McCaskey v. Pollock

• Decision Date: 21 July 1887
• Citation: 82 Ala. 174,2 So. 674
• Parties: MCCASKEY AND ANOTHER v. POLLOCK AND ANOTHER.
• Court: Alabama Supreme Court

2 So. 674

82 Ala. 174

MCCASKEY AND ANOTHER v. POLLOCK AND ANOTHER.

Supreme Court of Alabama

July 21, 1887

Appeal from circuit court, Wilcox county.

Attachment against partnership.

This action was begun by attachment sued out by J. Pollock & Co. a mercantile firm composed of Jacob Pollock and Leopold Lowenstein, against "John W. McCaskey and Hamilton A Ratcliff, composing the firm of McCaskey & Ratcliff," and was begun January 9, 1880. The complaint and other papers follow the description of defendants, as given above. In the circuit court, motion was made to amend the complaint, etc by striking out the designation of defendants, making the same a suit "against McCaskey & Ratcliff, by the firm name only," which motion was granted. The effect sought by this amendment was to make Mrs. Sarah A. Ratcliff a party defendant, instead of "Hamilton A. Ratcliff," her husband. The notice of the levy of attachment was served by the sheriff on "H. A. Ratcliff."

Watts & Son and J. N. Miller, for appellant.

John Y. Kilpatrick and Toulmin, Taylor & Prince, contra.

SOMERVILLE J.

1. We can see no reason why a suit by original attachment, as well as one by summons and complaint, will not lie against a partnership by their common name, where they transact business under such common name, without designating in the process the individuals who constitute the firm. A suit in this mode, by ordinary summons and complaint, is obviously authorized by section 2904 of the Code, as to which there is and can be no controversy. This section provides that such partnership " may be sued by the common name," which means, may be sued in any one of the modes in which other persons may be sued, and this includes the process of attachment. There is no restriction of the right of suing to any particular class of cases. The provision in this section as to the manner of serving the summons, "on one or more of the associates," is a remedial provision, having reference only to suits commenced by summons. It was not intended to prohibit, by implication or otherwise, suits by attachment, which are generally provided for by others sections of the Code. Code 1876, § 3252 et seq.; Yarbrough v. Bush, 69 Ala. 170; Watts v. Rice, 75 Ala. 289.

2. The suit in the present case having been commenced by attachment against the appellants, not under their common or firm name but in the ordinary mode, by mentioning in the writ the names of the alleged individual partners, as required by the rule of the common law, it could properly be changed by amendment into a suit against the firm or partnership as such, describing them by their common name under which they were accustomed to do business. Such amendment, made by striking out the individual names of the partners, and preserving only the common name of the partnership, was...