Corcoran & Co. v. Trich

Opinion by Mb. Justice Green: In this cas.e a writ of summons was issued against two as partners. Both defendants were served. As to one of them no appearance was entered, no plea was pleaded, and of course no issue was joined. The jury were sworn generally as to both de: fendants, under objection but without exception; a verdict was taken and judgment entered against both. Error is now assigned to the entry of the joint judgment; and as all the matters above stated appear upon the record, we are bound to take notice of it. The question as to the validity of this judgment is clearly ruled by the ease of Donnelly v. Graham, 77 Pa. 274. There four were sued, three were served, the declaration was filed against the three charging them as partners, together with the one not served; one of the three did not appear nor plead; two pleaded and the verdict and judgment was against the three generally. We held that in order to obtain a judgment against the two who pleaded, an interlocutory judgment must first be entered against the one who neither appeared nor pleaded, and that the general judgment against the three was not only bad against the three, but also against the two, and therefore must be reversed. The case is precisely parallel with the present, and requires the reversal of the latter. We think also that Gumbert’s affidavit of defense was a sufficient denial of the plaintiff’s claim, and therefore that the affidavit of claim was not admissible against him, either because Corcoran filed no affidavit of defense, and thereby admitted the claim so far as he was concerned, or because Gumbert’s affidavit can be treated as an admission of anything. When Gumbert denied the partnership and all or any indebtedness due by himself to the plaintiff, either as a partner with Corcoran or individually, he cannot be regarded as having admitted any part or the whole of the plaintiff’s claim. The second and third assignments of error are sustained. Judgment reversed and new venire awarded.