50 Neb. 209 | Neb. | 1897
In this case there was filed an opinion directing the affirmance of the judgment of the district court of Adams county. The evidence was not examined on that occasion, for the reason that it was not embodied in an authenticated bill of exceptions. (Winters v. Means, 48 Neb., 333.) Subsequently a satisfactory showing was made that before the cause was submitted there had been attached to the alleged bill of exceptions such authentication as entitled it to be considered, but that in some unaccountable manner this evidence had become detached. This, as secondary evidence, was deemed satisfactory within the rule recognized in Warren v. Brown, 31 Neb., 8, and accordingly a rehearing was granted. In this opinion we shall resume the history of this case at the point where it was broken off by the discovery that there was. no properly authenticated bill of exceptions.
It is now proper to state that in the answer and cross-petition of Means it was alleged that executions had issued from time to time upon the judgment against the firm of W. L. Smith & Co., and that the same had been returned unsatisfied for want of property wherewith to satisfy the same. As we view it, this pleading, after the dismissal of the petition of Leroy S. Winters by himself, stood as a petition for affirmative relief against a partner made sole defendant by his own procurement. This being true, Winters could not be heard to complain that the other members of said firm had not been joined as defendants with him. The pleading disclosed the rendition of the judgment against the firm of W. L. Smith & Co. and the insufficiency of the partnership property to satisfy the same. The prayer was that execution might be issued against Leroy S. Winters, according to the statute in such cases made and provided, and for such other further and different relief as' might be agreeable to equity and good conscience. By these averments, under ihe circumstances of this case, and by the prayer noted,.
We shall now consider the objections urged by Winters to the granting of the relief prayed in the case at bar. In the original and amended petitions of Means the firm against which judgment was sought was described as “W. L. Smith & Co., consisting of William L. Smith, John. J. Worswick, Leroy S. Winters, Charles Wells, and Henry P. Handy.” In this language there was really named but one defendant — W. L. Smith & Co. The quoted language which followed the ñamé of said firm was descriptive of its membership, and did not imply that these indi
The second contention made by the reply of Winters was that he was not a member of the firm of W. L. Smith & Co. at the time the cause of action accrued upon which suit was brought, but had previously severed his connec
It was finally insisted by Winters that more than four years had elapsed after the cause of action had accrued in favor of Means before summons was served on the firm of W. L. Smith & Co., and more than five years had elapsed before an appearance was entered by said firm. This was an attempt to impeach the judgment by pleading matter which might have constituted a defense if, at proper time, it had been interposed as such by the firm of W. L. Smith & Co. This was not done, and thereby there was waived the benefit of the statute personal to the defendant. (Taylor v. Courtnay, 15 Neb., 190; Atchison & N. R. Co. v. Miller, 16 Neb., 661; Scroggin v. National Lumber Co., 41 Neb., 195.)
Reversed and remanded.