Yarbrough & Co. v. Bush & Co. , 69 Ala. 170 ( 1881 )

SOMERYILLE, J.

It is provided by section 2901 of the-present Code, 1876, that partners, associated together in any lousiness or pursuit, who transact business under a common name,, whether it comprise the names of such persons or not, “maybe sued by their common oíame, and the summons in snch case being served on one or more of the associates, the judgment in the action binds the joint property of all the associates, in the same manner as if all had been named as defendants, had been sued upon their joint liability, and served with process.”

The present suit was brought under this section, by the appellees against the appellants, under their common or firm designation of “C. S. Yarbrough & Co.” A married woman, one Mrs. Julia Flemming, constitutes one of the members of this-partnership, who are thus sued as defendants. The question presented is, whether she can set up lier coverture by' plea in defense of the action. Our judgment is very clearly that she-can not.

"When an action is instituted, under the provisions of this statute, against a partnership by its firm name, without naming-the individual partners who comprise it, and a judgment is rendered against the firm as such, an execution issued on the judgment can only be levied on the partnership property. It will not bind the property of the several individual partners. The action is, therefore, somewhat in the nature of a proceeding in reon rather than in personam. — Haralson v. Campbell, 63 Ala. 278; Moore v. Burns, 60 Ala. 269; McCoy v. Watson, 51 Ala. 466; Wyman, Moses & Co. v. Stewart, 42 Ala. 163.

It is true that a married woman has no power of entering-into any kind of contract on her own' behalf, so as to incur any personal legal liability. Being under legal disability, her contracts are void, except so far as authorized by statute, and the plea of coverture is fatal to any action on them brought with the view of enforcing a persooial liability against her. But. there is no effort here to hold Mrs. Flemming to a personal liability, or to obtain a personal judgment against her. The judgment authorized by the statute is one against the partnership* and it can bind only the partnership property. The plea of coverture was no defense to the action, and the Circuit Court did not err in ordering it to be stricken from the file.

Let the judgment be affirmed.