McKissack v. Witz, Biedler Co. , 120 Ala. 412 ( 1898 )

McCLELLAN, C.J.

Witz, Biedler & Co. instituted this action, December 13, 1892, by attachment against-S. J. McKissack alone ; the affidavit setting forth a debt due from him by account to the plaintiff, and affirming that he had fraudulently disposed of his property. The bond and writ followed the affidavit: the bond was conditioned to pay damages etc. to him alone, and the writ was directed only against his estate. On March 25, 1893, the following memorandum or entry was made by the judge or court: “The plaintiff has leave to amend, attachment, bond and writ, which is done in red ink.” The amendment here intended and referred to consisted in inserting in the affidavit, bond and writ before the name of S. J. McKissack as originally set down in each, the following : “S. J. McKissack and R. L. McKissack doing business under the name of;” so that with the amendment in the affidavit, bond and writ, the action stood against S. J. McKissack and R. L. McKissack doing business under the name of S. J. McKissack. The effect of this amendment was merely to add a new party defendant to the action. It was not to convert the action from one against S. J. McKissack individually to one against a partnership composed of S. J. and R. L. McKissack, but from one against S. J. McKissack individually and solely to one against him and R. L. McKissack as individuals; the added words, “doing business under the name of S. J. McKissack,” being merely descriptive of the persons of the defendants or of the relation existing between them.—Baldridge v. Eason, 99 Ala. 516; Blackman v. Moore-Handley Hardware Co., 106 Ala. 458; Ladiga Saw Mill Co.v. Smith, 78 Ala. 108; Shapardet al. v. Lightfoot, 56 Ala. 506. Such an amendment is clearly within the authorization of the statutes as to pleadings, (Code, §§ 3304, 3331), and as to the affidavit, bond and writ in attachment.—Code, § 564.

The complaint filed in the cause follows the affidavit and writ as amended, and is against “S. J. McKissack and R. L. McKissack doing business under the name of S. J. McKissack,” and claims of them in the plural as “defendants;” and.thus the case stood to the end. The court having stricken a plea filed by R. L. McKissack denying the existence of a partnership, the trial was had on the general issue. Of course the burden was on the plaintiff to prove his alleged debt. It may be admitted that this was done as against S. J. McKissack, and that plaintiff was, therefore, entitled to verdict and judgment against him. There was, however, no evidence that R. L.-McKissack ever owed this debt or any part of it to the plaintiff. His liability was rested by the trial court on the theory that he was a partner of S. J. McKissack at the time and in the business in which the debt was contracted. And this conclusion of the existence of such partnership was arrived at. by assuming that the fact could not be putin issue by R. L. McKissack under this complaint except by special plea denying its existence. And the court, having stricken such special plea, because, as is insisted, it was not seasonably filed, declined to admit any evidence going to show that R. L. was not a partner of S. J. MeKissack. This was clearly and palpably erroneous. The suit not being against a partnership by its firm or common name, but only against individuals described as doing business under a common name, it was upon the plaintiff, seeking judgment against each of the individuals, to show that each owed the debt. This might have been done either by showing that each actually contracted the obligation to pay, or that one only actually participated in the transaction by which the indebtedness accrued, but that the other was his partner in respect of that transaction. And it was clearly competent for the defendant, R. L. MeKissack, to testify, as he was allowed to do, that he never had any transaction with the plaintiff firm and owed it nothing, and also, that he was not a partner of S. J. MeKissack at the time of the transaction, before nor since, which the court would not allow him to do. Such testimony was not in denial of the capacity in which he was sued, for he was not sued as a partner but as an individual; and its exclusion cannot be justified on the doctrine which obtains where the defendant is sued in some special capacity, to the effect that such capacity can be put in issue only by special plea (Espalla v. Richardson, 94 Ala. 159), even if that principle is applicable to suits against a partnership at all. The error of the court in excluding this evidence, however, is not presented here so as to be available to R. L. MeKissack. The ruling of the court in this regard was clearly not of injury to the defendant, S. J. MeKissack. It is assigned here jointly by both of the defendants. Under these circumstances, R. L. MeKissack, who alone was prejudiced by the ruling, can take nothing by the assignment.—Kimbrell v. Rogers, 90 Ala. 339; Rudulph v. Brewer, 96 Ala. 189 ; Hillins v. Brinsfield, 113 Ala. 394. But, as has been indicated, R. L. MeKissack was allowed to testify “that he never owed plaintiff a cent in his life, that he never for himself or with another bought anything from plaintiff or authorized any one else to buy anything from plaintiff, nor was he ever in any manner indebted to plaintiff.” With this evidence in the case, the court gave the affirmative charge for the plaintiff against both defendants. This was erroneous, no matter what other evidence was introduced. So it is of no consequence that the bill of exceptions does not purport to set out all the evidence. And the action of the trial court in giving this instruction is separately assigned as error by R. L. McKissack in this court on leave granted to sever in the assignment. This ruling is, therefore, properly presented for review, and on account of it the judgment of the circuit court must be reversed.

All other assignments of error are made jointly by the appellants. On the evidence in the bill of exceptions— and we will not presume there was other evidence far the purpose of putting the lower court in error — plaintiff was entitled to the affirmative charge against S. J. McKissack. On this state of case, the rulings assigned would not be of injury to him, and though they be erroneous, would not avail to reverse the judgment at his instance. On the principle stated above, we cannot reverse those rulings, assigned as they are jointly by both appellants and lacking in prejudice to one of them.

Moreover, for the most part these rulings could not be reviewed on this record if separately assigned, for that they either should be shown by the bill of exceptions, and, in fact, appear only by the record proper, or belonging to the record proper, they ai’e attempted to be shown here only by copying into the transcript the bench notes made by the judge on the trial docket, and do not appear in any formal judgment of the court.

Reversed and remanded.