8 S.D. 96 | S.D. | 1895
This was an action brought by the plaintiff against the defendant Harrigan, as maker, and the three other defendants, as guarantors, of a promissory note. The
It seems to be assumed by counsel for both parties in their briefs that the only defect in the complaint on which the motion was based was the omission to state in the title to the action in the complaint that the three defendants last named were partners or constituted a firm. As will have been observed, the fact that they constituted a copartnership is fully set out in the body of the complaint. Did the omission, therefore, to set out in the title the statement that they were partners, render the complaint defective or insufficient? We are of the opinion that it did not. Actions in this state against partners must'be brought against them as individuals, and not against the partnership as such. There would seem, therefore,
The contention of counsel for respondents that partners, sued as such, are sued in a representative capacity, is not tenable. The term ‘representative capacity” is a well understood term, and only applies to a party acting for and in behalf of some other party or estate, Sand not for himself personally. When a party sues or is sued in such capacity, it is necessary that the capacity in which he sues or is sued should appear in tíie title, to show the relation between the party and the estate represented, and that he is in court, not for himself, but for the estate he represents. Partners occupy no such position.
As the motion seems to have been entirely based upon this one alleged defect in the complaint, and has been so treated by the respective counsel, we do not deem it necessary to discuss the sufficiency of the complaint generally. Where counsel, in their motion in such a case, limit themselves to specified grounds, if these grounds are not sufficient to sustain the ruling, an appellate court will look no further, but reverse the ruling or judgment. Judgment reversed, and a new trial ordered.