55 So. 806 | Ala. | 1911
-This is an action of debt on a judgment. The defendants (appellants) are described as “W. J. Ratchford and A. H. Singer, late partners in the firm of Dr. A. S. Kilby & Co., a partnership.” The debt is averred to be due by judgment against the partnership of Dr. A. S. Kilby & Co., and A. S. Kilby, a member thereof, recovered in the circuit court of Covington county, and it is averred that the defendants were members of said partnership. It will be observed that there is no averment that the judgment sued upon was rendered against these defendants personally, that any process was served upon these defendants, or that they took any part whatever in the defense of that suit. The trial court overruled a demurrer to the complaint, and this ruling is assigned for error.
An independent suit may be maintained upon a judgment. Under our statute suit on a partnership obligation may be maintained against the partnership in its firm or common name, service of process being had upon one or more of the partners. But it has been repeatedly decided by this court that the judgment recovered at the end of süch a suit is not a personal judgment against the individuals composing the partnership, that the individual property of the members qf the firm cannot be reached by execution, or any other process, sued out for the collection of the judgment, and that only the partnership property can be reached by Such suit. “These are much more the properties of a proceeding in rem, than of a suit in personam.”— Comer v. Reid, 93 Ala. 391, 9 South. 620, and authori
We had at one time a statute which provided that, when a writ had issued against all the partners of any firm, service on any one of them was deemed equivalent to service on all, and the judgment should be equally valid and effectual against all the defendants. — .Clay’s Dig. 328, § 63. In Demott v. Swaim, 5 Stew. & P. 293, this court indicated very clearly that, in a case calling for a decision of the question, it would hold the statute to be unconstitutional. It had been so ruled in respect to a similar statute in the state of New York. And in the preparation of the Code of 1852, the commissioners, deferring no doubt to what had been said in Demott v. Shoaim, gave the statute its present shape. Since one partner may, in virtue of his agency for the others, dispose of the partnership property, no reason is perceived why the statute may not make a judgment, based upon service on one, binding upon the common property. And this is all the statute under consideration undertakes to do. We are not inclined to- approve the proposition that a judgment, binding under the statute upon the common property of a partnership only, may
Appellee relies upon the cases of Cox v. Harris, 48 Ala. 538, and Sims v. Herzfeld, 95 Ala. 145, 10 South. 227. To refer first to the case last mentioned, we do not consider that it is an authority for the appellee’s position. Rather, the court seems to have been careful to avoid committing itself by any sort of implication to the view here advanced by appellee, for it prefaced its opinion with, the observation that the defendant in that case had not, either by his demurrers or by his pleas, raised the question as to his individual liability upon a judgment against his firm alona The court, permitting the parties to form their own issues and to try the
The demurrer to the complaint should have been sustained.
Reversed and remanded.