Douthit v. Douthit
| Decision Date | 29 November 1892 |
| Docket Number | 15,805 |
| Parties | Douthit et al. v. Douthit |
| Court | Indiana Supreme Court |
From the Shelby Circuit Court.
Judgment affirmed.
J. B McFadden, J. T. Carter and J. H. Phillippy, for appellants.
T. B Adams, I. Carter and A. F. Wray, for appellee.
There is a single assignment of errors comprising several specifications, in which all of the appellants join. The rule is that, although there are separate specifications of error the assignment must be good as to all who join in it, or it will not be available to any of the appellants. This is the well-settled rule. See authorities cited in Elliott's Appellate Procedure, §§ 318, 401, 299, notes. Under this familiar rule we can not consider the rulings upon the demurrers to the complaint, since it undoubtedly states a cause of action against some of the appellants, and shows that the appellee is, at least, entitled to part of the relief demanded. The only specification in the assignment of errors which presents questions available to all of the appellants is the one which is founded on the exceptions to the conclusions of law stated upon the facts specially found by the court. Even if we should depart from the rule forbidding the consideration of errors where they are jointly assigned by several parties, and the assignment is not good as to all, we can not reverse if it be true that it appears from the special finding that the errors on rulings upon the pleadings, if there were errors, were harmless. The special finding is part of the record proper, and where it affirmatively shows that no substantial injury was done an appellant there can be no reversal for errors committed in the formation of issues; for where the record proper shows that the ultimate conclusion is right, intermediate errors will be disregarded. See authorities cited in Elliott's Appellate Procedure, §§ 590, 591, 635. In the case before us the principal questions argued by counsel in their attack upon the rulings on demurrer arise on the special findings, so that we have given careful study to appellants' arguments upon all the material questions.
The special finding and conclusions of law read as follows:
First. "The court finds that on the 4th day of July, 1887, the plaintiff, James L. Douthit, and Alonzo Douthit, entered into a partnership for the purpose of threshing wheat and other grain; that, by the terms of the partnership, they were to be equal partners, sharing equally in the loss and profits, each owning an equal interest in the property used in the business; that James S. Douthit assumed and agreed to pay the one-half of the indebtedness on the engine, which was the sum of $ 260.00, and one-half of the indebtedness on the separator, which was $ 100.00, as the consideration for his interest in said property and business then purchased from said Alonzo.
Second. "That said parties engaged in said business, and continued therein till the 1st day of August, 1887, at which time they dissolved said partnership by mutual agreement, by the terms of which Alonzo Douthit was to keep all the partnership property, and pay all the outstanding indebtedness on said property.
Third. "The court finds that, while said parties were so engaged in said partnership business, William Leslie became indebted to them, for threshing, in the sum of $ 3.48; David Unil, in the sum of $ 6.70; Thomas Goble, in the sum of $ 5.60; Fred. Schepple, in the sum of $ 20.00; Edward Melis, in the sum of $ 4.20; William Kinsley, in the sum of $ 20.00; Lot Barger, in the sum of $ 17.12; James M. Bassett, in the sum of $ 50.32; James S. Douthit, in the sum of $ 34.12; making a total of $ 163.64.
Fourth. "That during the time they were engaged in threshing, viz., on the 8th day of July, 1887, James M. Bassett obtained a judgment, before Isaiah C. Owens, a justice of the peace, for the sum of $ 92.80 against the defendants, Alonzo Douthit and one George Baker, upon which execution had been issued; that said judgment was on the debt of Alonzo Douthit; that thereupon it was agreed between plaintiffs and said defendant, Alonzo Douthit, that the plaintiff should collect said several items of indebtedness and apply them in payment of said judgment and the residue on the liabilities of the firm under said agreement.
Fifth. "That said Alonzo Douthit, in the year 1887, collected debts due the firm, of other parties than those above named, the sum of $ 58.60; that it was agreed, at the time said money was advanced from the firm in payment of said judgment against said Alonzo, that the plaintiff should be indemnified for his interest out of other moneys due the firm, but that the defendant, Alonzo Douthit, collected said sum of $ 58.60 and appropriated the whole thereof to his own use, except $ 9.50, which he paid to one "Patterson," on a firm account; and that, for the purpose of cheating and defrauding the plaintiff, said Alonzo entered into agreement with his co-defendant, James B. McFadden, to sue the plaintiff for the items collected by the plaintiff and paid out as herein-before found; that the defendant, McFadden, with a knowledge of all the facts, brought a suit against the plaintiff, in the Shelby Circuit Court, for Alonzo Douthit, for the identical items herein-before set out; that said Alonzo and McFadden knew that the plaintiff intended to defend against said suit, but said defendants advised and informed the plaintiff that he need not appear to said action, but that they would let the matter pass on until the plaintiff and the defendant could meet and have an accounting and adjustment between themselves as to all of said partnership matters; that the plaintiff relied upon said advice and promises, and had no means of knowing, and did not know, that the same were not made in good faith.
Sixth. "The court further finds that on the next judicial day of said Circuit Court the defendant, McFadden, viz.: on the 17th day of October, 1887, took a default against the plaintiff; and, afterwards, on the 29th day of October, 1887, in said court, took a judgment on said default against the plaintiff for $ 98.20, on a part of said items of account so collected and paid out by the plaintiff.
Seventh. "That, in furtherance of said fraudulent purpose to cheat the plaintiff, the said Alonzo, on the 12th day of November, 1887, assigned said judgment to said McFadden on the order book of said court; that said McFadden took said assignment with full knowledge that the sum for which it had been taken had been collected by said James S. Douthit from the partnership assets and by him expended upon the individual liabilities of said Alonzo.
Eighth. "That the said Alonzo is wholly and notoriously insolvent, and has no other means with which said partnership liabilities, or any part thereof, to the plaintiff can be paid.
Ninth. "That in pursuance of said conspiracy said defendants, on the day of -----, 1888, caused an execution to be issued by the clerk of the Shelby Circuit Court to the defendant, Henry Meer, the sheriff of said county, and said sheriff heretofore, to wit: on the day of -----, 1888, levied said execution on the property of the plaintiff, and advertised it for sale; that said sheriff was proceeding to sell said property to satisfy said execution, and would have done so if he had not been enjoined and restrained from so doing.
Tenth. "That all the debts and partnership matters have been fully settled and debts collected and all the matters of said partnership closed up, except the accounting and settlement of the individual matters between the plaintiff and said defendant Alonzo, and a small sum due one Claver, viz.: $ 14.00; that all of the items as between them are still open, unsettled and unadjusted.
Eleventh. "I further find that in addition to the amount herein-before mentioned that said firm, at the time of its dissolution, was, and at this time is, indebted to the plaintiff for other expenditures by him made for the benefit of the firm, in the sum of $ 36.50, making a total sum of $ 181.05 paid out by the plaintiff for the benefit of the firm, and $ 92.80 of which, at the request of the defendant, Alonzo Douthit, was paid out of the firm assets for his individual benefit; that plaintiff should be indemnified out of the firm assets for such payment.
Twelfth. "I further find that there ought to be an accounting between said partners as to all the partnership matters, including said judgment taken in the Circuit Court for said sum of $ 98.20, and that so much of the amount paid out by the plaintiff, as...
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