IGNATIUS POLLAK, AS SURVIVING PARTNER, &C., APPELLANT,
v.
W. H. HUTCHINSON, APPELLEE
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Poliak & Co. sued partners Hutchinson and O'Hara for goods on account. After default judgment against O'Hara and an adverse verdict against Hutchinson, the plaintiff appealed the Hutchinson judgment, claiming errors in pleading rulings and exclusion of a deposition. The Florida Supreme Court affirmed, holding that without a bill of exceptions showing prejudice, and given that plaintiff already had judgment against the co-partner, reversal would be unavailing.
The judgment is affirmed. The court held that without a bill of exceptions showing what testimony was offered or excluded, and without proof that defendant relied on the complained-of pleas, no prejudice to plaintiff is apparent from the pleading rulings. Moreover, even if errors existed, plaintiff cannot maintain two judgments upon the same cause of action against co-partners in the same suit.
“We cannot see how the plaintiff was injured by any ruling upon defendant's pleas, because it does not appear that defendant gave any testimony under the pleas complained of.”
Establishes that without showing defendant relied on the allegedly erroneous pleas, no prejudice can be found.
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Join FLexlaw to unlock all legal intelligencePoliak & Co. brought suit against Hutchinson and O'Hara as partners for goods sold on account. Default judgment was entered against O'Hara. Hutchinson…
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The Chiee-Justice
delivered the opinion of the court:
Poliak & Co. sued Hutchinson and O’Hara as partners upon an account for goods, &c.
Judgment by default was taken against O’Hara, and Hutchinson pleaded several pleas.
Plaintiff demurred to some of the pleas and as to a portion of them the demurrers were overruled. Plaintiff -also moved to strike out pleas and also that defendant be required to elect which pleas he would rely upon, on the ground that the several pleas which had been sustained by the court were inconsistent or contradictory with eacbi other, which motions were overruled. The court also suppressed a deposition of a witness for. plaintiff. These several rulings were in writing and signed by the Judge.
; • The parties proceeded to trial, and verdict and judgment : were rendered in favor of Hutchinson. Plaintiff then had Han inquest as against O’Hara and had verdict and judgment :against him for the claim sued on, and now appeals from ' the judgment in favor of Hutchinson. The errors assigned relate to the rulings upon the pleadings and the suppression of the deposition.
There is no bill of exceptious bringing up the testimony or the deposition so excluded, or exceptions taken at the trial or the charge to the jury. Ho pleading of the plaintiff was overruled or stricken out except his demurrer to pleas. He appeals for the purpose of obtaining a new trial.
We cannot see how the plaintiff was injured by any ruling upon defendant’s pleas, because it does not appear that •defendant gave any testimony under the pleas complained •of. However bad the pleas may have been, and however •erroneous the ruling may have been, yet the plaintiff was not prejudiced by them unless the defendant offered testimony which was admitted by the court under such pleas. For aught that appears the verdict may have been given by reason of the plaintiff’s failure to prove his cause of action.. There is no bill of exceptions.here showing what he proved or offered to prove at the trial. We .do not know what the suppressed deposition contained, for it is not brought here by bill of exceptions, and we cannot therefore examine it to see .whether it was improperly excluded.
The record, therefore, does not disclose how the plaintiff has been injured or,prejudiced by the-,supposed, erroneous •rulings of the court, The precise .question was. decided in Walter vs. The Fla. Sav. Bank, &c., at this term. But even if there were errors apparent in the record for which the judgment might be reversed, what would it avail the -plaintiff as this case stands ? He has taken his final judgment against O’Hara, one of the partners defendant. And the rule is well settled that the plaintiff cannot have two judgments upon the same cause of action, in the same suit, as against two partners or joint debtors.
See Freeman on Judgments, Second Ed., §§231, 232, 234, 235, and the numerous authorities cited.
The judgment is affirmed.
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Marx Bros. v. Culpepper & Dupont, 40 Fla. 322 (Fla. 1898)…es a joint liability against defendants for goods, chattels and effects sold and delivered to them by the plaintiffs before the 26th day of April, 1893. Partners, in the absence of a statute to the contrary, are jointly liable. Pollak v. Hutchinson, 21 Fla. 128; Tuttle v. Cooper, 10 Pick. 281. Not only are members of a partnership act [*324] ually existing jointly liable for partnership debts, but when persons contract as partners, or hold themselves out to the public as such, or allow themselves to be so…
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Merchs. & Mechanics Bank v. Sample, 98 Fla. 759 (Fla. 1929)…voidable judgment. When the suit was brought by Perry he elected to enforce the obligation as the joint obligation of Bryson and Sample. Having so elected, he was entitled to only one judgment. See Pollak, as surviving partner, etc., v. Hutchinson, 21 Fla. 128; Ferrall et al. v. Bradford, 2 Fla. 508. In Jonas et al v. Burks, 87 Fla. 68, 99 So. R. 252, Mr. Justice Ellis, speaking for the Court, says: [*762] “But if the liability is alleged to be upon a joint contract proof of a several contract will const…