Hardy & Newsome, Inc. v. Whedbee , 244 N.C. 682 ( 1956 )

94 S.E.2d 837 (1956) 244 N.C. 682

HARDY & NEWSOME, Inc., a corporation,
v.
E. D. WHEDBEE, W. E. Ballance and Colony Pine Company, a corporation, and R. C. Bennett, individually, and R. C. Bennett, Trustee for James Bennett and Gunter Bennett, minors, purportedly partners trading as R. C. Bennett Box Company.

No. 314.

Supreme Court of North Carolina.

October 31, 1956.

Whitaker & Jefifress and John G. Dawson, Kinston, for plaintiff appellees.

Jones, Jones & Jones, Ahoskie, and Jones, Reid & Griffin, Kinston, for defendant appellants.

RODMAN, Justice.

Appellant assigns as error: (1) that the court did not allow the motion to dismiss the action as to R. C. Bennett Box Company; (2) failure to nonsuit as to R. C. Bennett and R. C. Bennett, trustee.

The complaint alleges in section 5 that W. E. Ballance "was employed by the defendants E. D. Whedbee and Colony Pine Company, Inc., and by R. C. Bennett, individually, and as trustee for James Bennett and Gunter Bennett, minors, purportedly a partnership and trading as R. C. Bennett Box Company, and that the defendant Ballance was at the time and place hereinafter alleged acting in furtherance of the business of said parties and within the scope of said employment." The answer filed by defendant Bennett admits in section 5 that Ballance "was employed to drive said tractor by R. C. Bennett Box Company."

It is insisted: (1) that R. C. Bennett Box Company, the partnership composed of R. C. Bennett, individually, and as trustee for James Bennett and Gunter Bennett is not a party to the action. Hence, it is said no judgment can be rendered against the partnership. (2) that Ballance was an employee of R. C. Bennett Box Company, a partnership, and not an employee of the individuals composing the partnership. Hence, it is said the motion of R. C. Bennett individually and as trustee to nonsuit should have been allowed.

We do not understand it to be suggested that R. C. Bennett as an individual and as trustee raises any question as to the service of summons or the authority of his counsel to enter a general appearance and to request and obtain continuances. Such an appearance is the equivalent of valid service of process. It waives the service of process and gives to the court the right to render a personal judgment. Youngblood v. Bright, 243 N.C. 599, 91 S.E.2d 559; In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 25 A.L.R.2d 818. Hence the question is: Does the appearance of the partners defending an action in which liability is asserted against the partnership give the court authority to enter a judgment against the partnership? The answer is: Yes. Winborne, J., (now C. J.), speaking in Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892, 895, said: "It is not necessary that all members of an alleged partnership should be served with summons. A partnership is represented by the partner who is served, and as to him a judgment in the action in which he is served would be binding on him individually, and as to the partnership property. But as to a partner not served with summons, the judgment would not be binding on him individually. Nevertheless even after judgment such partner could be brought in and made a party." Heath v. Morgan, 117 N.C. 504, 23 S.E. 489; Palin v. Small, 63 N.C. 484.

All members of the partnership are before the court by service of process or voluntary appearance.

The liability of partners for the torts of the partnership is joint and several. Johnson v. Gill, 235 N.C. 40, 68 S.E. 2d 788; Keith v. Wilder, 241 N.C. 672, 86 S.E.2d 444; Carolina Bagging Co. v. Byrd, 185 N.C. 136, 116 S.E. 90; Smoak v. Sockwell, 152 N.C. 503, 67 S.E. 994. It being admitted that Ballance was employed by R. C. Bennett Box Company, it follows from this admission that the motion of the individual partners for nonsuit on the theory that they are not liable for the acts of Ballance was properly overruled. Weaver v. Marcus, 4 Cir., 165 F.2d 862, 175 A.L.R. 1305.

There is

No error.

JOHNSON, J., not sitting.