Hallowell v. McLaughlin Bros.

• Decision Date: 02 July 1909
• Parties: HALLOWELL ET AL. v. MCLAUGHLIN BROS.
• Court: Iowa Supreme Court

136 Iowa 279

121 N.W. 1039

HALLOWELL ET AL.

v.MCLAUGHLIN BROS.

Supreme Court of Iowa.

July 2, 1909.

Appeal from District Court, Pocahontas County; D. F. Coyle, Judge.

Suit to recover damages for a breach of warranty of a stock horse. Verdict and judgment for plaintiffs. The defendants appeal. Affirmed.E. A. & W. H. Morling, for appellants.

Frank A. Fairburn and Kenyon, Kelleher & O'Connor, for appellees.

PER CURIAM.

This is the second appeal in this case. The opinion on the first appeal is reported in 136 Iowa, 279, 111 N. W. 428. That opinion is the law of the case as to all questions therein discussed and determined, and it settles the plaintiffs' right to recover on an oral warranty of the horse in question.

The instructions now before us are in accord with the former opinion, and no reason is apparent for again discussing the law involved in the instructions given. The evidence fully supports the verdict in this case, and it should not be disturbed.

But one new question is here presented, and that arises on the following facts: This action was commenced in December, 1903. It was transferred to the United States Circuit Court upon the defendants' application, where it was remanded to the state court, because of want of jurisdiction of the federal court. In January, 1905, the defendants filed an application in the district court for the substitution of John R. and James R. McLaughlin as defendants. This was denied, and since such denial both trials have taken place and more than three years elapsed, and the defendants now appeal from the order denying substitution.

There was no right of substitution. The statute (Code, § 3468) expressly provides that a partnership may sue or be sued as a distinct legal entity. Brumwell v. Stebbins, 83 Iowa, 425, 49 N. W. 1020;Ruthven v. Beckwith, 84 Iowa, 715, 45 N. W. 1073, 51 N. W. 153;Baxter v. Rollins, 110 Iowa, 310, 81 N. W. 586. Under this statute the plaintiffs had the absolute right to sue the partnership alone or to join in such suit the individual members of the partnership. They chose the former course, and they cannot be deprived of such right upon the application of the partnership, or of the individual members thereof. Allen v. Maddox, 40 Iowa, 124; Ryerson v. Hendrie, 22 Iowa, 481; Ballinger v. Tarbell, 16 Iowa, 493, 85 Am. Dec. 527; Corporation of New Orleans v. Winter et al., 1 Wheat. 91, 4 L. Ed. 44;Peninsular Iron Company v. Stone, 121 U. S. 631, 7 Sup. Ct. 1010, 30 L. Ed. 1020.

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