Hamsmith v. Espy , 13 Iowa 439 ( 1862 )

Wright, J.

We are aware of the'rule in equity, that partnership property should pay firm debts, and individual property individual debts. But suppose a judgment is rendered against persons composing a firm, in their individual names, if individual property is sold under an execution issued thereon, is the sale invalid, though there may be partnership means? We think not. The judgment is several, the writ runs against defendants, as individuals. No step further is necessary in the first instance, (as by scire facias, or the like,) to make individual property liable, and it is not irregular to levy and sell that which the writ commands the officer to seize. By his writ, he does not know of a joint liability, and his simple duty, primarily, is, to make the money from property belonging to either of the defendants named. A creditor of either might, in a proper case, in equity, by a showing of all the facts, compel a resort to the partnership assets. But if this is not done, the individual debtor cannot complain of the illegality of the sale.

Our Code changes the common law, in providing that a partnership may be sued in its firm name. If thus sued, a scire facias is necessary, in order to reach individual property. If, however, a plaintiff follows, as he may, the common law requirement, of giving the individual names, and thus serving and suing all, he may take the property of either partner in satisfaction of his writ. In such a case a scire facias is not necessary.

Motion refused.

Lowe, J., dissenting.