Cowan v. Leming

111 Mo. App. 253 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts). — The court was without authority to award an execution against Leming as administrator of the estate of Leming & Lamson. The .court should have ordered the judgment certified to the Probate court for allowance and classification against thé partnership estate. Sections 191 and 65, R. S. 1899.

A judgment against one partner for a partnership debt is, in States where a judgment may be rendered against the partnership as such, a bar to any suit on the same demand against the partnership. Freeman on Judgments (4 Ed.), sec. 232.

In Hill v. Bell, 111 Mo. l. c. 44, 19 S. W. 959, it was held that an attachment against one member of a firm for a partnership debt binds only his interest in the assets of the firm, though all the partners are made parties defendant, and in Travis v. Tartt, 8 Ala. 574, it was held that where one partner of a firm is garnished to impound the debt of a firm, the firm is not bound as the creditor must be considered as having elected to proceed against the individual member garnished.

The dimissal of the suit as to Leming and the taking of judgment against Lamson had the effect to dismiss the suit against the partnership and left Lamson to answer individually for the debt. Ency. Plead, and Prac. (vol. 15), p. 949; Frank v. Tatum, 87 Texts 204; Simpson v. Schulte, 21 Mo. App. 639. But the taking of the judgment against Lamson alone did not release Leming from his liability for the debt, as members of the partnership in this State are jointly and severally liable for the debts of the firm, and it seems to us that the correct procedure, if plaintiff wished judgment against Leming as well as against Lamson’s estate, would have been to revive the suit gainst the administratrix of Lamson’s individual estate and then moved the court to make Leming a party defendant. We think by the dismissal of the suit as to Leming in the justice’s court, that the plaintiff elected not to proceed against the defendants as partners and abandoned his right to look primarily to the assets of the partnership for the payment of his debt, and having once made the election he cannot now revive the suit against the partnership.

The judgment is reversed and the cause remanded.

All concur.