Smith v. Silvis

8 Neb. 164 | Neb. | 1879

Cobb, J.

The summons in this cause is against “ William L. Smith et al.” The petition is entitled John B. Silvis, plaintiff, vs. William L. Smith, Charles Wells, George Wells, and Leroy S. Winters, partners doing business under the firm name of William L. Smith & Co., and H. P. Handy, defendants. In the stating part of the petition all of the above named persons except Handy are named and charged to have been partners at the time of the execution and delivery of the note sued on. That they made and delivered the note in their firm name to Handy, who afterwards, and before maturity, waived protest and endorsed the note to Dorr and ITeffleman, who endorsed the same without recourse to the plaintiff, &c.

The only service endorsed on the summons is as follows; “State of Nebraska, county of Adams, ss. I hereby certify that on the 6th day of June, 1877,1 served the within writ of summons on the within named W. L. Smith et al. by delivering him personally a true and certified copy of the original summons with all the endorsements thereon as required by law.” Signed by the sheriff.

Charles Wells and George Wells appeared and put in an answer in the nature of a plea in abatement, denying tbe partnership and also denying tbe making of tbe note. No reply of any kind was made to tbis answer.

William L. Smith made a special appearance for tbe purpose alone of questioning tbe jurisdiction of tbe court, and moved for a dismissal of tbe suit as to him for insufficient service and other reasons. His motion was overruled. He made no further or other appearance in tbe case nor does bis default appear to have been entered.

On tbe fifteenth of February tbe plaintiff filed an affidavit and motion for continuance until tbe eighteenth of tbe same month, on account of tbe absence of a material witness on bis part, which motion tbe court allowed on tbe condition of tbe payment of ten dollars costs by the defendants. Tbe act of Feb. 25, 1875, authorizes tbe court in proper cases to impose tbe payment of a sum not exceeding ten dollars, together with tbe costs of tbe term, as tbe terms upon which tbe trial may be postponed, but tbe money is to be paid by tbe party asking tbe postponement to tbe adverse party. Laws 1875, p. 63.

Tbis record finally contains tbe following finding and judgment: “And now on tbis day tbis cause come on to be beard before tbe court upon pleadings and proof in said cause contained, and tbe court after bearing tbe evidence doth find that there is due the said plaintiff from tbe said defendants, William L. Smith and George Wells, on tbe note in said plaintiff’s petition described, tbe sum of nine hundred and forty-five dollars. It is further considered and adjudged by tbe court now here that tbe said plaintiff have and recover of and from tbe said defendants, William L. Smith and Charles Wells, tbe said sum of nine hundred and forty-five dollars, tbe sum as aforesaid found due, together with bis costs, taxed at $-.”

There is no bill of exceptions in this case, so we cannot tell what the testimony was. It is probable that there was evidence ¡moving that one of the Wellses was a partner of William L. Smith & Co., but which one of them we cannot learn from this record, the finding being against George and the judgment against Charles, and as there was no finding against Charles Wells the judgment as to him must be reversed.

As to William L. Smith, if he was ever in court, which is doubtful, he has a right to know who his partner is.

The question of partnership was fairly presented by the answer of the Wellses and it was error in the court to dispose of the case as was done without a finding on that point. Mason v. Embree, 5 Ohio Repts., 276. Headley v. Ruley, 6 Ohio Repts., 524. It was also error to render judgment against Smith without first defaulting him for want of an answer.

Eor these reasons the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.