Gazzam v. Bebee

OIIMOMD, J.

-The writ, in this case, issued against the plaintiff in error and fourteen others, as owners of the steam-boat Courier. 'The writ was served on but six. The action was assumpsit, for work and labor.— The plaintiffs declared against the defendants, as co-partners — and discontinued as to those on whom the writ was not served. A discontinuance was also entered as to John hi. O’Conner, upon whom the writ had been served.

As the writ, in this case, does not describe the defendants as partners, no aid can be derived from the statute, which makes a service on one partner a service on all.

By the fifty-eighth section of the act regulating judicial proceedings at common law, it is declared, “ Where any suit shall be instituted against two or more persons as partners in any firm, if one or more persons, not partners in said firm, shall have been sued as such, the court before whom such suit is pending, shall discontinue said suit against such person or persons, as shall appear not to be partners in said firm, and proceed to judgment and execution against all or any of the defendants in such action, who shall appear to be partners.”

It has been repeatedly held, in this court, that a discontinuance entered as to a party in the cause, on whom the writ has been executed, is a discontinuance as to all. (See Saddler vs. Houston & Gillespie—5th Stewart & Porter, 205—where all the cases are collated.)

The statute above cited, authorises a discontinuance, in a suit commenced against partners, when one or more persons, sued as such, shall appear not to be members of the firm.

To justify a discontinuance against one who is sued as a partner,' and on whom the process has been served, it should appear that he is not a member of the firm; as it is on that condition only, that power is given to discontinue; and when the power is exercised, it should appear on the record that the discontinuance was for that cause. No reason whatever is given here, except that the writ was not executed on John E. O’Conner and others. Therefore, the suit as to them, is dismissed. The reason thus given for the dismissal, is not correct, in point of fact, as it appears from the record that the writ was executed on O’Conner.

The judgment must be reversed.