33 Neb. 635 | Neb. | 1892
An amended petition was filed in this case as follows:
“The plaintiff complains of the defendant and states: That on the 22d day of June, 1880, the defendant recovered a pretended judgment in the district court of Adams county, Neb., against William L. Smith & Co., consisting of William L. Smith, John J. Worswick, Charles Wells, George Wells, Henry P. Handy, and this plaintiff, and plaintiff further alleges that this suit was brought by the said Jno. L. Means, defendant, against said parties alleged by him to compose .the firm of William L. Smith & Co., and a large number of other persons, and plaintiff alleges there never was any summons served upon him in said suit, and that he never appeared in said suit by attorney or otherwise, and thát he never authorized any one in- his behalf or for him.to appear in said court.
“ Plaintiff furthur alleges that he was never in any way
“Plaintiff further avers that in the cause of action brought by said defendant he alleges that the firm of W. L. Smith & Co. became indebted to him and that the claim set out in his petition was a claim against said partnership of W. L. Smith & Co., and there never was any service upon the said W. L. Smith & Co., or upon any of its officers or managers, as required by law, and the court rendering said judgment had no jurisdiction to render a judgment against William L. Smith & Co.
“ Plaintiff further alleges that said defendant is now seeking to, and threatening to, enforce said judgment against the property of this plaintiff. Wherefore plaintiff prays that said judgment may be vacated and set aside so far as the same relates to him individually, and that the defendant may be restrained from collecting or enforcing said judgment, and for such other and further relief as may be just and equitable in the premises.”
A motion was made by the defendant to strike out certain portions of the petition. What ruling was had on this motion we are unable to determine from the record. The defendant afterwards filed an answer as follows :
“ Comes now the said John L. Means, defendant, and answering the petition of the said plaintiff admits that on or about the 22d day, of June, A. D. 1880, he, the said defendant, recovered a judgment in the district court of said Adams county in a certain action then pending in said
“Said defendant denies that said Leroy S. Winters was not a member of said firm of W. L. Smith & Co. at the time of the contracting of the obligation sued on, or at the time of the commencement of said suit as alleged in said plaintiff’s petition; denies that said Leroy S. Winters had no notice of the pendency of said suit; denies that said Leroy S. Winters did not appear in said suit; denies that said judgment is unjust or that at the date of the rendition thereof said Leroy S. Winters had any defense thereto; denies that said Leroy S. Winters is not indebted to this plaintiff.
“2d. Said defendant, further answering the petition of said plaintiff, and by way of a cross-petition, alleges that said plaintiff Leroy S. Winters is the same Leroy S. Winters who was a member of the said firm of W. L. Smith & Co., and that the judgment heretofore referred to against said firm of W. L. Smith & Co. is now in full force and wholly unpaid, unsatisfied, and unreversed. That he caused executions to be issued from time to time, and which said executions,have been returned unpaid and unsatisfied for want of property wherewith to satisfy the same, and that the said firm of W. L. Smith & Co. is wholly insolvent and has been insolvent and unable to pay its former debts ever since the rendition thereof. Plaintiff further alleges that the said Leroy S. Winters knew of the pend-ency of said suit and employed attorneys therein as well on his own behalf as on behalf,of the firm of W. L. Smith & Co. That said judgment is a valid and subsisting obligation against the said Leroy S. Winters and against said W. L. Smith & Co.
Upon the filing of the answer the plaintiff dismissed the action without prejudice, whereupon the defendant moved for judgment on the answer. The plaintiff then asked leave to file a reply in the nature of an answer to the defendant’s answer. This the court denied and rendered judgment in favor of the defendant on the pleadings, and this is the error complained of. In this we think the court erred. The plaintiff should be permitted to plead and prove any fact tending to show that he is not liable on the defendant’s demand. He must have a full and free opportunity to do this. The court will not condemn him unheard. It was the duty of the court, therefore, to sustain the application, and if issues of facts were presented, determine the same from the evidence in the case. There was no evidence offered, judgment being taken by default. The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.