Dusenberry v. Bradley

Mr. Justice Sterrett delivered the opinion of the court, February 3d 1879. After the defendant Dusenberry had interposed the defence, that he and George Murphy were partners, in the name of Dusenberry & Murphy, and so known to the plaintiff at the time the goods were sold, and that these goods were purchased and used by the firm, it was quite proper for the court to allow the amendment, and make Murphy a party defendant in the suit. If Murphy had been in court, or if a writ had been issued and returned non est inventus as to him, the defence set up would have been fully met by the amendment; but he never had a day in court, nor was there any effort made to bring him in. Under these circumstances it was irregular to enter judgment against both or either of the defendants for want of a sufficient affidavit of defence. The plaintiff in error, who complained of the omission to join his partner as a defendant in the suit, had a right to have him brought in, if he was within the reach of process. Judgment reversed, and a procedendo awarded