Whitman v. Hitt, 75 Ark. 461 (1905)

May 27, 1905 · Arkansas Supreme Court

75 Ark. 461

Whitman v. Hitt.

Opinion delivered May 27, 1905.

Judgment — effect.—A complaint was filed and summons issued against the Whitman-Zook Lumber Company, and the sheriff returned the summons, saying that he had executed it by delivering a copy to Whitman, and Whitman answered, denying that he was indebted to plaintiff. A judgment was rendered against the company, which failed to show whether it was a firm or corporation. Hetd, that there was no judgment against Whitman.

Appeal from Crittenden Circuit Court.

Allen Hughes, Judge.

Reversed.

R. G. Brown, for appellant.

The judgment rendered by the circuit court of Monroe County, Miss., was not a valid judgment against the appellant, even under the Mississippi Code. Rev. Code, Miss. .(1890), § 3436; 62 Miss. 350; 41 Miss. 102; 1 How. (Miss.), 527. In the absence of a statute permitting suits against a partnership as such, the name of the members of a partnership should be set out in the summons as well as the complaint. 15 Enc. PL & Pr. 898; 17 Ore. 256; 41 Mich. 138; 44 Ala. 584; 60 Ala. 269; 17 Md. 74; 33 Md. 107; 41 Miss. 102; 1 How. 527; 62 Miss. 350; 43 Miss. 167; 17 Ore. 256; 43 Cal. 571. The issue raised by the answer must in some way be disposed of before judgment against the defendant. 42 Ark. 268; 4 Ark. 526. No judgment was ever rendered against Whitman. 63 Miss. 112. The judgment must be certain. 11 Enc. Pl. & Pr. 948; 42 Cal. 571. The record alone can be looked into. 1 Green. Ev. § 305; 10 S. & M. 552. The statute of jeofails cures only defects of pleading— not of proofs. 70 Ark. 150. And does not extend to a case where the allegations fail to state a cause of action. 5 How. 484; 25 Miss. 242; 44 Miss. 413; 65 Miss. 41 ;■ 44 Miss. 418; 5 How. 492.

7. W. Buchanan and P. A. Wilkinson, for appellee.

The judgment rendered in Mississippi against appellant was valid. Black, Judg. § 222; 16 Ark. 54; 11 Ark. 162; 15 Enc. Pl. & Pr. 844; 11 Id. 1107; Code of Miss. § 3436; 55 Miss. 254; 63 Miss. 280; 69 Miss. 263; Miss. Code, § 746; 11 How. 189.

Battue, J.

This is an action brought by R. P. Hitt against C. T. Whitman upon a judgment recovered by plaintiff in the circuit court of Monroe. County, in the State of Mississippi, against Whitman-Zook Lumber Company. The plaintiff recovered judgment in this case against Whitman; and he appealed.

In the complaint or declaration in the action in which the judgment sued upon was recovered it was not shown or alleged who the Whitman-Zook Lumber Company is — whether a firm or corporation, and, if a firm, who compose it. In the summons issued in the case the sheriff was directed to summon the Whitman-Zook Lumber Company, and he returned it, saying he had executed it by reading it to C. T. Whitman, of the Whitman-Zook Lumber Company, and delivering him a copy thereof. Whitman answered, and denied that he was indebted to the plaintiff for the sum sued for. • Judgment was rendered against WhitmanZook Lumber Company, but it does not show that the lumber companv was a firm or corporation, and if a firm who composed it. The answer or plea of Whitman was not disposed of. Upon this judgment this action was based. The evidence fails to show that Hitt recovered a judgment in the Mississippi court against Whitman.

Reversed and remanded for a new trial.