Flannery v. Anderson

By the Court, Lewis, C. J. The plaintiff brings this action to recover the sum of eight hundred and thirty-seven dollars, with interest thereon at the rate of' ten per cent, per annum from the 19th day of December, A.m 1864, for work and labor performed and goods sold and delivered to the defendants by the assignors of the plaintiff, at various times; between the 1st day of August and the 19th day of December,, in the year 1864. It is alleged in the complaint, and so found by-the Court, that the defendants were during this time copartners,, and that these debts were contracted in the prosecution of the' copartnership business. The summons -was served on the defendant Seale, who appeared and filed an answer admitting all the allegations of the complaint. Upon the application of the plaintiff, the Court rendered a judgment against the defendants, in accordance with the thirty-second section of the Practice Act, which provides that where the “ action is against defendants jointly indebted upon a contract, the plaintiff [442] may proceed against the defendant served, and if he recover judgment, it may be entered against all the defendants jointly indebted, so far only as that it may be enforced against the joint property of the defendants served. Anderson did not appear in the action until he took this appeal, which is only from the judgment. Upon this state of facts it is argued on behalf of the appellant that the answer of the defendant Seale authorized no judgment-which could affect Anderson’s interest in the joint property. But nothing is clearer than that the statute authorizes a judgment like that rendered in this case when the summons and complaint are served on one of several joint debtors. Nor does the law in any way regulate the manner in which the person appearing in the action shall answer or defend. His rights with respect to the character of defense which he will make, or whether he will make any or not, are as unrestricted as if he alone were interested. If he deems the cause of action a just one, there is nothing in the law to prohibit him from filing his answer acknowledging such to be the case. The statute does not require nor seem to authorize the defendant upon whom summons is served to appear or answer for his co-defendants who are not served. But it makes the mere service of summons and complaint upon one of several joint debtors sufficient to authorize a judgment which may be enforced against the joint property. The defendant Seale in this case answered only for himself. The rights of Anderson were in no wise affected by his answer. Had he not answered at all, but suffered a default, the judgment would have been in precisely the same form, for it is not necessary to the regularity of such a judgment that any of the joint debtors should appear in the action, but only that summons and complaint shall have been served upon some one or more of them. Had Seale appeared and answered for both himself and Anderson, a judgment could have been entered which would not only reach the joint property, but also the separate property of both. As, however, he appeared and answered only for himself, the judgment was rendered only against the joint property and his own separate property. This was in strict compliance with the thirty-second section of the Practice Act referred to. We are unable to see, [443] therefore, how the answer of Seale prejudiced the appellant. Rut even if it did, he had the right to file such an answer, and upon it the Court below was authorized to render a judgment in the form here entered. (Parker et al. v. Haynes et al., 10 Wend. 631; Stoutenburgh v. Vandenburgh, 7 How. Pr. 231.) A judgment bj confession may be rendered without action, and it is correct, as stated by counsel for appellant, that a judgment so obtained upon the confession of one partner will not reach the partnership effects, but will be effective only against him who authorized its entry. When, however, an action is commenced, and the summons is served on one or more of the partners or joint debtors, the defendant so served may answer, admitting the plaintiff’s right of action, and judgment may be rendered as provided by the Practice Act. The statute authorizes this mode of proceeding, but it does not authorize one partner to confess a judgment which will reach the partnership effects where no action has been commenced. We are however of opinion that the Court improperly allowed interest in this case. The Statute Laws of 1861, page 100, Sec. 4, declare that “ where there is no express contract in writing, fixing a different rate of interest, interest shall be allowed at the rate of ten per cent, per annum for all moneys after they become due, on any bond, bill, or promissory note, or other instrument of writing; on any judgment recovered before any Court of this Territory, for money lent, for money due on the settlement of accounts from the day on which the balance is ascertained, and for money received to the use of another.” It will be observed that this statute does not allow interest on money due on an open account; and it is a legal presumption that it was not the intention of the Legislature to allow it in any eases save those mentioned in the Act. The account here sued on was open and unsettled — hence under this statute no interest is recoverable on it. We know of no good reason why it should not be allowed on all money due on account from the time it becomes payable, except that the Legislature has provided otherwise. The Supreme Court of Illinois upon a similar statute has held that interest is not recoverable in cases of this kind. (Sammis v. Clark, 13 Ill. 544; Hitt v. Allen, Ib. 592; Kennedy v. Gibbs, Ib. 406; Rayburn v. Day, 27 Ib. 46.) [444] The judgment in this case, so far as it allows interest, is therefore erroneous, and must to that extent be modified. It is argued, however, that as. this error was not called to the attention of the Court below, it should not be noticed here; and some cases are referred to in support of this proposition. With respect to errors occurring at the trial, such is generally the correct rule of practice; but when the error is one appearing in the judgment roll itself, and in no wise waived by the party appealing, (as may frequently be the case in regard to proceedings in the trial) we are unable to perceive how an appellate Court can refuse to correct it. The complaint in this case does not make out a case entitling the plaintiff to interest, but the judgment shows upon its face that it is allowed upon the entire sum claimed from the time it became payable. To this extent, then, it is clearly erroneous. Why, it may be asked, should not such an error be corrected by the appellate Court, although it may not have been called to the attention of the lower Court? Surely no exception to the entry or form of the judgment need be taken. Nor does the statute make a motion to correct or to set it aside necessary. So it cannot be said that an error of this kind is waived by the failure to call it to the attention of the nisi prius Court, nor that the appellant is in fault in not doing so, for it is seldom that he has the opportunity. Hence we see no reason why the appellate Court should not in a case of this kind correct the error. But if there be any such reason this Court has already adopted that mode of practice, and we are not disposed to overturn it. (See Kidd v. Four Twenty Mining Co., 3 Nev. 381.) When the error complained of is simply a mistake in the computation of the amount for which judgment is rendered, or something of that character, which it is perfectly evident would have been corrected if called to the attention of the lower Court, and the appellant had an opportunity to do so, but did not, it has been our practice to correct the error, but to impose the costs of the appeal on the appellant. (Howard v. Richards, 2 Nev. 128.) This, however, is not such a case, and there appears no good reason why the respondent should not pay the costs of this appeal. It is unnecessary to determine here whether or not the admission [445] by Seale, that a partnership existed between himself and Anderson, was admissible for the purpose of establishing a joint liability. The Court found that such partnership existed between the defendants. That was a fact necessary to be proven; and we must presume that it was established by competent and sufficient evidence, as there is nothing in the record to negative it. As interest is erroneously allowed in the judgment, the Court below will modify it in respect to the interest prior to judgment. Appellant to have his costs of this appeal. Whitman, J., did not participate in the foregoing decision.