
    Haggarty v. Burr et al.
    
    1. Judgment! couolusiveuess of: sciee facias. In a proceeding by scire facias to subject the individual property of a partner to a judgment rendered by a justice of the peace against the firm of A. B. B. & Bro., the defendant, A. B. B., denied the existence of a firm of that name, or that he had any connection therewith. The transcript of the justice recited that the defendant was served with notice, and appeared, and that upon motion of plaintiff the name of the defendant was changed from S. M. B. & Co. to A B. B. & Bro., which notico and appearance on the part of defendant was not denied. Held, that the justice thus having jurisdiction, the defendant was bound by the judgment and precluded from retrying questions which must have been involved and determined in the original suit.
    
      
      Appeal from Johnson District Court.
    
    Thursday, June 6.
    Soi. fa. : conolusiveness of judgment. — This is a pro-ceding by soi. fa., under the statute, by plaintiff, a judgment creditor of “A. 13. Burr & Bro.,” to subject the individual property of the partners to tbe payment of his judgment. Tbe adversary parties in tbis preceding are tbe plaintiff and A. B. Burr. Tbe latter rests bis defense ujaon a denial of tbe existence of a firm of “A. B. Burr & Bro.,” and upon a denial of bis being a member of any such firm. On tbe trial in tbe District Court, tbe transcript of a justice of tbe peace of Johnson county was introduced' in evidence, showing tbe following facts: That tbe plaintiff liad commenced a suit before tbe justice against “ S. M. Burr & Co.,” and that “notice was served and duly returned.” On tbe return day tbe docket of tbe justice recites, “ that tbe parties appeared in person, and by their counsel. Motion made by plaintiff’s attorney to substitute for tbe name of tbe defendants, that of A. B. Burr & Bro., and, it appearing from the testimony of A. B. Burr, that that was tbe name of tbe firm, tbe motion was granted and [tbe suit] changed to A. B. Burr & Bro. Tbe court then proceeded to tbe trial of tbe cause, and, after bearing tbe proofs, etc., tbe court decides that there is due tbe plaintiff $54, and judgment is rendered therefor against A. B. Burr dé Bro. for tbe above sum of fifty-four dollars and costs.”
    On tbis judgment an execution was issued, and, no partnership property being found, the writ was returned unsatisfied. And thereupon tbe present proceeding by soi. fa. was begun. Evidence was adduced by plaintiff, showing that tbe “A. B. Burr, who appeared before tbe jitstice, was the same A. B. Burr now in court in this cause on sci.fa., and now present.”
    A. B. Burr, being sworn as a witness for himself, testified, “ That there had never been within his knowledge a firm of A. B. Burr & Bro., nor had he ever been connected with such a firm.”
    The court rendered judgment, establishing the right of the plaintiff to have execution against the individual property of A. B. Burr. The latter appeals.
    
      Samuel H. Fairall for the appellant.
    
      W. E. Miller for the appellee.
   Dillon, J.

It is the opinion of this court, and we so rule, that the appellant, A. B. Burr, is bound by the judgment of the justice, which was against “ -A. B. Burr & Bro.,” and that he cannot, on SG¿' j>a^ re_0p611 the question of the existence of such a firm or his connection therewith.

That judgment cannot be treated as a nullity. "We must presume (Rev., 1860, §4120) that the proceedings of the justice were regular. It is not claimed by the appellant that he was not notified of the action before the justice. The transcript shows that notice was served; that A. B. Burr was in court, and that judgment was rendered against A. B. Burr & Bro. If the justice had no jurisdiction over A. B. Burr, he ought, under the statute, to have shown it. Rev., I860, §4120. This, however, is not pretended by his counsel. On the contrary, his counsel, in his printed argument, admits that in the plaintiff’s suit against “ S. M. Burr & Co.,” process was served upon them by leaving copy with and reading notice to A. B. Burr, who appeared and denied the existence of said firm, at the date at which it was claimed the debt was incurred, and disclaimed that he had ever had any connection with -a firm of that name. ■

The justice having jurisdiction over A. B. Burr, he is barred by the judgment; and as he did not appeal from - it, or in any way endeavor to reverse or annul it, he is precluded from retrying, on scire facias, questions which, from their very nature, were involved and must have been tried and determined in the suit in which the judgment was rendered.

Affirmed.  