Seymour v. Thomas Harrow Co.

• Decision Date: 13 January 1887
• Citation: 1 So. 45,81 Ala. 250
• Parties: SEYMOUR and others v. THOMAS HARROW CO.
• Court: Alabama Supreme Court

1 So. 45

81 Ala. 250

SEYMOUR and others v. THOMAS HARROW CO.

Supreme Court of Alabama

January 13, 1887

Appeal from circuit court, Fayette county.

This was an action on a promissory note, commenced by summons and complaint, by the Thomas Harrow Company, doing business in Geneva, New York, against I. Seymour & Sons, a partnership doing business in Fayette county, Alabama, and was founded upon a promissory note, not waiving exemptions, made by defendants to plaintiffs, on the thirtieth January, 1885. Judgment by default was taken against the defendants, and in said judgment there was a recital of waiver of exemptions- First, in the judge's entry on the civil trial docket, as follows: "Judge by default for $116.10, with waiver of exemptions as to personal property." Second, in the minute entry, to-wit: "And in said note, sued on, defendants have respectively waived their right of exemption as to personal property, which waiver was mentioned in the plaintiffs' complaint. It is ordered that the clerk indorse said waiver on said execution."

First. The individual names of the partnership suing should have been given. Nor can it avail the plaintiffs to insist, in answer to this, that they sued as a corporation and not as a partnership, for the following reasons, viz (1) Because they style themselves plaintiffs all through the case; (2) because, in suits by a corporation, its corporate name and existence should be alleged, (1 Brick, Dig. 414 166, 167; Southern Life Ins. Co. v. Roberts, 60 Ala. 431;) (3) because, in the absence of proof, as in this case by the bill of exceptions or otherwise, it will be presumed that said plaintiffs are natural persons, and a partnership rather than that they are a corporation.

Second. The case should be reversed, because no sufficient service of the summons and complaint is shown by the record.

Third. The only remedy for the error complained of is by appeal, and not by motion in the lower court to amend the judgment nunc pro tunc, because the error complained of is a judicial and substantial error, and not a clerical misprision.

J. H. McGuire and Daniel Collier, for appellants.

Watts & Sons and Nesmith & Sanford, for appellee.

CLOPTON J.

The appeal is taken from a judgment by default, rendered in a suit brought by appellee against appellants on a promissory note made by them, and payable to plaintiff, as it appears from the complaint. It is not averred that the plaintiff is a corporation, or an unincorporated company, or a partnership. When a suit is brought by a partnership or an unincorporated company, the individual members are proper and necessary parties, and their names should be set forth in the complaint; but, when the suit is by a corporation, it is...