OPINION OF THE COURT.

PARKER, J.

This is an action brought by defendant in error against the plaintiffs in error in the district court of the Fourth judicial district sitting in and for the county of San Miguel. After service of process upon one of the partners a change of venne was granted to the district court of the First judicial district, sitting in and for Santa Fe county. There judgment by default was entered against the plaintiffs in error.

In the absence of statute the contract of a firm is the joint obligation of all the partners and all must be sued personally. The words “partners under the firm name of-” are ordinarily merely descriptio personae.

Innovations have been made by statute in several States. In some it is provided in terms that a partnership may be sued by its common name without giving the individual names of its members. Leach v. Milburn Wagon Co., 15 N. W. 232; Whitman v. Keith, 18 O. St. 134; Moore & McGee v. Burns & Co., 60 Ala. 269; Davidson v. Knox, 67 Cal. 143. In others it is provided that a partnership may sue or be sued as such and judgment rendered against it as such, which judgment may be satisfied out of the partnership property or the individual property of such members as have been served or appear.

When the action is against the firm as such, service on one member is sufficient service on the firm. This is the New Mexico statute, section 2943, Compiled Laws 1897. This statute is a copy, with but slight immaterial variation, of the Iowa statute which has been construed to authorize actions against a firm by the firm name. Hansmith v. Espy, 13 Ia. 432; Brumwell v. Stebbins Brothers, 83 Ia. 425. The language is susceptible of no other construction.

It is only when a default is made, as in this case, that it becomes at all important to determine whether an action is against a firm as such or against the partners as individuals. If they are all served or appear, in an action against the firm as such, the same kind of a judgment can be rendered as if they had been sued as individuals, viz.: a judgment which could be satisfied out of both the firm property and the individual property of the partners. But partners, when sued, have a right to rely upon the nature of the action as disclosed by the complaint and to act accordingly. If sued as individuals, they know that no judgment can be rendered which will bind them until they have been served with process. If sued as a firm, they know that service on one member of the firm will authorize a judgment which can be satisfied out of the firm property. They might, therefore, feel called upon to appear and defend against an action against the firm, while they might not, unless served with process, if the action be against them as individuals. The plaintiff, therefore, must elect which way he will proceed and follow the procedure required in each case.

In this case the complaint is under the caption as follows : “Red River Valley Company, a corporation, versus George S. Good, F. C. Hitchcock and James Kerr, partners under the firm name of George S. Good & Company, alias Geo. S. Good & Co.” In the body of the complaint the defendant in error alleges:

“That at the times hereinafter mentioned the said defendants, George S. Good, F. C. Hitchcock and James Kerr, were, and now are, copartners, and doing business in said county . . . under the firm name of George S. Good & Co., alias Geo. S. Good & Co.”

The summons is directed to George S. Good, F. C. Hitchcock and James Kerr, partners under the firm name of George S. Good & Company, alias Geo. S. Good & Co., defendants. The return of the sheriff upon the summons shows service upon the said F. C. Hitchcock, which is the only service attempted to have been made in this case. After return day defendant in error filed a motion for default, in which for the first time it appears that it attempted to treat the partnership as a distinct entity and as having been sued rather than the individual members. Likewise in the judgment after-wards rendered the words “defendant, George S. Good, F. C. Hitchcock and James Kerr, partners under the firm name of George S. Good & Co. (otherwise called Geo. S. Good & Co.)” are used. But, of course, this change in the motion for default and in the final judgment in this case from “defendants” to “defendant” can have no effect upon the rights of plaintiffs in error, they forming no part of the procedure employed to acquire jurisdiction over them.

This is clearly an action against the individual members of the firm and not against the partnership as such. The complaint and summons give no hint that service on one partner will be relied upon for judgment which will bind the firm as such. If the judgment is to have that effect, it goes far beyond the scope upon which the partners not served had a right to rely. If the judgment is to be construed as a personal judgment against the partners, as indeed it is in terms, then it must be construed void as to the partners not served. That this is the construction of such pleading given by the courts of other States, see 15 Ency. Pl. and Pr., 850, and notes 1 and 2, where the cases are collected.

It follows that the judgment was erroneous as to the partners not served. In the absence of any application to that effect, it is unnecessary to consider whether this court could modify, and affirm as modified, the judgment so as to make it a personal one against the partner served. A modification so as to make it a judgment against the firm as such is suggested, but this can not be done for the reason already pointed out.

A further question arises on the change of venue, but we do not deem it proper to pass on the same now. The venue was changed after service on one partner, no service being had on the other partners. All defendants moved to vacate the default and tendered answer. Whether this did not amount to a general appearance and a waiver of any irregularity in the change of venue, properly arises for the first time in the district court and will there be decided.

For the reasons stated, the judgment will be reversed and the cause remanded for further proceedings in accordance herewith, and it is so ordered.

Baker, Mann, and Pope, JJ., concur. McFie, A. J., having tried this cause below, and Mills, C. J., being disqualified, did not participate in this decision.