Hempel v. Bay Circuit Judge

193 N.W. 281, 222 Mich. 553, 1923 Mich. LEXIS 723

• Court: Michigan Supreme Court
• Decided: April 27, 1923
• Docket: Calendar No. 30,771
• Status: Published

Opinion

Steere, J.

On October 20, 1921, plaintiff commenced an action of assumpsit by declaration filed in the circuit court of Bay county against the five defendants, John, Sam, Abe, Isadore and Myer Blumlo, doing business as the Saginaw-Bay City Auto Wrecking Co., a copartnership. Process was duly issued against all defendants and put in the hands of a deputy sheriff for service. After personal service had been made on defendant John Blumlo, Oscar W. Baker, a regular practicing attorney of that court, filed notice of retainer by and entered the appearance of all of said defendants, serving a copy on plaintiff’s attorneys, which, omitting title, etc., is as follows:

“To the above named plaintiff:

“Please take notice that I have been retained as attorney by the defendants in the above entitled cause whose appearance is hereby entered and a demand made for a bill of particulars of plaintiff’s claim as set forth in his declaration.

“Dated: November 7, 1921.

“Oscar W. Baker,

“Attorney for Defendants.”

On November 9, 1921, plaintiff’s attorneys filed a bill of particulars and served a copy on Baker as defendants’ attorney. On November 15, 1921, Baker filed and served upon plaintiff’s attorneys a plea of the general issue as follows:

“Now come the said defendants and demand a trial of the matters and things set forth in the bill of particulars and declaration of plaintiff.

“Oscar W. Baker,

“Attorney for Defendants.”

The cause being at issue, was then regularly placed upon the December, 1921, term calendar of that court for trial and thereafter continued for the four succeeding terms on motion of said Baker who presented in defendants’ behalf various grounds therefor. The case was finally brought to trial at the October term, 1922. Baker participated in the trial as counsel for defendants. Plaintiff introduced oral evidence of defendants’ liability, supported by the following memorandum :

“Bay City, Michigan, July 15, 1921.

“This is to certify that Charles Hempel has traded Overland for ■ Chevrolet. We are to furnish parts and he is to furnish labor to complete car.

“Bay City Auto Wrecking Company,

per Sam.”

And also defendants’ certificate of copartnership on file with the county clerk reading as follows:

“Certificate to be filed with the county clerk in accordance with Act No. 101, Public Acts 1907, State of Michigan.

“This is to certify, that Saginaw-Bay City Auto Wrecking Company is a copartnership and that the full name or names of the person or persons owning, conducting or transacting the business of said firm, together with the postoffice address or addresses of each of said firm, is as follows:

“John Blumlo, 1412 Columbus Ave., Bay City, Mich.

“Sam Blumlo, 514 N. Jackson St., Bay City, Mich.

“Abe Blumlo, 112 S. Farragut St., Bay City, Mich.

“Isadore Blumlo, 1412 Columbus Ave., Bay City, Mich.

“Myer Blumlo, 1416 Sixth St., Bay City, Mich.

(Signed) “Saginaw-Bay City

Auto Wrecking Company, “By John Blumlo.”

Early in the case Baker stated to the court that defendant Isadore Blumlo was a minor against whom a judgment would not be good, but furnished no evidence as to his age. No testimony was introduced in behalf of defendants.

At close of proofs the following colloquy occurred between court and counsel:

“The Court: I think he would be entitled to a judgment for $300.

“Mr. Baker: And have the curtains?

“The Court: Well, the testimony is he was ' furnish everything complete.

“Mr. Baker: Well, talking about the contract, under the contract—

“The Court: Well, isn’t that part of the contract, the top ? It is not' a mechanical part.

“Mr. Leibrand: Does not your honor think we are entitled to something for damages?

“The Court: I don’t hardly think so, under the testimony. I think you may have a judgment for $300.

“Mr. Baker: Who against, your honor?

“The Court: Against the defendants. There cannot be any personal judgment against the boy under 21.

“Mr. Baker: And there cannot be any personal judgment against only the partners served?

“The Court: That is all.

“Mr. Leibrand: There is an appearance here for all.

“The Court: Yes, but there cannot be any personal judgment against only those served.

"Mr. Baker: And those are John Blumlo, Sr.—

'“The Court: I don’t think there can be any judgment anyway on one who is not served.”

Thereafter counsel argued before the court the question of whether plaintiff was entitled to a judgment against those of the defendants who were not personally served but who had appeared generally by their attorney and pleaded the general issue. At no time during the course of these proceedings was it claimed by or for any of the defendants that Baker was not authorized to appear for and represent them, as their attorney. The only contention in behalf of the defense was that no judgment could be had against those not personally served.

Plaintiff’s motion for judgment was held for consideration and on January 2, 1923, the court made the following order:

“Charles Hempel,

Plaintiff,

vs.

“John Blumlo, et al.,

Defendants.

“Judgment having gone to plaintiff in this case the question came up on motion with reference to having same _ entered against the copartnership, and also the individuals named in the copartnership certificate, being all of the individuals doing business as the Saginaw-Bay City Auto- Wrecking Company.

“It is elemental that personal judgment cannot be entered against persons or their individual property, unless_ they have been personally served with process. In this cause it seems that the company was sued, and one of the copartners served with process. In view of the_ general rule, a judgment could not run against the individual property of the individuals not served, consequently a judgment may be entered in the case against the copartnership, and the individual partner served with process.”

Plaintiff’s counsel thereafter obtained from this court an order to show cause why upon the undisputed facts found by the court to establish a liability of $300 judgment should not be entered against all the defendants.

The foregoing facts are either admitted or not denied in the return, which concludes:

“Defendant further says that he believes he was correct in making the order of January 2, 1923, as set forth in paragraph 9 of the petition for an order to show cause and that no personal judgment under service of the declaration, appearance of attorney and testimony introduced in said cause could be entered against the individuals composing the defendant co-partnership other than John Blumlo, Sr.”

These defendants were sued upon a joint obligation <or liability arising out of a business in which they were partners. Had they not appeared generally in the case and pleaded the general issue unquestionably execution would not lie against those not personally served, but one of them was personally served and section 12798, 3 Comp. Laws 1915, provides that in such case:

“* * * Upon due proof that the process or declaration has been served upon either of such persons, the defendant so served shall answer to the plaintiff, and the judgment in such action if rendered in favor of plaintiff, shall be against all of the defendants in the same manner as if all had been served.”

The sufficiency of the judgment in point of law to personally bind one of the joint debtors against whom the judgment is taken cannot be anticipated or ruled on in advance. Gunzberg v. Miller, 39 Mich. 80. Vide, also, 3 Comp. Laws 1915, § 12834.

In this case, however, all defendants by their attorney entered a general appearance in the case and filed their plea of the general issue. Baker’s authority to act as their attorney was not questioned by them, and, it was not necessary for him, being an attorney of the court, to produce or file any warrant of attorney authorizing him to act (3 Comp. Laws 1915, § 12404; Norberg v. Heineman, 59 Mich. 210). Presumably these partners were a;dults of sound mind. There was no proof to the contrary. They could at their election appear by attorney or defend in person. (Constitution of Michigan, art. 2, § 12; 3 Comp. Laws 1915, § 12261.)

In Creighton v. Kerr, 87 U. S. (20 Wall.) 8, it is said:

“A general appearance waives all question of the service of process. It is equivalent to a personal service.”

Here defendants not only entered a general appearance but pleaded to the merits by filing and serving a plea of the general issue.

“Pleading to the merits brings the parties before the court whether lawfully served with process or not, and they cannot thereafter object to the manner in which they are brought in.” Manhard v. Schott, 37 Mich. 234.

Vide, also, Maxwell v. Deens, 46 Mich. 35; Dailey v. Kennedy, 64 Mich. 208; Gunn Hardware Co. v. Denison, 83 Mich. 40; Hannah & Lay Co. v. Mosser, 105 Mich. 18; Graham v. Cass Circuit Judge, 108 Mich. 425; Dunlap v. Byers, 110 Mich. 109; Fisher v. Hardwood Manfg. Co., 120 Mich. 490; Improved Match Co. v. Insurance Co., 122 Mich. 259; Lacomb v. Godkin, 143 Mich. 193; Roscoe v. Browne, 35 Pa. Sup. Ct. Rep. 646; 1 Abbott’s Prac. & Forms (Mich.), § 564.

The court having found that plaintiff was under the evidence entitled to a judgment for $300, judgment should have been rendered and entered against all the defendants in the same manner as if all had been served.

Writ will issue as prayed.

Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.