Wright v. Jones

103 Ala. 539 | Ala. | 1893

BRICEELL, C. J.

The appeal is taken from the judgment rendered against the appellant on the contest of the claim that his homestead was not subject to. levy and sale under the execution in favor of the appellee. The contest was in form,'and in its essential nature, an adversary suit, and judgment therein rendered, was a final judgment from which an appeal will lie. The transcript which may properly be certified on the appeal to this court is of the record of the proceedings in the course of the contest. The record of other direct or collateral proceedings had between the same parties, though they may concern the same subject matter, form no part of the record which ought to be certified and, if incorporated in it, must be disregarded. The motion to vacate the levy, and the judgment thereon rendered, form no part of the record of the contest, ought not to have been incorporated in it, and must, with the errors thereon assigned, be disregarded.

A suit may be prosecuted against a partnership by its common name. The judgment rendered binds only the joint or partnership property, and execution issuing thereon, cannot be levied on the separate or individual property of either of the partners. The error underlying the argument of the counsel for the appellant, is the supposition that the suit in which the appellee recovered judgment against the appellant and his co-defendant, was a suit against them as partners by their common name. Such was not the character of the suit. It was a suit against them as joint tort-feasors, by their surnames only, omitting their Christian names. The omission was pleadable in abatement, and the plea must have disclosed their true and proper Christian names. — Cantley v. Moody, 7 Port. 443.

The omission was cured by the appearance of the defendants, pleading in bar. A suit can not be deemed a suit against a partnership by its common name, unless the complaint avers the partnership and the common name, or facts which are equivalent. The averments of the complaint, on which the judgment was rendered, are consistent only with the joint commission by the defendants of the tort complained of — the conversion of the property of the plaintiff; not having any relation or connection with each other, than that which sprung from the commision of the tort.

The action of trover, the form of action in which the judgment was rendered, is an action ex delicto, for the recovery of damages; and at common law, the general issue was the plea of not guilty ; and to it the maxim £< actio personalis moritur cum persona’ ’ applied ; the death of either party abated the action and it was incapable of revivor by or against personal representatives. Statutes have changed this rule of the common law, and the action may now be revived, or may be maintained by or against personal representatives; it shall not die with the person. But it remains an action ex delicto, an action founded in tort, not founded upon or springing out of contract. It is settled by the former decisions of this court, corresponding to the general course of decisions in other States, that an exemption of homestead or of personal property cannot be claimed, when the judgment and execution are for tort. — Vincent v. State, 74 Ala. 274; Meredith v. Holmes, 68 Ala. 190.

There is no error in the record, and the judgment of the circuit court must be affirmed.