Starr v. Mayer & Co.

60 Ga. 546

• Court: Supreme Court of Georgia
• Decided: January 15, 1878
• Status: Published

Opinion

Bleckley, Judge.

A partnership is subject to attachment at the instance of its creditors, where each and every member of the firm is in a situation that would expose him to the like process for his individual debts, at the instance of his individual creditors. Of course, if the attachment has properly issued against the partnership, it can be levied upon the partnership effects. 47 Ga., 587; 19 Ib., 84. The case falls under section 3264 of the Code. When the debtor is a partnership, the debtor is in a situation to be attached whenever all the members composing the firm, are in that situation. Section 3276 of the Code provides for a different case. It gives the remedy to a creditor of the partnership, against the individual property of a single member of the firm, who may be in a situation authorizing attachment to issue.

2. Declaration in attachment is amendable as in other cases at common law. Code, §3316. Misjoinder of defendants is amendable. Ib., §3485. The declaration embraced a person as defendant against whom the attachment did not issue. It was proper to strike him out whenever the defect was discovered.

3. We need not rule definitely on the competency of the parol evidence which was rejected. It seems to fall within the general rule, that parol evidence is not admissible to show the terms of a written contract. But the evidence excluded was contained in answers offered by the plaintiffs below, and the complaint that it was ruled out comes from the defendant. Perhaps the defendant objected, and the action of the court may have been induced by that objection. It does not appear who interposed objection; and that the defendant did not, ought to appear affirmatively, in order for him to avail himself of the matter as a ground for new trial. Further, it may be observed, that the verdict is clearly right, and that the excluded evidence, had it been admitted, could not rightfully have varied the result.

4. The sufficiency of the subpoena duces tecum is evidently not a practical question in the case, for the witness produced the document under it. That was enough for the subpoena to accomplish, whether it was good or bad. It brought up the paper.

Judgment affirmed.