Loeb & Bloom v. John P. Morton & Co.

| Miss. | Oct 15, 1885

Campbell, J.,

delivered the opinion of the court.

If it be true, as contended by counsel for Loeb & Bloom, that the judgment of John P. Morton & Co. is wholly void for want of service of summons on Bruckner, the lien of their attachment, which was levied on the goods, was not affected by the null judgment, and by virtue of that they have a standing in court to ask that.their rights be preserved. But we think the judgment was not void, and is to be upheld as a valid one against the firm of H. C. Buchanan & Go., composed of Buchanan & Bruckner.

John P. Morton & Co. were creditors of the partnership composed of Buchanan & Bruckner, doing business at Aberdeen. Loeb & Bloom were not creditors of this partnership. Their debtor was H. C. Buchanan & Co., at Okolona, and there is nothing to show that they had any claim against the partnership existing between Buchanan & Bruckner, doing business at Aberdeen, or that Bruckner was in any manner their debtor. They did not sue him or make any claim against him.

Their contention is that the goods’ in the store at Aberdeen were to be taken as the property of H. C. Buchanan & Co., their debtor, because a sign bearing that name was over the door and conspicuously displayed about the house where the goods were kept for sale. The proof is that Bruckner was in charge of the store and transacted its business, and that Buchanan did not live in Aberdeen and was rarely about the store, but because he did business at Okolona under the name of H. C. Buchanan & Co., and that name was on the sign displayed at the place of business in Aberdeen, it is said § 1300 of the code stamped that sign on the goods and branded them, and made them the goods indicated by this brand and to be treated and dealt with as the property of H. C. Buchanan & Co., to wit: H. C. Buchanan doing business under' the name of H. C. Buchanan & Co.

Our view of § 1300 of the code is that it makes “ all the property, stock, money, and choses in action used or acquired in such business” the property of him who transacts the business and liable for his debts, without regard to the sign under which the-business may have been transacted. The statute does not make-the sign the test of ownership, but has regard to who transacts-business and deals with the property as apparent owner, and stamps it as his for the purpose of liability to his creditors. Signs-may deceive and mislead, but there is little difficulty in determining who transacts business as to property, and, without regard to the sign, the question is, Who transacted business with the-property ? He is to be taken as owner of all the property who-transacted the business in which it- was, unless by a proper sign the true ownership is indicated. The business must be done-under the name of the true owner of the property, or else he who transacts the business is conclusively adjudged to be such owner-because of his relation to it.

It is insisted that the judgment of the circuit court denying the-motion there made by John P. Morton & Co. to appropriate the money made under the attachments to the satisfaction of their claim bars this suit. Undoubtedly it would if the circuit court had jurisdiction of the equitable claim made by John P. Morton & Co. to have partnership assets of their debtor applied to partnership debts, in preference to individual debts; but the circuit court could not recognize and enforce such claim. It is peculiar to chancery, and has no recognition in courts of law. It is only in chancery courts that the equity of partners to insist that the firm assets shall be applied to firm debts in preference to the individual liabilities of the members of the partnership is maintained, and it must be assumed that it was on this ground that the circuit court denied the motion which in any other view should have; been sustained.

The decree dissolving the injunction as to Bonnie Bro’s is correct on two grounds : The attachment of Bonnie Bro’s alone was levied on the portion of the goods from which the money in dispute between them and John P. Morton & Co was made, and they are entitled to the fruits of their process. Only the individual interest of H. C. Buchanan in the goods was sold under their attachment, and as his creditors they are entitled to the proceeds. And the levy of an execution on that money by a constable executing the process of the circuit court amounted to nothing, and the case stands as if no such levy had been made. The attachment of John P. Morton & Co. was not levied on the goods before sale, and their judgment was not a lien on the money in the hands of the constable, and their effort to obtain a lien on, or some claim to, the money in his hands, by having an execution from the circuit court placed in his hands and levied by him on the money did not accomplish it.

Affirmed.