78 Ala. 108 | Ala. | 1884
The note introduced in evidence purported to be executed by J. C. Graham, one of the defendants, in the name of the “Ladiga Saw-Mill Co.”; and the action is against the defendants as individuals, doing business under the firm name and style as a partnership.
The note being the foundation of the suit, and its execution not being denied by a sworn plea of non esb factum, it was .properly received in evidence without any proof of its execu
The record shows service only on two of the defendants, Graham and Savage, who alone pleaded to the action. The summons was returned not found as to the defendant JBeckwell. Where this is the case, although the record contains a general recital that “ the parties came by their attorneys,” and the names of all are stated in the margin of the judgment-entry, the presumption on error is, that there was an appearance only by such of the defendants as were served, the recitals being fully satisfied by this construction of the record.— Williams v. Lewis, 2 Stew. 41; Graham v. Roberds, 7 Ala. 719.
If the suit were against the partnership by its firm or common name, without naming the individual members composing it, service of process upon any one or more of the alleged partners would authorize the rendition of a judgment against the firm, as such, which would bind the joint property of all the associates, by virtue of the provisions of the statute. — Code, 1876, § 2904; Haralson v. Campbell, 63 Ala. 278. But, when, as here, the suit is not against the partnership by its common name, but against the individuals constituting the partnership, it is erroneous to render judgment against such defendants as are not served with process. The point was so expressly ruled in Shapard v. Lightfoot, 56 Ala. 506, where the judgment was reversed and the cause remanded. In Savage v. Walshe, 26 Ala. 619, a similar error was held to be clerical, and the judgment was declared not to bind any other persons than those who were before the court. But, under the influence of section 3154 of the Code — which then constituted section 2401 of the Code of 1852 — it was held that the error could have been rectified in the court below, and no motion having been made and refused to that end, a reversal on that ground was refused.
The better practice in such cases seems to us to be, to correct the error complained of, at the cost of the appellant, in this court, and to affirm the judgment as thus corrected ; which is ordered to be done accordingly.