Stoddard & Co. v. Davis & Co. , 50 Ala. 21 ( 1873 )

BRICKELL, J.

Under the statutes of this State, judgments, bonds, covenants, or promises in writing of any description whatever binding a partnership, are several as well as joint; and an action on them may be prosecuted against the partnership, by its common or firm name, or against any one or more of the partners. Rev. Code, §§ 2588-89. In this case, the complaint is against the defendants individually, describing them as “late partners;” and it discloses that it is founded on a promissory note made by the partnership. The summons issues against the partners in their individual names, not describing them as late partners. The omission so to describe them is not such a variance, or departure from the complaint, as would have authorized the rejection of a declaration prior to the Code. Then, a declaration would not be stricken from the files, unless there was in it a total departure, or a radical variance from the writ; such as a change of the form or cause of action, or a change of parties. Taylor v. Morrison, 21 Ala. 728; Smith v. Wiley, 19 Ala. 216; Sexton v. Rone, 7 Ala. 829. Under the Code, a motion to strike the complaint from the files, because of a variance between it and the summons, should not be entertained. If such a variance is an available defect, the defect is not in the complaint, which must always precede-the summons; but it is in the summons, and is, therefore, proper matter for a plea in abatement to the summons only.

2. The motion was entirely too late, if it had been well grounded. The defendants had appeared to the action, without objection, and two years thereafter interposed the motion. Such objections must be made within the time allowed for filing pleas in abatement. If not made within that time, all defects they can reach must be regarded as waived.

The judgment of nonsuit is set aside, and the cause remanded.