
    Philips, Appellant, v. Samuel.
    1. Injunction: practice. In a suit to enjoin a judgment on the ground of surprise, the court, without setting aside the judgment, examined into the merits of the original case, and finding that there was no valid defense, refused the injunction. Held, a proper method of procedure. The complainant was not entitled to have the judgment first set aside and his defense then tried by a jury.
    
      2. Practice in Equity: instructions. Error in instructing the jury upon issues submitted to them in a proceeding in equity will not vitiate the judgment if the evidence warrants the finding.
    3. Partnership. An agreement to share profits is prima fade an agreement for a partnership ; but the contrary may be shown.
    
      Appeal from Clay Circuit Court.—Hon. George W. Dunn, Judge.
    Aeeirmed.
    
      J. W. Jenkins and J. D. S. Cook for appellant.
    
      Samuel Hardwicke and D. C. Allen for respondents.
   Henry, J.

This is a proceeding to restrain defendants from collecting a judgment in their favor rendered by the Clay circuit court at its March term, 1875, and to set aside that judgment. The suit on which the judgment was rendered was instituted by defendants against C. M. Ewing, Joseph Y. and Samuel Clark, John Holt and appellant Philips, on a demand against them as members of the co-partnership firm of Ewing, Clark & Co. Philips filed an answer denying'that he was a member of the firm. The cause was set for trial on the docket of the Clay circuit court for March 25th, 1875. Philips alleges, in his petition herein, that his attorney was in attendance on said court and ready for trial on that day, and remained until the 1st day of April, when the court announced that no more jury trials would be had at that term, whereupon his attorney went to Nansas City where he resided, and remained until the court adjourned. On the next day, April 2nd, said cause was tak&n up, in the absence of Philips and his attorney. The cause was dismissed as to Joseph Y. Clark, and judgment rendered against the other defendants.

April 27th this suit was commenced and the prayer of the petition is, that, said judgment be set aside, and that plaintiff be permitted to make his defense,, and that Samuel and his co-plaintiffs be enjoined from enforcing the collection of said judgment, until the cause could be heard. A temporary injunction was granted. When the cause came on for hearing, without setting aside the judgment, the court submitted to the jury the following issues of fact: Was Edward A. Philips a member of the firm of Ewing, Clark & Co. in the business out of which the account mentioned in the pleadings grew ? Or did he permit his name to be used as a member of that firm in the business out of which the account grew ? Or did he permit the other members of the firm to hold him out to the world as a member of that firm in the business out of which the account grew ? Or did he hold himself out to the world as a member of that firm in the business out of which the account grew ? The jury found the issues for defendant, and after hearing evidence on other issues, the court dissolved the temporary injunction, dismissed plaintiff’s bill and entered judgment against plaintiff' and his surety m the injunction bond for damages and costs. From that judgment plaintiff has appealed, and contends that he was entitled to have the judgment in the original suit set aside as to him, and his defense in said action tried by a jury.

In Bresnehan v. Price, 57 Mo. 422, cited and relied upon by appellants, the first sentence of the opinion de°lares that? in that case, the court should have done just what the court did in the case at bar, as to the mode of procedure. It was a case analogous in its facts to this, and Judge Wagner, who delivered the opinion of the court, said: “ It is clear to my mind that the court below erred in dismissing the injunction and then giving final judgment against the plaintiff without hearing his evidence on the merits.”

While one of the instructions given to the jury at the instance of defendant is objectionable, yet as this is a proceeding in equity in which the court might “ " ° have disregarded the verdict of the jury on the issues submitted, and the law declared to the jury, the-error committed in the instruction is no ground for reversing the judgment, if the evidence warranted the finding for defendant by the court. There was evidence tending strongly to prove that defendant was a member of the partnership, and also that he had held himself out and permitted others to represent him as a member of the firm,, on either of which grounds the verdict might well have been for defendants on the evidence.

The instruction which we think erroneous declared that “ if Philips was to receive an annuity out of the profits 3. partnership, of the firm as a part thereof the jury should find the issues against him.” Wiggins v. Graham, 51 Mo. 18; Campbell v. Dent, 54 Mo. 325; Donnell v. Harshe, 67 Mo. 170. An agreement to share profits is prima facie an agreement for a partnership, but the contrray may be shown. Lindley on Partnership, 18. “ Community of profit is not the test of partnership.” Ib.

In this proceeding the appellant had a fair trial of the issues tendered by him in his answer to the petition in the original suit, and for the reasons above stated, the judgment is affirmed.

All-concur.  