Grogan v. Herrington

Sutton, C. J. (After stating the foregoing facts.) This was a suit in a superior court on a verified account against two persons designated in plaintiff’s petition as partners. Personal service was made on one of them, but no service was had on the other. The suit was in default and a verdict and judgment were rendered, at the first term of court, against the defendant who was served, without the submission of proof. The defendant in error contended in his motion to set aside the judgment that the judgment should be set aside as it is based on a void verdict which was taken in a suit on account without the submission of any proof. This contention is without merit. “Where the defendant in a'suit upon an account is in default, it is unnecessary, under Civil Code, § 5078 [1895], for the - plaintiff to make out his case by proof.” Norman & Harrell v. Great Western Tailoring Co., 121 Ga. 813 (4) (49 S. E. 782). “At the trial, no defense having been filed, and the case being in default, there was no error in directing a verdict in favor of the plaintiff for the amount due on the account. Civil Code, § 5662 [1910].” Watson & Strickland v. Parian Paint Co., 138 Ga. 621 (3) (75 S. E. 608). Also, see Horn v. Mound City Paint &c. Co., 6 Ga. App. 133 (3) (64 S. E. 666); Nix v. Bruton, 10 Ga. App. 278 (73 S. E. 350); Anderson v. King, 19 Ga. App. 471 (91 S. E. 788); Davies v. Turner, 61 Ga. App. 531, 536 (6 S. E. 2d, 356); Peeples v. *508 Sethness Co., 119 Ga. 777 (47 S. E. 170). Code §§ 5078, Code of 1895, and 5662, Code of 1910, are now included in substance, by the act of 1946 (Ga. L. 1946, p. 777), as a part of § 110-401 of the Code of 1933. The defendant in error also contended in his motion that the judgment should be set aside because the suit purported to be against an alleged partnership, while the verdict and judgment were taken against him individually and not against the alleged partnership. “When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings.” Code, § 110-702. It is provided in Code, § 110-703, among other things, that: “The motion in arrest of judgment must be made during the term at which such judgment was obtained, while a motion to set aside may be made at any time within the statute of limitations.” A judgment in a suit against a partnership, where one partner was served, will bind the assets of the partnership and also the individual property of the partner who was served with the suit. Code, § 39-117; Higdon v. Williamson, 10 Ga. App. 376 (1) (73 S. E. 528); Warren Brick Company v. Lagarde Lime &c. Co., 12 Ga. App. 58 (2) (76 S. E. 761); Denton Brothers v. Hannah, 12 Ga. App. 494 (4) (77 S. E. 672); Fincher & Womble v. Hanson, 12 Ga. App. 608, 611 (77 S. E. 1068). But in this case we have a suit against two persons as partners, with a verdict and judgment against the partner served, without any verdict or judgment against the alleged partnership. If proof had been submitted which showed the indebtedness declared upon in this suit was the debt of the two persons sued as partners, then it would not have been proper to enter a judgment against the partner served and not against the partnership, as the property of the partnership would be liable in such circumstances as well as the property of the partner served. The same situation is presented by the record in this case. The suit is on an account alleged to be the debt of the two persons who are alleged to be partners and sued as defendants, and no proof was submitted, but the verdict and judgment were taken by reason of the suit being in default, and in such circumstances the verdict and judgment should have been taken against the alleged partnership and this would have been bind *509 ing on whatever property the partnership may have owned and also on the property of the individual partner who was served with the suit. The verdict and judgment were at variance with the suit as laid. In this connection see Myers v. Hook, 11 Ga. App. 517 (3) (75 S. E. 833); Massoud v. Lamar, Taylor & Riley Drug Co., 18 Ga. App. 398 (1) (89 S. E. 442); Tolar v. Funderburke, 21 Ga. App. 436 (94 S. E. 592); Blackwell v. Pennington & Sons, 66 Ga. 240 (2); Thompson v. McDonald, 84 Ga. 5 (2) (10 S. E. 448). This defect appears from the pleadings and record and is not amendable. In Colorado the provision of the Code in regard to a suit against a partnership is substantially the same as in Georgia. “By section 14 of the Code [Colo.] in the case of a claim against a partnership, the members may be sued by their firm name.” Doty v. Irwin-Phillips Co., 15 Colo. App. 96 (61 Pac. 188). “The Code provision is that judgment, if recovered, ‘shall bind . . the joint property of the associates and the separate property of the party served.’ ” Denver National Bank v. Grimes, 97 Colo. 158 (47 Pac. 2d 862, 100 A. L. R. 994). In the case of Ellsberry v. Block, 28 Colo. 477 (65 Pac. 629), where it appears that suit was instituted against two parties as copartners, only one of whom was served, and where, on motion of the plaintiffs, judgment by default was taken against the individual served, on which error was assigned, the Supreme Court of that State, in reversing the judgment of the lower court, said: “These provisions do not alter any of the fundamental principles of the law as to the joint liability of partners, but are merely intended to change the common law in point of practice; for, according to the rules of the latter, in an action at law against several defendants jointly liable only, all must be served with process before judgment could be entered. Neither have they changed the equitable rule that in an action at law upon a partnership obligation the members served with process have the right to insist that the assets of the firm shall be exhausted before resort can be had to their individual property for the satisfaction of firm indebtedness; hence, in the absence of a judgment against the firm which might have been taken in the first instance, it was certainly error to render one against the defendants as for an individual debt. Craig v. Smith, 10 Colo. 220, 15 Pac. 337; Dessauer v. Koppin, 3 Colo. App. 115, 32 Pac. 182.” See, also, the annotation at 100 A. L. R. 997. *510 The trial judge did not err in vacating and setting aside the verdict and judgment for the reasons herein set forth. The defendant’s motion to arrest and set aside the verdict and judgment was not subject to the plaintiff’s general demurrer, nor was paragraph 5 thereof subject to the special demurrer interposed thereto and the trial judge did not err in overruling said demurrers. In view of the above rulings, it is not necessary to pass on the special demurrer to paragraph 3 of said motion, that paragraph of the motion being immaterial. A motion to vacate and set aside a judgment is addressed to the sound discretion of the trial court, and this court will not interfere with the exercise of that discretion where it does not appear that it was abused. Under the record here presented and the law applicable thereto, we are of the opinion that the trial judge did not err or abuse his discretion in vacating and setting aside the verdict and judgment in this case. Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232, Code, Ann.'Supp., § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole. Judgment affirmed. Sutton, C. J., MacIntyre, P. J., Gardner, Parker, and Townsend, JJ., concur. Felton, J., dissents.