47 So. 307 | Ala. | 1908
This was a suit by the appellee against the appellants, and the judgment was by default. From the summons and complaint, as set out in the statement of this case, it appears that the names of the partners composing the plaintiff firm are set out in the summons, and the complaint states the plaintiff to be “Liipfert-Scales Co., a partnership, as aforesaid.” The first insistence of the appellants is that as the names of the partners plaintiff are not set out in the complaint, and a partnership cannot sue as such without the individual names, the judgment by default is without force. In the cases in which it has been held that a judgment by default is erroneous, on account of the failure to set out the individual names of the partners, it is stated that said names “nowhere appear in the record.” — Simmons et al. v. Titche Bros., 102 Ala. 317, 14 Southt. 786; Lanford v. Patton, Donogan & Co., 44 Ala. 584; Moore v. Watts & Sons, 81 Ala. 261, 265, 2 South. 280. In the last-named.case the court says: “We need not decide whether mentioning the names of the individ
The next insistence is that, as the suit was against P. E. Greer and J. H. Walker, “late partners,” etc., and Walker not being served with process, the plaintiff “had his election to discontinue as to Walker and proceed to judgment against Greer, or to continue as to each of the defendants, and take an alias summons as to Walker,” in accordance with section 42 of the Code of 1896, and that, inasmuch as no order of discontinuance was made as to Walker, the judgment against Greer was erroneous. A sufficient answer to this proposition is that it is not necessary to enter any order of discontinuance as to the party not served. If no judgment is rendered against him, this is, in legal effect, a discontinuance as to him. — Oliver v. Hutto, 5 Ala. 211; State v. Hinson, et al., 4 Ala. 671, 673; Nali v. Adams, 7 Ala. 475, 477; 14 Cyc. 457.
The judgment is reA’ersed, and the cause remanded.