Simmons v. Titche Bros.

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 can not sue in their copartnership name. Their individual names are required to be stated, (17 Amer. & Eng. Encyc. of 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 question for the first time in this court. — Moore v. Watts & Sons, 81 Ala. 265; Moore v. Burns, 60 Ala. 270; Lanford v Patton, 44 Ala. 584; Reid v. McLeod, 20 Ala. 576. In this case, it no where appears who the individual members of the plaintiff firm were, or that it was a corporation, or, that but one person was doing business under that name, which, of itself, implies two or more persons as co-partners. A judgment by default, in our practice, is a judgment for want of an appearance ; or if the defendant appears and does not plead, or appears and pleads and withdraws the plea, the judgment to follow is properly nil dicit.— Grigg v. Gilmer, 54 Ala. 430; Stewart v. Goode, 29 Ala. 477. [320] The judgment entry negatives the idea that the defendants appeared, and there is nothing to show that they did appear or plead, yet, the entry recites that the defendants said “nothing in bar or preclusion,” — the form of a nil dicit judgment. But this is repugnant to the other recitals, and to the record, and must be taken as a clerical misprision for a judgment by default. It is a mere matter of form which yields to facts. — Atlantic Glass Co. v. Paulk, 83 Ala. 404; McCaskey v. Pollock, 82 Ala. 176; McLaren v. Anderson, 81 Ala. 106; Elyton Land Co. v. Morgan, 88 Ala. 434; 1 Brick. Dig. 776, § 41. The judgment rendered, we must hold, was erroneous, because rendered in the name of a firm, without the name of the partners being set out. On the trial of a cause appealed from the justice’s court, or carried from such court by certiorari, to the cir-' cuit court, where the sum exceeds $20, when a sufficient complaint has not already been filed in the justice’s court, which has been certified in a transcript and filed in the circuit court, on which the parties may try the cause, a complaint or statement of the cause of action must be filed in the latter court, and it is error to render judgment .without one, unless the defendant has done something to waive it. — 1 Brick. Dig. 114, § 74; Richmond & Danville R. R. Co. v. Jones, ante p. 212; Elmore v. Simon, 67 Ala. 528; Heyman v. McBurney, 66 Ala. 511; Arundale v. Moore, 42 Ala. 482. The judgment was rendered in the circuit court without any complaint being filed in that court at all. If we presume, as we may, that the one we find in the record, purporting to have been filed in the justice’s court, found its way properly into the appellate court, it was wholly insufficient to support a judgment. It is unnecessary to consider any other question. Reversed and remanded.