Cooper v. Burch

LORIGAN, J.

On October 2, 1896, an action was brought on a promissory note for twelve thousand dollars, purporting to be jointly executed by J. D. Burch, J. R. Boal, and

[550]

the appellant G. B. Patton, by J. R. Boal, his attorney in fact. Summons was served on Burch and Boal, who made default, and on October 4, 1897, judgment was entered against them both for $25,244.67.

No service of summons was made on the appellant Patton, who was a resident of Kentucky, but on August 19, 1899, waiving the service required by sections 990 and 991 of the Code of Civil Procedure, he appeared in the action and answered the complaint, denying that Boal was ever authorized as, or constituted his attorney in fact to execute said note.

On April 5, 1900, plaintiff applied to the court for leave to file an amendment to the original complaint, which, over Patton’s objection and exception reserved, was granted.

The amendment, alleged that all of said defendants were partners; that said twelve thousand dollars was borrowed and applied for partnership purposes in discharging mortgage indebtedness, for which they were all liable as such partners.

The case was tried on the complaint as amended, findings filed, and a separate judgment rendered for plaintiff against defendant Patton for $34,359.20 and six hundred dollars counsel fees.

A motion for a new trial on all the statutory grounds was made and granted, and plaintiffs appeal. While the order granting the new trial is general, the particular grounds upon which the motion was granted were, that the lower court was satisfied error had been committed by it in allowing, over defendants’ objection, the amendment of plaintiffs to the original complaint, and also in awarding a separate and distinct judgment against the defendant, instead of a judgment against him fixing his liability upon the original judgment.

The chapter of the Code of Civil Procedure on “Proceedings against joint debtors” (secs. 989-994) provides that, “When a judgment is recovered against one or more of several persons, jointly indebted upon an obligation, . . . those who were not originally served with the summons, . . . may be summoned to show cause why they should not be bound by the judgment in the same manner as though they had been