62 Miss. 350 | Miss. | 1884
delivered the opinion of the court.
B. F. Bryant sued Crudup, Tabler & Co. before a justice of the peace. The individual names of the members of the firm do not appear in the account sued on or in the summons issued by the justice of the peace. The summons issued by the justice of the peace was made returnable on the 19 th day of February, 1883. The sheriff returned that on the 17th day of February, 1883, he executed the writ “ by personal service on E. A. Nesbit, one of the company of Crudup, Tabler & Co.” On the 19th day of February, 1883, judgment by default was rendered against “ said defendants,” and subsequently a writ of inquiry was awarded to ascertain’ plaintiff’s damages.
Afterward, on. petition of Tabler, Crudup & Co., the cause was removed to the circuit court by certiorari, and upon examination of the record the judgment of the justice of the peace was affirmed' and the defendants appealed.
Several errors are apparent on the record and proceedings of the justice of the peace. The summons issued by him in the case was not executed five days before the return day, as required by law. Code, § 2196. Assuming that Nesbit, the only party served, was a member of the firm sued, the return is fatally defective because it does not show, nor does it appear from the record, that the other members of the firm were non-residents or could not be found. Code, § 1519.
The judgment-of the justice of the peace was joint and several against all the defendants for the amount for which suit was brought, but service of the summons on one of the partners was no notice to other members of the firm either at common law or by the statute. Pittman et al. v. The Planters’ Bank, 1 How. 527; Demoss v. Brewster et al., 4 S. & M. 661, Fuqua et al. v. Tindal, 11 Ib. 465.
In actions against partners some of whom are non-residents or cannot be found, only the partnership assets and those served with process are bound by the judgment. Code, § 1519. The judgment of the justice of the peace should have been reversed and the cause tried de novo in the circuit court. Code, § 2358.
Reversed.
