Bailey v. Hodges

The opinion of the court was delivered by Bennett, J. It appears, that William P. Russell was one of the partners in the Castleton Land Company, and that he was not made a co-defendant in the suit. This was urged, before the auditor, as a reason why the report should have been for the defendants;- and it [620] is for us to consider the validity of this objection to the plaintiff’s right of recovery. It need hardly be stated, that, in actions at the common law, founded upon contract, a non-joinder of'a defendant is only matter of abatement and is of no avail upon the trial of the merits. In Loomis v. Barrett, 4 Vt. 450, it was held, that a different rule should prevail in our action on book account; and the reasons of that decision are quite obvious. The question, as to the true parties to the accounts presented for adjustment, is litigated before the auditor ; and the parties themselves are witnesses to this point. No plea in abatement can be sustained, that puts in issue matter, about which it is competent for the plaintiff to testify. The parties cannot be examined as witnesses, except before auditors. It, of course, has been held, that all matters, about which the parties may testify, must be litigated at the audit. We think that the case of Loomis v. Barrett must govern this. In that case, McGrath, who was a partner with Barrett, was not joined in the suit; and it was held, that the judgment to account was no waiver of the objection, and that it should avail the defendant on the trial before the auditor. In this case, the defendants in the writ are described as the surviving partners of Henry Hodges in the lumbering and milling bussiness; but this is only matter of description. By the declaration the defendants are required to render to the plaintiff a given sum, which he says is justly due from the defendants to balance book accounts between them. They are not declared against as surviving partners; and no allusion is made in the declaration to such a fact. There is no reason, why the plaintiff might not recover against the defendants, on the record; if he could have established an account against them alone before the auditor. The plaintiff might also litigate a claim against these defendants, as the surviving partners of Henry Hodges. It is not necessary, in such case, to declare against the surviving partners, as such. If it had not been for the non-joinder of Russell, the plaintiff’s account should have been allowed. The same difficulties, which prevented a plea of abatement from being interposed in the case of Loomis v. Barrett, could prevent one, in this case, for the non-joinder of Russell. [621] The fact, that Russell resided without this state, cannot change the principle, which should govern the case. The process might have issued against him ; an& if no service could have been made upon him, he might have been severed from the other defendants by a non est return. See Adams v. Bliss, 16 Vt. 42. The case of Loomis v. Barrett, we think, must govern this case. The judgment of the county court must therefore be reversed ; and judgment be rendered, on the report of the auditor, for the defendants to recover their costs.