Baldridge v. Eason , 99 Ala. 516 ( 1892 )

COLEMAN, J.-

One of the main questions presented by the record, is whether the judgment recovered by appellee Eason in the Circuit Court against the firm of Baldridge, Murray & Halsey was joint and several in its legal effect as provided in section 2604 of the Code, or a judgment against the firm only as provided in section 2605 of the Code.

We are of the opinion that the pleading and the judgment entry show'that the judgment was rendered against the partnership as such only. In the caption of the complaint, the parties are stated as follows :

John Thomas Eason, Plaintiff,

vs.

Baldridge, Murray & Halsey, a firm ■ composed of W. F. Baldridge, Charles H. Halsey and A. F. Murray, defendants. _

There is nothing in the body of the complaint to show that the members of the firm are sued. The summons is as follows: “You are hereby commanded to summons Baldridge, Murray & Halsey, a firm composed of,” &c.

Under our statutes, a suit against William F. Baldridge, A. F. Murray, and Charles H. Halsey, constituting the firm of, or doing business as partners under the name of Bald-ridge, Murray & Halsey, is very different from a suit against, Baldridge, Murray & Halsey, a partnership composed of, &c. The character of the summons to be issued and the effect of service of summons is quite different. A service of the summons issued in this case, served upon either member of the firm, authorized the rendition of judgment against the partnership under section 2605 of the Code ; but to authorize the recovery of a several as well as joint judgment, as provided in section 2601, it was necessary to frame the complaint against them individually as members of the firm, and to direct the summons as set out in the complaint, and to execute a copy of the summons and complaint upon each of the ■ defendants. Where the complaint is filed against the defendants as members of the firm, no judgment can be rendered against those not served.

Although sued as members of the firm, any evidence of debt by contract, which would be admissible in a suit against the firm by its common name, would be admissible against them.—Ladiga Saw Mill Co. v. Smith, 78 Ala. 108; Shapard v. Lightfoot, 56 Ala. 506. The judgment itself in terms in this case is a judgment against the partnership only.

The style of the case on the docket is:

John Thomas Ea~on, )

1961 vs. >-

Baldridge, Murray & Halsey.)

The judgment entry is as follows : “Comes the plaintiff by attorney, and the defendant, being solemnly called into court, came not but made default. • • * It is considered by the court that the plaintiff have and recover of the defendant,”. &o. Very different results follow when the members of the firm are sued and judgment recovered, and when the firm is sued by its firm name only and the judgment is against the firm. In the former, upon proper service of summons and complaint, both the joint and individual property of the members is subject to execution issued upon the judgment. In the latter, only the joint or firm property is subject to execution. The statute (Code, § 2605) is rather peculiar, but such has been its uniform construction.—Comer & Trapp v. Reid, 93 Ala. 391; Haralson v. Campbell, 63 Ala. 278; Yarbrough, v. Bush, 69 Ala. 170; Watts v. Rice & Wilson, 75 Ala. 289; Shapard v. Lightfoot, 56 Ala. 506.

The execution which issued upon the judgment follows the judgment. Its mandate to the sheriff is, “That of the goods and chattels, lands and tenements of Baldridge, Murray & Halsey, defendants, you cause to be made,” &c.

The bill charges that the sheriff is about to levy the execution upon the property of the complainants. It denies that they or either of them was served with notice of the suit in the Circuit Court, or that they had notice of the p endency of that suit, denies laches, and sets out facts, for the purpose of showing they have a meritorious defense to the action at law. The bill prays for an injunction. It admits service of copy of summons and complaint upon Murray, the other member of the firm of Baldridge, Murray & Halsey, and the return of the sheriff shows this to be true. The fraud or undue advantage is alleged in the recovery of the judgment at law. Service on one member of the firm was sufficient to authorize the rendition of the judgment. — Code, § 2605, and authorities supra-. The ground of relief, as stated in the bill, is that plaintiffs were not served with notice. This was unnecessary. The bill is filed under a misapprehension of the character of the judgment rendered in the Circuit Court. Under this judgment, and under the execution in the hands of the sheriff, no levy can be made on other than the property of the firm. The pimple fact that the sheriff threatened, or is about to commit a trespass on their property, is not cause for equitable interference. The Circuit Court is invested with full authority to prevent an abuse of its process. — Code, § 2864 Under the facts of the case, the courts of law afford ample redress. There is no equity in the bill, and the court did not err in so holding.

Affirmed.