At the time the plaintiff herein applied to this court for a writ of prohibition, one of the impelling reasons for the issuance of the writ was that a judgment against the defendants as an association and the individual members thereof had been entered and a motion for a new trial then pending had been submitted, was under advisement by another of the judges of the Third Judicial District Court. While this status prevailed the seven defendants in this action filed a motion before another judge of the same court to set aside the judgment as to these seven defendants. The practice of splitting a case up and getting conflicting elements of the same problem before different judges of the same court cannot be commended.
The application for a writ of prohibition with a writ of certiorari in aid thereof to prohibit the District Court from passing on motions made by the defendants after the motion for a new trial had been taken under advisement has brought before us a voluminous record.
Upon argument the issue was narrowed not to a question of jurisdiction but as to what judgment might be rendered under the jurisdiction acquired by the court as shown by the record. This matter as thus stated we feel is not before us.
From the returns of the process servers of the summons and the findings of the trial court it is shown that John Lloyd was served personally; that Amalgamated Meat Cutters and Butcher Workmen of North America, an unincorporated association, was served by delivering a true copy of the summons to Harry P. Harter, its secretary, that all *Page 95 the members of local No. 311 of the above-named organization were served by delivering a true copy of the summons to Harry F. Harter, secretary, etc. Like returns as to all of the organizations and members thereof are in the record.
After judgment a motion for a new trial on behalf of all was filed, heard, and taken under advisement. After the issuance of the writ of prohibition herein, directed to another of the judges of the court, the trial court having the motion for a new trial under advisement granted the motion for a new trial as to all the parties to the action.
Defendants herein argue that the question has become moot. Whether this be so or not, the record discloses the trial court had acquired jurisdiction of the cause and for certain purposes jurisdiction of the parties. Whether the court upon the evidence may enter a judgment against all or any of the defendants is not before us, and may depend upon what the evidence shows. If the trial court had jurisdiction to grant a new trial as to all of the defendants as defendants' counsel argues, and the judgments as to all defendants having been set aside, there is no occasion for another judge of the same court to set aside the same judgment as to part of the defendants.
It appears counsel are not distinguishing between the jurisdiction of the court over the parties served or who have conferred jurisdiction by a general appearance, and what judgment may be entered upon the evidence.
Aside from the matter of a general appearance and who had authority to make such appearance and for whom, the record and returns upon the summons served indicated a compliance with Section 104-3-26, Revised Statutes of Utah, 1933. The section reads:
"When two or more persons associated in any business either as a joint-stock company, a partnership or other association, not a corporation, transact such business under a common name, whether it comprises the names of such associates or not, they may be sued by such common name, the summons in such cases being served on one or more of the associates, or as provided in section 104-5-11 (5); and the judgment in the action shall bind the joint property of all the associates *Page 96 in the same manner as if all had been named defendants and had been sued upon their joint liability."
The court having jurisdiction of the subject matter, the summons served gave the court jurisdiction of the associations and the members thereof as a group sufficient to authorize the entry of judgment in the action as would bind the joint property interests of all the members in the group. The court, once having acquired jurisdiction of the groups, may proceed to enjoin or determine liabilities as may be found from the evidence. There being a plain, speedy, and adequate remedy at law, the matter of errors is for correction by appeal.
The temporary writ heretofore issued is recalled and quashed, and a permanent writ denied. Costs to defendants.
LARSON, J., concurs.