44 Ala. 584 | Ala. | 1870
The appellees, suing in their firm name only, their Christian and surnames no where appearing in the proceedings, recovered a judgment by default against the appellant. He, on appeal, objects to the judgment for the omission .to set out their names properly.
In suits by a partnership; the rule is, that the names of the parties composing the firm should be stated with certainty. — 1 Chit. PI. 256. The failure to do this in judgment by default, nothing appearing in the proceedings by which an amendment could have been made, is a reversible error. Reid & Co. v. McLeod, 20 Ala. 576.
Partners in any business or pursuit may be .sued by their common name, but the judgment binds only their joint property. — Eev. Code, § 2538. They can not object to this because their liability is diminished. But there is no warrant in the statute for the proposition, in derogation of the general rule, that a partnership may sue by their common name merely.
The omission to state the individual names of the partners is not cured, after judgment by default, by Eev. Code, § 2811; that “ no judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action.” We con
The judgment is reversed, and the cause remanded.