Newlon v. Heaton

42 Iowa 593

Opinion

Rothrock, J.

There are other causes for demurrer stated, but, as the arguments of counsel are principally directed to those above set forth, and as in our opinion the case must be decided upon the question as to the jurisdiction of the person of the defendant, "William Heaton, it is unnecessary to make a further statement of the case.

To recapitulate briefly — William Heaton was a resident of Pennsylvania, and Jester Hedge a resident of Des Moines, Iowa. They were doing business as partners under the name of Hedge & Heaton, as land agents, at the latter place. The firm was duly dissolved on the 3d day of July, 1857. Oil the 8th day of December, 1857, a suit was commenced on the promissory note above mentioned, in the District Court of Polk county, against Hedge & Heaton, and service of,the original notice had on Hedge alone. The defendant, Heaton, knew nothing of the note, or suit, or of any appearance therein, for some ten years after the judgment was rendered thereon. ■

1. PARTNERSHIP: liability after disolution. The first question for our decision is, did the District Court of Polk county have such jurisdiction of the person of defendant Heaton, that the judgment is conclusive against him? It is true that such service would be good as against the partnership, so far as the partnership property was concerned. The law in allowing a partnership to be sued by name, without selling out the individual members, recognizes in lh partnership a person distinct from the memhers, and a service upon one member after dissolution is sufficient so far as to authorize a judgment against the Arm as such, to be satisfied out of the joint property, or the separate property of the partner served. Hale v. Van Saun et al., 18 Iowa, 19. If, however, after dissolution of the part.nership, a suit be brought and service had on only one of two partners, no jurisdiction is acquired of the person of the partner not served, and the judgment as to him is void, and cannot be made the basis of an action to subject his individual property to its payment.

The partner served, after a dissolution, cannot implicate his co-partner in suits brought against the firm, by voluntarily appearing for him, or employing counsel for him. Hall v. Lowing, Sup. Court U. S., October Term, 1875; and see Stephens v. Parkhurst & Price, 10 Iowa, 71.

2.___:___:__. II. It is clai med that the defendant’s answer shows that 'he knew of this judgment several years before this suit was brought and made n.o effort to have it canceled, but permitted it to remain of record, thus by his negligence permitting plaintiff, an innocent purchaser, to acquire title thereto. We hold this judgment to be void, as against-this defendant personally, and we are unable to see how it can be made valid by his permitting it to remain of record, and -besides the petition shows that plaintiff purchased it in 1863, years before its existence was known by the defendant, as shown by the answer.

As the foregoing disposes of the case, it is unnecessary to examine the further points made in the arguments of counsel.

Affirmed.