Shapard v. Lightfoot

56 Ala. 506

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

BRIOKELL, C. J.

The complaint discloses the individual names of the partners who, it is averred, were doing business under the firm name and style of the “Alabama and Georgia Contracting Company.” It also discloses a cause of action against the partnership; and there is no fact appearing on the record indicating a termination or dissolution of the partnership when suit was commenced. The summons pursues the complaint, and the return of the sheriff, made on it, is, that it was executed by leaving a copy of summons and complaint with one of the partners. A judgment by default was rendered, against all the partners; and this is now assigned as error. The judgment was unauthorized. The statute (Clay’s Dig. 328, § 63) which declared the service of original process on one partner should be deemed a service on all, was not carried into the Code. In place of it, was enacted a statute, by which a mode of suit against a partnership, unknown to the common law, was prescribed: a suit against it, by its firm or common name, in which, service of process on one or more of the alleged partners was sufficient, the judgment operating only on partnership property. — B. C. § 2538. When, as in the present case, the suit is not against the partnership by its common name, but against the individuals composing the partnership, a judgment can be properly rendered only against the defendants served with process.

The judgment is reversed, and the cause remanded.