Baldridge v. Eason

• Decision Date: 27 April 1893
• Citation: 99 Ala. 516,13 So. 74
• Parties: BALDRIDGE ET AL. v. EASON.
• Court: Alabama Supreme Court

13 So. 74

99 Ala. 516

BALDRIDGE ET AL. v. EASON.

Supreme Court of Alabama

April 27, 1893

Appeal from chancery court, Madison county; Thomas Cobbs Chancellor.

Bill by William F. Baldridge and Charles H. Halsey against John Thomas Eason to enjoin the sheriff from levying an execution on a judgment recovered by said Eason against the firm of Baldridge, Murray & Halsey. Defendant demurred to the bill and moved to dismiss the same for want of equity, and also moved to dissolve the temporary injunction. The chancellor sustained the demurrer, and granted each of the said motions. Complainants appeal. Affirmed.

Complainants allege that defendant sued the firm of Baldridge, Murray &amp Halsey, and recovered judgment by default; that the sheriff under an execution, is about to levy upon the property of complainants individually; that they had no notice of the suit, never having been served; and that they have a complete legal defense to the same.

Wm. Richardson, for appellants.

D. D. Shelby and S. Pleasants, for appellee.

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. ^[1] We are of the opinion that the pleading and the judgment entry show that the judgment was rendered against the partnership only, and by its partnership name. 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 summon Baldridge, Murray and Halsey, a firm composed of," etc. 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, Baldridge, Murray & Halsey, is very different from a suit against Baldridge, Murray & Halsey, a partnership composed of, etc. 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 2604, 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. 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: "1961. John Thomas Eason 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," etc. Very different results follow when the members of the firm are sued, and judgment recovered, and when the firm is...