Woodruff v. Lillis
| Decision Date | 18 November 1935 |
| Docket Number | 31853 |
| Citation | 164 So. 225,174 Miss. 91 |
| Court | Mississippi Supreme Court |
| Parties | WOODRUFF et al. v. LILLIS |
1 PARTNERSHIP.
Partner held not liable as surety on appeal bond from justice of peace court, which bond partner had not signed and had not authorized to be signed, and of which he had no knowledge and did not acquiesce in signing of his name to bond by clerk of partnership (Code 1930, sections 64, 67).
2 PARTNERSHIP.
Partner held not liable on appeal bond from justice of peace court which was signed with authority of copartner in name of partnership, where partnership was mercantile firm not engaged in business of making surety bonds and copartner was without authority to bind partner unless authorized so to do by scope of partnership, or by partner (Code 1930, sections 64, 67).
3. PARTNERSHIP.
Partner has no implied authority to sign firm name as surety for third person, and burden is upon party claiming as against such partnership signature to show that signature is authorized as to suretyship.
APPEAL from the circuit court of Neshoba county HON. D. M. ANDERSON, Judge.
Suit by Arthur Lillis against E. L. Woodruff and others, wherein judgment was rendered for plaintiff and named defendant moved to vacate the judgment. From an order dismissing the motion, defendants appeal. Reversed and remanded.
Reversed and remanded.
E. M. Livingston, of Louisville, for appellants.
A nonconsenting member of a partnership is not bound by his co-partner's unauthorized act in becoming a surety for another, the other partner having received no benefit from the transaction, and it being foreign to the firm business, even though the obligee was ignorant of the partner's want of authority.
Persons v. Oldfield, 101 Miss. 110, 57 So. 417.
This court has repeatedly held that partners cannot sue or be sued in their partnership name, but must be sued as individuals and must bring suits as individuals and in the names of the persons composing the firm instead of the partnership name.
Blackwell v. Reed, 41 Miss. 102; Ivy v. Evans, 132 Miss. 652, 97 So. 194.
It is respectfully submitted that a judgment taken against a partnership in the firm name is void and the enrollment of the judgment in that form constitutes no notice whatever to an innocent purchaser.
The assignment from Woodruff to claimant recites the fact that Woodruff was indebted to Wm. R. Moore Dry Goods Company in the approximate sum of two thousand five hundred dollars on February 5, 1934. This being true the consideration for the assignment was a good and valid consideration under the provisions of section 2681, Code of 1930.
Sections 2682 and 2708, Code of 1930.
Z. A. Brantley, of Louisville, for appellants.
We call the court's attention to the fact that the judgment itself is void and of no effect for the reason set forth in the brief of Hon. E. M. Livingston for the claimant, Wm. R. Moore Dry Goods Company, and the authorities cited by him thereunder being, Blackwood v. Reed, 41 Miss. 102; Ivy v. Evans, 132 Miss. 652, 97 So. 194, which he cites in support of this contention; and since the proof in this case clearly shows that Mr. Woodruff did not sign the bond or authorize any one to sign the bond for him individually or to sign the name of S.D. Tyson & Co. thereto, and with this uncontradicted proof this suit is settled and controlled by the case:
Persons v. Oldfield, 101 Miss. 110, 57 So. 417.
R. W. Boydstun, of Louisville, and J. B. Hillman, of Philadelphia, for appellee.
In the light of all the facts and circumstances as shown by the record the learned circuit judge was right in holding that the appellant, Woodruff, either signed the bond in question, or authorized his signature thereto, or acquiesced therein, and in overruling the motion to vacate the judgment.
The appellant, Wm. R. Moore Dry Goods Company, was not a purchaser of the indebtedness mentioned in the assignment without notice and the circuit judge who heard this cause and had adjudicated the validity of the bond herein in question with all of the facts before him was right in dismissing the claim of appellant, Wm. R. Moore Dry Goods Company, and this cause should be affirmed against the movant, E. L. Woodruff, and against the claimant, Wm. R. Moore Dry Goods Company.
This case arose on a motion to vacate a judgment rendered in the circuit court of Neshoba county against E. L. Woodruff, individually, and S.D. Tyson & Co., as sureties on an appeal bond from a justice of the peace court. Earl Barmore instituted a replevin suit against Arthur Lillis for the possession of an automobile. The judgment of the justice of the peace was against Barmore. He desired to appeal therefrom, and the appeal appeared on its face to have been executed by Barmore as principal, E. L. Woodruff, Paul Chamberlain, individually, and S.D. Tyson & Co., as sureties on the appeal bond.
On November 3, 1930, the circuit court rendered a judgment against the principal and the above-named sureties on the appeal bond for the value of the automobile and costs of the court as required by sections 64 and 67, Code of 1930. That judgment was enrolled in the circuit clerk's office in Neshoba county. Subsequently, on the 3d of November, 1932, the judgment was enrolled in the circuit clerk's office of Winston county showing enrollment against Earl Woodruff (not E. L. Woodruff), S.D. Tyson & Co., and others. In the original judgment, as well as in the enrollments thereof in the two counties, it does not appear who composed the partnership of S.D. Tyson & Co. This record shows that S.D. Tyson & Co. was a firm composed of Paul Chamberlain and E. L. Woodruff. Subsequent to the enrollment of the judgment in 1932, a garnishment was issued thereon naming a number of individuals as being indebted to E. L. Woodruff, and they were cited to appear and answer in the circuit court of Neshoba county. They answered admitting an indebtedness to E. L. Woodruff and paid the amount thereof to the clerk of the court.
Thereupon Wm. R. Moore Dry Goods Company entered its appearance in that court and filed a claimant's affidavit to the funds, by virtue of a written assignment executed by Woodruff in favor of said company subsequent to the enrollment of the judgment and prior to the service of the writ of garnishment. This appearance of Wm. R. Moore Dry Goods Company was voluntary--without process. Woodruff appeared in that court and moved to vacate the judgment on the ground that he did not sign the appeal bond and did not authorize anyone to sign his name thereto; that he was engaged in a mercantile business; that said bond was signed without his authority knowledge, or consent, and the party so signing his name was acting without the scope of his authority. No point was made on the pleadings in this case, and oral evidence was offered on the motion. Upon the hearing the court declined to vacate the original judgment and dismissed the motion and the claim of Wm. R. Moore Dry Goods Company, it being recited in the judgment that both issues were tried before the court by agreement of...
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