Wellington v. Claason — 9 Abb. Pr. 175

Majority

p. 175

WELLINGTON a. CLAASON.

Supreme Court, First District;

At Chambers, September, 1859.

Headnote

Appearance of Defendant not Served.—Discontinuance.

In an action against partners on a joint liability, a defendant, though not served, is entitled to appear and answer.†

If the answer served in such case discloses the defence of infancy, the plaintiff should be allowed to discontinue, and the defendant should have no costs but those of his motion to compel plaintiff to receive his answer.

p. 176

Motion to compel plaintiff’s attorney to receive an answer.

This was an action brought against the members of a copartnership, consisting of Hermanns Claasen, Enno J. Claasen, and another. Enno J. Claasen was a minor. All of the partners were named as defendants in the action, but the summons was not served on the minor defendant, Enno J. Claasen. He, however, appealed for and obtained the appointment of a guardian ad litem, and then appeared in the action, and served a separate answer, which consisted of an allegation that he was an infant, and a general denial of the complaint.

The plaintiff’s attorney returned the answer with the objection, that the defendant who served it had not been served with process of any kind; and that the answer was unnecessary and irregular.

The defendant now moved to compel the plaintiff’s attorney to receive the answer.

William R. Darling, for the motion cited Carpenter a. New York and New Haven Railroad Company (11 Row. Pr. R., 481); Higgins a. Rockwell ( 2 Duer, 650 ).

Gilbert Dean, opposed.

It was never denied, under the old practice, where several defendants were included in an action on contract, that any one not served, might enter a voluntary appearance, notwithstanding the plaintiff did not serve the process

p. 177

upon him. Both at law and in equity, such voluntary appearance was allowed, with the exception that in equity it must appear that some claim was made against the defendant so appearing. (8 Paige, 45 ; 9 lb., 226.)

In Tracy a. Reynolds (7 How. Pr. R., 328), Mr. Justice Hains recognizes this rule, where he says a party uninvited could not intrude himself upon the court and the plaintiff, unless he had some right to protect, which rendered such appearance necessary.

I do not understand this rule to be altered by the Code. Section 139 recognizes the right of a defendant to make a voluntary appearance without service of a summons, and authorizes the plaintiff to proceed on such appearance, as if the defendant had been served with process.

I concur in the opinion of Chief-justice Bosworth in 2 Duer, 660 , that such appearance is proper, and cannot be disregarded.

Applying these authorities to the present case, I think the defendant Claason had a right to appear and put in an answer. The action was on contract, and was against both the defendants as partners. They were to be made jointly liable, and the joint property of the firm could be taken to pay the recovery against one defendant. No partner is required to be silent and suffer the partnership property to be sold without making a defence, if such defence exists, merely because the plaintiff elects to serve a summons only on his co-partner, and not on himself. Such a rule would allow one partner who may have a difficulty with his co-partner, by collusion with a plaintiff to place the partnership property at risk, when by his appearance, the partner not served could protect it against an unjust claim.

I think the plaintiff should have allowed and recognized the appearance of the defendant now moving, and should have received the answer.

But as soon as the answer was received, and the plaintiff ascertained the defence was infancy, he might have obtained leave to discontinue as to such infant without costs—and such permission should now be granted.

Ro costs can be allowed to the defendant in the action other than the costs of making this motion.

The motion is granted unless the plaintiff within ten days discontinues as to the defendant E.