Walsh v. Kirby

Opinion by Mr. Justice Elkin, This is an action in trespass against a partnership consisting of two members. Judgment for want of an appearance was entered under the rules of court. On a rule to show cause why the judgment should not be stricken off the learned court below held that the summons had not been properly served and the rule was made [196] absolute. The action is against the partners named trading as a partnership. The sheriff made the following return: “I hereby certify that on the 6th day of January, 1908, I served the within writ upon the within named defendants, F. M. Kirby & Company, by handing to F. M. Kirby, General Manager (and one of the defendants) for F. M. Kirby and Company a true and attested copy of the within writ and making known to him the contents thereof.” The learned court below held that there is no authority for making service upon the general manager of a partnership and that the words “and one of the defendants” do not mean a service upon the defendant so named but were used as descriptive of his position as general manager of the firm. We cannot agree with this conclusion. At most the word “ manager ” may be considered surplusage because the important fact remains that the service was upon a partner, one of the defendants, and the return was so made. The suit was brought in the usual way against a partnership — the purpose being to make the partnership hable in damages for the injuries alleged to have been suffered. The weight of authority seems to be that the service of the writ is good for the purpose of binding the partnership property and assets if made upon one or more of the partners. This is especially true if the partner served is in the control and management of the business. It has been frequently held in our state that a judgment confessed by one partner in the firm name is good against the firm property: Grier & Co. v. Hood, 25 Pa. 430; Ross v. Howell, 84 Pa. 129. One partner may bind his copartners, by an agreement not under seal, to refer any partnership matter: Taylor v. Coryell, 12 S. & R. 243. If the partnership property may be taken in execution to satisfy a judgment confessed by a partner acting within the scope of his authority we can see no good reason why . the partnership should not be bound by a judgment obtained in an adverse proceeding when service is made upon one of the partners. If a partner can [197] bind the partnership by confessing a judgment against the firm why may not the firm be equally bound if the judgment is obtained by adverse process and not by confession? As was said by Chief Justice Gibson in Harper v. Fox, 7 W. & S. 142, “What matter it then whether the judgment has been obtained adversely or by confession if it be against the firm.” We think it is clear on both reason and authority that service upon one or more members of a partnership in a suit instituted against the firm is a good service for the purpose of affecting the partnership with notice and in the event of recovery of binding the partnership property. Of course the personal and separate estate of a partner not served will not be bound by the judgment recovered against the partnership. If it is sought to hold not only the partnership property but the separate and personal estate of each individual partner then the service must be made upon each partner. In other words, the individual and separate estate of a partner is not bound by a judgment against the partnership unless personal service of the writ is made upon the partner whose property is sought to be bound. In the case at bar the sheriff returned that he had served the writ upon the defendants, F. M. Kirby & Company, by handing to F. M. Kirby, general manager (and one of the defendants), a true and attested copy of the writ and making known to him the contents thereof. It would be sticking in the bark to hold that this did not mean what it says. F. M. Kirby was a member of the firm and as such was a defendant and the return so states. Judgment for want of an appearance in the present case is only conclusive of the right to recover. The actual damages, if any, must be ascertained and assessed in a proper proceeding when the record is remitted to the court below. Order making the rule absolute is reversed, judgment reinstated and record remitted for the purpose of having the damages ascertained and assessed.