concurrence">

Opinion by

Beatty, J., BkosNAN, J.,

concurring.

The facts of this case are as follows: In 1860, Eichard Baffer & Co. were doing business as partners at Humbug, *235California. The plaintiff alleges W. TI. Stoule was the partner of Raffer. Raffer & Co. executed their note to Joshua Maples, at tlieir place of business in California, on the 18th day of January, 1860, payable on demand. In the Winter of 1860, Joshua Maples died intestate, and, on the settlement and distribution of his estate, this note of Raffer & Co. was turned over by the administrator to the present plaintiff, who was the widow of Maples, deceased. On the 12th of January, 1862, Stoule, the alleged partner of Raffer, died, and the defendant, Geller, was appointed his administrator on the Yth of April, 1862. On the 23d of February, 1863 (plaintiff alleges before the time for presenting claims had expired), a demand was presented to the administrator of Stoule for the allowance of this note against said estate. Whether this demand was accompanied with the proper affidavit, such as is required to accompany every demand against an estate of a decedent, does not appear. Nor does it appear by any affirmative allegation that the claim was presented within ten months after the first publication of notice to creditors to present their claims. It was presented about ten months and sixteen days after letters of administration were granted. If the publication of notice followed the grant of letters of administration as promptly as it should have done, then the claim was not presented within ten months. What the facts were on this point the complaint does not distinctly show, but merely that it was within the time appointed by said administrator for the presentation of claims. Suit was brought in April, 1863. The complaint seems to be in form, a joint action against Richard Raffer and the administrator of his deceased partner. It is entitled, “ Mary Maples, relict of Joshua Maples, v. Richard Raffer and Sol. Geller, administrator of the estate of Wm. H. Stoule, defendants."It then goes on to state the facts we have herein stated, and winds up with the following prayer: “ Wherefore, this plaintiff prays judgment against defendants, and that said administrator of the estate of Wm. H. Stoule, pay, in due course of administration, the said note with interest as aforesaid, and for such other and further relief as may be just and equitable.”

To this complaint the defendant, Geller, demurred, within a few days after it was filed, on two grounds:

*236First — That it did not state facts sufficient to constitute a cause of action.

Second — That it appeared on the face of the complaint that the claim was barred by the statute of limitations. The demurrer was overruled, and ten days .given defendant, Geller, to answer. Within the ten days he did file his answer, but failed to serve it on plaintiff’s attorneys. One of the plaintiff’s attorneys came in, and on an ex pa/rte affidavit that the answer had not been served on his firm, moved for judgment.

An order for judgment generally was made by the Judge, and the judgment was entered up on the 14th day of January, 1864, in favor of plaintiff, against the administrator, to be paid in due course of administration out of assets of deceased. Some eleven months after the judgment was entered, the defendant, Geller, moved to open the default, as it was termed, and set the judgment aside. This the Court refused' to do, and the defendant appeals to this Court from the judgment rendered in January, 1864. Several errors are assigned: That the claim was barred by the statute of limitations; that it was error to enter judgment with an answer on file; that the form of the judgment should have conformed to the prayer of the complaint, etc.

The point as to the statute of limitations we have not examined particularly, and therefore express no opinion on that point.

We think the point that no judgment should have been rendered while the answer remained on file and undisposed of, is well taken. The statute requires an answer to be filed and served; but it does not require that there should be any evidence of service on the answer. In this respect it is very different from a complaint. The complaint must be served, unless service be waived, and proper evidence of that service, .or waiver of service, brought before the Court before it will assume jurisdiction of the defendant. But when defendant has, filed his answer, the Court has jurisdiction of the person, and no evidence of service of the answer is necessary to enable the Court to exercise all its powers over the parties. The .requirement that the answer shall be served, is for the convenience of the opposite party, and not to confer jurisdiction *237on the Court. It is not then necessary, although it might be more regular, for the answer to show evidence of service on the plaintiff or his attorney. If, then, it is not necessary that the answer should show service, the Court would not, in the first instance, be justified in treating an answer as a nullity when it did not show service. Nor do we think the Court would be justified in doing it upon an ex parte affidavit. An absolute, personal service of an answer is never required. It may be served by sending by mail or leaving it at the office of the plaintiff’s attorney. The mails frequently miscarry. A lawyer may well overlook a paper left on his table, and not be aware such paper ever was left there. In such case he might innocently make an affidavit .that the answer had not been served, when in fact it had been legally served. It would certainly, then, be a very dangerous practice to allow judgments to be entered against defendants on ex parte affidavits that no answer had,been served, where a sufficient answer was on file; but even admitting there was the most indubitable proof that no answer ever was served, it would be a very harsh method of proceeding against the defendant, to give judgment against him when he had a good defense to the action, because his attorney was careless or inattentive to his business. Such a practice might benefit careful, vigilant and attentive lawyers, but it certainly would not do justice to litigants, and would be calculated to bring Courts of justice into odium and contempt. Besides, there is not the slightest reason or necessity for such practice. If a lawyer neglects his duty in the service of an answer, a motion to strike out, unless a copy be served, with the taxing of the costs of motion against the attorney or his client would correct the evil, without depriving defendant of his right to a trial of the cause on the issues joined. We think for this cause the judgment should be reversed.

There are other branches of this case, that we will notice before sending it back to the District; Court. The note is a joint note, or a partnership note. The action seems to be a joint action at 1cm against the surviving partner and the administrator of the deceased partner.

It is hardly necessary to say such an action can never be maintained. On a joint note, where one of the makers dies,, *238)j!h.e action survives against tbe living maker or makers. Tbe ! representative of tbe deceased can never be joined witb tbe survivors in an action at law. If tbe note be joint and several, tbe representative of a deceased maker may be sned on tbe several liability of bis decedent; but in sncb case be is tbe sole party, tbe survivors cannot be joined witb bim. So tbat in no case can tbe survivors and an administrator be sued in tbe same action at law upon a promissory not. In equity tbe rule is somewhat different. Formerly it was beld tbat after tbe creditor bad exhausted bis remedy against tbe survivors, or where they were bankrupt or insolvent, so tbat no proceeding against them could be made available, be might proceed in chancery against tbe estate of -the deceased partner or joint debtor. Recently tbe rule has been somewhat modified, and Courts have generally beld tbat, in equity, partnership debts (sometimes there has been an attempt to extend the rule to other joint debts) will be treated as joint and several debts, and tbe creditor be allowed to proceed against tbe estate of decedent as for a several debt due by bim. Under this latter rule tbe creditor is allowed to file bis bill praying for payment out of tbe assets of deceased, in tbe bands of bis administrator pr executor, without any allegation of bankruptcy or insolvency of tbe survivors; or, indeed, so far as we can see, any special reason being shown why tbe party has come into chan-eery when there is apparently a plain legal remedy open to bim for tbe collection of bis debt. This seems to be tbe law settled by modern cases. (See Colyer on Partnership, sec. 580; Sto-rey’s Equity Jurisprudence, sec. 676, and tbe authorities there cited.)

But whilst tbe law seems to have been so settled, generally in tbe more modern cases we are at a loss to understand why tbe former ruling on tbe subject was changed. Tbe legal doctrine about tbe liability of tbe survivor has been settled beyond question for centuries. Tbe partnership property all goes into tbe bands of tbe survivor, tbat be may be enabled to pay tbe partnership debts and settle tbe partnership affairs. Tbe administrator of tbe deceased partner has nothing of tbe partnership assets until all -the firm debts have been paid and its affairs wound up. Tbe surviving partners ought to know *239all about tbe affairs of tlie partnership; tbe administrator of a deceased person can hardly be expected, as a general thing, to know much. These being the rights of the partners at law,! we are at a loss to understand upon what principle Courts of equity break down the ancient rules in regard to partnership debts. We see no good reason for adopting the new rule on/ this subject, but many for adhering to the former practice i but if the modern decisions on this subject have been as uniform as they appear to be from the cursory examination we have made of the question, we may not feel at liberty to disregard them. We have made these suggestions because when this case goes back to the Court below, if it is possible so to amend the complaint as to show the plaintiff entitled to equitable relief, against the administration of Stoule, it should contain a statement of those facts (if any such exist) which would remove the doubts we have expressed. Under our system, which attempts to do away with all form, and as far as may be, to abolish all distinction between law and equity cases, it is difficult to say that any form of complaint may not be treated as a bill of equity. But whatever this complaint may be, it is not a bill in equity, seeking to obtain a decree against the appellant upon the ground that his decedent was severally bound for the -payment of the note set out in the complaint. And, upon that theory alone, could the judgment in this case be sustained: It has been suggested by respondent that the appeal was not well taken in this case, because the error of the Coiu-t did not so much consist (if any error there be) in the original entry of judgment as in the refusal to set aside that judgment; that the appeal should have been from the order refusing to set the judgment aside. In this we think the counsel is in error. The judgment was clearly erroneous. We doubt extremely if the District Court could at the time the motion was made have set aside the former judgment. The case was beyond'the control of that Court, so far as the judgment was concerned. The case is not at all similar to the California case referred to by counsel; in that case the party had a perfect remedy in the Court below. Default had been taken without personal service.

In such case the defendant had the statutory right (a right *240whicb was. absolute, and not depending on tbe discretion of tbe Court) to open tbe default. Tbe party in default, without seeking to open tbe case in tbe Court below, appealed. The Supreme Court decided in effect that they would not look into tbe alleged errors in entering tbe default, because if it was entered regularly or irregularly tbe party without appeal could have tbe case opened up, and be beard in bis defense on tbe merits, if be bad any defense. •

Here tbe party bad no such absolute right. Either the judgment was or was not erroneous. If erroneous, tbe appellant has a right to reversal. If not erroneous, be could only address bis application to the favor of tbe Court. The Court in such case could at most only have a discretionary power, with which this Court would not interfere, except in a case of manifest abuse. "We think tbe appeal was properly taken from an erroneous judgment, and that it was tbe only appeal tbe defendant could sustain.

The judgment is reversed, and tbe cause remanded to tbe Court below. Tbe District Court will allow tbe plaintiff to amend bis complaint, and take such other steps in tbe case as may be consistent with tbe rules of practice, and not inconsistent with this opinion.

Chief Justice Lewis, having been of counsel in tbe Court below, did not sit in this case.

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