Markham v. Buckingham

21 Iowa 494

• Court: Supreme Court of Iowa
• Decided: December 18, 1866
• Status: Published

Opinion

Cole, J.

1. judgment: copartnexsiup. Where an action is brought against a partnership, in their firm name alone, whether the judgment rendered therein is a lien only on the partnerpr0perf;yj js a question not yet adjudicated by this court. But the judgment plaintiff may, by scire facias, make the individual property of the members composing the firm liable to the judgment. Lewis & Bros. v. Conrad, Young & Co., 11 Iowa, 153; Davis & Co. v. Buchanan & Bone, 12 Id., 575; Rev. 1860, § 2785.

2. pabties: partners. The partnership may, however, be sued in the individual names of its members. Bev., § 2785. Such course was necessary at the common.law. Davis & Co. Buchanan & Bone, supra; Hamsmith v. Espy, 13 Iowa, 440. Under our code the partnership is recognized as an individuality, separate and distinct, or rather different from the members, and hence the right to sue and be sued in the partnership name.

2. judgment:; llen' In a contest between the judgment debtor' and a purchaser under execution issued upon the judgment, it is entirely competent for the purchaser to show by the pleadings and record in the action that the judgment attached as a lien upon the property purchased by him, although, in form, upon the face of the judgment alone, it did not appear to be a lien. Christy v. Dyer, 14 Iowa, 438; Patterson v. Linder, Id., 414; Delevan v. Pratt, 19 Id., 429. In the case last named, it was held that such showing did not in the least infringe upon the rule that a judgment is conclusive between the parties. In McCoun v. Holmes & Chinn (4 Littell [Ky], 389), where a judgment against one of two partners on a firm note, was entered by confession in the singular number, it was held to be a judgment against both, the previous part of the order, and other circumstances manifesting that the entry in the singular number was a clerical mistake.

When a plaintiff sues a firm by giving the individual names and serving all with notice, he may take the property of either partner under his execution, without scirefacias. Hamsmith v. Espy, supra; Jones v. Jones, 13 Iowa, 276; Levally et al. v. Ellis et al., Id., 544.

In the case under consideration, it was entirely competent and proper to introduce in evidence, and consider the pleadings and other records in the cause wherein the judgment was rendered, under which the sale of the property in controversy was made. Those pleadings and records disclose, beyond controversy, the fact that this plaintiff was sued as an individual, and as one of the persons composing the firm of Myers & Markham,- was served with notice as such individual, appeared and answered as such, and after the rendition of the judgment, made payment thereon in the same character. Whether the judgment entry against “ Myers & Markham ” shall be re yarded as a clerical mistake, as in McCoun v. Holmes <& Chinn, supra ; or as an abbreviation of the full names of the respective partners, or as an entry of judgment against the firm, it is not material definitely to determine. In view of the entire record of that case, there can be no serious question that the judgment, as between these parties, was a lien upon the property sold under it, and as a consequence, that the sale thereof was valid. Especially so, after the recognition of the rights of the purchaser at the sale, by the surrender of possession to him, and the accepting of a lease from, and the payment of rent to such purchaser, by the execution defendant, the defendant Townsend having acquired his title upon the faith of such recognition and acts.

It will be remembered that this plaintiff bases his right to set aside the sale solely upon the ground that the judgment was against the firm of Myers & Markham, and not against him individually. No question is made as to the adequacy of the price bid and paid at the sheriff’s sale, or as to the manner of the sale.

Affirmed.