McCaskey & Ratcliff v. Pollock & Co , 82 Ala. 174 ( 1886 )

SOMERYILLE, J.

— 1. We can see no reason why a suit by original attachment, as well as one by summons and complaint, will not lie against a partnership by their common name, where they transact business under such common name, without designating in the process the individuals who constitute the firm. A suit of this kind, by ordinary summons and complaint, is obviously authorized by section 2904 of the Code, as to which there is, and can be no controversy. This section provides, that such partnership “may be sued by the common name” — which means, may be sued in any of the modes in which other persons may be sued; and this includes the process of attachment. There is no'restriction of the right of suing to any particular class of cases. The provision in this section, as to the manner of serving the summons — “on one or more of the associates” — is a remedial provision, having reference only to suits commenced by summons. It was not intended to prohibit by implication, or otherwise, suits by attachment, which are generally provided for, by other sections of the Code. — Code, 1876, §§ 3252, et seq.; Yarborough v. Bush, 69 Ala. 170; Watts v. Rice, 75 Ala. 289.

2. The suit in the present case having been commenced by attachment against the appellants, not under their common or firm name, but in the ordinary mode, by mentioning in the writ the names of the alleged individual partners, as required by the rule of the common law, it could properly be changed by amendment into a suit against the firm or partnership as such, describing them by their common name, under which they were accustomed to do business. Such amendment, made by striking out the individual names of the partners, and preserving only the common name of the partnership, was clearly authorized by section 3156 of the present Code of 1876. — Sims v. Jacobson, 51 Ala. 186.

3. It is contended that the judgment in the present case is one by default,' and should be reversed, on' the ground that the record fails to show that notice of the levy of the attachment was served by the sheriff on a member of the partnership, as required by section 3260 of the Code, regulating the giving of such notices against resident defendants generally. Admitting the appellant’s contention, that in such cases, where a judgment by default has been taken, the same rule would apply as where corporations are defendants, and that the record must show affirmatively that proof was made of the identity of the person on whom the notice was served — that he was in fact a partner — we think the record in this case shows a general appearance in the court below by Mrs. Sarah A. Ratcliff, the appellant, which operates as a waiver of the alleged defect of notice, if any. It is true that the latter part of the judgment-entry contains a recital that “ the defendants, McCaskey & Ratcliff, being called to come into court, came not, but wholly made default]” and if this stood alone, it would sbow a judgment by default. But the entire record, including other recitals of the judgment-entry, is repugnant to this conclusion, and contradicts any supposition of a judgment by default. Nothing can be made clearer than tbat the recital in question is a clerical misprision of the most .manifest kind. The record shows that the parties came by their attorneys, and made numerous motions in the court below ; and especially that the appellant, Mrs. Batcliff, appeared generally, and filed numerous pleas to the merits of the cause, and that the cause was vigorously contested by her from beginning to end. Her right of appeal here can be sustained only on the ground that she was a member of the defendant partnership. The taking of this appeal is an admission of such fact conclusive against her. She has no right to be in this court on any other theory. Her appearance in the cause below was general; and its effects could not be obliterated by the amendment made in the mere form of the action, which changed it from a suit against a partnership, in the ordinary mode, to a suit against them, under the statute, in their common name.

"We have examined the other objections, and do not think they are well taken.

Judgment affirmed.