Clark's adm'rs v. Stoddard, Miller & Co. , 3 Ala. 366 ( 1842 )

ORMOND, J.

An acknowledgment of the service of process, is sufficient, if shown, to have been made by the party.— The recital in the judgment, that Clark was. served with process, would perhaps be sufficient to show that such proof was made, as the Court could not be certified of the fact, in any other mode. But in addition to this, we find that the adm’rs ■of Clark, came in and consented to become parties to the suit. This is an admission of i-ecord, that the process was served on their intestate, and disposes of the two first assignments of ■error.

By virtue of a .statute of this State, when a writ issues against a firm, the service of the writ by the sheriff on one of the partners, will authorise him to return it, executed on all; or if he return the fact, that it was executed on one, it is an execution in law, on all the partners named in the writ.

At an early period in the history of this Court, in the case of Click and Morgan v. Click, Minor’s Rep. 79, it was held, that an acknowledgment of service of the writ by one partner, was service on all. Without questioning that decision in the present case, we are of opinion, that in this case, the acknowledgment of service of the writ by Clark, was not intended by him as an acknowledgment in the name of, or on behalf of the firm. It is true, he calls himself one of the firm of Clark & Law, but the acknowledgement is expressly made for himself, individual-Iy, and cannot operate beyond that expressed intention. It becomes neeessary, therefore, to consider whether the discontinuance of the suit as to Law, vyas a discontinuance of the action. This question has been decided by this Court, in the case of Earbee v. Evans & Carman, 1 Ala. Rep, 295, where it was held, that under our statute, a plaintiff might discontinue as to those partners on whom the writ was not served.

It is also objected that the suit could not be revived against the personal representatives of Clark. It might perhaps be co.nsidei-ed that when the legislature authorized a suit against any member of a firm in his individual capacity, it would follow, that in the event o'f his death, pending the suit, it would survive against his representative. Whether this is a legith mate conclusion or not, we are satisfied, that under the equity of the act, “to amend judicial proceedings at common law, in regard to suits against co-partners,” approved 1st February, 1839, the revival of this suit against the personal representatives of Clark, may be supported..

It remains but to inquire, whether the want of a'formal issue, appearing in the record, will be available on error.

The current of decision in this Court, for some years past, has been to disregard those matters of form which do not affect the merits of the case, and which are in general, waived by the parties themselves in the Court below. When the parties appear, and submit their cause to a jury, we must presume, if no issue appears in the record, that it was waived by the parties ; that the defendant having no defence to make, permitted judgment to pass without opposition.

Let the judgment be affirmed.