Thompson v. Corn

• Decision Date: 30 March 1936
• Docket Number: No. 15245.,15245.
• Citation: 102 Ind.App. 6,200 N.E. 737
• Parties: THOMPSON et al. v. CORN.
• Court: Indiana Appellate Court

102 Ind.App. 6

200 N.E. 737

THOMPSON et al.

v.CORN.

No. 15245.

Appellate Court of Indiana, in Banc.

March 30, 1936.

Appeal from Posey Circuit Court; Herdis F. Clements, Judge.

Action by Olga L. Corn against - Thompson, whose Christian name is unknown, and - McKinnon, whose Christian name is unknown, doing business under the style and firm name of Thompson & McKinnon. Judgment for plaintiff, and defendants appeal.

Reversed, with instructions.

James H. Meyer, of Evansville, for appellants.

Brady & Brady and Edgar Durre, all of Evansville, for appellee.

WOOD, Judge.

The appellee recovered judgment against the appellants, for money had and received. From this judgment appellants appeal, assigning as error for reversal the overruling of their motion for a new trial.

Because of the disposition which we make of this case, it is not necessary that we set out the issues, or that we consider but three of the alleged causes for a new trial, namely: That the verdict of the jury was not sustained by sufficient evidence; that the verdict of the jury was contrary to law, and error in the exclusion of certain evidence.

From the record it appears that the appellee, as plaintiff, filed her complaint in the Vanderburgh superior court against the appellants as partners, designating them as defendants in the caption of the complaint in the following language, to wit: “- Thompson whose Christian name is unknown, and - McKinnon whose Christian name is unknown, doing business under the style and firm name of Thompson and McKinnon.”

June 29, 1933, summons was issued by the clerk of said court for the defendants as above designated. June 30, 1933, the sheriff of Vanderburgh county made a return upon said summons in words and figures as follows, “Served the within named - Thompson, whose Christian name is unknown, and - McKinnon, whose Christian name is unknown, doing business under the style and firm name of Thompson and McKinnon by reading this summons to and within the hearing of J. O. Lynch, manager, he being the highest official of the company to be found in my bailiwick and leaving with him a true copy of the same.”

July 6, 1933, for the purpose of filing their separate and several motions to set aside and quash said summons, fourteen named and designated parties, by their attorney, entered their limited and special appearance in said cause.

September 13, 1933, by leave of court, said named and designated parties, by their attorney, withdrew their special and limited appearance. Then the record shows the following entry: “And now enters his general appearance for defendants Thompson and McKinnon; and now said defendants file their answer in general denial to plaintiff's complaint.”

The answer was in the following language:

“State of Indiana, County of Vanderburgh, SS:

“In the Superior Court of Vanderburgh County September Term, 1933.

Olga L. Corn}

v.}

- Thompson, whose} Christian name is unknown;} and - McKinnon, whose} Christian name is unknown;} doing business under the style} and firm name of Thompson} and McKinnon.}

Answer in General Denial.

“The defendants for their first paragraph of answer to plaintiff's Complaint herein deny each and every allegation contained in said complaint.”

Thereafter the venue of the cause was transferred to the Posey circuit court for trial and final disposition.

The cause was tried to a jury, which returned a verdict in words and figures as follows, to wit:

“State of Indiana, County of Posey. Sct:

“Posey Circuit Court,

“November Term, 1933

Olga L. Corn

vs.

- Thomson, whose christian name is unknown, and

- McKinnon, whose christian name is unknown, doing business under the style and firm name of Thomson & McKinnon.

“We the jury find for the plaintiff and assess her damages in the sum of $1081.25

“Chas. F. Kimball, Foreman.”

Judgment from which this appeal is prosecuted was afterwards rendered against the appellants just as they were named and designated in the caption or title of the cause in the verdict, a copy of which is above set out.

In that portion of their brief devoted to argument, counsel for appellee say: “The court will observe that appellee is not suing a Mr. Thompson, whom appellants contend died in 1926, nor a Mr. McKinnon, who retired in the year 1929, from the partnership of Thompson and McKinnon. Appellee is suing the defendants who were operating a partnership concern under the style and firm name of Thompson and McKinnon. Appellee is suing the firm of Thompson and McKinnon which entered a general appearance and filed an answer, not in abatement, but in general denial to the complaint.”

As we interpret the facts contained in the record, they not only do not sustain appellee's contention, but they lead to a contrary conclusion. In her complaint, immediately following the caption which we have heretofore set out, is this allegation: “The plaintiff complains of the defendants, and for cause of action says that the defendants herein, whose christian names are unknown to the plaintiff, are now and have been for many years prior hereto, and including the year 1931, partners engaged in the brokerage business, *** and said defendants operated said partnership under the style and firm name of Thompson and McKinnon.” No person or persons other than - Thompson and - McKinnon are named or designated as partners or members of the firm of Thompson and McKinnon, and as parties defendant to said cause of action. The summons which was served upon “J. O. Lynch, manager” and the return made thereto by the sheriff names and designates no other or different person or persons as parties defendant to the cause of action than those named and designated in the caption thereof. The same facts are exhibited in the answer of general denial, a copy of which is heretofore set out, filed by the named appellants, also in the verdict of the jury and the judgment rendered thereon, in fact throughout the entire proceedings.

[1][2] Partners at common law, and generally today, in the absence of statutory enactment changing the common-law rule, cannot be sued in the firm name alone, and at common law there was no means of suing or obtaining judgment against a partnership as such, and it was necessary that the members of the partnership be individually served with process. Livingston v. Harvey (1858) 10 Ind. 218;Adams Express Co. v. Hill (1873) 43 Ind. 157;Pollock v. Dunning (1876,) 54 Ind. 115;Karges Furniture Co. v. Amalgamated, etc., Union (1905) 165 Ind. 421, 75 N.E. 877, 2 L.R.A.(N.S.) 788, 6 Ann. Cas. 829; 1 Modern Law of Partnership, § 806, p. 1110; 20 R.C.L. §§ 155 and 156, p. 936; 47 C.J. § 457, p. 947, § 471, p. 953, § 478, p. 962; 29 L.R.A.(N.S.) 282, note.

As avoiding this rule of the common law, the appellee calls our attention to section 2-703, Burns' 1933, section 77, Baldwin's Ind. St. 1934, which reads as follows: “When a corporation, company or individual has an office or agency in any county for the transaction of business, any action growing out of, or connected with, the business of such office may be brought in the county where the...