Welsh v. Kirkpatrick

By the Court, Sanderson, J.: This is an action against a Sheriff for refusing to levy upon and sell property under execution. The defendant refused to execute the writ on the ground that the judgment upon which it was issued was void. At the trial the Court held that the judgment was void, and that the defendant was therefore justified in refusing to execute the writ.

The judgment roll in the action in which the writ was issued, and which was offered in evidence at the trial, exhibits the following state of facts: The title of the action, as given at the head of the complaint, was “Martin Welsh v. M. Walsh et al., composing the Bed Star Mining, Company.” In the body of the complaint it is stated that “ said Bed Star Company ”—omitting the word “ mining ”—“ is a mining association, composed of a great number of persons who are so numerous and so much scattered over the country that plaintiff cannot serve them with process without much delay and great expense, and he therefore sues them by this company name.” Thereafter the complaint proceeds and sets out a cause of action which is for the recovery of money, and concludes with a prayer for judgment for the amount alleged to be due and owing against the “Bed Star Mining Company.” In his return to the summons the Sheriff certifies that he served the same by delivering a copy thereof to M. Walsh personally, one of the members of the “Bed Star Mining Company,” defendant,, etc. The time for answering having expired without any appearance, the Clerk entered the default, and immediately thereafter entered a judgment against the “ Bed Star Mining Company,” without naming Walsh, for the amount sued for to be enforced against the joint property, of the members of the company.

The Court below held that the suit was against Walsh alone, and that the Clerk had therefore no authority to enter a judgment against the “ Bed Star Mining Company.” The ground of the decision, as stated_ by the Judge in his conclusions of law, are that the complaint fails to show a case in which suit [205]may be brought against a company or association by the company style or name, as provided in section six hundred and fifty-six of the Practice Act; which is to the effect that where two or more persons are associated in any business, and transact such business under a common name, whether it comprises the names of such persons or not, they may be sued by such common name, the summons in such case being served on one or more of the associates, but the judgment shall bind only the joint property of the associates.