Davidson v. Knox
Before: Thornton
Synopsis
Partners—Action against—Defendants not Served—Judgment.—In an action against copartners on a partnership obligation, where the names of all the individuals composing the firm are set forth both in the caption and the body of the complaint and summons, with the addition that they are doing business under a firm name, judgment cannot be rendered under section 388 of the Code of Civil Procedure against those defendants who have not been served with process and have not appeared; but a judgment entered in such action against those who have been served will not be vitiated as to them because the other defendants are included therein.
Thornton, J. In the caption of the complaint in this action -the defendants are thus named and described:—
“ Richard F. Knox, Joseph Osborne, Samuel R. Ely, W. T. Robinson, and Philip V. R. Ely, copartners, doing business under the firm name of Knóx & Osborne.”
The averment in the complaint as to the relations of defendants to each other is as .follows:—
“That the said defendants, Richard F. Knox, Joseph Osborne, Samuel P. Ely, W. T. Robinson, and Philip V. R. Ely, now are, and during all the times mentioned in said complaint have been, partners and associates, doing business under the firm name of Knox & Osborne, and as such partners and associates, owning, working, and operating a certain-quartz mine and quartz mill, situate near the village of Mokelumne Hill, in said county and State; the said mine being named -the Esperance Quartz /Mine, and the said mill being known as the Knox & Osborne Quartz Mill.”,
The complaint asks for judgment against “said defendants,”
The caption of the summons as regards defendants is in the same words as the caption of the complaint above quoted.
In the summons these words are used as to the defendants to whom it is directed and who are required to appear and answer: —
“ The people of the State of California send greeting to Richard F. Knox, Joseph Osborne, Samuel, P. Ely, W. T. Robinson, [145]. and Philip V. R. Ely, associates and partners, doing business under the firm name of Knox & Osborne.”
As to the requirement to appear and answer the language employed in the summons is: “You are hereby required :to appear in an action brought against you ..... and to .answer.” ....
The notification to the defendant in the summons is as follows:—
“And you are hereby notified that if you fail to appear and answer the said complaint as above required, the said plaintiff will take judgment against you for the whole of the principal ■.sum and accrued interest thereon as expressed in said notes and prayed for in their said complaint, and for costs of suit.”
Service was made on Robinson, Knox, and Osborne only. Robinson made default and Knox and Osborne answered. The cause was tried and the court rendered judgment as follows:—
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)