Johnston, Nesbitt & Co. v. First Nat. Bank

• Decision Date: 08 February 1906
• Citation: 145 Ala. 378,40 So. 78
• Parties: JOHNSTON, NESBITT & CO. v. FIRST NAT. BANK OF GADSDEN.
• Court: Alabama Supreme Court

40 So. 78

145 Ala. 378

JOHNSTON, NESBITT & CO. v. FIRST NAT. BANK OF GADSDEN.

Supreme Court of Alabama

February 8, 1906

Appeal from City Court of Gadsden; John H. Disque, Judge.

"To be officially reported."

Action by Johnston, Nesbitt & Co. against the First National Bank of Gadsden. From a judgment in favor of defendant, plaintiffs appeal. Dismissed.

W. I. Grubb, for appellants.

A. E. Goodhue, for appellee.

DENSON, J.

In the summons the plaintiffs are described as A. S. Johnston, W. D. Nesbitt, and W. D. Carr, partners as Johnston, Nesbitt & Co., and the complaint follows the summons. This made the suit one by the plaintiffs as individuals, and not one in the name of a partnership; the words "partners as Johnston, Nesbitt & Co." being merely descriptio personæ. Baldridge v. Eason, 99 Ala. 516, 13 So. 74; Compton v. Smith, 120 Ala. 233, 25 So. 300; Bolling v. Speller, 96 Ala. 269, 11 So. 300. Moreover, the suit could not have properly been brought in the name of the partnership. Moore v. Burns, 60 Ala. 269; Lanford v. Patton, 44 Ala. 584.

The certificate of the clerk shows the appeal was taken by a partnership, and not by the plaintiffs, as designated in the summons and complaint. It follows that we cannot entertain the appeal, and it must be dismissed.

Appeal dismissed.

HARALSON, TYSON, SIMPSON, and ANDERSON, JJ., concur.