Alexander & Co. v. Leland

Decision Date01 January 1872
Citation1 Idaho 425
CourtIdaho Supreme Court
PartiesS. Alexander & Co., Defendants In Error, v. Alonzo Leland Et Al., Plaintiffs In Error.

SUMMONS-JUDGMENT-EXECUTION.-A summons to A, B, C, or D is a nullity, inasmuch as it is in the alternative, and not to all, nor to either of them. A judgment and execution, upon such summons, are likewise void for want of jurisdiction of the defendants.

APPEAL-APPEALABLE ORDER.-An order overruling a motion for a stay of proceedings under a void judgment may be appealed from, or brought to this court for review, by writ of error; and such appeal brings under review the whole record in the case.

WRIT OF ERRROR-PARTIES.-A writ of error may be sued out, under the statute, by one or more of several defendants, without joining their codefendants in the writ.

JUDGMENT.-A judgment to be valid must be certain and conclusive as to the subject matter and parties to the action, and must be capable of execution.

ERROR to the District Court of the First Judicial District, Idaho County.

A Leland and McBride & Henly, for the Plaintiffs in Error. A E. Isham and H. E. Prickett, for the Defendants in Error.

HOLLISTER J.,

delivered the opinion.

NOGGLE, C. J., concurred. WHITSON, J., dissented.

This case comes here from the district court of Idaho county on a writ of error sued out by Leland and Wood. That it is one of a somewhat peculiar character, reference to the proceedings in the court will, we think, abundantly show. The complaint is as follows:

In the first judicial district of Idaho territory, Idaho county, Hon. M. Kelly, Judge.

S. Alexander & Co., against E. B. Johnson, E. R. Sherwin, J. W. Poe, Joseph Griffith, and Alonzo Leland, or John Wood, partners doing business under the form and style of the Rescue M. & M. Co., in said county, as defendants, and for cause of action, complains and alleges as follows, to wit. Here follows a statement that the defendants comprising the Rescue M. & M. Co., are indebted to the plaintiff in the sum of thirteen

hundred and forty dollars and ninety-one cents, for goods sold, etc., upon an express or implied contract, for the direct payment of money in gold coin. To this complaint the name of S. Alexander was subscribed, as well as to its verification.

The complaint was filed on the seventh day of September, 1869, whereupon the following summons was issued:

"Territory of Idaho, County of Idaho, ss.

"S. Alexander & Co., plaintiffs, v. E. B. Johnson, E. R. Sherwin, J. W. Poe, Joseph Griffith, and Alonzo Leland or John Wood, doing business as the Rescue M. & M. Co., defendants.

"In the district court of the first district, Idaho territory, Idaho county.

"To E. B. Johnson, E. R. Sherwin, J. W. Poe, Joseph Griffith, and Alonzo Leland or John Wood, defendants above named.

"In the name of the people of the United States of the territory of Idaho."

Then follows the usual statement and notice to appear and answer the complaint.

This summons was served upon all the persons named in it, with the exception of Alonzo Leland.

On the second day of October, 1869, the following answer was filed in the clerk's office, to wit:

"S. Alexander & Co., plaintiffs, v. E. B. Johnson, E. R. Sherwin, J. W. Poe, Joseph Griffith, and A. Leland or John Wood, defendants.

"The defendants above named come into court, and for cause of answer to the complainants' complaint deny the allegation, etc., and conclude as follows: Defendants therefore pray that this court will not grant a judgment against them according to the prayer of the plaintiffs' complaint, or any other judgment, than one for thirteen hundred and forty dollars and ninety cents in lawful money of the United States.

"LELAND & POE,

"Att'ys for def'ts. R. M. & M. Co."

This answer was verified and served upon Alexander, on the fourth day of October, 1869. On the second day of the

July term of the court, to wit, on the sixth day of July, 1870, judgment was rendered by the court as follows:

"In the district court of the first judicial district of the territory, in and for the county of Idaho.

"S. Alexander & Co. v. The Rescue Milling and Mining Co.

"Now come the plaintiffs, by W. G. Langford and S. S. Fenn, their attorneys, and move the court for a judgment herein, and it is ordered that judgment be entered against the defendants for the sum of one thousand three hundred and forty dollars and ninety-one cents, in lawful money of the United States, with legal interest on the same from the date of the filing of the defendants' answer."

On the eleventh day of July the following entry was made upon the journal of the court:

S. Alexander & Co., against E. B. Johnson, E. B. Sherwin, J. W. Poe, Joseph Griffith, and Alonzo Leland or John Wood, partners, doing business under the firm name and style of the Rescue M. & M. Co., defendants.

This cause came on regularly for trial on the fifth day of July, A. D. 1870. W. G. Langford and S. S. Fenn, Esqs., appearing as counsel for plaintiffs, and A. Leland and J. W. Poe appearing for defendants; whereupon the plaintiffs, by their attorneys, moved the court for judgment upon the complaint, and answer filed herein, whereupon the court, being fully advised in the premises, and by reason of the law and the premises herein, it is ordered and adjudged that the plaintiffs, Alexander & Co., do have and recover of and from the defendants, the sum of thirteen hundred and forty dollars and ninety-one cents, principal, and the further sum of ninety-four dollars and forty-four cents interest, amounting to the sum of one thousand four hundred and thirty-five dollars and thirty-five cents, principal and interest, together with said plaintiff's costs and disbursements, amounting to the sum of one hundred and six dollars and twenty-five cents, and that they have execution therefor.

On the twentieth day of July following, Leland & Wood entered their motion for a stay of all proceedings under the judgment affecting in any manner the property, or interest

in any company property, belonging to John Wood or Alonzo Leland, on the ground that the judgment is irregular and uncertain, in this, that it is jointly against E. B. Johnson, E. R. Sherwin, J. W. Poe, Joseph Griffith, Alonzo Leland, or John Wood, and in the alternative, and therefore void as to the last-named persons, or either of them. This motion was overruled by the court, and duly excepted to, and made a part of the record.

It is from this order of the court that the plaintiff in error brings the case here for review. That such an order may be appealed from by a party aggrieved by it, there can be no doubt. Section 470 of the Civil Practice Act is as follows: "Every direction of a court or judge made and entered in writing, and not included in a judgment, is denominated an order." The supreme court of California, in Gilman v. Contra Costa, 8 Cal. 52, 68 Am. Dec. 290, say: "An order may be defined to be a judgment or conclusion of the court upon any motion or proceeding. It means, cases where a court or judge grants affirmative relief, and cases where relief is denied." Section 312 provides, "that any final judgment, order, or decision of a district court, except in chancery, may be re-examined upon a writ of error in the same court for error in fact; in the supreme court for error in law." Whether by appealing from such an order the whole record of the case is brought under the review of this court in cases like the one at bar, is a question we will consider hereafter.

As it is claimed by the defendants in error that this writ is improperly sued out because the names of all the parties defendants in the suit below are not named in the writ of error and in the citation, it becomes necessary, before proceeding to the consideration of the merits of the case, to decide the preliminary question thus presented. It is admitted that at the common law, such an objection would be well taken, and that in consequence, the appellate court could not proceed to a hearing of the case until all the parties to the judgment below were made parties in such appellate court.

It is urged, however, and properly, we think, by the plaintiffs in error, that by the provisions of section 323 of the Civil

Practice Act, the rule of the common law has been changed. This statute gives to any persons who may be a party or privy in any judgment, order, or decision, the right to have the same reviewed in this court. It is urged, however, by the defendants' counsel that though any of the persons or parties named in the act have the legal right to prosecute a writ of error for their own benefit, yet it must be done in the names of all the parties jointly interested in the judgment below, and the plaintiffs in error not having done so, that this writ must be dismissed. In this view we are not prepared to concur.

The reason why, at common law, all persons interested in the...

To continue reading

Request your trial
5 cases
  • Fouch v. Bates
    • United States
    • Idaho Supreme Court
    • 27 Junio 1910
    ...490.) A judgment must be specific and certain and such that the defendant may readily understand, and be capable of performing. (Alexander v. Leland, 1 Idaho 425; Ency. of Pl. & Pr. 933; 23 Cyc. 671, and cases cited.) The findings of fact upon which the judgment is based must be sufficientl......
  • Boone v. District Court of Third Judicial District
    • United States
    • Idaho Supreme Court
    • 6 Marzo 1924
    ... ... This is the ... universal rule. (Strode v. Strode, 6 Idaho 67, 96 ... Am. St. 249, 52 P. 161; Alexander v. Leland, 1 Idaho ... 425; Rayl v. Kirby, 180 Ind. 553, 103 N.E. 440.) ... WM. E ... LEE, J. McCarthy, C. J., and William A. Lee, J., ... ...
  • Bell v. State Indus. Acc. Commission
    • United States
    • Oregon Supreme Court
    • 7 Diciembre 1937
    ... ... City of ... Portland, 83 Or. 583, 591, 163 P. 1159. See, also, ... Dickerson v. Walker, 1 Ala. 48, Alexander v ... Leland, 1 Idaho 425, and Boyken v. State, 3 Yerg ... (Tenn.) 426. In 33 C.J. 1196, § 129, it is stated: ... "It is a ... ...
  • McKnight v. Grant
    • United States
    • Idaho Supreme Court
    • 25 Noviembre 1907
    ...is mandatory; and a judgment and execution upon such summons are likewise void for want of jurisdiction of the defendants. (Alexander v. Leland, 1 Idaho 425.) requirement that the summons must be issued under the seal of the court is also held to be mandatory; and that a judgment based upon......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT