Wyman, Moses & Co. v. Stewart

42 Ala. 163 | Ala. | 1868

BYRD, J.

A partnership may be sued by its style, whether it comprise the names of the partners or not, and the summons served on one of the associates ; and on such service a judgment may be rendered, which will bind the joint property of all the associates, in the same manner as if all had been made defendants, and had been sued upon their joint liability, and served with process. — Code, § 2142.

This statutory provision does not authorize a creditor who brings his suit in conformity to it, and proceeds to judgment against “the common name,” to run an execution against the individual property of one of the associates. Our construction of the statute limits-the execution in such a case to “the joint property of all the associates.” And upon the analogies of the law, we hold that the creditor, when he elects to bring his suit against the firm or common name, cannot by process of garnishment subject the individual property of one of the associates to the satisfaction of the judgment. A suit in this form is a creature of the statute, and we are not authorized to extend its provisions by judicial construction. We must confine the parties to the remedy it gives. It would be an anomaly to allow- a creditor in such a case to reach the individual property of one of the partners by process of garnishment, when he could not do so by an execution on a judgment rendered against the common name.

The statute clearly gives the. judgment a binding effect against “the joint property,” and gives none against the property of the several partners. We do not intend to intimate any opinion of the construction to be given to the word “binds” in the statute, further than to say, that it is limited to the joint property of the partnership.

2. It appears from the bill of exceptions, that the summons in the original suit was against “Edward M. Dillard and Julius W. East, partners, under the name and style o£ E. M. Dillard & Co.”; and which was the usual form at common law. But the complaint and judgment are both in form against E. M. Dillard & Co., and the acknowledgment of service of the summons and complaint is by E. M. Dillard & Co.

At common law, if the declaration departed from the writ it was objectionable. But the plaintiff, upon application to the court, might be allowed by the. court to amend his declaration, so as to conform to the process. But if the parties went to trial without any objection to the departure, the declaration was decisive of the character of the suit, and it could not be aided or varied by anything contained in the writ.

A party might, at common law, issue a writ in his own name as administrator, &c., without subjecting himself to. any valid objection for so doing. — Tidd’s Pr. 403. But we know of no authority at common la,w which authorized a plaintiff to issue a writ against the members of a partnership as such, and then file a declaration against the firm name, and upon a judgment rendered against the firm name, to treat the suit against the members of the firm individually, and run an execution against their individual property. — Tidd’s Pr. 402 to 407.

In the case before us, we must hold that the suit is against “the common name,” as the complaint and judgment are both against the same; and we conceive that the following decisions sustain this view of the case : — Marshall et al. v. White, 8 Por. 551 ; Crim’s Adm’r v. Crawford, 29 Ala. 623 ; Ikelheimer v. Chapman, Adm’r, 32 ib. 676 ; Davidson & Bradley v. Street & Ferguson, 34 ib. 125.

3. Upon the principles laid down, the court below did not err in refusing the application of appellants to amend the process of garnishment as proposed.

But we are of opinion that the court erred in discharging the garnishee. He had wholly failed to answer the summons, which required him to answer what he was in-indebted to the firm of E. M. Dillard & Co., and not what he was indebted to Julius W. Bast, whose name does not appear upon the process of garnishment. In his answer, he does not mention or allude to E. M. Dillard, or to E. M. Dillard & Co.

We conceive that the answer, although not made a part of the bill of exceptions, nor by any order of court made a part of the record, yet the judgment entry sufficiently refers to and identifies it, to authorize us to treat it as a part of the record, especially when the counsel for appellee have not moved to strike it from the transcript. — Bostwick & Kirkland v. Beach, 18 Ala. 80; Lewis v. DeBose & Co., 29 Ala. 219.

If it had appeared that the court discharged the garnishee in consequence of the refusal of appellants to proceed further on account of the ruling of the court on the application to amend, then we would have affirmed the judgment of the court. But we think that the bill of exceptions shows, whether truly or not, that the court below overruled the application and discharged the garnishee at the same time, without allowing appellants an opportunity to make any further motion in the cause, and the garnishee has failed to answer whether he was or not indebted to E. M. Dillard & Co.

Reversed and remanded.

Judge, J., not sitting.