Keith Bros. v. Stiles

The following opinion was filed October 22, 1895: Newmau, J. The record of the Nebraska judgment seems to be exemplified in conformity with the provisions of the act of Congress in that behalf. E. S. of U. S. sec. 905. It was competent, under that provision, to prove the record “ by the attestation of the clerk and the seal of the court annexed, . . . together with a certificate of the judge . . . that the said attestation is in due form.” All this is included in the certificate. The fact that the judge is also-(3* officio clerk as well does not render the judgment incapable of exemplification under that statute. When the judge is also éx officio clerk, no doubt he must certify in each capacity. Abb. Tr. Ev. 512, and cases cited. That was done in this case. It is a matter of form, rather than of substance, whether the certification shall be by two separate certificates or comprised in one. The proof of the Nebraska judgment is in the record, and the fact of its existence is undisputed on the evidence, so that it may fairly be considered a part of the finding, though not formally included in it. Murphey v. Weil, 89 Wis. 146. Since partnership contracts are to be considered as joint merely, and not joint and several (17 Am. & Eng. Ency./of [18] Law, 1062, and oases cited in note 6), a judgment against one partner for a firm debt releases the other partners, so that no new action can be maintained against them upon it. Bowen v. Hastings, 47 Wis. 232; Lauer v. Bandow, 48 Wis. 638; 15 Am. & Eng. Ency. of Law, 344, and cases cited in note.6; 1 Bates, Partn. sec. 535, and cases cited in note 3. If it were a domestic judgment, the only remedy against the partners hot served would seem to be under secs. 2795, 2884, R. S. of Wis., in the same action. Lauer v. Bandow, supra. Whether there is a similar remedy under the laws of Nebraska, it is useless here to inquire. The judgment is right, on this ground at least, and is affirmed. But the appellant also complains of certain items of costs as being improperly taxed against him: (1) The respondent was permitted to amend his answer on terms. He has charged, and there is allowed to him in the taxation of costs, the fees allowed by the statute for drawing his amended answer, and for copies of it, as well as for his notice of motion for leave to amend, with copies, and for drawing the affidavit on which the motion was founded. The motion granted and leave to amend given was in the nature of a favor to him, and could not properly be at the expense of the opposite party. Marlett v. Docter, 89 Wis. 347. Certainly, the order did not require the respondent to pay this or any part of the expense of the amendment. These items should not have been included in the respondent’s bill of costs. (2) There was also a charge of $2 as a term fee for a term at which the cause was continued for respondent on terms. The taxable costs of the term are $10 and witness fees. Circuit Court Rule XX, sec. 3; R. S. sec. 2923. It does not include this item, which was not in fact paid, and so was properly chargeable in the taxation of costs. (3) The bill of costs, as taxed, includes the item of $1 as suit tax. This item could never be due to, or properly recoverable by, the defendant [19] in the action. (4) Witness fees for James Myers were taxed. This is complained of. But Myers was only a nominal party to the action, and had but slight, if any, interest in the result. His witness fee was a proper item. (5) A charge for the cost of the exemplification of the record of the Nebraska judgment is objected to. This record was important, and its cost was properly taxable. Eor these errors the taxation of costs must be reversed, and the costs retaxed. By the Gourt.— The judgment is reversed as to costs, which must be retaxed. In all other respects the judgment is affirmed. The respondent must pay the fees of the clerk of this court. No other costs are to be taxed against him. The following opinion was filed January 7, 1896; Newmax, J. The appellant moves for a rehearing on three grounds: (1) That the record fails to show that the Nebraska court obtained jurisdiction over the defendants Myers by service of summons on them, and so that the judgment is void and not a' release of the defendant Stiles¡ (2) that the defendant Martin is named in the Nebraska judgment by a different Christian name than the one used in this action; and (3) that when that action was commenced the defendant Stiles was a nonresident of the state of Nebraska and jurisdiction of him could not be obtained in that state, and that such a case is a recognized exception to the rule applied by the court, 1. The return of the sheriff upon the summons in the Nebraska suit is to the effeet that the summons was served upon James D. Myers on May 1, 1893, and upon James Myers on May 2,189.3, fey .delivering to and leaving with them a certified copy thereof. The criticism of the return is that it fails to show that a eopy was delivered to each of such defendants. It is a question of what the whole return fairly means, as applied to this one thought. Does it fairly import that a copy was delivered to each? The sheriff says [20] that he served it upon Janies D. Myers on May 1st. He did not serve it unless he delivered a copy personally. R. S. sec. 2636, subd. 4. He says that he served it upon James Myers on the 2d of May. Unless he delivered a copy to James Myers he did not and could not have served it upon him. The sheriff further describes the manner of service as “by delivering to and leaving with” the said James I). Myers and James Myers “a certified copy,” etc. It seems clear that the whole return, taken together, clearly imports that a copy was delivered to each defendant. That is suffi- ■ cient. Practical certainty is all that can be required in such matters. 2. It can make no difference with the liability of the defendant Stiles in this action by what name the defendant Martin was attempted to be sued in the Nebraska court, or whether he was made a party, defendant at all. It is not questioned that the obligation on which that judgment was obtained is the same joint obligation upon which this suit against Stiles is based. The judgment would not be void as against Martin merely for such a mistake in his name, and such a mistake could have no possible effect upon the rights or liabilities of Stiles. 3. It is not doubted that, if the defendant Stiles was in truth not a resident of Nebraska nor so situated as that service upon him in that state could be had, then his case is not within the rule upon which the court has decided it. In such a case the rule has no application. 15 Am. & Eng. Ency. of Law, 345, and cases cited in note 2. But, in truth, there is nothing found in the record to show that the defendant Stiles was a nonresident of the state of Nebraska. He had recently been engaged in business there. It does appear, by the sheriff’s return, that he was “ not found ” in Gage county. That is all. Doubtless, the burden of showing that the case is within the exception and without the rule is upon the party who asserts such exception. By the Gowrt.— The motion for a rehearing is denied.