Hyde v. Brashear

Morphy, J. delivered the opinion of the court. The defendant who is sued as surety on a bond given by Robert B. Brashear, as curator of the estate of Wm. S. Barr, relies for the reversal of a judgment rendered against him on assignment of errors, apparent on the face of the record. C)f these, we deem it necessary to notice only that'which shows . . . _ . the want of capacity of the surviving partners of the firm of W. F. & E. D. Hyde & Co., to sue without joining the representatives of the deceased. In the case of Crozier vs. Hodge, 3 La. Rep., 357, we held, that “ where the obligation is made . . to a commercial firm, the partners composing it must join in the action ; for the debt is due to the partnership collectively, and not to one or other of the partners, as creditors in solido.” On the dissolution of a partnership by the death of a partner, the surviving partners have no right to sue for the debts to the [404] late firm, unless they obtain authority to do so from the proper or be joined in the suit by the representatives of the estate of the deceased. 13 La. Rep., 484; 16 Idem, 31. It is said, that the capacity of the plaintiffs to sue, is not specially denied, and that the general issue does not put them on the . . , . . . proof of that capacity. We conceive, that in this case it is quite immaterial, whether .their capacity be specially denied, or not> because they could not prove a capacity, -which is de-nje¿[ t0 them by law. It would have been different, had the/ J ' sued in a capacity susceptible of being proved, if spepially denied. Under a general issue such capacity would have been considered as admitted. It appears to us, that this action is not maintainable. The incapacity of survmrg partners, to sue ing authority or I)°respntativesrof the deceased, need not be spe-¡cialiy denied, sígnelas error, It is therefore ordered, that the judgment of the District Court he annulled and reversed, and that there he judgment against the plaintiffs as in a case of non-suit, with costs in both courts,