Waterman v. Lipman, No. 8946

No. 8946 | Cal. | May 14, 1885

Myrick, J.

Waterman, Truebenbach, and Waterman, alleging themselves to be partners under the name of Waterman & Co., commenced an action against Lipman, Louderback, and Cushing, to recover amounts alleged to be due on certain promissory .notes. Lipman alone was served with summons, and on his failure to answer, judgment was entered against him. Some four, years thereafter the plaintiffs took proceedings under sections 989 to 994 of the Code of Civil Procedure, for the purpose of obtaining an order that Louderback be bound by the judgment- which had been entered against Lipman. Louderback denied the partnership of the defendants and their indebtedness as such, and averred that plaintiffs had not complied with sections 2466 and 2468 of the Civil Code. On the -hearing plaintiffs offered as proof that they had complied with said sections 2466 and 2468, a.certificate'and proof of publication which stated that the firm of Waterman & Co. consisted of the above-named Waterman, Truebenbach, and Waterman, and also one Phister; also that said Phister was a member of said firm. Plaintiffs also asked leave to amend their complaint in the original action by adding the name of Phister as a member of the firm of Waterman & Co. The motion was denied, and subsequently a judgment of nonsuit was granted, from which plaintiffs appealed.

The rulings of the court beloxv were correct. As is said by respondent in his brief, Louderback was summoned to show cause why he should not be bound by a judgment which Waterman, Truebenbach, and Waterman had obtained against Lipman, not one obtained by Phister and the others; this proceeding is in the nature of an action upon a judgment, where the pleadings in the former action cannot be amended, nor could the judgment against Lipman be amended.

Judgment affirmed.

Thornton, J., and Sharpstein, J., concurred.