Lewinson v. First National Bank of Albuquerque

OPINION OF THE COURT. McMillan, J. The common-law rule of the liability of partners has been modified by statute in this Territory. The Compiled Laws of New Mexico, section 2943, provide as follows: “Suits may be brought by or against, a partnership as such, or against all or either of the individual members thereof; and a judgment against the firm as such may be enforced against the partnership’s property, or that of such members as have appeared or been served with summons; but a new action may be brought against the other members in the original cause of action. When the action is against the partnership as such, service of summons on one of the members, personally, shall be sufficient service on the firm.” We infer that in the action brought by the bank against the copartnership, process was served on the' defendant Lesser, although it dos not so appear as a fact alleged in the complaint in this action. The plaintiff had a right to prosecute his action in this manner, and the judgment recovered would be a lien upon and could be enforced against the partnership property and also against the property of the copartner Lesser. This action is to extend the lien of these judgments against the property of the copartner Lewinson by bringing suit upon the judgments and not upon the original cause of action. This can not be done. Under the-statute the defendant Lewinson. is entitled to his day in court, to present any defense which he may have to the original cause of action. Indeed the statute specifically provides that “a new action may be brought against the other members in the original cause of action.” In this action the defendant Lewinson could not present any defense to the original cause of action, and was left solely to present such questions in defense as might affect the jurisdiction of' the court and the regularity of the proceedings in the action in which the two judgments in question were recovered. Under our statute the default of an insolvent partner, by which judgment is recovered against his firm, can not cut off the right of defense on the merits of his solvent copartner in an action against him upon any claim made against the copartnership whereby it is sought to extend the lien of such judg-rnent to the individual property of the solvent partner. We are, therefore, of the opinion that the first and second grounds of demurrer are well taken, and should have been sustained. The judgment is therefore reversed, and the cause remanded to the district court, Bernalillo county, to be there proceeded with according to law. Mills, C. J., McFie, Parker and Baker, JJ., concur.