Gribbin v. Thompson, 28 Ill. 61 (1862)

April 1862 · Illinois Supreme Court

28 Ill. 61

Oscar Gribbin, impleaded, etc., Plaintiff in Error, v. Wetmore C. Thompson et al., Defendants in Error.

ERROR TO TAZEWELL.

In actions of assumpsit against partners, judgment must be taken against all who are served, or none.

In this case, Oscar Gribbin, the plaintiff, was sued by the defendants in error in an action of assumpsit, together with John W. Mathews, Rufus Lenori, and Calvin Terry, as partners trading under the name and firm of J. W. Mathews & Co. Terry and Gribbin were served with process and appeared and pleaded severally to the action, each pleading in abatement, that he was not one of the firm of J. W. Mathews & Co.; and Terry made affidavit for a continuance of the cause for want of evidence, and the court continued the same as to Terry, and as to Gribbin took up the cause, tried it, and rendered a judgment therein against Gribbin for the whole debt, leaving the cause continued and undecided as to Terry.

Mathews and Lenori were not served with process.

R. S. Prettyman, for Plaintiff in Error.

J. Roberts, for Defendants in Error.

Breese, J.

It appears by this record, that in an action of assumpsit against four persons as partners, summons was served on two of them only. They appeared and filed separate pleas, verified by affidavit, that they were not partners, and submitted the issue to the court.

The court found for the plaintiff a judgment in chief against one only of the defendants served, and this is assigned for error.

This court has repeatedly decided in such case, that judgment must be taken against all who are served, or none. Kimmel v. Shultz et al., Breese, (new ed.) 160; Russell v. Hogan, 1 Scam. 552; Hovey v. County of Macoupin, 2 id. 36; McConnel v. Swailes, id. 571; Tolman v. Spaulding, 3 id. 14; Frink et al. v. Jones, 1 Scam. 170.

For this error the judgment is reversed, and the cause remanded.

Judgment reversed.