34 Ill. 459 | Ill. | 1864
delivered the opinion of the Court:
It is insisted as a ground of reversal, that there is nothing in the record to show that plaintiff in error was a corporation; and if there is no such evidence, the presumption should be, that it is a copartnership. And if it was a copartnership that the suit should have been against the individuals composing the firm. That it is irregular to sue a firm by its partnership name. The seventh section of the attachment act, Scates’ Comp. 229, declares, that in original attachment proceedings defendants may be designated by their reputed names, by surnames, and joint defendants by their separate or partnership names, or by such names, styles, or titles as they are usually known. Whatever may be the common law governing such cases, this act has made it sufficient, if the defendants are described by their firm name, by the style or title by which they are known. In this case the plaintiffs in error are known by the firm name, the style or the title by which they are sued. If they compose a partnership they are properly sued, if a corporation the designation is correct; so no error is perceived in the description by which plaintiffs in error were sued, whether they are a corporation or only a partnership.
It is insisted that the service of the garnishee process upon the company was insufficient to sustain the judgment. By the amended return it appears, that if plaintiffs in error is a corporation the service was sufficient, and in strict compliance with the statute. It states, that the president of the company not residing in the county in which the suit was pending, that the writ was served upon the company as garnishee, by reading and delivering a copy thereof to Henry Colvin and James C. Fargo, agents of the company, and on D. B. Cooke, their clerk.
This, then, presents the question whether this is a corporation. Plaintiff in error appeared to the suit by the name of the “United States Express Company,” and this is a sufficient admission that such is their name.In the case of Henriques v. Dutch West India Company, 28 Raym. 1535, it was held, that the name of the company imported a corporation. And the same rule has been announced or recognized in the courts of New York in the case of Stoddard v. Onondaga Conference, 12 Barb. 570; Kennedy v. Cotton, 28 id. 62.
These cases show that such a name imports a corporation. It seems to comport with reason, that when an association of persons assume a name, which implies a corporate body, and exercise corporate powers, should not be heard to deny that they are a corporation. When they do act and contract they are estopped from denying their corporate liability.
The first section of the act providing for garnishee proceedings, declares that the court may proceed against garnishees in the same manner as is required by law in original attachment suits. It then follows, that the service being sufficient under the seventh section of the attachment act, it must be so held in this proceeding. There was no want of jurisdiction, because of the absence of sufficient service upon the company.
It was likewise insisted that the court below erred in refusing to set aside the judgment by default against the garnishee. Process was duly served, a conditional judgment was entered, interrogatories filed, the company failed to answer and a judgment by default was entered. Application was afterwards made to set aside this judgment on affidavits, in which it was alleged that an attorney was employed to prepare the answer, who was absent when the default was taken, in attendance on business in this court. That he was mistaken as to the court in which the answer was required to be made, and thus omitted to file it as he intended and would otherwise have done. The agent of the company swears that he retained the attorney, and afterwards gave no further attention to the matter, and left immediately after he was served for New York city, on business, and did not return for some five weeks afterwards.
He fails to state that he gave any information or directions to the attorney as to the preparation of the answer. It is not diligence for a party merely to retain counsel to prepare an answer to interrogatories, propounded to, and which are required to be answered by the party himself, and under oath. The company, we think, fails to show diligence in preparing their defense. But even ifi this were not so, it rests alone in the sound discretion of the court whether a judgment by default shall be set aside and the party permitted to make a defense. And if satisfied that justice required it, the court "below should have set it aside. This is the well recognized rule, and is of uniform, application. Being a matter of discretion in the court below, this court will not review or correct its decision on error.
No error is perceived in this record, and the judgment of the court below is affirmed.
Judgment affirmed.