Kling v. Taylor

Mr. Justice Windes delivered the opinion of the court. Defendant in error, Taylor, brought suit in a justice court against plaintiff in error, Charles Kling, and Olaf Kling, copartners as Kling Bros., where he obtained judgment against Charles Kling only, the other defendant not being served with process. On appeal to the Circuit Court a trial before the court and a jury resulted in a verdict and a judgment thereon against Charles Kling only, Olaf Kling not appearing and not having been served. The plaintiff in error seeks a reversal of this judgment because the evidence shows that the suit was upon a joint obligation of both defendants as copartners, there being only one defendant, the plaintiff in error, before the Circuit Court, and cites in support of this contention the case of Sandusky v. Sidwell, 173 Ill. 493, and Hyde v. Casey-Grimshaw Marble Co., for use, etc., 82 Ill. App. 83. The latter case was decided upon the authority of the Sandusky case, and has been reversed by the Supreme Court in an opinion filed on the 17th day of April, 1900, not yet reported, in which the Sandusky case is modified in so far as it sustains the contention of plaintiff in error, and holds that in a suit against partners on a partnership contract, judgment .may be had against those served with process and a scire facias may be issued thereafter against those not served with process to make them parties to the judgment. Our statute (Hurd’s Rev. Stat., 1895), Chap. 79, Secs. 44 and 45, allows the same method of procedure before a justice of the peace as indicated by the Supreme Court in the Hyde case, supra, that is, to proceed to a judgment against the defendant or defendants served, and afterward a scire facias against those not served, to make them parties to the original judgment. Plaintiff in error shows no other reason why the judgment against him should be reversed, and it is therefore affirmed.