Henry L. Doherty & Co. v. Youngblut

• Decision Date: 03 November 1919
• Docket Number: 9342,9450.
• Citation: 66 Colo. 594,185 P. 257
• Parties: HENRY L. DOHERTY & CO. v. YOUNGBLUT. SAME v. STEELE et al.
• Court: Colorado Supreme Court

185 P. 257

66 Colo. 594

HENRY L. DOHERTY & CO. v. YOUNGBLUT.

SAME v. STEELE et al.

Nos. 9342, 9450.

Supreme Court of Colorado

November 3, 1919

Department 2.

Error to District Court, Morgan County; H. P. Burke, Judge.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Actions by E. E. Youngblut and by Wilbur F. Steele and others against Henry L. Doherty & Co. There were judgments favoring plaintiffs, and defendants bring error.

Motions to dismiss denied.

In 9342:

Bardwell Hecox, McComb & Strong, of Denver (Platt Rogers, Perry D Rose and John R. Smith, all of Denver, of counsel), for plaintiff's in error.

Walter S. Coen, of Ft. Morgan, and Melville & Melville and Hubert L Shattuck, all of Denver, for defendant in error.

In 9450:

Charles F. Tew and Bardwell, Hecox, McComb & Strong, all of Denver (Platt Rogers and Perry D. Rose, both of Denver, of counsel), for plaintiffs in error.

Hubert L. Shattuck and Melville & Melville, all of Denver, for defendants in error.

DENISON J.

The defendants in error move to dismiss on several grounds. The plaintiffs in error answer that defendants in error cannot to this, because they have already moved and failed, and the present grounds were available at the time of the former motion, and plaintiffs in error call attention to the fact that since the former motion they have expended large sums in the preparation and printing of abstracts and briefs. The defendants in error reply that the grounds of their motion are jurisdictional and that this court cannot proceed under present conditions.

We think the position of plaintiffs in error is sound. A dismissal evades a test of the merits of the controversy and ought not to be favored. It is a favor to permit successive motions to dismiss on grounds available at former motions. Since a determination of some of the questions raised on this motion may be necessary to enable plaintiffs in error to amend, we notice them.

We think it competent for a partnership, made a party as such below, to proceed by error here. By the proceedings below Henry L. Doherty & Co., the partnership, and not its individual members, was made defendant; consequently the partnership, without the individual members, may proceed in error. The proper way to make parties of the individual members of a partnership is to name them in the title, and then, in the introductory part of the complaint, state...