Greer & Walker v. Liipfert-Scales Co.

• Decision Date: 30 June 1908
• Citation: 156 Ala. 572,47 So. 307
• Parties: GREER & WALKER ET AL. v. LIIPFERTSCALES CO.
• Court: Alabama Supreme Court

47 So. 307

156 Ala. 572

GREER & WALKER ET AL. v. LIIPFERTSCALES CO.

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Action by the Liipfert-Scales Company against Greer & Walker and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

A. E Pace, for appellants.

W. O Mulkey, for appellee.

SIMPSON J.

This was a suit by the appellee against the appellants, and the judgment was by default. From the summons and complaint, as set out in the statement of this case, it appears that the names of the partners composing the plaintiff firm are set out in the summons, and the complaint states the plaintiff to be "Liipfert-Scales Co., a partnership, as aforesaid." The first insistence of the appellants is that as the names of the partners plaintiff are not set out in the complaint, and a partnership cannot sue as such without the individual names, the judgment by default is without force. In the cases in which it has been held that a judgment by default is erroneous, on account of the failure to set out the individual names of the partners, it is stated that said names "nowhere appear in the record." Simmons et al. v. Titche Bros., 102 Ala. 317, 14 So 786; Lanford v. Patton, Donogan & Co., 44 Ala. 584; Moore v. Watts & Sons, 81 Ala. 261, 265, 2 So. 280. In the last-named case the court say: "We need not decide whether mentioning the names of the individual partners in the summons would or would not be sufficient when all mention of them is omitted in the complaint. In another case it was said that the objection that the suit (which was an action of detinue) was instituted in the name of the partnership, and not in the names of the members, "is bad for two very good reasons, either of which is sufficient. In the first place, the names of the members * * * are set out in the detinue affidavit, in the summons, and in the caption of the complaint. This complied fully with the requirements as to the bringing of suits by a partnership." Foreman v. Weil Bros., 98 Ala. 497, 12 So. 815; Hatcher v. Branch & Co., 141 Ala. 410, 37 So. 690. Under our system of pleading, the complaint follows the summons on the same paper, and both are served upon the defendant at the same time. We hold that in this case the names of the individual members of the plaintiff firm sufficiently appear.

The next insistence is that, as the suit was against P. E. Greer and J. H. Walker, "late partners," etc., and Walker not being served with process, the plaintiff "had his election to discontinue as to Walker and proceed to judgment against Greer, or to continue as to each of the defendants, and take an alias summons as to Walker," in accordance with section 42 of the Code of 1896, and that, inasmuch...