Philips v. Samuel

• Decision Date: 31 October 1882
• Citation: 76 Mo. 657
• Parties: PHILIPS, Appellant, v. SAMUEL.
• Court: Missouri Supreme Court

76 Mo. 657

PHILIPS, Appellant,

v.SAMUEL.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Clay Circuit Court.--HON. GEORGE W. DUNN, Judge.

AFFIRMED.

J. W. Jenkins and J. D. S. Cook for appellant.

Samuel Hardwicke and D. C. Allen for respondents.

HENRY, J.

This is a proceeding to restrain defendants from collecting a judgment in their favor rendered by the Clay circuit court at its March term, 1875, and to set aside that judgment. The suit on which the judgment was rendered was instituted by defendants against C. M. Ewing, Joseph Y. and Samuel Clark, John Holt and appellant Philips, on a demand against them as members of the copartnership firm of Ewing, Clark & Co. Philips filed an answer denying that he was a member of the firm. The cause was set for trial on the docket of the Clay circuit court for March 25th, 1875. Philips alleges, in his petition herein, that his attorney was in attendance on said court and ready for trial on that day, and remained until the 1st day of April, when the court announced that no more jury trials would be had at that term, whereupon his attorney went to Kansas City where he resided, and remained until the court adjourned. On the next day, April 2nd, said cause was taken up, in the absence of Philips and his attorney. The cause was dismissed as to Joseph Y. Clark, and judgment rendered against the other defendants.

April 27th this suit was commenced and the prayer of the petition is, that said judgment be set aside, and that plaintiff be permitted to make his defense, and that Samuel and his co-plaintiffs be enjoined from enforcing the collection of said judgment, until the cause could be heard. A temporary injunction was granted. When the cause came on for hearing, without setting aside the judgment, the court submitted to the jury the following issues of fact: Was Edward A. Philips a member of the firm of Ewing, Clark & Co. in the business out of which the account mentioned in the pleadings grew? Or did he permit his name to be used as a member of that firm in the business out of which the account grew? Or did he permit the other members of the firm to hold him out to the world as a member of that firm in the business out of which the account grew? Or did he hold himself out to the world as a member of that firm in the business out of which the account grew? The jury found the issues for defendant, and after hearing evidence on other issues, the court dissolved the temporary injunction, dismissed plaintiff's bill and entered judgment against plaintiff and his surety in the injunction bond for damages and costs. From that judgment plaintiff has appealed, and contends that he was entitled to have the judgment in the original suit set aside as to him, and his defense in said action tried by a jury.

1. INJUNCTION: practice.

In Bresnehan v. Price, 57 Mo. 422, cited and relied upon by appellants, the first sentence of the opinion declares that, in that case, the court should have done just what the court did in the case at bar, as to the mode of procedure. It was a...