Opinion
December Term, 1841.
Where a plaintiff issued three separate writs on different days against three individuals, indorsing on each writ that it was for the same cause of action and in the same suit as the writs issued against the other two, and upon their return they were docketed as one suit and the defendants appeared and put in pleas thereto: Held, that whatever irregularities may have occurred in suing out the writs, these were waived by the defendants accepting a joint declaration and putting in pleas in bar thereto.
APPEAL from Bailey, J., at Fall Term, 1841, of ASHE.
Barringer for plaintiffs.
Boyden for defendants.
The case appeared to be this: It was an action of debt brought upon a promissory note, executed by John Tomlin in the name of John Tomlin Co. and payable to the plaintiffs. It was alleged on the part of the plaintiffs that the firm of John Tomlin Co. was composed of John Tomlin, William P. Waugh, and James Harper. Tomlin lived in the county of Ashe, Waugh in Wilkes, and Harper in Burke. Thee writs were issued from the Superior Court of the county of Ashe, one to the sheriff of Burke, returnable to Spring Term, 1839, and executed 31 January, 1839, on which was indorsed: "This writ is issued (150) in the same suit and for the same cause of action as two other writs, one against John Tomlin and the other against William P. Waugh, to Wilkes, and returnable to Ashe Superior Court, Spring Term, in favor of the same plaintiffs. The writ to the sheriff of Ashe against John Tomlin was issued 26 February, 1839, with a similar indorsement. The other writ to Wilkes does not show when it was issued. The sheriff indorses that he received it 7 March, 1839, and it has an indorsement similar to the others. These writs were returned to Spring Term, 1839, "Executed," and docketed by the clerk as one suit. At this term this entry is made upon the docket, to wit: "Harper and Waugh plead severally, general issue, payment, and set-off, statute of limitations with leave." At the same term Tomlin employed counsel, who entered no pleas for him. The cause was continued from term to term until Spring Term, 1841, when an attempt was made to try it, but there was a mistrial. The counsel for Harper and Waugh at that term proposed to the plaintiffs' counsel that Tomlin would confess judgment, and this entry is made on the docket: "Defendant Tomlin offers to confess judgment for debt and costs, which is opposed by the plaintiff's counsel and refused by the court." The cause was continued till Fall Term, 1841, when, coming on to be tried, it was moved by the counsel for Harper and Waugh that, as the writs had been issued at different times, they were separate suits and should be so entered on the docket; that to make one cause of action, the writs must be issued on the same day. The court overruled the objection, and held that the cause was properly docketed. The same counsel insisted that the cause was discontinued because no pleas had been entered for Tomlin and no judgment had been taken against him. The court was of a different opinion, and overruled this objection. The same counsel proposed again that Tomlin be permitted to come forward and confess judgment, and that they wished to introduce him as a witness for the other two defendants. His motion was opposed by the plaintiff's counsel and refused by the court. The jury were then charged to try the issues. It was in proof that the defendants composed the firm of Tomlin Co., and that the copartnership was in existence in 1834 and up (151) to September, 1835, when it was dissolved; that soon after the dissolution of this firm Tomlin entered into copartnership with one Hardin under the same name of the old firm, viz., Tomlin Co., and that the dissolution of the old and foundation of the new firm were before the note was executed upon which this suit was brought. It was furthermore in proof by a clerk of the plaintiffs that Tomlin had purchased goods of the plaintiffs at two several times in 1834, in the name of Tomlin Co., and they had been paid for, and that when the last lot of goods was purchased for which the present note was given, to wit, in November, 1835, by Tomlin, he, Tomlin, gave no notice to the plaintiffs of any dissolution of the firm of Tomlin Co., and that the goods were sold, as he supposed, to the same firm as the others were in 1834, and the same firm looked to for payment. It was further in proof that the defendants advertised at two storehouses in Ashe County that they had dissolved, and that these advertisements were seen some time about the last of 1835 and in 1836. The plaintiffs were merchants in Charleston.
The court charged the jury, upon this evidence, that if the defendants composed the firm of Tomlin Co. in 1834, and up to September, 1835, and had traded with the plaintiffs, merchants in Charleston, as Tomlin Co., at two several times and made payment, and Tomlin made a third purchase in the name of Tomlin Co., and the trade was made in the same way and the same parties looked to for payment, the defendants would be liable to the plaintiffs, although there had been a dissolution of the firm prior to the last purchase, unless notice had been given to the plaintiffs of the dissolution; that if the plaintiffs had notice of the dissolution, then the jury were instructed to find for the defendants. The defendants' counsel then asked the court to instruct the jury that if the plaintiffs did not know that Waugh and Harper were the partners of Tomlin, no notice of the dissolution would be necessary to exonerate them. The court declined giving this instruction, but told the jury that if the plaintiffs understood that Tomlin had partners in the trade, and goods had been sold to them as a firm, and the firm looked to (152) for payment, the defendants would be liable to the plaintiffs, although they, the plaintiffs, did not know their names, unless notice of the dissolution was given. The defendants' counsel further objected that the action was misconceived, and that the plaintiffs should have brought case and not debt.
The jury found a verdict for the plaintiffs, and judgment being pronounced thereon, the defendants appealed to the Supreme Court.
Whatever irregularities may have occurred in the suing out of the writs against the defendants, these were all waived by their accepting a joint declaration, and putting in pleas in bar thereto. His Honor, therefore, very properly overruled the motion for severing the action.
In no material circumstance, as it regards the other matters presented by the case, does it appear to differ from Walton v. Tomlin, 23 N.C. 593.
PER CURIAM. No error.
Cited: S. v. Jones, 88 N.C. 685; Caldwell v. Wilson, 121 N.C. 453.
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