto, whereby they promised to pay to the Miners’ Bank of Commerce * * * the sum of $500.00.”
Process was duly executed upon all of the alleged partners and certain of the endorsers, none of whom appeared at rules, and an office judgment was accordingly entered against them. At the next succeeding term of the court, and before the expiration of the fifteenth day thereof, the defendant A. B. Quillen appeared, entered a plea of nonassumpsit and filed therewith his own affidavit to the effect “that no such partnership as that alleged in plaintiff’s declaration now exists, or has ever existed; that he has never been a member of such partnership, as alleged in plaintiff’s declaration; and that he did not make or cause to be made the note mentioned in plaintiff’s said declaration.” Thereupon, the office judgment as to A. B. Quillen was set aside, and subsequently on motion of the plaintiff in the cause was
Thereafter, and in due time, Rhoda Perkins, one of the defendants and the plaintiff in error, moved the court, pursuant to section 3451 of the Code, to set aside the judgment against her “for errors appearing of record” in the proceedings recited above. This motion was overruled, and to that ruling this writ of error was awarded.
It is contended, and this contention gives rise to the sole question presented for our decision, that upon the filing of the plea and affidavit of A. B. Quillen, it became the duty of the circuit court to set aside the office judgment as to all of the other alleged partners, and require the plaintiff to prove the existence of the partnership as to all of the alleged partners.
Every office judgment, in cases like this one, becomes final, unless previously set aside, on the last day of the succeeding term of court, or on the fifteenth day thereof, whichever happens first. Code, sec. 3287.
Section 3288 of the Code provides: “If a defendant against whom a judgment is entered in the office, whether an order for an inquiry of . damages has been made therein or not, shall, before it becomes final, appear and plead to issue, * * * the judgment shall be set aside unless an order for inquiry of damages has been executed; in which case, it shall not be set aside without good cause. Any such issue may be tried at the same term, unless the defendant show good cause for a continuance.”
Quillen’s plea of non-assumpsit, without the affidavit, was sufficient to put in issue as to him the existence of the partnership. (Shepherd v. Frys, 3 Gratt. [44 Va.] 442, 444), and that alone would have been effective to set aside the office judgment. The only additional effect of the affidavit was to put upon the plaintiff the burden of proving the partnership, a fact which may be and often is quite collateral to the main issue. His plea, however, set up no defense as to any one except himself, and his affidavit cannot be given any wider effect than the plea. In other words, the plea did not, to use the language of the statute, “put the matter in issue” as to Rhoda Perkins, and, therefore, could not inure to her benefit. The only method by which she could have had the office judgment set aside as to her was to appear in time and plead to issue (Code, sec. 3288; Burks’ Pl. & Pr., sec. 185, p. 275). This she failed to do, and the judgment became final.
In Creigh v. Hedrick, 5 W. Va. 140, an action of debt, the plaintiff sued three obligors, Creigh, Feamster and Montgomery, upon a joint bond. There was an office judgment as to all three defendants. Feamster and Montgomery appeared at the following term and filed pleas setting up defenses not available to Creigh. Thereupon, the trial court made an order, recited as being “on the motion of defendants,” whereby the judgment entered at rules was set aside. On appeal the supreme court of West Virginia said: “It is now insisted here that by this order the office judgment
In the case of Bank of Greenville v. Lowry, 79 W. Va. 10, 14, 90 S. E. 390, 391, an action against Lowry and Stover as partners, the Supreme Court of West Virginia says: “Defendants who are members of a firm may have separate or personal defenses. A plea filed by one would have the effect of setting aside an office judgment against him, but not as to his co-defendants. The language of the court on the filing of the affidavit of Lowry is:
“And the office judgment heretofore entered was then and there set aside; thereupon the defendant pleaded "nil debet: ”
This language is broad enough to include both defendants in the order setting aside the office judgment, but as the affidavit was filed only on behalf of the defendant Lowry, and the pleas were filed by him personally, it is plain that it was intended to set aside the office judgment as to Lowry only.
“ 'Where one of several defendants appears and files a
We have been referred to a number of authorities from other jurisdictions which are more or less in point, but we deem it unnecessary and profitless to review them. The question is simply one of statutory construction, and we entertain no doubt that under the terms of the Virginia statutes a.simple plea of non-assumpsit by one partner, either with or without an affidavit of the character filed in this' case by the defendant Quillen, while entirely sufficient to set aside the office judgment as to him, could not have that effect as to the other defendants.
We find no error in the judgment complained of, and the same must be affirmed.
Affirmed.