Golden State & Miners' Iron-Works v. Davidson

Hayne, C. Ejectment for an undivided seven tenths of a mine.

On November 13, 1880, and subsequently, Richard F. Knox, Joseph Osborne, W. T. Robinson, S. P. Ely, and Phillip V. R. Ely were mining partners engaged in working the Esperance mine, the legal title to which stood as follows: Eight tenths in Knox and Osborne (one of these eight tenths being held in trust for Robinson), three twentieths in S. P. Ely, and one twentieth in Phillip V. R. Ely. On December 13, 1880, Knox and Osborne mortgaged their seven tenths to the plaintiff. It does not appear whether or not this mortgage was recorded. On October 10,1882, the property as mortgaged was sold under a decree of foreclosure. Although the defendants were parties to the suit, the decree reserved the question as to the priority of their judgment mentioned below. The plaintiff became the purchaser at the sale, and in due time obtained the sheriff’s deed.

The defendants’ title is as follows: Between February 28,1881, and September 12th of the same year, the partnership became indebted to the defendants for supplies furnished, and money paid in and about the working of [391]the mine; and on September 23, 1881, the defendants commenced an action at law against the five partners to recover what was due on such indebtedness. No service of summons was had upon the two Elys, who were nonresidents, and they did not appear. On December 13, 1881, a judgment was rendered against all the partners, by which it was ordered, adjudged, and decreed that the plaintiffs in said action (defendants herein) “ do have and recover of and from the said defendants, Richard F„ Knox, Joseph Osborne, W. T. Robinson, Samuel P. Ely, and Phillip V. R. Ely, partners and associates doing business under the firm name of Knox and Osborne, the sum of. $5,035.17, in gold coin of the United States, together with plaintiffs’ costs and disbursements, amounting to the sum of seventy-two dollars.” The judgment contained the following provision: “And it is further ordered and adjudged that the said plaintiffs do have execution against the separate property of the defendants, Richard F. Knox, Joseph Osborne, and W. T. Robinson, or either of them, the parties served with process in this action, as well as against the joint property of all the said defendants, partners and associates as aforesaid.”

An appeal was taken from this judgment, but no stay of execution was had, and pending the appeal execution was issued, and on February 27, 1882, the property was sold to the defendants, who, after the usual period, received the sheriff’s deed. Upon the appeal it was held that the action was not brought under section 388 of the Code of Civil Procedure in relation to persons transacting business under a common name; and that section 414 of the code did not authorize a judgment ■ against the joint property; and that inasmuch as the two Elys had not been served with process, and had not appeared, the judgment should be modified by striking out their names. The court did not, however, order the clause above quoted as to the joint property to be stricken out. (Davidson v. Knox, 67 Cal. 143.)