Brawley v. Mitchell

• Court: Wisconsin Supreme Court
• Writing for the Court: NEWMAN
• Citation: Brawley v. Mitchell, 92 Wis. 671, 66 N. W. 799 (Wis. 1896)
• Decision Date: 27 March 1896
• Parties: BRAWLEY v. MITCHELL.

92 Wis. 671

66 N.W. 799

BRAWLEY

v.MITCHELL.

Supreme Court of Wisconsin.

March 27, 1896.

Appeal from circuit court, Portage county; Charles M. Webb, Judge.

Action by A. Brawley against J. S. Mitchell and D. H. Vaughn, as partners. Judgment against Mitchell alone, from which he appeals. Reversed.

Brawley brought this action, in the county court of Portage county, against D. H. Vaughn and J. S. Mitchell, as co-partners of the firm Vaughn & Mitchell, upon two joint promissory notes, made by them, by their firm name. There was no service of process upon Vaughn, and he did not appear in the action. Property of Mitchell was attached, and he appeared and defended. There was judgment in favor of the plaintiff, and, in form, against both defendants. From this judgment, Mitchell appealed. In the circuit court he withdrew his answer. The court took the plaintiff's proofs, and gave judgment against Mitchell alone, and his sureties upon his appeal. This appeal is by Mitchell alone, from that judgment.Raymond, Lamoreux & Park, for appellant.

Cate, Jones & Sanborn, for respondent.

NEWMAN, J.

The statute (section 2884, Rev. St.) provides that when the action is against persons jointly liable on a contract, and the summons is served upon some, but not upon all, of the defendants, judgment may be entered, in form, against all the defendants so jointly indebted, “so far only as that it may be enforced against the joint property of all and the separate property of the defendants served.” The words of the statute are permissive only, in form. But the exercise of a statutory power which is only permissive in form is not discretionary where public interests or individual rights call for its exercise. In such cases it is peremptory. Cutler v. Howard, 9 Wis. 309;Bank v. Hogan, 21 Wis. 317;Dutcher v. Dutcher, 39 Wis. 651; Suth. St. Const. § 462. So, this statute must be held to be mandatory, because the individual right of the defendant served requires it. To enter judgment against the defendant served, only, is not a mere formal error, but it is matter of substance. This was so held in Bacon v. Bicknell, 17 Wis. 523. See, also, Nelson v. Bostwick, 5 Hill, 37;Stehr v. Ollbermann, 49 N. J. Law, 633, 10 Atl. 547. It changes the form of the execution. It can only go against the separate property of Mitchell; whereas it should go against the joint property of the firm. Mitchell has the right, as between himself and his co-partner, that the firm property shall be...