Keith Bros. & Co. v. Stiles

• Decision Date: 22 October 1895
• Parties: KEITH BROS. & CO. v. STILES ET AL.
• Court: Wisconsin Supreme Court

92 Wis. 15

64 N.W. 860

KEITH BROS. & CO.

v.STILES ET AL.

Supreme Court of Wisconsin.

Oct. 22, 1895.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Keith Bros. & Co., a corporation, against Frank Stiles and others. There was a judgment for defendant, and plaintiff appeals. Reversed in part.

Keith Bros. & Co., an Illinois corporation, was a creditor of the firm of Martin, Stiles & Co., of Odell, Neb. The firm comprised Charles H. Martin, Frank Stiles, and James Myers. This action is brought, in form, against all the members of the firm, but there was service of summons upon Stiles alone. He alleged in defense a former judgment, in the county court of Gage county, Neb., in form against all the partners, with service of summons upon Myers alone. There was objection to the form of the exemplification of the record of this judgment. It was as follows (after venue): “I, W. S. Bonane, county judge in and for said county, do hereby certify that the above and foregoing, hereto attached, are true and perfect copies of the petition, summons, and exhibits, being all of the files in the case of Keith Bros. and Co., a corporation organized under the laws of Illinois, is plaintiff, and Henry Martin, Frank Stiles, and James Myers, a firm of partners doing business as Martin, Stiles & Co., and James D. Myers, defendants. I further certify that I am sole and only presiding judge, and ex officio clerk of said court, and that this certificate is in due form of law.” The certificate is signed by the judge as both judge and clerk, and sealed with the seal of the court. The defendant also set up in defense a release in writing by the plaintiff of its claim as against him. This release was attempted to be proved by oral testimony, after some testimony tending to show that the defendant had not been able to find the writing. There was finding and judgment for the defendant, on the ground of a written release, from which the plaintiff appeals.E. V. Briesen and A. R. Bushnell, for appellant.

W. G. Coles, for respondent.

NEWMAN, J. (after stating the facts).

The record of the Nebraska judgment seems to be exemplified in conformity with the provisions of the act of congress in that behalf. Rev. St. U. S. § 905. It was competent, under that provision, to prove the record “by the authentication of the clerk and the seal of the court annexed, * * * together with a certificate of the judge * * * that the said attestation is in due form.” All this is included in the certificate. The fact that the judge is also ex officio clerk as well does not render the judgment incapable of exemplification under that statute. When the judge is also ex officio clerk, no doubt he must certify in each capacity. Abb. Tr. Ev. 542, and cases cited. That was done in this case. It is a matter of form, rather than of substance, whether the certification shall be by two separate certificates, or comprised in one. The proof of the Nebraska judgment is in the record, and the fact of its existence is undisputed on the evidence, so that it may fairly be considered a part of the finding, though not formally included in it. Murphey v. Weil, 89 Wis. 146, 61 N. W. 315.

Since partnership contracts are to be considered as joint merely, and not joint and several (17 Am. & Eng. Enc. Law, 1062, and cases cited in note 6), a judgment against one partner for a firm debt releases the other partners, so that no new action can be maintained against them, upon it (Bowen v. Hastings, 47 Wis. 232, 2 N. W. 301;Lauer v. Bandow, 48 Wis. 638, 4 N. W. 774; 15 Am. & Eng. Enc. Law, 344, and cases cited in note 6; Bates,...