Brawley v. Mitchell
Wisconsin Supreme Court
Appeal from a judgment of the circuit court for Portage county: Chas. M. Webb, Circuit Judge. Brawley brought this action, in the county court of Portage county, against D. H. Yaughn and J. 8. Mitchell, as-copartners of the firm of Yaughn & Mitchell, upon two-joint promissory notes made by them by their firm name. There was no service of process upon Yaughn, and he did, not appear in the action. Property of Mitchell was attached,, and he appeared and defended.
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Appeal from a judgment of the circuit court for Portage county: Chas. M. Webb, Circuit Judge. Brawley brought this action, in the county court of Portage county, against D. H. Yaughn and J. 8. Mitchell, as-copartners of the firm of Yaughn & Mitchell, upon two-joint promissory notes made by them by their firm name. There was no service of process upon Yaughn, and he did, not appear in the action. Property of Mitchell was attached,, and he appeared and defended. There was judgment in favor of the plaintiff and, in form, against both defendants. From this judgment Mitchell appealed. In the…
1Opinion of the CourtNewMAN, J.
The statute (see. 2884, R. S.) provides that when the action is against persons jointly liable on a contract, and the summons is served upon some, but not upon all, of the defendants, judgment may be entered in form against all the defendants so jointly indebted, “ so far only as that it may be enforced against the joint property of all and the separate property of the defendant served.” The words of the statute are permissive only, in form. Rut the exercise of a statutory power which' is only permissive in form is not discretionary where public interests or individual rights call for its…
2Cases cited4 opinions
- Dutcher v. DutcherWisconsin Supreme Court · 1876
- Blackburn v. SweetWisconsin Supreme Court · 1875
- Market National Bank of New York v. HoganWisconsin Supreme Court · 1867
- Bacon v. BicknellWisconsin Supreme Court · 1863
3Cited by12 opinions
- Cliffs Chemical Co. v. Wisconsin Tax CommissionWisconsin Supreme Court · 1927
- Hart v. GodkinWisconsin Supreme Court · 1904
- Heaton v. SchaefferSupreme Court of Oklahoma · 1912
- Rickman v. RickmanMichigan Supreme Court · 1914
- Sayre Commission Co. v. KeenSupreme Court of Oklahoma · 1910
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