Elliott v. Holbrook, Carter & Co.

A. J. WALKER, C. J.— The two confessed judgments given in evidence were, in -a court of law, when collaterally assailed, valid and binding upon the defendant. It is true, one partner cannot, by virtue, of any authority incident to the partnership relation, bind his co-partners by a confession of judgment.—Collier on Part. § 469, note 6; Doe v. Tupper, 4 S. & M. 261; Crane v. French, 1 Wend. 311; McBride v. Hagan, 1 Wend. 326; Harper v. Fox, 7 Watts & S. 142; Bitzer v. Skunk, 1 Watts & S. 340; Witherell, v. Holmes, 20 Wendell, 609; Gerard v. Basse, 1 Dall. 119; Grier v. Hood, 25 Penn. St. R. (1 Casey,) 430; Motteux v. St. Aubin, 2 Blacks. 1133; Green & McSher v. Beals, 2 Caines’ R. 254; Otis, Mills & Co. v. Dickson, 6 Rich. Law, 487. But one partner may be clothed by his co-partners with a special authority, by-virtue-of which he may confess a judgment against them. • ' In determining the jurisdiction of the collaterally assailed judgments of the circuit court, through an interpretation of their language, we must rather incline in favor of, than against the validity of >the judgments. King v. Kent, 29 Ala. 542; 2 Smith’s Leading Cases, (5th Am. ed.) 842. The language of the judgments, though somewhat ambiguous, examined under the guidance of the principle just announced, is found to assert, that the partner who actually made the confessions ©f judgment had a competent authority from his co-partners. The record says, that the three defendants, partners, &c., “ came into open court, by Moses Hubbard, one of the firm, and acknowledged themselves to owe and be indebted,” &c. The partners could not come into court, [666] without either a personal appearance, or through the authorized representation of another. It was a legal impossibility for Hubbard’s two partners to come into open court by him, unless he had authority to act for them.- If it be said that A. B. has executed a promissory note by O. H., the truth is not asserted, unless C. D. had authority to act for A. B. One man cannot be said to perform an act by another, who has no agency or authority from him. The co-partners of Hubbard could not with truth be said to come into open court by him, and. confess judgment, unless he had legal authority to represent them. The court, therefore, in saying that the partners came by Hubbard, asserts that Hubbard had a competent authority. The presumption is, that the circuit court knew the law, and was circumspect in its conduct, and neither rendered its judgment through a misapprehension- of what • constituted a sufficient authority, nor through an inadvertence.—Hill v. Lambert, Minor, 91; Bissell & Carville v. Carville, 6 Ala. 503; Hodges & Puckett v. Ashurst, 2 Ala. 301. The case of Brown v. Little, 9 Alabama, does not militate against the conclusion attained by us-. That case not only differs from this in its facts, and in- its recitals; but the proceeding was on error, for the reversal of the judgment. [2.] The judgments being understood as averring that the partner who appeared in person had a competent authority from the other two partners, the defendants in the judgment are estopped, in a court of law, from denying the verity of the record in that particular.—Brown v. Turner, 11 Ala. 75; Crafts v. Dexter, 8 Ala. 767; Lightsey v. Harris, 20 Ala. 409; Deslonde & James v. Darrington, 29 Ala. 92; 1 Smith’s Leading Cases, 841-842. The question, whether the confessed judgments would be reversed on error, does not belong to this case, and we intend by what we have said to intimate no opinion on the subject. [3.] That the plaintiff had a right, after the expiration of the year from the rendition of the judgments, to sue [667] upon them, is settled by the decision of this court in Kingsland & Co. v. Forrest, 18 Ala. 519. The first, and second, and third pleas, demurrers to which were sustained, were bad, because they omitted to aver Hubbard’s want of authority to confess judgment for his co-partners. All that those pleas contain may be true, and notwithstanding the court may have had jurisdiction of the defendant’s person. Under this decision, these pleas would be bad, even though they averred Hubbard’s want of authority; for it is not allowable, in this case, to dispute the verity of the record. [4.] We have heretofore decided, that no visitation of demurrers upon antecedent pleadings can be had in this State since the adoption of the Code.—Henley v. Bush, at present term. Thecourt erred, therefore, in visiting the defendant’s demurrer to the plaintiff’s replication upon the 5th plea. [5.] A release of one partner, from a partnership debt, is, prima facie, a release of all the partners.—Collyer on Part. 555, 556, 557, 558, §§ 606, 607, 608. The 5th plea will certainly, upon that principle, aver a good defense, if it be so amended as to show distinctly that the plaintiffs’ demand is a partnership liability. Whether the plea, as it now stands, does aver that fact, is a question which we need not decide, as the cause must be remanded for the error already pointed out, and the amendment can be made so as to avoid the question entirely. The authorities above cited, in reference to the sufficiency of the 5th plea, show that the replication is good, so far as the release is concerned. The plaintiffs’ first replication to the 3d and 4th pleas, averring the authority of Hubbard to confess the judgments against the defendant, was certainly sufficient. Whether the second replication was good, it is unnecessary to inquire; because, under this opinion, the question of ratification will not be likely to arise. For the same reason, it is unnecessary for us to examine the question of the competency of the witness, or the admissibility of the parol evidence. The judgment of the court below is reversed, and the cause remanded.