Bogue Supply Co. v. Davis

• Decision Date: 02 November 1922
• Citation: 36 Idaho 249,210 P. 577
• Court: Idaho Supreme Court
• Parties: BOGUE SUPPLY COMPANY, a Utah Corporation, Respondent, v. WILLIAM F. DAVIS and G. R. NICKEY, Copartners Doing Business Under the Firm Name and Style of NICKEY & DAVIS, and Said NICKEY & DAVIS, Defendants, and G. R. NICKEY, Appellant

210 P. 577

36 Idaho 249

BOGUE SUPPLY COMPANY, a Utah Corporation, Respondent, v. WILLIAM F. DAVIS and G. R. NICKEY, Copartners Doing Business Under the Firm Name and Style of NICKEY & DAVIS, and Said NICKEY & DAVIS, Defendants, and G. R. NICKEY, Appellant

Supreme Court of Idaho

November 2, 1922

APPEAL AND ERROR-ADVERSE PARTY-WHEN ENTITLED TO NOTICE OF APPEAL-COPARTNERSHIP-HOW ESTABLISHED-BURDEN OF PROOF.

1. Defendants Davis and Nickey, who were nonresidents, were sued as copartners. Davis employed counsel to represent both defendants, but stated that he being an attorney would prepare his answer. Counsel not being further advised by Davis, to avoid default filed an answer for both defendants based upon the representations of Davis, which he afterward concluded were untrue, and before trial asked and was given leave to withdraw the answer and his appearance for Davis and filed a separate answer for Nickey, which denied the partnership. Davis did not further appear. The jury found against both defendants, but judgment was entered against "the defendant," without further designation. Held that appellant Nickey was not required to serve Davis with notice of appeal.

2. Where counsel has appeared and answered for two or more defendants sued jointly and severally, and is subsequently permitted to withdraw the answer and his appearance for one defendant, who had failed to appear further, and no attempt is made to substitute counsel as required by C. S., sec 6577, judgment cannot be taken against such nonappearing defendant, and in case of judgment against the remaining defendant, on appeal he is not required to give notice to his codefendant.

3. One cannot be held liable as a copartner of another upon the unauthorized statements of such other person, unless the person denying the partnership has by some act or failure to act misled a third person to his injury who has relied upon such representations.

4. Where credit has been extended to an alleged copartnership, and one of the parties charged as a copartner denies its existence, and there is no evidence to support the allegations of copartnership other than the representations of the party making the same, the existence of the partnership is not established, and a judgment against the defendant denying the partnership will be set aside.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. F. J. Cowen, Judge.

Action to recover for goods, wares and merchandise sold and delivered. From judgment for plaintiff, defendant Nickey appeals. Reversed.

Cause reversed, with instructions. Costs awarded to appellant.

E. W. Whitcomb, for Appellant.

Where service is properly made upon any party to the record of the notice of motion for a new trial, and the notice of appeal is served upon the same parties, a motion to dismiss the appeal on the ground that service has not been made upon all the adverse parties will be denied. (In re Ryer's Estate, 110 Cal. 556, 42 P. 1082; Watson v. Sutro, 77 Cal. 609, 20 P. 88; Harper v. Hildreth, 99 Cal. 265, 33 P. 1103; In re Bullard's Estate, 114 Cal. 462, 46 P. 297.)

Davis was not an adverse party under the provisions of C. S., sec. 7153, for the reason that his interest cannot be injuriously affected by a reversal of the judgment, or the order of the court in denying a new trial. (Nelson-Bennett Co. v. Twin Falls L. & W. Co., 13 Idaho 767, 13 Ann. Cas. 172, 92 P. 980; The Victorian, 24 Ore. 121, 21 Am. St. 838, 32 P. 1040; 2 Spelling on New Trial and Appellate Practice, 1st ed., sec. 537, pp. 1143-1145; 2 R. C. L. 109, sec. 86; Bell v. San Francisco Savings Union, 153 Cal. 64, 94 P. 225; Mannix v. Tryon, 152 Cal. 31, 91 P. 983; Sullivan v. Sullivan, 139 Iowa 117 N.W. 1086, 22 L. R. A., N. S., 691; Green v. Berge, 105 Cal. 52, 45 Am. St. 25, 38 P. 539; Jackson v. Superior Court, 20 Cal.App. 638, 129 P. 946; McClain v. Lewiston Interstate & Racing Assn., 17 Idaho 63, 104 P. 1015, 25 L. R. A., N. S., 691; New Mexico & S. P. R. Co. v. Madden, 7 N.M. 215, 34 P. 50.)

The notice of appeal does not have to be directed to anyone. (Westheimer v. Thompson, 3 Idaho 560, 32 P. 205; sec. 7153, C. S.; Idaho Comstock v. Lundstrum, 9 Idaho 257, 74 P. 975; Frost v. Alturas Water Co., 11 Idaho 294, 81 P. 996.)

If Davis was in the position of a defaulted party, then no notice of appeal was required to be served upon him. (Randall v. Hunter, 69 Cal. 80, 10 P. 130; Jackson v. Brown, 82 Cal. 144, 23 P. 142; Aulbach v. Dahler, 4 Idaho 522, 43 P. 192; Boob v. Hall, 107 Cal. 160, 40 P. 117; McKeaney v. Black, 114 Cal. 494, 46 P. 381; Oleson v. Wilson, 20 Mont. 544, 63 Am. St. 639, 52 P. 372.)

No statement made by Davis is proper proof of a copartnership between him and Nickey. The admission of letters written by Davis, for the purpose of showing partnership between him and Nickey, was prejudicial error. (Vanderhurst, Sanborn & Co. v. De Witt, 95 Cal. 57, 30 P. 94, 20 L. R. A. 595; Salinas City Bank v. De Witt, 37 Cal. 78, 31 P. 744; Grafton Bank v. Moore, 13 N.H. 99, 38 Am. Dec. 478, and note.)

R. P. Quarles and A. C. Cherry, for Respondent.

Sued as a joint party--as a copartner of appellant--and being one of the defendants in the judgment, Davis was and is a necessary party, and would be affected by a reversal of judgment, either as to both defendants or as to the appellant. Failing to make Davis a party to these appeals, the court has no jurisdiction to hear either of them, and they should be dismissed. (C. S., sec. 7153; Titiman v. Alamance M. Co., 9 Idaho 240, 74 P. 529; Diamond Bank v. Van Meter, 18 Idaho 243, 21 Ann. Cas. 1273, 108 P. 1042; Miller v. Wallace, 26 Idaho 373, 143 P. 524; State Bank v. Watson, 27 Idaho 211, 148 P. 470; Bridgham v. National Pole Co., 27 Idaho 214, 147 P. 1056.)

The judgment being joint against the appellant and defendant Davis, he is a necessary party to the appeals. (Jones v. Quantrell, 2 Idaho 153, 9 P. 418; Coffin v. Edgington, 2 Idaho 627, 23 P. 80; Lydon v. Goddard, 5 Idaho 607, 51 P. 459; Lewiston Nat. Bank v. Tefft, 6 Idaho 104, 53 P. 271; Doust v. Rocky Mtn. Bell Tel. Co., 14 Idaho 677, 95 P. 209; Glenn v. Aultman etc. Co., 30 Idaho 727, 167 P. 1163.)

Appellant having named the plaintiffs only in his notice of appeal, the appeal is limited to the parties so named, and even if he had served the notice of appeal upon the defendant Davis, that would not make Davis a party to the appeal, the parties being limited to those named in the notice of appeal. (Glenn v. Aultman etc. Co., supra; Williams v. Sherman, 34 Idaho 63, 199 P. 646; Hibernia Sav. & Loan Soc. v. Lewis, 111 Cal. 519, 44 P. 175; In re Pendergast's Estate, 143 Cal. 135, 76 P. 962.)

Where there is some evidence to support the verdict of the jury, the judgment must be affirmed. (Lott v. Oregon S. L. R. R. Co., 23 Idaho 324, 130 P. 88; Quirk v. Sunderlin, 23 Idaho 368, 130 P. 374; Denbeigh v. Oregon-Wash. etc. Co., 23 Idaho 663, 132 P. 112.)

LEE, J. McCarthy and Dunn, JJ., concur.

OPINION

LEE, J.

Respondent alleges that it is a corporation, domiciled in and doing a general mill and mining supply business from Salt Lake City, Utah; that in 1917 it sold and delivered certain mining and milling machinery to the defendants William F. Davis and G. R. Nickey, who were copartners doing a mining and milling business at Shoup, Lemhi county, Idaho, under the firm name and style of Nickey & Davis. The prayer demands judgment against said defendants William F. Davis and G. R. Nickey and said partnership, jointly and severally.

Defendants were residents of Butte, Montana, but were at the time engaged in operating the Kentuck Mining Company's property at Shoup, Idaho. Soon after defendants were served with process, defendant Davis appeared at the office of E. W. Whitcomb, Esq., in Salmon, and retained his services on behalf of the defendants and deposited certain papers with him, Davis saying that he was an attorney, and upon his return from Butte would prepare an answer, which he never did. This was the last time the attorney ever met or heard from Davis, and in order to avoid a default, said attorney prepared on behalf of defendants an answer, in which he admitted, by failing to deny, the copartnership relation between Nickey and Davis.

At the beginning of the trial of the cause, appellant Nickey appeared and informed said counsel that the information given him by Davis as to appellant and Davis being partners was untrue, and counsel, believing that such representations were untrue, asked leave of the court to withdraw the answer which he had filed on behalf of both defendants, and to withdraw his appearance as counsel for Davis, which request was granted. He then filed an answer on behalf of appellant, denying all partnership relations between the two defendants, and alleged other facts and circumstances which tended to show that Nickey was not a copartner of Davis and had not in any manner acquiesced in or had any knowledge of the purchase of the milling machinery and other merchandise for which the action was being prosecuted against himself and Davis, and had not in any manner authorized its purchase. Defendant Davis failed to make any further appearance, and said counsel who had appeared for both defendants, before withdrawing his answer and appearance for Davis, stated that he had endeavored in every reasonable way to find his whereabouts, but had been unable to do so.

The cause was tried by the court with a jury upon the complaint charging that Nickey and Davis were copartners, and the answer of appellant Nickey denying all the material averments of said complaint. Upon the issues thus tendered by the separate answer of Nickey, no further appearance on the part of Davis, nor attempt to substitute counsel for him, being...