Giovanni v. First National Bank

51 Ala. 176

• Court: Supreme Court of Alabama
• Decided: June 15, 1874
• Status: Published

Opinion

BRICKELL, J.

When there is no community of interest, parties cannot join in an action ex contractu, or ex delicto. A misjoinder of plaintiffs, apparent on the record, is fatal on demurrer, motion in arrest of judgment, or writ of error. 1 Chit. Pl. 66. It is settled by former decisions, that each partner may claim an exemption of property from liability for the payment of debts out of his share of the partnership property. Dunklin v. Kimball, at the last term. If the exemption is claimed, the joint interest in the property exempt is severed, and it becomes the separate property of the partner asserting the exemption. If it remained joint property, it would be subject to legal process against the partnership, for the partnership cannot claim an exemption; that is the personal right of the individual partners. The partnership cannot maintain an action for the taking and sale of property exempt. Each partner can maintain a separate action for the taking and sale of property exempt to him under the law. It is his separate property which is taken, and his individual right which is invaded. A copartner may not join with him in the action, for it is no wrong to him that his separate property is taken, and he can have no interest in the recovery. It is apparent that there is a misjoinder of plaintiffs; and on this ground, the judgment of the circuit court, sustaining the demurrer to the complaint, was correct. It is unnecessary to notice the other causes of demurrer assigned in the circuit court.

The judgment is affirmed.