Ratchford v. Covington County Stock Co.

SAYRE, J. -This is an action of debt on a judgment. The defendants (appellants) are described as “W. J. Ratchford and A. H. Singer, late partners in the firm of Dr. A. S. Kilby & Co., a partnership.” The debt is averred to be due by judgment against the partnership of Dr. A. S. Kilby & Co., and A. S. Kilby, a member thereof, recovered in the circuit court of Covington county, and it is averred that the defendants were members of said partnership. It will be observed that there is no averment that the judgment sued upon was rendered against these defendants personally, that any process was served upon these defendants, or that they took any part whatever in the defense of that suit. The trial court overruled a demurrer to the complaint, and this ruling is assigned for error. An independent suit may be maintained upon a judgment. Under our statute suit on a partnership obligation may be maintained against the partnership in its firm or common name, service of process being had upon one or more of the partners. But it has been repeatedly decided by this court that the judgment recovered at the end of süch a suit is not a personal judgment against the individuals composing the partnership, that the individual property of the members qf the firm cannot be reached by execution, or any other process, sued out for the collection of the judgment, and that only the partnership property can be reached by Such suit. “These are much more the properties of a proceeding in rem, than of a suit in personam.”— Comer v. Reid, 93 Ala. 391, 9 South. 620, and authori [465] ties there cited. The validity of this statute as accomplishing the purpose and effect stated upon its face has not been doubted; but it is in derogation of the common law, and it is not to be presumed that the Legislature intended to make any further innovation than the language requires. Certainly, it cannot be given a com struction which, would result in an invasion of fundamental principles of law and justice.- It is. an universal principle that judgments purporting to be rendered against parties who- have not been served with notice, or who do not intervene for the assertion of rights, have no binding force upon them personally. No one can be bound personally until he has had his day in court — an opportunity to be heard. We had at one time a statute which provided that, when a writ had issued against all the partners of any firm, service on any one of them was deemed equivalent to service on all, and the judgment should be equally valid and effectual against all the defendants. — .Clay’s Dig. 328, § 63. In Demott v. Swaim, 5 Stew. & P. 293, this court indicated very clearly that, in a case calling for a decision of the question, it would hold the statute to be unconstitutional. It had been so ruled in respect to a similar statute in the state of New York. And in the preparation of the Code of 1852, the commissioners, deferring no doubt to what had been said in Demott v. Shoaim, gave the statute its present shape. Since one partner may, in virtue of his agency for the others, dispose of the partnership property, no reason is perceived why the statute may not make a judgment, based upon service on one, binding upon the common property. And this is all the statute under consideration undertakes to do. We are not inclined to- approve the proposition that a judgment, binding under the statute upon the common property of a partnership only, may [466] by a suit upon it be given an effect in personam. We cannot yield assent to the theory that a judgment had at the end of a suit upon a judgment may mean more, and bind other persons than the judgment sued upon. In this suit, which has no other purpose than to recover a judgment which shall be binding upon the defendants personally, the judgment rendered in the circuit court of Covington is not evidence, prima facie or conclusive, of a partnership liability, and the averment of that judgment in the complaint here, though coupled with an averment that the defendants here were members of the partnership there sued by its common name fails to state a cause of action .against these defendants personally. Plaintiff’s remedy against these defendants personally is by a suit on the original demand. It is clear that no original demand is well stated in the complaint. In this conclusion we are sustained by well-considered cases which have adjudicated the question of principle involved. — Oakley v. Aspinwall 4 N. Y. 514; Mervin v. Kumbel 23 Wend. (N. Y.) 293; Bonesteel v. Todd, 9 Mich. 371, 80 Am. Dec. 90; D’Arcy v. Ketchum, 11 How. 165, 13 L. Ed. 648; Mason v. Eldred, 6 Wall. 231, 18 L. Ed. 783. Appellee relies upon the cases of Cox v. Harris, 48 Ala. 538, and Sims v. Herzfeld, 95 Ala. 145, 10 South. 227. To refer first to the case last mentioned, we do not consider that it is an authority for the appellee’s position. Rather, the court seems to have been careful to avoid committing itself by any sort of implication to the view here advanced by appellee, for it prefaced its opinion with, the observation that the defendant in that case had not, either by his demurrers or by his pleas, raised the question as to his individual liability upon a judgment against his firm alona The court, permitting the parties to form their own issues and to try the [467] cause in their own way, ruled only that, as for any objection taken, the judgment was free from error. Nor is it at all clear that in Cox v. Harris the court had under consideration the exact question here presented for decision. The report of the case states that the defendant in that case insisted in this court that his individual liability as a member of the firm, against which the judgment sued on had been recovered, could not be enforced by suit against him. In the opinion there is no statement of the question raised by the demurrer in this case, nor is there any reference to those cases in which the question had been elaborately argued and which we have already cited. The indication is that defendant’s insistance in that case, made for the first time in this court, was that his individual liability for the partnership debts had been merged, in the judgment against the partnership in its common name, and that thus the right of action against the individual partners had been extinguished. If that was the view urged upon the court, it was properly disposed of by reference to section 2589 of the Revised Code, now section 2503 of the Code of 1907, providing that when two or more are jointly bound by judgment, the obligation is in law severable as well as joint. The same result would have followed from the last clause of section 2506 which provides that any one or more of the associates, or his legal representatives, may be sued for the obligation of all. At the common law the obligation of copartners was so far several that if a partner was sued alone and failed to plead in abatement the nonjoinder of his copartners, a recovery might be had against him for the whole amount, and a joint judgment might be enforced against the property of each. — Mason v. Eldred, supra. The doctrine of merger is that “the judgment being a higher order of security than a simple obligation, the [468] entire cause of action is merged in the judgment.”— Fleming v. Ross, 225 Ill. 149, 80 N. E. 92; s. c. 8 Am. & Eng. Atm. Cas. 314. The result was that a judgment against one partner extinguished the liability of his co-partners. But the obligation of copartners was joint, and in a suit on a partnership obligation it was necessary to bring in all copartners except where there was a personal defense. To meet the inconveniences of this state of the law the statutes to .which we have referred were enacted. By them the obligation of partners, whether reduced to judgment or not, are made several as well as joint, so that when one is sued the doctrine of merger does not operate as an extinguishment of the claim against another. The statute having made a partnership suable by its common name, thus permitting the partnership property to be treated as the sole party defendant to the record, there seems to be no reason why such party should not be put upon the same footing as respects the doctrine of merger as the individual partners. So considered, the doctrine had no operation in Cox v. Harris, nor do we see that it has any here. It seems probable, therefore, that it was not intended in Cox v. Harris to hold anything to the contrary of the view we have taken. If, however, the decision there is to be taken as sustaining the contention of appellee in this case, we think fundamental considerations of justice stand in the way, and we are not disposed to follow it. Indeed, a majority of the judges think it needs to be overruled outright. The demurrer to the complaint should have been sustained. Reversed and remanded. All the Justices concur.