Nall v. Adams

7 Ala. 475 | Ala. | 1845

COLLIER, C. J.

— It may bo questioned, whether the writ and declaration so alledge a continuing partnership, between W. E. & A. M. Nall, as to make the service of process on one, service on both. The note on which the action was founded, is alledged to have been mp.de near two years previous to the commencement of the suit, and they,are described as having signed it as partners, without averring that they were thus connected when the writ issued. Now, may not this have been true, and yet the partnership have ceased to exist before the action was instituted ?

But let it be conceded that W. E. & A. M. Nall are charged as partners at the time the process issued, and it may then be asked, whether the plaintiff was bound to consider the service on one, effectual to bring both of them in Court. We think he was not bound thus to treat it, but could require both of the supposed partners, to be personally notified of the penden-cy of the action. This might be a measure of prudence, as by bringing them thus before the Court, the fact of partnership, if controverted or doubted, could be speedily settled, and all pretence for resorting to Chancery, upon an allegation of the want of notice, would be taken away. Having declared against A. M. Nall, even supposing he had been served with the writ, or that the service of W. E. Nall, was sufficient to bring him in, we think the plaintiff was not bound to proceed to judgment against him, if he became satisfied that he was not a partner, or wished to disavow the efficacy of the service. The Circuit Court on motion,¡should have allowed the plaintiff to discontinue his action against A. M. Nall, or strike his name from the declaration; and the failure thus to proceed is not an omission of which the plaintiff in error can avail himself.

In Oliver v. Hutto, 5 Ala. Rep. 2Í1, we held, that where a writ is sued out against two joint makers of a promissory note, and served on one only, but the plaintiff declares against both, it is not necessary to enter a discontinuance on the record, or to the party not served with process ; if no judgment is rendered against him, this, in legal effect, is a discontinuance, and the judgment against the defendant before the Court will be regular. [See also Wheeler, et al. v. Bullard, 6 Porter’s Rep. 352.] The cases cited are conclusive in principle, to show, that a discontinuance in fact is not necessary.

It follows, from what has been said, that the judgment of the Circuit Court must be affirmed.