Heaps v. Hoopes

Miller, J., delivered the opinion of the Court. This appeal is from the refusal of the Court below to strike out a judgment after the lapse of the term at which it was rendered. Mr. Stump appeared as attorney for the defendants, and a judgment by confession'was entered On the 11th of May, 1885. The motion to strike out was made by the appellant on the 14th of November following, and the ground of the motion is surprise and mistake.

The suit was instituted on the 2nd of January, 1885, by. the appellees against the appellant and his three sons, formerly partners trading as “ H. H. Heaps & Bros.” The cause of action was goods sold and delivered to this firm by the plaintiffs. The summons was issued in due form containing the name of the appellant as one of the partners of the defendant firm, but when folded up it was endorsed “Albert Hoopes & Sons vs. H. H. Heaps & Bros.” Mr. Stump was one of the trustees under a deed of trust for the benefit of creditors from this latter firm. This-deed was executed by the sons alone as the partners constituting the firm, and Mr. Stump was their counsel, but had never been counsel for their father, the appellant. Other suits had been instituted about the same time by other creditors of this firm, in which the sons only were defendants.

When the sheriff received the writ in the present case, he took it to the office of Mr. Stump, who examined the endorsement, and seeing it was against “Heaps & Bros.,” told the sheriff he might return it summoned and he would appear in the case. The sheriff accordingly returned the writ “summoned omnes,” and when the case was called on the appearance docket Mr. Stump entered his appearance, and at the trial term confessed judgment, having no objection to make to the claim. ³⁸⁷ Mr. Stump also further states in his affidavit that he never knew that the appellant was named in the writ, or that the judgment was against him until a few days before the motion to strike out was made ; that the titling of the case on the docket furnished him by the clerk did not disclose the fact that the appellant was a defendant; that he was attorney for Hugh Henry Heaps and his brothers, doing business under the firm name of “H. H. Heaps & Bros.,” and was authorized to appear for them; that he believed these brothers were the only members of that firm and had no knowledge that the plaintiffs made any claim against appellant as a partner or otherwise ; and that he was never spoken to or employed, or in any manner authorized to appear in this case for the appellant. The appellant in his affidavit says he never was a member of this firm, and never said to the plaintiffs, or either of them, that he was a member, nor in any manner induced them to believe that he was one of the firm or in any manner liable for its debts; that Mr. Stump was not his attorney in this or any other case, and had no authority to appear for him, and that he had no information that he had appeared for him, or that there was any such case pending in Court until about the 13th of November, 1885. One of the plaintiffs in his affidavit contradicts the statement of the appellant, that he hever told either of them that he was such partner, and this affiant avers that the appellant told him that he was a partner of the firm before the plaintiffs agreed to deliver the goods sued for in this case.

But we find nothing in the affidavits on the other side or in the record, that