Rice v. Doniphan & Smoot

43 Ky. 123, 4 B. Mon. 123, 1843 Ky. LEXIS 109

• Court: Court of Appeals of Kentucky
• Decided: September 28, 1843
• Status: Published

Opinion

Judge Breck.

delivered the opinion of the Court.

Smoot, as a member of the firm of Doniphan & Smoot, was a necessary party, and was properly made a defendant by Rice in his bill. The service of process on Doniphan, and his answer did not, we think, render it unnecessary to serve process upon Smoot. Service of process upon one partner is not deemed sufficient, and equivalent to service upon the other or all the partners. Smoot not having answered, and not being before the Court by service of process or otherwise, the Court erred in hearing the case upon the merits and dismissing complainant’s bill absolutely. It was incumbent upon the complainant to have brought all proper parties before the Court, and it was in the power of the Court, by rule, to have required him to do it within a reasonable time, and upon his failure, to have dismissed his bill without prejudice.

The decree must, therefore, be reversed, and the cause' remanded, with directions to enter a rule upon the complainant to bring the defendant, Smoot, before the Court, and upon his failure to do it within a reasonable time, to dissolve his injunction with damages, and dismiss his bill without prejudice.