Bissell v. Carville & Co.

COLLIER, C. J. 1. It is insisted, that as the defendants below were not served with process bjr the sheriff, but the only evidence of the service is, the appearance of their names subscribed thus, “Bissell & Carville,” to an acknowledgment, it should have been shewn to the circuit court that the acknowledgment was genuine, and made by the authority of both; more especially as it appeared from the writ, that the partnership was at an end. It is clear that one partner cannot, after a dissolution of the partnership, accept the service of process in the name of the firm; and it is equally well settled, that where process has not been executed otherwise than by Written acknowledgment in the name of the [505] defendant, its genuineness must be shewn by proof to authorize a judgment by default. But in the present case, the defendants appeared, and this was sufficient to cure, either the want of, or defective execution of the writ. 2. In Hodges & Puckett v. Ashurst & Son, [2 Ala. Rep. 301,] we held that the mere production of a power of attorney, and the confession of a judgment under its authority, did not make it a part of the record, and an appellate court could not regard it as such, though it was certified with the transcript. But if we were allowed to look into the letter of attorney in the present case, the judgment would not be affected by it; for it is in all respects, such as the judgment recites. So in the case cited, it was decided that it was indispensable to the regularity of a judgment confessed under a power from the defendant, that the authority should be set out in extenso upon the record, though it would always be proper to do so. The execution of the letter of attorney, in the firm name, is no objection to the authority which it confers; for, from any thing appearing to the contrary, both the defendants may have been present, and if both did not actually execute it, yet they may have adopted it as their joint act. The judgment would have been more technical, if it had specially recited the fact, that the execution of the power of attorney, was proved to the court; yet we think it clearly inferrable from the entry, that the court had sufficient proof to satisfy the mind upon this point. It is certainly the duty of this court, to sustain by all reasonable intendments, the acts of inferior tribunals, and this principle should not be disregarded in the case before us. It results from what has been said, that the judgment of the circuit court is affirmed.