Dulany & Co. v. Elford
| Citation | 22 S.C. 304 |
| Parties | DULANY & CO. v. ELFORD & DARGAN. |
| Decision Date | 05 March 1885 |
| Court | United States State Supreme Court of South Carolina |
1. Four days' notice should be given of a motion requiring security for costs, but where granted without notice and complied with, no delay being occasioned, there is no ground for a new trial. Doubted , whether an order requiring security for costs is appealable, unless it results in a termination of the action by non-suit.
2. There being some evidence tending to show that defendant was a member of a debtor partnership, the Circuit judge erred in granting a non-suit as to such defendant.
3. What constitutes a partnership is a question of law, and should be charged by the judge to the jury, leaving it for the jury to say whether there is sufficient evidence to establish the facts so charged by the judge to be necessary to the existence of a partnership.
4. Where all of the partners are served, there is no law which authorizes a verdict to be rendered against the effects of a firm. In such case, section 157 of the code does not apply.
5. A question not presented to the Circuit judge, nor decided by him, cannot properly be brought before this court for consideration.
6. In ordinary action against a partnership, the question of the liability of one of the defendants for an amount of money withdrawn from the firm, not being raised by the pleadings cannot be considered.
Before FRASER, J., Greenville, July, 1884.
The opinion fully states the case.
Messrs. Perry & Heyward , for appellants.
Security for costs cannot be demanded except upon due notice served before the commencement of the term. 1 McCord , 552; 13 S.C. 44.
The evidence was sufficient to make Mrs. Elford liable, and it was not a case for non-suit. 19 S.C. 23, 32; 21 Id. , 93; 18 Id. , 537; 3 Kent , * 27, *37, and *57, and citations; 16 Johns. , *40; 4 B. & Ald. , 663; 2 H. Bl. , 247; 4 Rich. , 314; 1 Bail. , 146; Doug. , 371; Gen. Stat. (1872), 318; Gen. Stat. (1882), §§ 1288, 1289; 1 Myl. & K. , 582; Coll. Part. , §§ 6, 125, and citations.
Plaintiffs have a right to judgment against the " effects of the firm of Elford & Dargan." Code , § 157.
Mr. J. L. Orr , contra.
The plaintiffs brought this action on two notes, bearing date April 12, 1883, signed " Elford & Dargan," and in the complaint it is alleged that the defendants were copartners under that name and style. Dargan made default, but the other defendant, Mrs. Caroline Elford, put in an answer denying that she had ever been a member of the firm of Elford & Dargan, which firm, she alleged, was dissolved in October, 1875, by the death of G. E. Elford, who, it seems, was her husband.
When the case was first reached, on sounding the calendar, the attorney of Mrs. Elford moved that the plaintiffs, being nonresidents, be required to put in security for costs, which motion was objected to by plaintiffs' attorney upon the ground that no notice had been given of such a motion, and that it came too late. On the same day, being July 14, written notice was served that, on the call of the case for trial, an order requiring security for costs would be moved for. The Circuit judge ruled that a plaintiff, being a non-resident, might be required to furnish security for costs at any time, and on the same day (July 14) passed an order requiring the plaintiffs to put in security for costs, on or before the first day of September next, or be non-suited. The required security was furnished on July 15, and the case was tried in regular order on July 17.
Dargan testified that the notes in suit were signed by him, in the firm name of Elford & Dargan; that G. E. Elford, who, with himself, originally constituted the firm of Elford & Dargan, died in October, 1875, at which time said firm was indebted to the amount of one thousand dollars; that the concern was never closed up, and was never free from debt; that he heard Mrs. Elford say she was willing for her interest to remain in the firm; that he paid Mrs. Elford out of the firm, in money and other articles, from $165 to $175 a year, and that on June 30, 1883, one McPherson bought the interest of Mrs. Elford for $2,000, out of which the witness applied $500 to the payment of the debts due by Elford & Dargan, and paid over the balance to Mrs. Elford, taking her receipt in these words: On his cross-examination, this witness testified that the accounts for which the notes sued on were given were contracted after the death of G. E. Elford; that the interest of G. E. Elford in the stock of goods at his death was $2,287, his share being three-fifths and that of the witness being two-fifths; could not say what his interest was worth. It also appeared that G. E. Elford left a will, of which C. G. Wells, Esq., was the executor, and that, as the event has proved, Mrs. Elford was his sole legatee.
On the close of the testimony for the plaintiffs, the Circuit judge granted an order, on the motion of defendants' attorney for a non-suit as to the defendant, Caroline Elford, upon the ground " that it has not been shown that the defendant, Caroline Elford, was ever a member of the firm of Elford & Dargan, either at the date of the notes sued on or at any other time." The plaintiffs' attorney then moved to take a verdict against Dargan " and the effects of the firm of Elford & Dargan," which motion was refused, the Circuit judge holding that as there was no answer put in by Dargan, it was not clear that the plaintiffs were entitled to take any verdict at all, but a...
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