23 Colo. 287 | Colo. | 1896
delivered the opinion of the court.
The assignments of error are based upon the refusal of the court below to quash the summons to show cause, and present for our consideration two questions: First, whether a partnership indebtedness constitutes an obligation witbin the meaning of section 285 of our Code of Civil Procedure, which provides: “ When a judgment is recovered against one or more of several persons, jointly indebted upon an obligation, by proceeding as provided in this act, those who were not originally served with the summons, and who did not appear to the action, may be summoned to show cause why they should not be bound by the judgment, in the same manner as though they had been originally served with the summons.” Second, whether the original judgment is in conformity with and was recovered by a proceeding provided in the Code of Civil Procedure. Counsel for plaintiff in error rely upon the doctrine of the Exchange Bank v. Ford, 7 Colo. 314, in support of' their claim that the word “ obligation ” as used in section 235 does not include a partnership indebtedness, but contemplates an indebtedness arising upon, and evidenced by, an agreement in writing. In that case the court had under consideration the meaning to be given to the word
“As the result of our investigation, we feel justified in stating the conclusion that whenever the word obligation is used in a statute as the name of a contract—as it is in the sections now under consideration,—an agreement in writing, sealed or unsealed, is referred to; where, in a legislative provision, it is used with reference to legal duty or liability, such duty or liability may arise from an oral or written contract, or, in some instances, from actionable tortious conduct. * * * The word is used in statutes, as well as in text-books and decisions, with these different meanings; and the significance to be given it in each statute must be gathered from the purpose and context of the enactment.”
Is the word used, in the code provision under consideration, to describe the contract itself, or with reference to a legal liability arising from an oral or written agreement, or both ? Tested by the foregoing rule, and remembering that “ obligation ” is a generic word, and when used in its broadest sense includes all kinds of contracts by which a person may become bound, and should be so construed, unless from the connection in which it is used it is to be gathered that the legislature intended to give it a more limited signification, and, reading this provision in connection with section 42, chapter 3, of the code, to which it refers, as providing the proceeding by which the judgment was recovered, it is evident that the word is used therein in its broader sense, and refers to any joint indebtedness arising from contract, express or implied, oral or written. The latter section is as follows :
“ Where the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows: First, if the action be against defendants jointly indebted upon a contract, he may
It is manifest that the joint indebtedness herein referred to includes a partnership indebtedness; and that the word “contract,” as here used, upon which such indebtedness arises, is designated as an “obligation” in section 285; and that the two words are used in the same sense, and as expressing the same legal duty or liability. We think, therefore, that the indebtedness upon which the original judgment was recovered arose upon an “ obligation,” within the meaning of that section.
While the original judgment is not. pro forma against the partnership of J. S. Sanderson & Company, yet we think it is in substantial conformity with the requirements of section 42 of the code, and not obnoxious to the objections urged upon the second assignment of error. It was within the discretion of the trial court, under the provisions of that section, to permit plaintiff to proceed against the defendants served; judgment, however, to be entered against all jointly indebted, so far only as to be enforced against the joint property of all, and the separate property of those served. In the original action all the parties were joined as defendants, including plaintiff in error ; and while it is true that the money judgment was not entered formally against all, it was in terms made enforceable against the joint property of all, and the individual property of those served. It is evident from the fact that the judgment was made so enforceable against the joint property of all the defendants that the evidence introduced showed that the plaintiff in error was jointly liable with the defendants served; and if it can be said that the judgment as rendered does not strictly conform to all the requirements of section 42, the alleged defect is at most an informality that in no way prejudiced the rights of plaintiff in error. It is certainly not invalid for any of the reasons
Affirmed.
