Kline v. Swift Specific Co.

Lamab, J. The execution was in favor of the firm, and neither the fi. fa. nor the record discloses who constituted the partnership. The affidavit of appeal does allege that Kline, “ a member of the firm of White, Kline & Company, . . being dissatisfied with the judgment [sustaining the affidavit of illegality], enters this his appeal, . . and that he is advised that he has a good cause of appeal,” and that he and the firm are unable, because of bis and their poverty, to pay the cost and give the bond. If the execution had issued against the partnership, and had been levied on Kline’s individual property, he would have been interested in the result, and have been entitled to make defense. Daniel v. Hochstadter, 73 Ga. 144. But here he is not named in the fi. fa., and only the firm as such were parties to the affidavit of illegality. The appeal on its face was clearly the individual act of Kline. Nor is the appeal saved by the provisions of the Civil Code, §4460, that “ when several partners sue or are sued as such, any one of the partners may enter an appeal in the name of the firm.” For here the appeal wg,s not in the name of the partnership, nor was there any offer to amend so as to make it in the name of the firm, under the Civil Code, §5124, which permits an amendment of an affidavit of appeal in forma pauperis. The motion to dismiss being on the ground that the appeal was the individual act of Kline, and there being no offer to amend, it must be considered that the deponent [515] intended the paper to bear its literal import. Standard Co. v. Capital City Guards, 99 Ga. 265; King Co. v. Bowden, 113 Ga. 925; 2 Cyc. 783 (3). Judgment affirmed. By four Justices. Candler, J., disqualified.