Dunham v. Shindler

• Decision Date: 15 January 1889
• Parties: DUNHAM v. SHINDLER et al.
• Court: Oregon Supreme Court

20 P. 326

17 Or. 256

DUNHAM v. SHINDLER et al.

Supreme Court of Oregon

January 15, 1889

Appeal from circuit court, Wasco county.

(Syllabus by the Court.)

All actions, not required to be commenced and tried in the county in which the subject of the action, or some part thereof, is situated, or which are not for a penalty or for forfeiture imposed by statute, or are not against a public officer or person appointed to execute his duties for an act done by him in virtue of his office, etc., must be commenced in the county in which the defendants or either of them reside, or may be found at the commencement of the action, and the court will not acquire jurisdiction over the person of the defendant unless so commenced.

A partnership cannot be sued as such. The names of its members must set out in the complaint and summons, and a service upon a person not named therein, although certified by the sheriff in his return to be a member of the partnership, is a nullity.

Williams & Williams, for appellants.

Atwater & Storey, for respondent.

PER CURIAM.

This appeal is from a judgment rendered in form by the clerk of said circuit court in vacation. The respondent filed in the office of the said clerk a complaint against the appellants, designating them as "G. Shindler & Co. defendants." He thereupon issued a summons directed to G. Shindler & Co. as defendants. The summons was in the usual form, requiring the defendants to appear and answer the complaint in the action within 10 days from the date of the service of the summons upon them, if served within Wasco county, or, if served within any other county of the state then within 20 days. The summons, it appears, was sent to the sheriff of the county of Multnomah for service, who returned the same with a certificate thereon indorsed and signed by him, which is to the effect that he served it within said county of Multnomah on the 16th day of April, 1888, on the said G. Shindler & Co., by delivering a copy thereof, prepared and certified to by him as sheriff, together with a copy of the complaint, prepared and certified by George H. Thompson, clerk of Wasco county to D.W. Shindler, a member of the firm of G. Shindler & Co. Subsequently, on motion of the respondent's counsel to enter default and judgment, the said clerk proceeded and entered a judgment in favor of the respondent, and against G Shindler & Co., in the said circuit court, for the sum of...