Simmons v. Titche

• Decision Date: 13 February 1894
• Parties: SIMMONS ET AL. v. TITCHE ET AL.
• Court: Alabama Supreme Court

14 So. 786

102 Ala. 317

SIMMONS ET AL. v. TITCHE ET AL.

Supreme Court of Alabama

February 13, 1894

Appeal from circuit court, Jefferson county; James R. Banks, Judge.

Action by Titche Bros. against M. R. & L. M. Simmons on a note commenced in justice's court, and removed by certiorari to the circuit court. From a judgment by default in favor of plaintiffs, defendants appeal. Reversed and remanded.

The names of the persons composing the plaintiff firm, nowhere appear in the proceedings. The complaint in the justice's court states that "the plaintiff claims of defendant the sum of $76.98, due by the waive note made by defendant, the _____ day of _____, 189-, and payable on the _____ with interest; and plaintiff avers, that as a part of said note the defendant waived all his right to claim personal property as exempt. Plaintiff avers, that as a part of said _____ the defendant agreed to pay a reasonable fee, which he also claims, $15.00 dollars. W. T. Hill, Plffs.' Attorney." This paper purports to have been served by the constable on both the defendants, on the 1st of September, 1891. And, the next thing appearing, is an execution issued by the justice, on the 6th of November 1891, against the defendants, in favor of Titche Bros., on a judgment for $88.50, rendered, as therein stated, on the 6th of October, 1891. Afterwards, the defendants applied for and obtained a writ of certiorari and supersedeas, by which the case was carried to the circuit court. No complaint was filed in the cause after it reached that court. The justice, so far as appears, made no return to the writ of certiorari, other than a brief statement of what appeared on his docket, which he certifies to be a complete and exact transcript of his docket, in the cause. How the paper copied above, purporting to be a complaint filed in the case before the justice, got into the circuit court does not satisfactorily appear. It is not marked as filed in the cause. On the 17th of November 1892, as the judgment entry in the circuit court recites, the plaintiffs came "by their attorneys, and the defendants saying nothing in bar or preclusion, as to plaintiffs' right of recovery," it was considered that the plaintiffs ought to recover, but not being advised of the just amount of damage sustained, the court proceeded to hear the evidence, without the intervention of a jury, and assessed the damages at $96.21. Judgment was thereupon rendered against the defendant and S. J. Darby, their surety on the appeal and supersedeas bond, for that amount and costs. The entry then recites, that against the judgment and the execution to be issued thereon, there is no exemption of personal property of the defendants and S. J. Darby, the surety on the appeal bond. The appeal is prosecuted by the parties to the judgment, and the errors assigned are (1) that the court erred in rendering judgment without a complaint being on file disclosing a cause of action; (2) because the court entered judgment in favor of appellees in their firm name; (3) in rendering judgment against the surety on the appeal bond, adjudicating his right of exemptions; (4) the court erred in the judgment rendered; and (5) in rendering a judgment by default, when there was no party plaintiff.

S. J. Darby, for appellants.

HARALSON J.

The general rule is, that all partners must join as parties plaintiff in an action to enforce a claim in favor of a partnership, and cannot sue in their copartnership name. Their individual names are required to be stated, (17 Am. &amp Eng. Enc. Law, 1236;) and, to render a judgment by default in the name of a copartnership, individual names not appearing, is error for which a judgment will be reversed. If a defendant goes to trial, however, on a plea to the merits, he waives it, and cannot raise the...