142 Iowa 158 | Iowa | 1909
In construing this section, it must be borne in mind that at common law the liability of members of a partnership was joint, and not several, and that all the known partners were necessary parties defendant, and that no judgment could be entered against one until it was entered against all. One purpose of the statute was to make the liability of partners several as well as joint. Hence the provision that an action might be brought against the partnership as such, and all, or some, or none of the individual members thereof. We think, therefore, that the true construction of this statute is that a plaintiff may prosecute his case to judgment against the partnership alone, or against the partnership and any member thereof which he chooses to make a party, and that lie can enforce his judgment against such defendants without waiting to obtain jurisdiction over other members of the firm, and without losing his right to proceed in a new action on the original cause against “members not made parties.” If the plaintiff chooses to take his judgment against the partnership alone, a judgment against the partnership alone is all that he has. His execution can be no broader than his judgment, nor can it run, without some special order, against any other property than that of the judgment defendant. If he desires an execution against the property of an individual member of the firm, he must first obtain a judgment in some manner. Hnder the Revision of 1860, he could obtain it on scire facias proceedings if he had failed to obtain it in the original proceeding. By section 3468 of the present Code he can obtain it “by a new action.” We must hold, therefore, that the Ander
In view of our conclusions on this point, the decree of the court below must be modified to the extent here indicated, and relief must be denied to the plaintiff Anderson. As so modified, the decree will be affirmed.— Modified and affirmed.