Holmes v. Alexander

• Decision Date: 02 November 1915
• Docket Number: 5458.
• Citation: 152 P. 819,52 Okla. 122,1915 OK 869
• Parties: HOLMES ET AL. v. ALEXANDER.
• Court: Oklahoma Supreme Court

152 P. 819

52 Okla. 122,1915 OK 869

HOLMES ET AL. v. ALEXANDER.

No. 5458.

Supreme Court of Oklahoma

November 2, 1915

Syllabus by the Court.

Where in an action against a partnership, service is made by publication and the appearance is by the partnership only and judgment is rendered against the individuals composing the firm, and, pending the appeal one of the partners dies held, a failure to revive in the name of his personal representative is not fatal to the appeal, inasmuch as the trial court was without jurisdiction to render an individual judgment against the deceased.

In an action against a partnership, where service is made upon the firm only, a judgment rendered against the individuals composing the partnership is void for the reason that it is rendered against parties not before the court.

A partnership is a distinct entity from the individuals who compose it.

Commissioners' Opinion, Division No. 2. Error from County Court, Carter County; W. F. Freeman, Judge.

Action by M. L. Alexander against Edward R. Holmes and Ralph W Holmes, surviving partners of the firm of R. E. Holmes & Sons. Judgment for plaintiff, and defendants bring error. Reversed.

J. B. Moore, of Ardmore, Warner, Dean, McLeod & Langworthy, and William E. Byers, all of Kansas City, Mo., for plaintiffs in error.

Cruce & Potter, of Ardmore, for defendant in error.

GALBRAITH C.

This action was originally commenced in a justice of the peace court. On appeal to the county court it was tried to the court and a jury, and a verdict returned for the plaintiff. Judgment was rendered on the verdict as follows:

"It is therefore ordered, decreed, and adjudged by the court that M. L. Alexander, the plaintiff herein, do have and recover of and from R. E. Holmes, Ralph W. Holmes, and Edward R. Holmes, the defendants herein, jointly and severally, the sum of $200, together with all costs herein. To the above judgment the defendants in open court except."

A motion is hereby presented by the defendant in error to dismiss the appeal for the reason:

"That this court is without jurisdiction to hear and determine this appeal, for the reason that intermediate to final judgment and the filing of the proceedings in error in the Supreme Court, R. E. Holmes, who was one of the party defendants below, and against whom a judgment was rendered by the court in said cause, and one of the parties who prayed this appeal, died, and that no revivor of said action is shown by the record therein."

This motion is well taken, provided the judgment appealed from is valid, inasmuch as it appears from the face thereof that it was and is a joint judgment. Holmes et al. v Dillard, 40 Okl. 309, 136 P. 408. This last case, however, is distinguished from the case at bar, in this: That in the Dillard Case the action was prosecuted against the individuals composing the partnership of R. E. Holmes & Sons, and not against the partnership, as in this case, and in that case the individuals were served with summons and appeared in the trial court, while in this the summons was against R. E. Holmes & Sons, and the service was made by publication against the partnership, and the appearance was by the partnership, and there was neither service upon, nor appearance by, R. E. Holmes. The judgment was therefore void as to him for want of jurisdiction in the trial court to render it. Sayre Commission Co. et al. v. Keen, 26 Okl. 794, 110 P. 775; Heaton v. Shaeffer, 34 Okl....