Kempner v. McMahan
| Decision Date | 02 March 1931 |
| Docket Number | No. 3507.,3507. |
| Citation | 296 P. 802,35 N.M. 313 |
| Parties | KEMPNERv.McMAHAN et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Personal answer of one partner, not being answer in behalf of partnership, does not operate to prevent default by partnership.
An answer purporting to be merely the personal answer of one member of a partnership, and not being an answer for or in behalf of the partnership, does not operate to prevent a default by the partnership.
Verification of answer may be permitted to be made on motion to strike answer for want of verification.
It is correct to allow a verification of an answer to be made in the face of a motion to strike the same for want of verification.
Denial on information and belief is sufficient when facts on which plaintiff relied are clearly without defendant's knowledge.
When the facts upon which plaintiff relies are clearly without the knowledge of defendant, a denial upon information and belief is sufficient.
Appeal from District Court, Dona Ana County; N. C. Frenger, Judge.
Action by H. Kempner against W. E. McMahan and others. From an adverse judgment, plaintiff appeals.
Affirmed.
It is correct to allow a verification of an answer to be made in the face of a motion to strike the same for want of verification.
W. C. Whatley, of Las Cruces, for appellant.
Edward D. Tittmann, of El Paso, Tex., for appellees.
Plaintiff and appellant, H. Kempner, brought an action in the district court of Dona Ana county. He submitted no proof except a deposition which, upon objection, was disallowed by the court and was withdrawn by the plaintiff. So the case stands upon the pleadings, with no proof on either side. A jury had been impaneled for the trial of the case.
[1] 1. The complaint was filed on July 21, 1928; on April 26, 1929, a motion for judgment by default against V. C. Collier, individually, and V. C. Collier & Co., a partnership composed of V. C. Collier and one W. E. McMahan, the Latter having appeared and answered for himself. This answer of McMahan does not undertake to answer for or in behalf of the partnership. This motion for default was not acted upon until final judgment on October 7, 1929, when judgment by default was rendered against said Collier and denied as to said V. C. Collier & Co. In this the court below committed error. The partnership was sued as such, and process was served upon each of the partners. No appearance or answer was filed for or on behalf of the partnership, which was consequently in default at the time of the motion for the default judgment. There seems to be in the mind of counsel for appellee a misapprehension of the holding in Good v. Red River Valley Co., 12 N. M. 245, 78 P. 46, from which he makes a quotation and draws the inference that a plaintiff may sue the individual partners as individuals, or he may sue the partnership as such, but that he may not sue both. This is not the holding in the case of Good v. Red River Valley Co., and indeed we could not so hold in the face of the statute which directly provides that a partnership may be sued as such, and service of process may be made upon one of the partners which will bind both the partnership assets and those of all partners served with process or appearing.
[2] 2. Appellant moved to strike the answer of the defendant McMahan for want of proper verification. This the court refused, and permitted the same to be properly verified. The defect in the verification consisted in the omission of the date by the notary of the signature and verification. We can see no objection to the action of the court in permitting the verification.
[3] 3. Appellant urges that the answer of McMahan tendered no issuable fact; it being upon information and belief concerning matters, it is argued, which were necessarily within the knowledge of defendant. Defendant admitted the partnership of himself and Collier. It appears that the business of the firm was that of buying and selling cotton in the Mesilla Valley at and around Las Cruces, N. M., and that they shipped to appellant at Galveston, Tex., various lots of cotton aggregating 846 bales upon sight drafts and bills of lading attached. Appellant alleges that, upon the arrival of said cotton in Galveston, he had the same reweighed, graded, and classed, and found he had overpaid defendant the sum of $1,885.87, for which sum he brought action. How could it be said that the defendant could have any knowledge of what took place in Galveston, we cannot understand. This situation certainly admitted of a denial upon information and belief, as the court below held.
It follows that the court was in error in refusing to grant a default judgment against V. C. Collier & Co., and for that reason the case will be remanded, with directions to enter said judgment, and it is so ordered.
I concur in the result, but not entirely in the opinion.
Plaintiff, a Galveston cotton buyer, sued V. C. Collier & Co., a copartnership, and V. C. Collier and W. E. McMahan, the individual partners, alleging that these defendants sold him certain cotton and so invoiced it as to weights and grades that, in taking up the drafts attached to the bills of lading, he largely overpaid defendants. All defendants were served, but neither the copartnership nor Collier appeared. A motion was filed for default judgment as against these two, but it was not brought on for hearing, and no action was taken until the motion was renewed at the trial.
Defendant McMahan answered and demanded a jury. The cause came on for trial, and a jury was impaneled. Plaintiff offered depositions in evidence, but on objection withdrew them. He then moved that the answer of defendant McMahan be stricken because not properly verified. A counter motion was made for leave to correct the verification by amendment. This was granted, and the motion to strike was thereupon overruled. Plaintiff then moved for judgment by default and on the pleadings against defendants the partnership and Collier. This motion was granted as to Collier but denied as to the partnership. Plaintiff then moved for a directed verdict against defendant McMahan on the ground that the allegations of the answer constituted no denial of the allegations of the complaint. This motion was overruled, and plaintiff announced that he would stand upon his various motions. Judgment was thereupon rendered for defendants McMahan and the partnership, and against defendant Collier.
Plaintiff appeals and specifies three points upon which he relies for reversal, viz.:
(1) The court erred in denying plaintiff's motion for a directed verdict as against defendant McMahan.
(2) The court erred in denying plaintiff's motion for judgment by default against defendant partnership.
(3) That the court erred in denying plaintiff's motion to strike defendant McMahan's answer for want of verification.
Did the court err in overruling the motion for a...
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Brownlee v. Benitz, 3848.
...were necessarily within the knowledge of the indorser Luchini. So we find this point of appellant to be without merit. See Kempner v. McMahan, 35 N. M. 313, 296 P. 802. Appellant's second contention is that the undisputed evidence shows that due demand and presentment were made. This is vig......