Bardwell-Robinson Co. v. Brown

Canty, J. Plaintiff brought an action against the three defendants, alleging that they were partners, and that they made to plaintiff the note in suit. The defendants answered with a general denial. The plaintiff made a motion to strike out the answer as sham, and presented affidavits which furnished very strong proof that defendants Brown and Charles C. Shapleigh were partners, and made and delivered the note to plaintiff. The defendants op [142] posed the motion only with affidavits that the defendant Thomas C. Shapleigh never was a partner in the firm. The court below struck out the answer as to Brown and Charles C. Shapleigh, and ordered judgment against them, and they alone appeal. They simply try to hide behind Thomas C. Shapleigh, and claim that his answer will protect them, although their answer is sham. It is too well settled and understood in this state to require any argument or citation of statute or authority that the plaintiff may sue several as joint defendants, and recover judgment against a less number. We are of the opinion that, as to these two defendants, the answer was clearly and palpably sham. We are of the opinion that this appeal was taken merely for delay, that the order appealed from should be affirmed, and that additional costs should be allowed, amounting to three per cent, of the judgment to be entered in the District Court, to be taxed and entered as a part of that judgment. So ordered. Buck, J., absent, sick, took no part. (Opinion published 58 N. W. 872.)