Bitzer v. Shunk

The opinion of the Court was delivered by Kennedy, J. We think the court below were right in deciding that the written authority given by Joseph Bauman alone, to enter an amicable action therein, and confess a judgment against himself and his co-partner, Christian Shunk, in favour of the plaintiffs, was not sufficient for that purpose. But we are of opinion, that the court erred in setting the judgment aside as against both on that ground. It was, undoubtedly, a good reason for setting the judgment aside, or vacating it, as against Shunk, but not as against Bauman. And what makes this still more clear here, is, that Bauman does not object to the judgment remaining against him alone. Nor could he do so with any propriety, because he had "most unquestionably a right to authorize the confession of the judgment against himself, and the circumstance of his not having a power from Shunk to join him in the confession, furnishes no reason whatever, why the confession of the judgment should not be good and binding as such, against himself. If he had executed a deed in the name of both, without any authority from Shunk to do so, it would not be pretended that such deed was not binding upon himself, as his deed alone, though it could not be considered the deed of Shunk. The object and design of entering the judg [342] ment is admitted to have been perfectly honest and fair; but as no special authority was given by Shunk to Bauman, to confess or authorize the confession of a joint judgment against them both, and as no general authority to that effect could be implied, because it was wholly unnecessary that the one partner should have such an authority from the other for the purpose of carrying on and transacting the business of their partnership, the judgment was consequently improperly entered against Shunk; but upon no principle of justice can it be said to be so as against Bauman. The only objection is one of form at most; which is, that Shunk ought not to have been joined in it, but that it ought to have been entered against Bauman solely. But it is clear that it does not lie in the mouth of Bauman to make this objection against the judgment, even if he were disposed to do so, because he was himself the cause of it; and in the next place, it is not an error that does him any injury. Shunk alone is the one who has the right to object to it, as he was joined in it without his consent, or any authority given by him for that purpose; but he at most can not ask any thing more, than that the judgment be vacated as to him, or his name stricken from the record of it. This is all, we think, that the court below ought to have done, as the application to them wras not to be regarded in the nature of a writ of error, but as a motion made to the court, for the purpose of having the judgment corrected according to the authority under which it was entered. For this course, instead of setting the judgment aside altogether, they had the authority of the case of Motteux v. St. Aubin, (2 Bl. Rep. 1133) and Gerard v. Basse (1 Dall. 119.) The order, made by the court below, setting the judgment aside, is therefore reversed, and the name of Christian Shunk is ordered to be stricken out of the judgment, and the record of it, so that there shall remain a judgment against Joseph Bauman alone. Judgment accordingly.