Mack & Green, for Petitioner.
E. E. Hull, for Respondent.
By the Court, McCarran, C. J.:
Suit was commenced in the justice court against P. J. Conway, E. J. Ross, and R. C. Mudge, as co-partners. Ross and Mudge failed to appear or answer; Conway alone defended. Judgment was rendered for the plaintiff in the justice court. On appeal to the district court, a trial de novo was had. The latter court found that no partnership existed between the parties; but, notwithstanding the fact that Conway was sued upon a debt alleged to have been contracted by the partnership, judgment was rendered against him individually. The proceedings come to this court by certiorari.
Petitioner contends that the court below exceeded its jurisdiction in rendering an individual judgment against Conway; and in this respect they contend that the suit having been brought against the partnership, judgment could run only against the partnership and not against individuals.
At common law in an action against two or more defendants upon an alleged joint contract of liability, the judgment was required to be against all the defendants or in favor of all. The common-law rule applicable to the question here was asserted by Lord Ellenborough in the early case of Weall v. The King, 12 East, 452, to be based on the principle that the proof of the contract must correspond with the description of it in all material respects. Hence, where partnership was alleged, partnership must be established by the proof, and a several judgment could not issue where at the time of the alleged making of the contract the parties sued were partners. It is generally conceded that this rule must prevail in all jurisdictions where the common law has been accepted or adopted and
where no statutory provision has been enacted abrogating the same.
In a number of the states of the Union, statutory provisions have been enacted, and these joint debtor acts, so-termed, have been held to effect an abrogation of the common-law doctrine. Hence, we inquire, has the common-law rule been interfered with by our statute?
Section 5239, Revised Laws (section 297 of the Civil Practice Act) provides:
Judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves.
The following section provides:
In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper.
Mr. Black, in his Treatise on the Law of Judgments, vol. 1, sec. 208, in discussing the effect of the joint debtor acts, lays down the general principle to the effect that, where such acts exist, a plaintiff suing several as partners for a breach of a contract may recover against such as he can prove to be parties to the contract without proof of partnership.
A provision in the code of California identical to the one found in our civil practice act was construed by the supreme court of that state in the case of Morgan v. Righetti, 45 Pac. 260, and the application made in earlier cases was referred to and reaffirmed. (Rowe v. Chandler, 1 Cal. 167; ...