Davidson & Brady v. Street & Ferguson , 34 Ala. 125 ( 1859 )

STONE, J.

The complaint in this case describes an account due from “W. Fayette Davidson and Jules Brady,” without styling them as partners. The summons describes them as “W. Fayette Davidson and Jules Brady, late partners under the firm name of Davidson & Brady.” The sheriff returned the summons executed on Brady, and Davidson not found. The bill of exceptions, which must control the judgment entry, (see Vincent v. Rodgers, 30 Ala. 471,) recites that Davidson did not appear. Brady alone pleaded. Under this state of facts, the court was not authorized to render judgment against Davidson. — Code, § 2142; Childress v. Taylor, at June term, 1858, (33 Ala. 185.)

It is not likely that the other questions will be again presented before us, in the form in which they appear in this record. Hence we forbear an expression of opinion on them.

Judgment of the circuit court reversed, and cause remanded.