DEARING, SINK & Co. v. SMITH & WRIGHT, 4 Ala. 432

COLLIER, C. J. 1. It is true that it does not appear from the record that the process was served on Wiley J. Dearing, but the want of it was waived by his voluntary appearance; a fact which is expressly affirmed by the judgment entry. 2. Although the record does not discover a formal withdrawal of the pleas, that were pleaded by the defendant, Sink, yet the recital in the judgment, that he said nothing in bar or preclusion of the plaintiffs’ action, whereby the same was undefended, certainly amounts to a waiver of them; for such a recital is incompatible with the notion that the pleas were insisted on.

Even conceding that the filing of a plea requires it should be disposed of by the Court, where it is not expressly withdrawn by the defendant, and still it must be inferred from the statement, that he said nothing in bar or preclusion, &c., that he withdrew all defence to the action. 3. The fifth

section of the act of 19th January, 1839, “To regulate judicial proceedings,” enacts, “That where the plaintiff shall bring suit as a firm, or copartnership, it shall not be necessary for proof to be made, that the individuals named as plaintiffs constitute the members of the firm, unless the defendant puts the same in issue by plea in abatement.” In this case the only plea interposed is the general issue; and consequently no proof was necessary to show that the three persons suing under the style of Smith & Wright were members of that firm.

Nor was it important to prove that the defendants were prima facie partners, doing business in the name in which the note was executed, in order to make it admissible evidence. If the note was correctly described in the declaration it was entirely regular to read it to the jrtry ; in fact such a course would be proper to enable the plaintiff to proceed uuderstand-ingly with evidence to make out his case. [Bell v. Rhea, Conner & Co. 1 Ala. Rep. 83.] 4. The most important inquiry is, does the evidence demurred to, sustain the judgment against James H. Dearing ? In Carson v.

The Bank of the State, at this term, it was held, thát upon a demurrer to evidence the Court is not obliged to pronounce a judgment in conformity to what should have been the verdict of the jury upon the issue, but to render a judgment against the party demurring, if the jury could legally have returned such a verdict, on the evidence. [See also, Young v.

Foster, 7 Porter’s Rep. 426.] Further, in the demurrer to evidence, it appeared that the proper officers of the Bank stated, that though they had no recollection of the fact, as connected with the bill sued on, yet they believed, and had no doubt, from the general course of business in the Bank, that notice of the non-payment of the bill was deposited in the post office, directed to the drawer.

This Court held, that the jury might properly infer that the usual course of business in the Bank was such as to warrant the belief deposed to by the witnesses ; and if the party against whom such evidence is offered neglects to inquire what is the course of business that is usual, he cannot be heard in asserting that the evidence proves nothing. So in the United States Bank v. Smith, [11 Wheat. Rep. 171,] it is said, that “ every thing which the jury could reasonably infer from the evidence demurred to, is to be considered as admitted.

The language of the adjudged cases on this subject is very strong, to show that the Court will be extremely liberal in their inferences, where the party by demurring will take the question from the proper tribunal. It is a course of practice, generally speaking, that is not calculated to promote the ends of justice.” The question in that case was, whether it could be inferred from the evidence, that the defendant, who was sued as the indorser of a promissory note, resided at Alexandria.

The Notary Public testified, that on the day the note fell due, he presented it at the store of the maker and demanded payment of his clerk, who replied that Mr. Young, (the maker,) was hot in, and he would not pay it; and that on the same day,he put in the post office a notice of non payment, addressed to the defendant at Alexandria. The Court say, “ the jury would undoubtedly be warranted to infer from this evidence, that the defendant’s residence was in Alexandria. If that was not the fact, this case is a striking example of the abuse which may grow out of demurrers to evidence.

For a single question to the witness would have put at rest that point one way or the other, if the least intimation had been given of the objection. It was manifestly taken for granted by all parties, that the defendant lived at Alexandria.

And if a party > will, upon the trial, remain silent and not suggest an inquiry which was obviously a mere omission on the part of the plaintiff, a jury would be authorized to. draw all inferences from the testimony given, that would n,ot be against reason and probability." Let us now consider the evidence in the record with a reference to the principles and reasoning of the cases cited. The recollection of the witness whose deposition was "read by the plaintiffs below, that “Mr. Dearing" was present when the note was signed by Sink, might, in the discretion of the jury, be taken as referring to either of the Mr.

Dearings, who were alledged to be members of the firm of Dearing, Sink & Co. and upon the demurrer to evidence must be understood to point to James H. Dearing; upon the principle that all inferences shall be made most strongly against the party demurring. But if the deposition were thrown entirely out of view, we think the evidence of the plaintiffs’ attorney is quite sufficient to ha've authorized the judgment of the County Court. The evidence of this witness was given ore tenus on the trial ofthe issue taken to the plea of James H. Dearing, and after his co-defendants had submitted to a judgment by nil dicit.

That witness stated that he had always understood Dearing, Sink & Co. were partners, whether there had been an actual dissolution of the partnership he did not know; and he had understood Mr. Dearing was a member of the firm. Which of the Mr. Dear-ings ? Doubtless him who had denied that he was a joint maker of the note in suit, and not the other, who had submitted to .a judgment; for as to the latter, the fact whether he was a co-partner was not litigated. It is however argued that the witness does not testify of his own knowledge that James H.

Dearing was a partner of the house of Dearing, Sink & Co. but merely from general reputa,tion or rumor. We do not so regard his evidence. He says, “ he had understood," &c. Now “ understood" is the preterit of understand, a verb of very extensive signification, and which, among other things, means to learn, or to be informed. When the witness says, in effect, that he has learned or been informed that Mr.

Dearing was a member pf the firm, it can,not with propriety be assumed that his information was derived from rumor, but a jury might well infer that he .had learned it ■fro.m.an authentic and satisfactory source, even from the party himself; and upon the authority ot the cases cited, the Court would be bound so to intend. 5. The objection to the admissibility of the evidence was not made to any particular question, or answer, of either of the witnesses, but to the testimony en masse.

It is not denied by the counsel for the plaintiffs in error, that a part of the testimony of each witness is unobjectionable ; this being the case, the Court was not, according to a well settled rule, bound to sift the evidence and reject that which was inadmissible. The party objecting, should point particularly to so much as he would have excluded from the jury. 6. The judgment against Sink and W. J.

Dearing should not have been entered until the issue as to their co-defendant was tried and upon a verdict being returned against him, then a joint judgment should have been rendered against all the defendants ; against the former by nil dicit, and as to the latter upon verdict. This course was not pursued, but a judgment is rendered against S. and W. J. D. and then in continuation follows a judgment for the same amount against J. H. D. These cannot be regarded as judgments wholly disconnected with each other, or the writ of error would be dismissed for a misjoinder-of plaintiffs.

The irregularity must be considered a mistake of the Clerk, and is provided for by the first

section of the act of 1824, “ To regulate pleadings at common law,” [Aikin’s Digest, 266,] which is as follows: “ No cause shall be reversed by the Supreme Court, or any Circuit Court, for any miscalculation of interest dr other clerical misprision in énter-tering judgment, so as to give costs to the plaintiff in error; but in all such cases the Supreme Court may order' the judgment to be amended at the cost of the plaintiff in error.” ■ It was: clearly competent for the plaintiffs in error to have obtained an amendment of the judgment on motion to the County Court; and we now direct the judgment to be so amended as to make it conform to what we have stated to be the law.

And the plaintiffs will be charged with the costs of this Court.