Sandwich Manufacturing Co. v. Herriott

Supreme Court of Minnesota

Sandwich Manufacturing Co. v. Herriott

33 N.W. 782, 37 Minn. 214, 1887 Minn. LEXIS 86

CourtSupreme Court of Minnesota

DecidedJuly 18, 1887

StatusPublished

Cited by2 cases

This text of 33 N.W. 782 (Sandwich Manufacturing Co. v. Herriott) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sandwich Manufacturing Co. v. Herriott, 33 N.W. 782, 37 Minn. 214, 1887 Minn. LEXIS 86 (Mich. 1887).

Pincite

Opinion

Vanderburgh, J.¹

The judgment was properly rendered against the defendant Herriott. He was sued as a member of the firm of Kimberly & Herriott, and it was alleged and proved that there was such a partnership, and that he executed the notes sued on as a member thereof in the firm name. There is no doubt of his liability on the notes. Samuel Kimberly, who was not served, and who did not appear, was joined as the other partner. At the trial the defendant Herriott claimed, and proceeded to prove, that Samuel Kimberly was never a member of the firm. He cannot now be heard to complain that the court ruled in accordance with his contention on this question, and he was not legally prejudiced by the misjoinder. Pom. Rem. § 290.

He also offered evidence, in the same connection, to prove that one P. L. Kimberly was the other partner; but the court very properly held that the defect of parties by reason of the failure to name P. L. Kimberly as one of the defendants could only be taken advantage of by answer. It is the purpose of the statutory provision on this sub-[215]*215jeet to require such objections to be taken before the trial upon the merits; and that this rule is applicable in such a case as this is settled in Davis v. Chouteau, 32 Minn. 548, (21 N. W. Rep. 748.) Under the circumstances, we are unable to see why the record might not have been amended by adding the name of the proper party, but this the defendant did not ask. He evidently relied upon the mistake and non-joinder as fatal to the action. His real defence was a defect of parties, and this was waived by the general nature of his answer, which served to conceal the point he intended to rely on. The judgment is a just one, and the construction of the statute which prevents a defendant from defeating an action at the trial on the merits, through the omission of one of several joint parties, or a mistake of a name, where the' defendant served fails to point it out by his pleading, is evidently the proper one.

Judgment affirmed.

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Vanderburgh, J.¹

The judgment was properly rendered against the defendant Herriott. He was sued as a member of the firm of Kimberly & Herriott, and it was alleged and proved that there was such a partnership, and that he executed the notes sued on as a member thereof in the firm name. There is no doubt of his liability on the notes. Samuel Kimberly, who was not served, and who did not appear, was joined as the other partner. At the trial the defendant Herriott claimed, and proceeded to prove, that Samuel Kimberly was never a member of the firm. He cannot now be heard to complain that the court ruled in accordance with his contention on this question, and he was not legally prejudiced by the misjoinder. Pom. Rem. § 290.

He also offered evidence, in the same connection, to prove that one P. L. Kimberly was the other partner; but the court very properly held that the defect of parties by reason of the failure to name P. L. Kimberly as one of the defendants could only be taken advantage of by answer. It is the purpose of the statutory provision on this sub-[215]*215jeet to require such objections to be taken before the trial upon the merits; and that this rule is applicable in such a case as this is settled in Davis v. Chouteau, 32 Minn. 548, (21 N. W. Rep. 748.) Under the circumstances, we are unable to see why the record might not have been amended by adding the name of the proper party, but this the defendant did not ask. He evidently relied upon the mistake and non-joinder as fatal to the action. His real defence was a defect of parties, and this was waived by the general nature of his answer, which served to conceal the point he intended to rely on. The judgment is a just one, and the construction of the statute which prevents a defendant from defeating an action at the trial on the merits, through the omission of one of several joint parties, or a mistake of a name, where the' defendant served fails to point it out by his pleading, is evidently the proper one.

Judgment affirmed.

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Bluebook (online)

33 N.W. 782, 37 Minn. 214, 1887 Minn. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sandwich-manufacturing-co-v-herriott-minn-1887.

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