Ballou v. Skidmore

113 S.W. 441, 132 Ky. 342, 1908 Ky. LEXIS 124

• Court: Court of Appeals of Kentucky
• Decided: November 13, 1908
• Status: Published

Opinion

Opinion of the Court by

Chief Justice O’Rear.

Affirming.

Jerome Skidmore, who was- a merchant, sued; appellant and Ms former partner, W. E. Mlaupin, upon an account in the Harlan circuit court, and obtained a judgment. It appears that an attorney filed a joint answer on behalf of the defendants, but it does not appear that appellant, Ballou, otherwise appeared, or was served with summons. This action was brought upon a return of no property. Attachments in the nature of garnishee process were served upon appellant’s debtor, who- answered that it owed appellant something less than the amount of the judgment. In this action appellant answered, denying that he had been served with process in the common-law suit, and denying that he entered his appearance to it, or authorized the attorney or his former partner, Maupin, to enter his appearance or to file an answer in his behalf.

In his testimony appellant claimed that the account sued on had been settled by his executing a note for a smaller amount to Jerome Skidmore, which was subsequently paid; also that he and Maupin sold out their partnership business to another firm before the suit in which the first judgment was rendered, the purchasers assuming the payment of the Skidmore debt, to which he assented, accepting their undertaking and discharging Ballou and Maupin. Skidmore denied that the note alluded to had any connection with the debt for which the judgment was rendered; and denied the novation. We think the evidence supports- Skidmore’s testimony on both these points-. We are also satisfied that appellant was not served with- summons in the first suit,- and did ‘not enter his appearance, or authorize the filing of the- answer in h'is behalf. While it has been, declared by some courts, though denied by others, that in an action by a creditor of a copartnership against the several parties- to recover personal judgments in- severalty against them, one partner might enter the appearance of the others not served, yet the authorities seem to be agreed that no such power exists in one partner after the dissolution of the firm. Parsons on Partnership-, section 118; Bates on- Partnership-, section 1092. It has also been questioned whether a judgment rendered against one not summoned, but. on whose behalf an answer had been filed by an unauthorized attorney (Durett v. Durett, 89 S. W. 210, 28 Ky. Law Rep. 275), is not void. In Holbert v. Montgomery’s Adm’r, 5 Dana, 11, it was held that the appearance by attorney, although the attorney was. without authority, was binding upon the party whose appearance was thus had. But this position seems to have- been abandoned in Howse v. Reeves & Co., 76 S. W. 513, 25 Ky. Law Rep. 949, and Francis v. Lilly’s Ex’x, 124 Ky. 230, 98 S. W. 996, 30 K. L. R. 391. In the case at bar we may say that in an action upon, a judgment a defense that the party against whom the judgment was rendered was not in fact before the court is a direct attack upon the record, under our practice, as much so as if the suit had been brought by him to vacate it. So treating it, we inquire into the merits- of the case-, disregarding the first judgment. It appears that appellant did owe, and' has not paid, to- Jerome Skidmore the- amount, for which, the judgment was rendered. Nor does he now make out a defense to same. Civ. Code Prac. section 90, provides that upon issue joined a plaintiff may have the relief to which he may show himself entitled upon a prayer therefor. In our view of* the record it was proper that the plaintiff, as assignee of Jerome Skidmore, should recover judgment now and in this action for the unpaid account. While the attachment was not authorized, there was no motion to discharge same, and to reverse the Case for that reason alone would involve nothing but the costs.

Judgment affirmed.