Yarbrough v. Pugh

• Decision Date: 14 April 1911
• Parties: YARBROUGH v. PUGH, Sheriff, et al.
• Court: Washington Supreme Court

114 P. 918

63 Wash. 140

YARBROUGH v. PUGH, Sheriff, et al.

Supreme Court of Washington

April 14, 1911

Department 1. Appeal from Superior Court, Spokane County; D. H. Carey Judge.

Action by Thomas B. Yarbrough against F. K. Pugh, Sheriff of Spokane County, and Manufacturers' Furniture & Bedding Company, a corporation. Judgment for defendants, and plaintiff appeals. Reversed, with directions to render judgment for the plaintiff.

Danson & Williams, for appellant.

Cannon Ferris, Swan & Lally, for respondents.

PARKER J.

This is a proceeding to recover personal property under chapter 4, tit. 4, Rem. & Bal. Code, relating to adverse claims to property levied upon. While the property was in the possession of the sheriff, under a writ of attachment in an action commenced in the superior court for Spokane county by the Manufacturers' Furniture & Bedding Company, a corporation, against the Hefley-Coleman Company, a corporation, the plaintiff in this proceeding, claiming to be the owner, demanded possession thereof from the sheriff, at the same time delivering to him proper affidavit and bond under section 573, Rem. & Bal. Code. The sheriff thereupon delivered possession of the property to the plaintiff. A trial before the court without a jury, upon the question of the plaintiff's right to the property resulted in findings and judgment against him, from which he has appealed.

The facts upon which the rights of the parties depend are not in dispute, and may be briefly stated as follows: On and prior to November 11, 1909, there was in storage with the Sheehorn Transfer Company of Spokane 50 bales of cotton linters, the property of the Hefley-Coleman Company, a copartnership consisting of W. J. Hefley and W. L. Coleman, of Ft. Worth Tex. On November 11, 1909, there was commenced in the superior court for Spokane county an action by the Manufacturers' Furniture & Bedding Company, a corporation, against the Hefley-Coleman Company, a corporation, to recover damages in the sum of $2,632.50. On the same day the plaintiff in that action caused a writ of attachment to issue therein; its president making the usual affidavit and stating as grounds for the attachment that 'said defendant is a foreign corporation.' Thereupon a writ of attachment was issued and placed in the hands of the sheriff, when he levied upon and seized the 50 bales of cotton linters as the property of the Hefley-Coleman Company, a corporation, defendant in that action. Thereafter, for the purpose of obtaining constructive service upon the defendant in that action, one of the attorneys for the plaintiff therein, on December 27, 1909, made and filed in the cause his affidavit, stating upon information and belief that the defendant is a corporation under the laws of Texas, 'with its principal office and place of business located in the city of Ft. Worth, state of Texas,' and that he deposited in the United States post office at Spokane on that day a true copy of the summons and complaint, securely sealed in an envelope, with postage thereon prepaid, 'addressed to the above-named defendant at the address above given.' Thereafter, commencing on January 1, 1910, the summons was published in a newspaper in Spokane county. The evidence in this proceeding renders it plain that no other service of the summons, of any nature, was ever made in that case than as shown by the affidavit of mailing as above quoted, and the affidavit of publication in the newspaper. Neither the summons nor complaint referred to any attachment. On February 26, 1910, the defendant, 'the Hefley-Coleman Company, a corporation,' appeared by its attorneys specially in that action, and moved to quash the summons and the service thereof on several different grounds. None of which grounds, however, related to any question of misnaming the defendant. There was nothing in that appearance by which it could be construed to be an appearance, special or general, of the partnership consisting of W. J. Hefley and W. L. Coleman, or of any member thereof. That motion to quash was denied; and on March 28, 1910, judgment by default was rendered in that action against 'the Hefley-Coleman Company, a corporation.' On February 21, 1910, 'the Hefley-Coleman Co.,' the partnership consisting of W. J. Hefley and W. L. Coleman, sold the 50 bales of cotton linters here involved to appellant, who thereafter on March 12, 1910, commenced this proceeding to recover the same.

The question for our determination is, Was the action of Manufacturers' Furniture & Bedding Company, a corporation, against the Hefley-Coleman Company, a corporation, and the judgment rendered therein in fact and in law against W. J. Hefley and W. L. Coleman as partners, under the name of 'the Hefley-Coleman Co.,' and did the superior court in that action acquire jurisdiction over the members of that partnership. In our discussion of this question, we will not concern ourselves with the jurisdiction which the court may have acquired over 'the Hefley-Coleman Company, a corporation.' We are not advised by this record as to whether or not there is such a corporation, other than as it so appears in the record of that case, which was introduced in evidence in this case. Learned counsel for respondents insist that this question is only one of misnomer, which does not affect the court's jurisdiction over the party actually served with process, and that the partnership was in this case actually so served and was in fact the real defendant. In support of this contention our attention is called to a number of decisions of the courts, holding that the defendant actually served with process is bound to respond as defendant or suffer judgment to go against him, even though he be erroneously named in the process. Counsel cite the following: Orman v. Salvo, 117 F. 233, 54 C. C. A. 265; Davis v. Jennings, 78 Neb. 462, 111 N.W. 128; Nisbet v. Clio Mining Co., 2 Cal. App. 436, 83 P. 1077; Lafayette Ins. Co. v. French, 59 U.S. 404, 15 L.Ed. 451; Foshier v. Narver, 24 Or. 441, 34 P. 21, 41 Am. St. Rep. 874; Whittlesey v. Frantz, 74 N.Y. 456; Hoffield v. Board, etc., 33 Kan. 644, 7 P. 216; Kingen v. Stroh, 136 Ind. 610, 36 N.E. 519; Pond v. Ennis, 69 Ill. 341; Bloomfield Ry. Co. v. Burress, 82 Ind. 83; Ueland v. Lynch, 77 Minn. 543, 80 N.W. 700, 77 Am. St. Rep. 698. In none of these cases does it appear that the jurisdiction of the court depended upon other than personal service of summons, save in Nisbet v. Clio Mining Co., and in that case the jurisdiction was materially aided by a liberal statute relating to the misnomer of corporations; nor was there any partnership there involved. It might well be argued that the failure to correctly name a defendant, in a case where the jurisdiction of the court depends upon constructive service, is a matter of much more seriousness than where a defendant is personally served with process. A personal service is made by an officer or some person making actual delivery of the process to the person to be served, and such officer or person so serving is supposed to know who the person is who is intended to be sued. A constructive service depends almost entirely upon the correctness of the name in the process, of the person to be served, for its coming to the notice of such person. This is especially so where the constructive service consists only of publication and mailing, though it might not be so where there is personal service out of the state.

In this case we have no service, save by publication and mailing. However, we are here confronted with another question which we regard as decisive of this case. Now the service depended upon here is the servide which under the law may be made upon a corporation. Let us suppose for the sake of argument that it was sufficient to give jurisdiction over a corporation. Let us even go farther and suppose that it would give jurisdiction over a corporation, even though there was a misnomer as to the defendant in the process. This is not a question of acquiring jurisdiction over a corporation; but of acquiring jurisdiction over the members of a partnership. So the real question is as to whether or not this service has resulted in the court acquiring jurisdiction over W. J. Hefley and W. L. Coleman, or either of them, as members of the partnership known as 'the Henfley-Coleman Co.' If a corporation and a partnership could, under the law, be sued in the same manner as to naming each, and each could be served with process in the same manner as to the persons to be served, jurisdiction might have been acquired over the partnership in this case, assuming that the matter of misnomer, as affected by the fact of constructive service only, created no obstacle to the jurisdiction. If the case of Manufacturers' Furniture & Bedding Company, a corporation, against the Hefley-Coleman Company, a corporation, can be said to be in any sense a suit against this partnership or its members, it is in no event any more than a suit and process against it in its partnership name. It is not pretended that the names of these partners appear anywhere in a single file or record of that suit. It is not pretended that any member of the partnership was served with process therein, personally or constructively. The nearest approach thereto was the mailing of the summons and complaint, as stated in the affidavit of one of the attorneys in that case, which statement taken literally means that such mailing was to 'the Hefley-Coleman Company, a corporation,' though, for the sake of argument, we will assume that the words 'a corporation' were not used in the mailing.

In the absence of statute providing otherwise a partnership cannot sue or be sued apart from its members. The rule is stated in the text of 15 Encyc. of Pl. & Pr. 839,...