Слике страница
PDF
ePub

thereon, and that it be issued in the name and in favor of John A. Creighton and Patrick A. Larvey, surviving partners of E. Creiguton & Co. This was signed by John A. Creighton and Patrick A. Largey, “surviving partners of firin E. Creighton & Co., by Samuel Word, their attorney.” That an affidavit to revive the judgment, and stating that Patrick A. Largey and John A. Creighton were partners with Edward Creighton, and composed the firm of E. Creighton & Co., was filed the same day. That on the twentieth day of January, 1850, after a hearing "upon the motion of plaintiffs for leave of court to issue an execution upon the judgment,” the said court made and entered an order in the case now entitled Edward Creighton, John A. Creighton, and Patrick A. Largey, plaintiffs, against Robert Hedges, James Boyd, and Anson Potter, defendants. "That plaintiffs have an execution upon said judgment against the defendants James Boyd and Robert Hedges," these being the defendants served with the above notice. That afterwards, at the instance of Patrick A. Largey and John A. Creighton, a certified transcript of said judgment was filed with the clerk of the district court of Madison county, and was docketed in the manner prescribed by law, and an execution issued thereon directed to Marshall D. Platner, sheriff of Madison county, who, in obedience thereto, levied upon certain real property of the appellant James Boyd, and sold the same to Patrick A. Largey, one of the respondents.

It was further alleged that the judgment rendered in the probate court in favor of E. Creighton & Co., and against Robert Hedges, James Boyd, and M. D. Platner was “null and void for uncertainty, in this, that neither the Christian name of E. Creighton nor any one of the company is given, set forth, or mentioned in the action;" that “E. Creighton & Co. was a company and copartnership at the time said action was instituted,” and not a corporation; that more than six years had elapsed since the rendition of the judgment at the date of the proceeding to revive the same, and that in the mean time no property of the defendants was sold under an execution issued by virtue of said judgment; that before the revival of the judgment Edward Creighton had died, and that no one had been appointed to administer upon his estate, nor had he any executor or legal representative; that unless restrained, Marshall D. Platner, sheriff of Madison county, will execute and deliver to Patrick A. Largey, a deed for the real property sold by him as above stated, which, if done, will cast a cloud upon the title of plaintiff.

The prayer of the complaint was for an injunction, pendente lite, that upon the final hearing the sheriff be perpetually enjoined from making or delivering a deed to the property so sold, or any part thereof, to Patrick A. Largey, and that "the said Patrick A. Largey and John A. Creighton, their agents, attorneys, and legal representatives, and also the legal representatives and surviving partners of E. Creighton & Co., be perpetually restrained from taking any action or proceeding under” said judgment of E. Creighton & Co., and that said judgment be declared null and void and of no effect. On the second of November, 1881, an order was made by the judge at chambers enjoining the sheriff from making and delivering a deed for the said property until the further order of the court. The ground of demurrer was that the complaint did not state facts to constitute a cause of action. The court sustained the demurrer, and the appellant abiding bis complaint, judgment was rendered dismissing the action and dissolving the preliminary injunction, and for the defendants, for costs.

The only question presented to the court by the argument of the appellant relates to the legality of the proceedings and judgment in the original action of E. Creighton & Co. in the probate court. The law requires that the “action” shall “be prosecuted in the name of the real party in interest," and that the complaint should contain "the names of the parties to the action, plaintiff and defendant." There was no statute providing that a suit might be brought in a firm or copartnership name. E. Creighton & Co. was not the name of a person; the record showed it to have been the name of a company or copartnership. But it may be assumed that E. Creighton was the name of one of an association of persons con. stituting a partnership, whose name was E. Creighton & Co. The defendant should therefore have demurred to the complaint for a de. fect of parties. Gilman v. Cosgrove, 22 Cal. 357.

But it is further claimed that E. Creighton is not a legal name, and that the Christian name of Creighton should have been stated in the complaint in the original action in the probate court, and the judgment rendered in the case is therefore void for uncertainty. Reliance for this position is had upon the case of Wiebold v. Hermann, 2 Mont. 609. It is true that in this case the majority of the supreme court so held. But the question there raised before the court, was on the overruling of a demurrer to the complaint, on the ground that the Christian name of the plaintiff did not appear therein. The bearing of such a defect upon the judgment, where no objection had been made to the complaint on that ground at the proper time, was not before the court, and so far as the effect on the judgment was concerned, the language of the court was obiter dictum. The same question came before the court at the same term, in the case of Nichols v. Dobbins, 2 Mont. 540, on an appeal from an order overruling a motion for a new trial, when the objection came too late, being taken after answer, and it was held by the court, the same judge, (WADE, C. J.,) delivering the opinion in Wiebold v. Hermann, "that the appellant waived this objection by answering, thus recognizing the respondent by the name in which he brings this action.” The court say that it is too late to raise this objection to the complaint after answering, and it cannot be presented for the first time to this court after verdict on appeal.

In the case of Wicbold v. Hermann we held that the failure to set

a

[ocr errors]

forth the Christian name of the plaintiff, rendered the complaint uncertain. But this uncertainty must be taken advantage of by demurrer, or “the defendant shall be deemed to have waived the same.” Civil Pr. Act, $ 55. In the case at bar no such objection was ever made, and it is now too late to urge it in this application, to stay proceedings at law and to nullify the judgment. The argument presented to this court by the appellant only raises the above question, but as this is an appeal from an order sustaining a demurrer, and a judgment for the respondents in consequence thereof, the whole question is therefore properly before us, of the sufficiency of the complaint, to warrant the relief demanded.

The law in relation to issuing executions on judgment after five years from the entry thereof, contained in the Revised Statutes, (section 813, Code Civil Proc.,) limits the court to the exercise of this power alone upon compliance with its provisions, and grants no authority to modify the judgment in any way whatever, or to change the record upon which it was obtained. “As a general rule, no final judgment can be amended after the term at which it was rendered." Freem. Judgm. $ 70. There are exceptions to this rule, as, for example, when the judgment can be amended by the record, or in the case of correction of mere clerical errors or misprisions by the clerk, which may be made so as to conform to the record and to the truth.

But the application that the execution issue in the name and favor of John A. Creighton and Patrick A. Largey, was not based upon any of the above grounds, but simply upon the fact that they were the surviving partners of E. Creighton & Co. The only foundation for the order authorizing the issue of an execution in their favor, the effect of which, if it had any at all, was to make them parties plaintiffs to the action, was an affidavit made at the time, being more than six years after the rendition of the judgment, in substance, that the above persons were, at the time of the rendition thereof, partners with Edward Creighton, under the firm name of E. Creighton & Co. We think that at this time, upon this showing, the probate court had no power to make the above order, so far as P. A. Largey and John A. Creighton were concerned, for want of jurisdiction. The record shows that at this time E. Creighton was deceased, and the application for a renewal of the judgment was not made by an administrator or other legal representative of the estate; nor was there ever a suggestion of his death upon the record, or the substitution of such administrator or other legal representative. Under these circumstances the order could not have the effect to revive the judgment or to authorize the issue of an execution. At the time, therefore, that the transcript of the judgment was entered in the district court, it was dormant, and was so at the time the execution was issued under which the sale of the real property was made, the delivery of a deed for which was asked to be enjoined in this proceeding. A dormant judgment is not a lien against real estate. Our conclusion, therefore, is that the judgment was only in favor of E. Creighton; that there was no revival thereof; that the filing thereof in the district court did not make it lien against real estate, and an execution could not issue thereon.

Judgment reversed and case remanded.

DEMERS v. MoCORMIOK.

Filed January 7, 1884.

Where the statement on a motion for a new trial is not settled and fled till some time after the motion is overruled, the assignment of error not being before the court below, will not be reviewed here.

From Second district, Missoula county.

Thomas C. Marshall, for respondent.

J. C. Robinson, for appellant.

GALBRAITH, J. This case comes before us on a motion to dismiss the appeal from an order overruling a motion for a new trial. The record shows that the motion for a new trial was overruled on the twenty-sixth of June, 1883, but the statement on the motion was not settled by the judge until the thirteenth of July next succeeding, and not filed by the clerk until the twenty-sixth of the same month. Consequently, at the time of the disposition of the motion for a new trial, it was not before the court. There was, therefore, no assignment of error, and nothing brought to the attention of the court authorizing the granting of said motion. The burden is upon the party making the motion for a new trial to specify the error upon which he asks a reversal of the judgment. This the appellant failed to do, and this court will review only such matters as were brought up for consideration in the court below.

Appeal dismissed.

SUPREME COURT OF WASHINGTON TERRITORY.

PARKER and others v. DENNY.1

Filed July 11, 1883.

The notice required for cases in error must contain a specific assignment of or. rors; the notice, in cases upon appeal, a specific list of the injurious rulings, decisions, or orders. The purpose of both is to narrow the range of controversy to its minimum, but the former is a pleading, the allegations of which are to be proved by the record, while the latter is in the nature of an election, the same rules for brevity and simplicity apply to both. A bill of exceptions has no place or function in a chancery cause.

Appeal from First district couri.

A. E. Isham, for appellant.

Allen & Thompson, for appellee.

GREENE, C. J. We are agreed that the formal defects of this notice of appeal, in regard to the title of the court and title of the cause, and the particular description of the judgment appealed from, are not such as would warrant a dismissal of the appeal. It is not every non-compliance with the provisions of section 458 that will fall outside the saving provisions of section 464. What the court is from which the appeal is taken, and what the cause and judgment are which are brought here, sufficiently appear from the notice. In these particulars there is a substantial compliance with the statute. But this notice has faults not so easily overlooked. Two sorts of notices are prescribed by section 458. One is for cases in error; the other for cases upon appeal. These two, though intended to be similar in structure, do not necessarily assume the same form. The one must contain a particular description of the errors assigned; the other a particular description of each ruling or order whereby the appellant olaims to have been aggrieved; or, in other words, one must have in it a specific assignment of errors, the other a specific list of injurious rulings, orders, or decisions. A like purpose is intended to be accomplished both by the list and by the assignment. It is to parrow the range of controversy to its minimum, to define it, and to apprise the adverse party and the appellate court of its extent. But the nature of the device for affecting this purpose is different in the one from what it is in the other. Under the old common-law practice, an assignment of errors was a pleading, the allegations whereof were to be proved by the production of the record from the lower court, and its nature is still the same when incorporated in the notice "See 7 Pac. Rep. 892, and 7 Sup. Ct. Rep. 767.

« ПретходнаНастави »