Taylor v. Felder, 3 Ga. App. 106

Taylor v. Felder

3 Ga. App. 106 | Ga. Ct. App. | 1907

Powell, J.

(After stating the facts as above.)

By the Civil Code of 1895, §2638, “Judgments may be entered up and execution issue in the name of a firm or against a firm. And service of process on one partner, with a return of non est inventus as to the others, shall authorize a judgment against the firm, binding all the firm assets and the individual property of the one served.” It is insisted that while Felder, on account of not being served in the original action, wás not bound individually by the judgment then rendered, yet his partner, Mathews, had, as an incident of tiré partnership relation, the power to sign the firm name to the bond, thereby causing all the partners to appear, and rendering all individually bound by the judgment on the bond. Section 2639 of the Civil Code of 1895, which of course is implicitly a part of every contract of partnership in this State, provides: “In all legal proceedings wherein it becomes necessary for partners to give bond, any one of the partners may execute such bond in the firm name.” It is undoubtedly true that any person voluntarily appearing and' subjecting himself to the jurisdiction of the court, whether in person or through some other person authorized to act for him, becomes subject to such judgment as may be rendered. If it is the intention of our law that each partner is to have, as an incident to the contract of partnership, an agency authorizing him voluntarily to appear in court for partners not served, and to submit them individually to the jurisdiction of the court, then Felder could legally be held bound by the judgment on this bond; for such bonds submit both the principal and the surety thereon to the immediate judgment of the court whenever the initial liability, upon which they are conditioned, is established. It should be kept in mind, however, that the law, for many purposes, recognizes the partnership as an entity distinct from the members who compose it. Does section 2639 of the Civil Code, quoted above, confer the power on each partner to execute the bond on behalf of the partnership as an entity, or on behalf of the partnership as individuals? The section of the code last quoted should be construed in the light of the preceding section, and of the general law of partnership. Under the generally-recognized rule on the subject, “one partner has no implied power to enter an appearance in a suit except for the partnership, and can not, by such appearance, bind a partner per*110sonally and individually who is not within the jurisdiction and who has not been served with process.” Phelps v. Brewer, 9 Cush. (Mass.) 390 (77 Am. D. 56); Bowler v. Hudson, 30 Gratt. (Va.) 266 (32 Am. R. 673); Hills v. Ross, 3 Dallas (U. S.), 331 (1 L. ed. 623); D’Arcy v. Ketchum, 11 How. (U. S.) 165 (13 L. ed. 648); Hall v. Launing, 91 U. S. 160 (23 L. ed. 271); Story on Partnership (7th ed.), §114, and note; Conley v. Chapman, 74 Ga. 709. Any partner may appear and defend a suit in the name of the partnership, and the judgment'will bind the partner appearing and the partnership, but not individual .unserved partners. Likewise, when in defence of an action instituted against a partnership a bond is permitted or required, any partner may in the name of the partnership execute the bond, and it will be the binding obligation of the partnership and of the partner making it. The filing of such a bond in court submits to the jurisdiction of the court the partnership and the partner executing the bond. The judgment thereon binds the property of the partnership and of the member who signed, but not the individual property of the other partners. This generalization, however, is not to be construed as deciding whether the other partners may not, by directing such a bond to be executed or by defending under it, or by other acts of ratification, make themselves individually liable upon it. See Freeman v. Carhart, 17 Ga. 348.

Judgment affirmed.