Nightingale v. Scannell

When one partner sues for an injury to the partnership property, and makes his co-parfcner a defendant for want of his consent to join as plaintiff, the recovery must be entire for the whole injury. The law will not tolerate a division of a joint right of action into several actions. In such a case the partner recovering is liable to account to his co-partner defendant; and the latter being immediately interested in the event of the suit, is not, therefore, a competent witness for the plaintiff. Qucere—Whether such non-joinder of parties plaintiff is permissible.

Appeal from the Superior Court of the City of San Francisco. This was an action for alleged trespass, in seizing and converting certain goods belonging to a partnership whereof plaintiff was a member, and praying damages to the amount of plaintiff’s interest therein. The action is brought against the sheriff of San Francisco county, who is alleged - to have taken the goods by virtue of a writ, and the party at whose instance it was issued. Defendants demurred on the ground of defect of parties plaintiff, whereupon plaintiff filed an amended complaint, in which the plaintiff’s partner is also made party defendant on an alleged refusal to join as plaintiff in the action. Judgment was entered against him by default, the other defendants answering. On the trial the plaintiff called his partner, McCombe, thus made a party defendant, as a witness. The defendants objected to the witness as directly interested in the event of the action. The objection was overruled, and the witness was allowed to testify, under the exception of the defendant. A verdict. was rendered in favor of plaintiff, and judgment entered accordingly. Defendants moved for a new trial, which was overruled, and defendants appealed.